Considering the effective date for the new Article 60(d) – NDAA Sec. 1706: “Participation by victim in clemency phase of courts-martial process”By
In part five of my six part series about the military justice reforms in the FY14 NDAA, I discussed sections 1702 and 1706 of the NDAA (complete NDAA text available in Word here and in PDF here). Both of these sections made changes to Article 60, which gives the convening authority the power to act on the findings and sentence of a court-martial. Section 1702(b) of the NDAA completely rewrote Article 60(c) of the UCMJ, implementing major changes that limit a convening authority’s previously-unlimited power to disapprove a finding of guilty or reduce a sentence. Section 1706 of the NDAA created a new Article 60(d) that gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.
Within section 1702 is express language making it effective 180 after enactment. But section 1706 does not include such language. Because of this, I made the following statement in part five of my series:
The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.
I’ve since learned of an alternative interpretation that reads the NDAA to make both sections 1702 and 1706 effective 180 days after enactment. I suspect that this interpretation is based on the fact that at the beginning of section 1706 are the words “…as amended by section 1702…,” and that the alternative interpretation reads this language to incorporate the effective date from section 1702 into section 1706. But for the following reasons I respectfully disagree with this interpretation, and I maintain my belief that Congress intended a victim to have the right to submit matters immediately.
For starters, let’s review sections 1702 and 1706 of the NDAA. Section 1702 (PDF excerpt) includes changes to both Article 32 and Article 60 in a total of four subsections:
Subsection (a): Creates the new Article 32. Not relevant to this discussion.
Subsection (b): Rewrites Article 60(c), limiting the convening authority’s power.
Subsection (c): Conforming amendments to modify other references to Articles 32 and 60(c).
Subsection (d): The effective date provisions.
Section 1706 (PDF excerpt) has just three subsections:
Subsection (a): Creates the new Article 60(d), the victim’s right to submit matters (and moving the old (d)&(e) to (e)&(f)).
Subsection (b): Adds language to Article 60(b) about consideration of the victim’s character.
Subsection (c): Conforming amendment to modify a reference to Article 60(d) (now (e)).
The effective date provisions in section 1702(d) are:
(d) Effective Dates-
(1) ARTICLE 32 AMENDMENTS- The amendments made by subsections (a) and (c)(3) shall take effect one year after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.
(2) ARTICLE 60 AMENDMENTS- The amendments made by subsection (b) and paragraphs (1) and (2) of subsection (c) shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.
But section 1706 doesn’t include any express effective date, leading to my belief that it was effective at enactment. However, section 1706 does begin with the following language, which I believe is the source of the alternative interpretation:
(a) Victim Submission of Matters for Consideration by Convening Authority- Section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as amended by section 1702, is further amended–
I don’t agree that this language adopts the effective date from section 1702(d)(2) for four reasons: This language is necessary for another purpose, the effective date in 1702 is expressly limited to certain subsections, Congress’ exclusion of an effective date from 1706 is presumably deliberate, and there are good reasons to see Congressional intent for immediate implementation of a victim’s right to submit matters.
First, this language is necessary for another purpose. The conforming amendments in section 1702(c)(1) make changes to Article 60(d) and (e) prior to their redesignation as Article 60(e) and (f) by section 1706. Without the “as amended by” language in section 1706, a literal interpretation of these changes in section 1702 would lead to an absurd result because they would modify the wrong things. Under my interpretation, the “as amended by” language doesn’t delay implementation, but it also is not mere surplusage.
Second, the effective date in 1702 is expressly limited to “subsection (b) and paragraphs (1) and (2) of subsection (c)” of section 1702. If Congress wanted this to apply more broadly (such as to all changes to Article 60), it would have said so. Under my interpretation, Congress meant what it said.
Third, under the statutory construction principle of expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other), Congress’ express delay of certain enumerated provisions must be read to exclude delay of all the unenumerated provisions. Under my interpretation, Congress didn’t mean what it didn’t say.
Fourth, Congress was undeniably focused on giving a victim a greater “voice” in the court-martial process, and delaying the implementation of section 1706 doesn’t advance that purpose (the delay in the new Art. 32 is distinguishable based on the scope and nature of the change, and the SVC statute delay is distinguishable based on the existing and redundant 10 U.S.C. § 1565b). Under my interpretation, Congress’ intent to maximize victim participation is fulfilled.
Of course, there are pragmatic reasons to want to believe that 1706 is delayed for 180 days, the least of which is the fact that implementation might be difficult (as I discussed in part five of my series, ending with my assertion that “Being a Staff Judge Advocate just got a lot harder.”). SJAs would probably like to postpone the effective date of this new rule. The same is true of defense counsel, who undoubtedly prefer the old rule that lets a convicted service member make a clemency submission without the possibility of contradiction by a victim. This is one of those unusual situations where the defense and the SJA are on the same side in an argument. The problem is the identity of the counter-party: The victim and the special victims’ counsel, who have the ear of Congress, the attention of the press, and a growing extraordinary writ practice.
Soon, a victim will offer a clemency submission and a SJA will advise the convening authority to disregard it based on the interpretation that the new statute is not yet effective. The victim – who now has a conviction to prove the veracity of the allegation and a special victims’ counsel who isn’t afraid to pick a fight – will then complain, file petitions, etc., and those in Congress who seek to strip commanders of even more authority will have additional ammunition for their fight. So, while a SJA may want to read section 1706 as effective at a future date, such a reading is politically treacherous.
That’s not to say that there is no danger in my interpretation, but I think the danger is much less. Specifically, if a victim’s clemency submission is accepted now, and an appellate court later determines that 1706 isn’t supposed to be effective until 180 days after enactment, the court will find error. But I doubt that any court will reach such a conclusion. This doubt is based both on the four reasons discussed above, and also because remedying such an error might be impossible (since unlike other parts of the NDAA, section 1706 is in no way limited to offenses occurring after its effective date, meaning that a remand for a new action after 180 days will trigger the new rule, guaranteeing the victim the right to submit matters anyway).
I also see an added advantage to my interpretation that is best illustrated by imagining the alternative. Imagine that a SJA takes the position that section 1706 isn’t effective until 180 days after enactment. This imaginary SJA then takes some action based on this position (authors a policy memo, rejects a victim’s clemency submission, etc.). But then the SJA reverses course for some reason (a victim complains, the SJA reads this blog post, etc.). Now the defense alleges the error, and it uses the SJA’s own work product against the new interpretation, creating a big, embarrassing mess.
Had this imaginary SJA started with my interpretation and stuck to it, there may be a difference of opinion, but the mess is avoided.