Congress yesterday passed an amended version of H.R. 6523, the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, and forwarded it to the President.  The final version doesn’t include any provision affecting the new Article 120.  Rather, the three provisions in its military justice section, as discussed here, concern keeping warrant officers on active duty for military justice purposes, expanding military courts’ contempt powers, and calling for enhanced reporting of domestic violence incidents and greater SECDEF oversight concerning domestic violence.  The only provision that amends the UCMJ is the contempt section.

The Senate’s version of the National Defense Authorization Act for Fiscal Year 2011 included a major overhaul of the new Article 120.   S. 3454, § 561.  The House’s original version, on the other hand, called for a study of the new Article 120′s effectiveness.  H.R. 5136, § 1618.  (I can save everyone the time and effort — it’s grossly ineffective.)  But the version of the NDAA that the House passed on Friday — which seems destined to become law — includes nothing about the new Article 120.  H.R. 6523 (available here).

There are three sections in the new bill’s ”Military Justice and Legal Matters” subtitle:

Sec. 541. Continuation of warrant officers on active duty to complete disciplinary action.

Sec. 542. Enhanced authority to punish contempt in military justice proceedings.

 Sec. 543. Improvements to Department of Defense domestic violence programs.

The first of those sections would add this statutory language to the United States Code (but elsewhere than the UCMJ):

A warrant officer subject to discharge or retirement under this section, but against whom any action has been commenced with a view to trying the officer by court-martial, may be continued on active duty, without prejudice to such action, until the completion of such action.

The contempt section would enlarge military contempt power three ways.  First, it would extend contempt authority to CCAs and CAAF.  Second, it would expand the contempt power from its current direct contempt boundaries and also reach disobedience of court orders.  Under the revision, the authority to punish for contempt would reach “any person” who ”willfully disobeys the lawful writ, process, order, rule, decree, or command” of the court.  Finally, it would raise the $100 fine limit to $1,000, while leaving the 30 day cap on confinement in place.

Section 543 directs SECDEF to implement within a year recommendations by the Comptroller General concerning domestic violence programs, including developing a ”Defense Incident-Based Reporting System,” ensuring that domestic violence programs are adequately staffed, develop a plan for obtaining data concerning domestic violence training for chaplains, and developing a plan for SECDEF oversight.

So today’s the day.  Anyone attend the meeting of the Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy.  I am otherwise occupied so I could not, though I am contemplating a written submission. 

Thanks to Anon, again, here is a link to the Panel’s “homepage.”  Ifit asks you for search criteria, enter 73653 in the Committee Number field.   To see the documents the committee is reviewing, click on Meeting and then the link for documents. 

From my review of the Marine Corps’ presentation (slides 48-51 in particular), and Navy JAG, it would appear that the Marine Corps is making a big push for equality in this process.  In particular they are looking for parity of consideration of Marine Corps JAs for all AJAG slots and for consideration of Marine Corps JAs as the DoN JAG (as they phrase it). 

Considering this push, the now unavailable 1995/6 memo on the ability of Marine Corps JAs to be considered for Navy JAG was quite topical.   If anyone associated with the panel is reading, four documents that are no longer available on fido.gov appeared, on a quick scan, to be very interesting and relevant to this push by the Marine Corps.  I would personally appreciate if they could again be made available to the public.  The documents are (numbers correspond to the Aug. 30, 2010 index):

10. Commandant of the Marine Corps Memorandum for the Secretary of the Navy dtd 25 Apr 1994, Marine Nominees for Appointments to be the Judge Advocate General and the Deputy Judge Advocate General

11. Navy Judge Advocate General Memorandum for the General Counsel of the Navy dtd 22 May 1995, Marine Nominees for Appointment to be the Judge Advocate General and Deputy Judge Advocate General of the Navy

12. Navy Judge Advocate General Memorandum for the Principal Deputy General Counsel of the Navy dtd 4 Mar 1996, Proposed Legislation to Modify Statutes to Select the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps

13. General Counsel of the Navy Memorandum for Secretary of the Navy, Under Secretary of the Navy dtd 9 May 1996, Marine Corps Nominees for Appointment as the Judge Advocate General and Deputy Judge Advocate General of the Navy

Gracias.

I need a little help from our readership.  It appears that a few document links are being removed/broken for various documents considered by the Independent Panel established by Sec. 506 of the FY2010 NDAA to review the judge advocate requirements of the Dept. of the Navy, see my prior post here.  I tried the WayBack Machine to get archived versions of the documents but was denied.  Anyone know how to get old documents from a webpage or why these Independent Panel documents are disappearing from the web?

