§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was December 23, 2017.

To my knowledge, President Trump has still – a month later and counting – not signed an executive order implementing such regulations. The Joint Service Committee published proposed regulations – in the form of a significantly updated Manual for Courts-Martial – on July 11, 2017, it accepted and considered public comments (including mine), and it held a public meeting on August 3, 2017.

But like a boot in swamp mud, the process is stuck.

§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was yesterday.

To my knowledge, President Trump has not signed an executive order implementing the proposed changes to the Manual for Courts-Martial.

Assuming President Trump has not acted, this is the second administration in a row to be significantly tardy in military justice matters. During the Obama administration, we waited more than four years for regulations implementing the 2012 version for Article 120, and we never got an update to Mil. R. Evid. 413 to resolve constitutional problems identified in 2011 (though President Obama was quite diligent about making prosecution-friendly changes to the MCM).

Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until a date established by President Trump (but no later than January 1, 2019). The anticipated effective date of the changes is January 1, 2019.

The Act also requires promulgation of implementing regulations within one year of the date of enactment; so by December 23, 2017. In advance of that deadline the Joint Service Committee published a large number of proposed changes to the Manual for Courts-Martial (noted here), held a public hearing (noted here), and invited public comment.

I attended the hearing and made comments. I also submitted written comments. You can download my written submission from the site here.

My written comments addressed six of the proposed changes, and recommended five additional changes. They were:

Public comment on proposed changes to the Manual for Courts-Martial:

a. Do not eliminate appellate counsel’s right to review the complete record of trial.

b. Do not radically alter the existing plea agreement system.

c. The sentence limitation portion of a plea agreement is not binding upon members.

d. Adopt a modified version of Proposal #2 for impaneling members and alternate members.

e. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134.

f. The proposed change to Mil. R. Evid. 412 is long overdue.

Suggested additional changes to the Manual for Courts-Martial:

a. Clarify that Government counsel ordinarily represents either the prosecution or the appellate government division, and not the Government at large.

b. Increase procedural protections for a person accused of contempt.

c. Limit the use of personal identifiers in court-martial documents.

d. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege.

e. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

Here’s some detail on my comments about the proposed changes.

Read more »

The DoD has formally published the proposed changes to the MCM necessary to implement the Military Justice Act of 2016 (previously discussed here).

The Federal Register notice is available here.

The folder is available here.

The folder includes a single, 636-page PDF titled Annex 1 & 2. Annex 1 is proposed revisions to the current MCM to take effect immediately upon promulgation by the President. Annex 2 is proposed revisions to take effect with the changes made by the MJA (anticipated to occur on January 1, 2019).

The Joint Service Committee is accepting public comments (including electronically at the link above) and will hold a public meeting in August:

Comments on the proposed changes must be received no later than September 11, 2017. A public meeting for comments will be held on August 3, 2017, from 10 a.m. until noon, in the United States Court of Appeals for the Armed Forces building, 450 E Street, NW., Washington, DC 20442-0001. Commentators will be heard in order of arrival and check-in, and will be limited to five minutes.

I plan to both comment and attend the public meeting.

The Federal Register notice includes a request for comment on a specific proposed change to R.C.M. 1103A:

The Department of Defense also requests comments on a proposal by a Federal Advisory Committee, the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP). The JPP’s June 2017 report suggested that Rule for Courts-Martial 1103A as proposed by Annex 1 and Rule for Courts-Martial 1113 as proposed by Annex 2 be further revised to include the following: “Prior to a decision to permit examination of material described in this subparagraph, notice and an opportunity to be heard shall be given to any person whose records are about to be examined and to appellate counsel.” The report making that recommendation is available at​Public/​docs/​08-Panel_​Reports/​07_​JPP_​VictimsAppRights_​Report_​Final_​20170602.pdf. The Department invites public comment on the JPP’s proposal.

R.C.M. 1103A allows appellate authorities – including counsel for the Government divisions and the appellant – to examine sealed matters attached to a record of trial. These sealed matters could – under increasingly rare circumstances – include private information pertaining to an alleged victim (such as mental health records) that were reviewed in camera but not otherwise disclosed at trial.

Last year the Air Force Appellate Government Division asked CAAF to prevent appellate defense counsel from reviewing such material, but CAAF rebuffed the request (discussed here and here). The JSC then proposed changing the R.C.M. to prevent such review (noted here). I submitted a public comment (discussed here) opposing the change. The change persists in this new round of proposals, and the JSC does not offer any rationale for it.

Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until President Trump establishes an effective date that need only be no later than January 1, 2019.

Today a reader forwarded me the proposed revision to the MCM. The DoD will soon publish this proposal on the internet (pursuant to this approval dated Monday). The proposal includes the following three documents (each item is a link to the document hosted on CAAFlog):

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.

Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed (at a glance, these change appear to be the JSC proposed changes for 2017 discussed in this post, about which I submitted a public comment discussed in this post).

