Congress created the Code Committee in Article 146 (10 U.S.C. § 946) and mandated that it “shall meet at least annually and shall make an annual comprehensive survey of the operation of this chapter.” The committee consists of the judges of CAAF, each service JAG and the SJA to the CMC, and two members of the public appointed by SECDEF.

It met on March 5, 2013, the meeting was open to the public, and I had the opportunity to attend. I’ve been carrying around my notes since then, but am taking some time this weekend to catch up on a number of projects and want to share my notes with you.

The meeting began with an extensive brief from the Joint Services Committee. The brief followed a handout that I’ve uploaded here (~2 MB PDF). My notes include:

1. Discussion of changing the standard in MRE 505 to incorporate the involvement of a knowledgeable U.S. official (bringing the MRE in line with language used in the Military Commission Rules of Evidence).
2. Discussion of a rewrite of MRE 412 to incorporate CAAF’s opinions in Gaddis and Ellerbrock. Apparently, the JSC drafted a “legally-accurate” rewrite that was rejected by the National Security Council because it didn’t do enough to protect the privacy rights of an alleged victim.
3. A reminder that the MRE will automatically incorporate the recent changes to the Federal Rules of Evidence on June 1, 2013.
4. Discussion of the question of the maximum authorized punishment for Article 120 (2012), considering the lack of an Executive Order establishing a maximum. My notes include this: “No punishment?”
5. The JSC has proposed (or is considering proposing) an a new enumerated offense under Art. 134 for indecent conduct (returning to the pre-2007 status quo for this offense). Judge Ryan wondered if Congress didn’t preclude this offense by an express omission from the newest iteration of Art. 120.
6. Discussion of a House Armed Services Committee letter to the JSC expressing concern that the military is “woefully inadequate” in prosecuting sexual assault cases when compared to out civilian counterparts. There’s both a JSC study and a NDAA-appointed panel looking at this issue (my notes include “sexual assault comparative study group; 4-month,” but I’m not sure if this is the JSC study or the NDAA panel).
7. Someone in Congress wants an enumerated hazing offense (I feel like we covered this in a recent post, but can’t find it). JSC opposes (note page 9 of the JSC handout linked above).
8. Concern about restricted reports of sexual assault allegations, specifically in the context of a failure of government officials to preserve potentially-exculpatory evidence when a restricted report eventually leads to a criminal prosecution.

A good deal more was discussed and the handout is pretty self-explanatory. Check it out.

The JAGs then all took a turn. My notes include:

1. The AF JAG announced that the AFCCA is getting additional judges to help with the backlog.
2. The Navy JAG announced a new program for new Navy judge advocates: Their first two years on active duty will consist of four 6-month tours in the various practice areas. My notes include, in big block-type, “no detailed cases during this.” It seems that joining the Navy in order to get into the courtroom right out of law school is no longer an option…
3. The Army JAG talked a lot about training, which prompted a question about equality of training opportunities between the prosecution and defense functions. He replied that all training is job neutral.
4. The SJA to the CMC discussed the growth of the Marine Corps judge advocate community, from 435 active duty officers to 569 over the course of two years. He also described last year’s reorganization as designed to “get the right counsel on the right case with the right experience.”

Apologies to the Coast Guard, as I failed to take notes during the CG JAG’s comments.

Then Major General Charles J. Dunlap, Jr., USAF (Ret.), a civilian member of the committee, got a turn. He also submitted a letter to the committee, which I have uploaded here. The committee then adjourned.

Update: A reader provides a clean copy of MajGen Dunlap’s letter (which includes numerous hyperlinks) and the attachments. It’s uploaded here. Thank you!

I’d never been to CAAF before this, and I had a chance to meet some of the extraordinary people who work there and at the JSC. The meeting was incredibly informative. Unfortunately, it was sparsely attended by non-participants, likely because of the cancellation of CAAF’s judicial conference that was scheduled for the following two days. Or maybe it’s because our planned happy hour was also cancelled. But it was worth the trip and I can already recommend that anyone interested in military justice attend next year’s meeting.

LTC Grimes is discussing his Ethics in Military Justice course at The Judge Advocate General’s Legal Center and School on 31(b)log. It’s not quite a MOOC, but he’s using the blog and Twitter to share the syllabus and open the discussion. Check it out.