Thanks to Anonymous for this great link to the current list of information requests and data reviewed by the Independent Panel established by Sec. 506 of the FY2010 NDAA to review the judge advocate requirements of the Dept. of the Navy.  The links are plentiful, but they include links to all of the Panel’s requests for information to the Navy JAG, CNO and others, and research studies conducted by CNA regarding Navy-Marine Corps judge advocates (e.g. the primary report here and summary PowerPoint here), the Marine Corps’ Legal Servic es Strategic Action Plan for 2010-2015, the July 2009 Report on the State of Navy Military Justice [updated link with full report with endorsement in one document], etc.

Update:  There are also some interesting historical materials in Section E. of the outline, such as this memo on the policy and legal considerations of appointing a Marine Corps judge advocate as the Navy JAG.

Update 2:  Somehow or someone the links are all becomming inaccessible.  I am slowly collecting all the documents and publishing them on a separate page.

We’ve previously discussed Section 506 of the 2010 DOD Authorization Act  requiring a study of the way the Navy and Marine Corps provide legal services. A friend o’ CAAFlog has sent us the hearing notice for the committee.  But first, here are the panel’s members:

1) Mr. Daniel J. Dell’Orto, Chairman (former DoD General Counsel);

2) Ms. Judith A. Miller (former DoD General Counsel);

3) Mr. William Molzahn (former Principal Deputy General Counsel of
the Navy);

4) Lt. Gen. Henry P. Osman, USMC (Ret.) (former Deputy Commandant of
the Marine Corps for Manpower and Reserve Affairs); and

5) RADM James E. McPherson, JAGC, USN (Ret.) (former Judge Advocate General of the Navy).

Now for the hearing notice:

DEPARTMENT OF DEFENSE

Department of the Navy
Meeting of the Independent Panel To Review the Judge Advocate Requirements of the Department of the Navy

AGENCY: Department of the Navy, DoD.

ACTION: Notice of open meeting.

———————————————————————–

Federal Register: August 16, 2010 (Volume 75, Number 157)]

SUMMARY: The Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy (DoN) (hereinafter referred to as the Panel) will hold an open meeting. The Panel will meet in order to hear testimony from senior members of the Judge Advocate General’s Corps (JAGC) and the U.S. Marine Corps (USMC) and to conduct deliberations concerning the judge advocate requirements of the DoN.  These sessions will be open to the public, subject to the availability of space. In keeping with the spirit of FACA, the Panel welcomes written comments concerning its work from the public at any time. Interested citizens are encouraged to attend the sessions.

DATES: The meeting will be held on Wednesday, September 1, 2010, from 8 a.m. to 5 p.m.

ADDRESSES: The meeting will be held at the Residence Inn Arlington Pentagon City, 550 Army Navy Drive, Arlington, VA 22202.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing further information concerning this meeting or wishing to submit written comments may contact: Mr. Frank A. Putzu, Designated Federal Official, Department of the Navy, Office of the General Counsel, Naval Sea Systems Command, Office of Counsel, 1333 Isaac Hull Avenue, SE, Washington Navy Yard, Building 197, Rom 4W-3153, Washington, DC 20376, via Telephone: 202-781-3097; Fax: 202-781-4628; or e-mail: frank.putzu@navy.mil.

SUPPLEMENTARY INFORMATION: Pursuant to the provisions of section 506 of Public Law 111-84, the Federal Advisory Committee Act (FACA) of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.50, this is a public meeting and interested citizens are encouraged to attend the sessions.

Interested persons may submit a written statement for consideration by the Panel at any time prior to August 23, 2010.

D. J. Werner,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 2010-20153 Filed 8-13-10; 8:45 am]
BILLING CODE 3810-FF-P

As I previously noted, the dissenting views to the House Judiciary Committee’s report on the Equal Justice for Our Military Act of 2010 makes a major mistake.  More than 1/3 of the dissenting views’ space is unwittingly devoted to an attack on a different reform proposal that isn’t part of the legislation at issue.

Two of the 13 members who signed onto the dissenting views–Congressmen Gohmert and Rooney–have served as Army judge advocates.  Congressman Rooney often touts his experience as a former law professor at West Point.

It should be immediately obvious to any past or present judge advocate that points 1-7 on pages 14-16 of the committee report aren’t addressed to the proposed expansion of Supreme Court cert jurisdiction, but rather address whether the CCAs’ Article 66 jurisdiction should be expanded to include courts-martial in which the accused isn’t sentenced to a punitive discharge or a year or more of confinement.  It should also be immediately obvious to anyone who has read the proposed Equal Justice for Our Military Act that the bill doesn’t affect the CCAs’ jurisdiction.