Annex 2 to the draft Executive Order, making changes incorporating the MJA. Annex 2 is 619 pages and reproduces Parts I-V of the MCM in their entirety. It also includes an Appendix 2.1 (PDF page 605) containing non-binding disposition guidance for charges, and an Appendix 12A (PDF page 611) listing Presidentially-prescribed lesser included offenses.

In this post I noted the publication of proposed changes to the MCM for 2017. Last week I submitted a public comment regarding those proposed changes. It’s not available on the docket website (yet), so you can read it here.

My comment addresses only one of the proposed changes: the proposal to rewrite R.C.M. 1103A (direct link) to limit appellate defense counsel review of sealed materials attached to the record of trial but not disclosed to the trial participants. This was an idea advanced last year by the Air Force Appellate Government Division (discussed here and here). The proposed change seems to be a direct response to the refusals of the AFCCA and CAAF to judicially rewrite the rule in order to limit such review. In my public comment I assert that:

There is no rational justification to allow appellate military judges to review the complete record of trial but not afford a similar right to appellate counsel (who may – and often do – outrank the judges themselves). Furthermore, protective orders issued by a court of criminal appeals or by CAAF are more than adequate to protect the privacy interests of victims, witnesses, and others whose private affairs may become part of a record of trial by court-martial.

R.C.M. 1103A was established in 2005 and reflects the considered judgment of the President informed by the decisions of the Court of Appeals for the Armed Forces (CAAF) in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). There are no new circumstances that warrant upsetting this settled, functional, and practical rule. The proposed amendment should be rejected.

My comment also suggests a number of additional changes to the MCM. I want to highlight one of these in particular: that the Rules for Courts-Martial explicitly state that Government counsel represent either the prosecution or the appellate government division, but not the Government at large.

Part II of the MCM repeatedly references the prosecution as a party to a court-martial, and so trial counsel should refer to themselves as the prosecution (and not as the Government or the United States). Furthermore, the arguments advanced by attorneys assigned to the various appellate government divisions are not coordinated among the divisions or with any central authority (like the Attorney General), and so the divisions should avoid the exaggerated claim that they speak for the entire Government. CAAF’s Rule 26(a) (and the AFCCA’s Rule 15.3(a)) actually allows each of the appellate government divisions to file amicus curiae briefs without invitation, emphasizing the independence of each division. If, however, each appellate government division represents the entire Government, then the rule would allow the Government to file an amicus curiae brief in support of itself.

This isn’t intended as an attack on the counsel who prosecute courts-martial and court-martial appeals. They’re professionals who represent a side in our adversarial system. But it’s at least incredibly awkward when individual prosecutors or an individual appellate government division personifies the United States. It’s also an uncomfortable characterization in a trial by court-martial where all of the participants are agents of the Executive Branch (and it could have an undue influence on the process). I realize that Article 38(a) states that trial counsel “shall prosecute in the name of the United States,” that Article 70(b) states that appellate government counsel “shall represent the United States,” and that courts-martial are captioned United States v. [Accused]. Nevertheless, I believe that use of the prosecution and the appellate government division makes an important semantic distinction.

I have already made this change in my writing on this blog, generally referring to trial counsel as members of the prosecution and to appellate government briefs as the product of the division involved.

The Manual for Courts-Martial (2016 Ed.) is available here.

In a public notice filed in the Federal Register yesterday and available here, the Joint Service Committee updates the discussion section after ¶ 60.c.(6)(a) in Part IV of the Manual for Courts-Martial to add a paragraph discussing lesser included offenses.

This same discussion section was updated in November (discussed here). Yesterday’s update is identical to the November update except for the addition of the paragraph discussing lesser included offenses.

The new paragraph states:

Lesser included offenses are defined and explained under Article 79; however, in 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser included offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Under Jones, an offense under Article 79 is “necessarily included” in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. 68 M.J. at 472; see also discussion following paragraph 3b(1)(c) in this part and the related analysis in Appendix 23 of this Manual. Practitioners should carefully consider lesser included offenses using the elements test in conformity with Jones. See paragraph 3b(4) in Appendix 23 of this Manual. If it is uncertain whether an Article 134 offense is included within a charged offense, the government may plead in the alternative or, with the consent of the accused, the government may amend the charge sheet. Jones, 68 M.J. at 472-73 (referring to R.C.M. 603(d) for amending a charge sheet).”

 All of our coverage of updates to the MCM is available here.

In a Federal Register notice available here, the Joint Service Committee announces proposed modifications to the Manual for Courts-Martial for 2017 and solicits public comments. Comments are due by January 30, 2017.

Three of the proposed amendments are notable.

Read more »

In a Federal Register notice available here, the JSC publishes new supplementary materials for the Manual for Courts-Martial.

The notice continues the JSC’s recent positive trend of publishing such materials without executive orders (discussed here).

The materials include a new chart of lesser-included offenses (Appendix 12A).