Jess Bravin of the Wall Street Journal will be doing another book talk about his recently published book about the military commission system. Tomorrow night from 1830 to 1930, the University of California Washington Center will present a conversation between Bravin and Professor Mikchael Shenkman of UCDC and Colombia Law School.  The event will be at 1608 Rhode Island Ave NW, Washington, DC 20036.  Here’s a link to the event’s website.

Jess Bravin, who has broken several important stories as the Wall Street Journal‘s military commissions beat reporter, whill discuss his new book The Terror Courts:  Rough Justice at Guantanamo Bay at 1900 on Wednesday, 20 February at Politics and Prose, 5015 Connecticut Ave., N.W. (202-364-1919).

Here’s an excerpt from the book description:

While much has been written about Guantanamo and brutal detention practices  following 9/11, Bravin is the first to go inside the Pentagon’s prosecution team  to expose the real-world legal consequences of those policies. Bravin describes  cases undermined by inadmissible evidence obtained through torture, clashes  between military lawyers and administration appointees, and political  interference in criminal prosecutions that would be shocking within the  traditional civilian and military justice systems.

CAAFs website now confirms that the judicial conference has been canceled–an apparent victim of the services’ inability to fund attendance due to sequestration concerns.

We received word today that CAAF’s 6-7 March Judicial Conference has been canceled due to the effects of sequestration.  But CAAF’s website still has a conference schedule posted.  We’ll follow up once we’ve confirmed one way or the other.

CAAF has posted the schedule for the 6-7 March Judicial Conference here.

So the CAAF Conference is Mar. 6-7, 2013 (preceded, as usual, by the Code Committee meeting on Mar. 5, 2013), registration form here (which, unbelievably, you still have to mail in).  Zee made a great suggestion this weekend, have a happy hour after day 1 of the conference.  All of our readers would be invited, no host, nothing free, just a gathering at a local watering hole (possibly the San Antonio Bar and Grill in Brookland).  Wanted to gauge interest.  Not to discourage anyone, but I would probably attend just to put a face with a name to a few people.  Any interest?  Maybe we could even swing a CAAFlog t-shirt . . . if you can prove you are the real identity of some of our most mysterious pseudononymous commenters.  

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On Friday, January 11, 2013, the United States Commission on Civil Rights held a hearing on Sexual Assault in the Military. C-SPAN coverage, including video of all three panels, is available at this link. The press release for the hearing (available at this link) details the three panels that addressed the Commission:

Panel 1: Rachel Natelson, Legal Director, Service Women’s Action Network (SWAN); Phillip D. Cave, Commander, U.S. Navy (Ret.), Law Office of Phillip D. Cave; Nancy Parish, President, Protect Our Defenders; Bridget Wilson, Major, California Guard, U.S. Army Reserve, Enlisted (Ret.), Rosenstein, Wilson & Dean, P.L.C.

Panel 2: Professor Dwight H. Sullivan, George Washington University Law School; Professor Elizabeth Hillman, University of California, Hastings, School of Law; Professor Victor Hansen, New England School of Law; Professor David Lisak, Ph.D., University of Massachusetts, Boston, Department of Psychology

Panel 3: Major General Gary Patton, Director, Department of Defense’s Sexual Assault Prevention and Response Office; Nate Galbreath, MSF, Ph.D., Highly Qualified Expert, Department of Defense’s Sexual Assault Prevention and Response Office; Lieutenant General Richard C. Harding, Judge Advocate General, U.S. Department of the Air Force; Vice Admiral Nanette M. DeRenzi, Judge Advocate General, U.S. Department of the Navy; Lieutenant General Dana K. Chipman, Judge Advocate General, U.S. Department of the Army; Major General Vaughn Ary, Staff Judge Advocate to the Commandant of the Marine Corps

The press release also notes the following item of interest to CAAFlog readers:

Active duty and former service members, particularly those who have been victims of sexual assault or have been accused of sexual assault, are encouraged to submit written comments. These public comments may be submitted until COB Monday, February 11, 2013 and may be sent by any of three ways: 1) by mail to 1331 Pennsylvania Ave, NW, Suite 1150, Washington, D.C., 20425, 2) emailed to publiccomments@usccr.gov, or 3) faxed to (202) 376-1163.