The materials also add – to Appendix 23: Analysis of the Punitive Articles – this discussion of charging Article 134 offenses in the disjunctive:

When charging both clauses 1 and 2, practitioners are encouraged to use the word “and” to separate the theories in one specification, rather than using the word “or” to separate the theories. Practitioners may also allege two separate specifications. At findings, the Trial Counsel or Military Judge must make certain that the record is clear as to whether the trier of fact found that clause 1, clause 2, or both clauses were proven beyond a reasonable doubt. Using the word “and” to separate clauses 1 and 2 in the terminal element allows the trier of fact to except the unproven clause from the specification. This approach forces intellectual rigor in analyzing each clause as distinct and separate. Nothing in this analysis should be read to suggest that a specification connecting the two theories with the disjunctive “or” necessarily fails to give the accused reasonable notice of the charge against him. See United States v. Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (per curiam) (citing Russell v. United States, 369 U.S. 749, 765 (1962)).”

This is a step in the right direction but doesn’t go far enough. As I’ve written before, charging in the disjunctive continues to be a bad idea.

Another addition to Appendix 23 is this discussion of the enumerated offense of adultery in violation of Article 134:

When determining whether adulterous acts constitute the offense of adultery under Article 134, commanders should consider the listed factors. The offense of adultery is intended to prohibit extramarital sexual behavior that directly affects the discipline of the armed forces, respect for the chain of command, or maintenance of unit cohesion. The intent of this provision is to limit the crime of adultery to those situations where the negative impact to the unit is real rather than theorized. This provision should not be interpreted to criminalize sexual practices between two adults with full and mutual consent from each other, but rather, to punish the collateral negative effects of extramarital sexual activity when there exists a genuine nexus between that activity and the efficiency and effectiveness of the armed forces. Cf. United States v. Marcum, 60 M.J. 198, 204-08 (C.A.A.F. 2004) (despite constitutionally protected liberty interest in private sexual behavior between consenting adults, military may regulate sexual conduct to the extent it could affect military order and discipline).

While each commander has discretion to dispose of offenses by members of the command, wholly private and consensual sexual conduct between adults is generally not punishable under this paragraph. The right to engage in such conduct, however, is tempered in a military context by the mission of the military, the need for cohesive teams, and the need for obedience to orders. Cases involving fraternization or other unprofessional relationships may be more appropriately charged under Article 92 or Article 134—Fraternization. Cases involving abuse of authority by officers may be more appropriately charged under Article 133.

This discussion emphasizes that the crux of an adultery prosecution is its deleterious effect on the military mission and not morality or the sanctity of marriage, as I discussed here and here. This discussion does affect the special, heightened degree of prejudice to good order and discipline or service discredit that must exist for adulterous conduct to violate Article 134 (discussed here).

Text of the changes to the MCM signed by the President on Friday (discussed here) are available at the following links:

Federal Register (PDF)

Word Document


Today the President signed an executive order amending the Manual for Courts-Martial. The announcement – but not text of the actual changes – is available here.

This is the second such order this year (the first was Executive Order 13,730 of May 20, 2016, discussed here). It’s hard to predict the contents of this EO since there isn’t a clear list of proposed amendments still pending presidential action. However, there’s a pile of significant changes that are long overdue, like the Part IV materials for the current version of Article 120 (that took effect in June 2012) and a revision to Mil. R. Evid. 412 to incorporate CAAF’s opinions in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), and United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011), that found constitutional deficiencies with the current rule. These (and more) changes were labelled the residuum EO by the Joint Service Committee in 2015 (discussed here).

In a Federal Register notice available here, the Joint Service Committee on Military Justice (JSC) updates the non-binding discussion sections and appendices to the Manual for Courts-Martial to address the recent executive order amending the Manual itself. The notice is another iteration of the positive trend (noted and discussed in detail here) of the JSC publishing these non-binding materials independent of an executive order.

I discussed the recent executive order in this post, where I noted that it made five changes to the Rules for Courts-Martial and the Military Rules of Evidence that are very friendly for prosecutors. The new supplementary materials offer the following commentary on these prosecution-friendly changes:

Read more »

With Executive Order 13,730 of May 20, 2016 (available here), President Obama amended the Manual for Courts-Martial.

The Executive Order makes no significant changes to the JSC’s final proposed amendments, previously discussed here and here.

The amendments do not include the still-missing Part IV language for the newest version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. I’ve previously noted (here, for example) the deeply troubling failure of President Obama to fulfill his duty to update the MCM to address the 2012 changes.

The amendments also do not include an update to Mil. R. Evid. 412 (the military rape shield rule) to incorporate CAAF’s opinions in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) and United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), that found constitutional deficiencies with the balancing test in the rule.

However, the amendments do make a number of significant changes that are very friendly for prosecutors. They include:

Read more »

In a pair of Federal Register notices available here and here, the JSC publishes its final proposed amendments to the MCM (initial proposal discussed here) and also publishes revised supplementary materials.

The proposed amendments make a number of changes that are relatively unsurprising considering recent caselaw.

The revised supplementary materials continue the positive trend (previously noted and discussed here) of the JSC independently publishing these non-binding materials. They include new Part IV discussion sections that state that bona fide suicide attempts should not be charged as criminal offenses (see United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page)), and additions to the analysis of the Military Rules of Evidence that primarily identify which of the 2013 changes were merely stylistic (see my note here).