I wish I could be in San Francisco on Friday, 28 September.  As announced here, the Hastings Women’s Law Journal will be hosting a forum called, “Fixing a Broken System:  Rape and Sexual Assault in the Military.”

The headline act is Rep. Jackie Speier, sponsor of the STOP Act.  And two of my favorite thinkers about military justice issues — Beth Hillman and Vic Hansen — will also be there, as will military justice practitioners extraordinaire Phil Cave and Bridget Wilson, as well as former Deputy Judge Advocate General of the Army and military commission system convening authority Major General John Altenburg (Ret.), among others.

American University will host counsel from the United States v. Ali, No. 12-0008/AR case for a lunchtime panel discussion on Sep. 12, 2012 at the American University Washington College of Law.  Details here, event flyer here, and registration link here (be sure to choose the “Can The Military Try Civilians? Court-Martial Jurisdiction After United States v. Ali” event from the drop down list).

H/t Prof V.

Here’s the TJAGLCS’s Crim Law Department’s announcement of the demise of the New Developments Course.  Alas, it isn’t just this year’s New Developments Course that’s gone; the course is now extinct.  Sniff, sniff.

Today the Air Force TJAG blog reported that “[t]he Army JAG School has announced that the New Developments Course has been cancelled.”  For an old-timer like me, that seems like  a momentous development.  The New Developments Course has long been a staple in military justice training, with attendees often passing on the knowledge by giving PME summaries of the course when they return to their home commands.

The blog post didn’t indicate the reason for the cancellation.  I assume the concern was fiscal.  The course never struck me as a boondoggle, so I wouldn’t think that it would have been axed as part of the post-GSA “What Happened in Vegas Didn’t Stay in Vegas” ”death to conferences” fervor.  And I never heard of any escort-type scandals (or any scandals of any other sort) associated with the course, so I wouldn’t think it was axed as part of the post-Secret Service “What Happened in Colombia Didn’t Stay in Colombia” anti-scandal fervor.  My guess is that a decision was made that we simply can no longer afford to present what was high quality and very useful training.

I’ve been thinking a lot lately about how the new fiscal environment will affect the military justice system.  Today’s court-martial system looks far different than that of 2002.  Consider that in FY 2011, we tried half the number of special court-martial cases (1,502) that we tried in FY 2002 (3,1097).  I believe that both the military justice system and the judge advocate organizations that support them will look far different in 2022 than they do today.  The main factor that reshaped the military justice system over the past decade was combat.  I believe the main factor that will shape the military justice system over the next decade will be fiscal.

The truth is, the military justice system as a whole spends vast sums of money in wasteful ways with grossly inefficient redundancies.  The military justice establishment is notoriously resistant to change and resistant even more to any change proposed from outside that establishment.  Calls for defending the various services’ prerogatives have held major steramlining reforms at bay thus far.  But when the fiscal drought threatens every aspect of DOD’s water supply, interservice legal redundancies that waste even comparatively small amounts of water will be seen as unjustifiable extravagances.

The fiscal drought will test the military justice establishment.  Will it anticipate the coming climatic change and voluntarily and proactively eliminate redundancies?  Will it play bureaucratic games and seek to preserve redundancies so that when the budget cutters come, the known redundancies can be offered up as eliminations to meet whatever savings quota is assigned to the various services’ military justice establishments?  If that occurs, will outside forces take the lead in reshaping the military justice system and its supporting entities?

The New Development Course’s cancellation suggests that the system’s water supply is already in peril.  Maybe the New Developments Course will be back next year.  Maybe, like the Joint Base Andrews air show, it’ll become a biennial event.  I don’t know.  But what I do believe is that this year’s New Developments Course won’t be the last military justice casualty in a new era of fiscal constraint.

NIMJ is holding a teleconference for media on Monday, March 26, 2012 at noon to discuss the military justice process and the recent shootings in Afghanistan.  More information after the break  Read more »

The annual Art. 146, UCMJ Code Committee public meeting will be held Mar. 6, 2012 at 10:00 am at the CAAF Courtroom, see announcement here.