Here’s my serious question:  how do the names of two previous judge advocates, who should have instantly recognized that the dissenting views are seriously flawed, get included on those dissenting views?  I’m not familiar with the ways of Capitol Hill.  Does some staff member add their names without consulting the Congressmen?  Do the Congressmen authorize their names to be added without actually reading the dissenting views?  Is there another reasonable explanation that’s escaping me?

As I previously noted, 13 of the 16 Republican members of the House Judiciary Committee provided dissenting views to the committee’s recommendation of adoption of the Equal Justice for Our Military Act of 2010, which would expand the Supreme Court’s certiorari jurisdiction to include military justice cases in which CAAF has denied review, as well as cases in which CAAF denies a petition for extraordinary relief.

Look at pages 14-16 of the report, in which the 13 dissenting committee members set out seven arguments purportedly against the bill.  Those aren’t arguments against expanded cert jurisdiction; those are arguments against lifting the current requirement of a punitive discharge and/or a year of confinement to qualify for Article 66 appellate review.  No such lifting of the jurisdictional prerequisites for Article 66 review is included in the bill. How does it happen that these points are included in a congressional committee report when they’re irrelevant to the legislation at issue?  That strikes me as a major error.

Here’s a link to the House Judiciary Committee’s report on the Equal Justice for Our Military Act of 2010, which was released Thursday.  The committee favorably reports the bill.  The report includes dissenting views from 13 of the committee’s 16 Republican members.

h/t NBM3

The version of the 2011 DOD Authorization Act that the House passed on Friday includes a title called, “Improved Sexual Assault Prevention and Response in the Armed Forces.”  It’s available here.

This 39-page title would make many changes, including amendments to the UCMJ.  One of the portions that would affect military justice practice is section 1614, which would require the convening authority to consider the alleged victim’s opinion as to how a sexual assault allegation should be handled.  That section provides:  “Before making a decision regarding how to proceed under the Uniform Code of Military Justice in the case of an alleged sexual assault or other offense covered by section 920 of title 10, United States Code (article 120), the commanding officer shall offer to meet with the victim of the offense to determine the opinion of the victim regarding case disposition and provide that information to the convening authority.”

The bill would also require publicizing the results of sexual assault cases.  Article 53 of the UCMJ would be amended by adding:  “Dissemination of Results to Command in Certain Cases- In the case of an alleged sexual assault or other offense covered by section 920 of this title (article 120), the trial counsel shall notify the servicing staff judge advocate at the military installation, who shall notify the convening authority and commanders, as appropriate. In consultation with the servicing staff judge advocate, the commanding officer shall notify members of the command of the outcome of the case.”

Article 54 would be amended to require that a copy of the ROT be given to any alleged sexual assault victim who testified in a case:  “In the case of a general or special court-martial involving a sexual assault or other offense covered by section 920 of this title (article 120), a copy of the prepared record of the proceedings of the court-martial shall be given to the victim of the offence if the victim testified during the proceedings. The record of the proceedings shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings.”

The bill would establish a privilege for communications between a victim and a Sexual Assault Victims Advocate co-extensive with the patient/psychiatrist privilege.

Perhaps most significantly, section 1643 of the bill would allow a servicemember or a dependent who is an alleged sexual assault victim to make a confidential report to:

(A) Military legal assistance counsel.

(B) Sexual Assault Response Coordinator.

(C) Sexual Assault Victim Advocate.

(D) Healthcare personnel.

(E) Chaplain.

The same section would also allow such servicemembers or dependents to decline to participate in an investigation.

And the section would create a statutory entitlement to legal assistance for such servicemembers and dependents:

(a) Availability of Legal Assistance and Victim Advocate Services-

(1) MEMBERS- A member of the armed forces or a dependent of a member of the armed forces who is the victim of a sexual assault is entitled to–

(A) legal assistance provided by a military legal assistance counsel certified as competent to provide such duties pursuant to section 827(b) of this title (article 27(b) of the Uniform Code of Military Justice); and

(B) assistance provided by a qualified Sexual Assault Victim Advocate.

Finally, the bill would require a report on the effectiveness of Article 120:

(a) Review Required- The Secretary of Defense shall conduct a review of the effectiveness of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice), as amended by section 552 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163; 119 Stat. 3256). The Secretary shall use a panel of military justice experts to conduct the review.

(b) Submission of Results- Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit the results of the review to the congressional defense committees.

The Judge Advoctes Association has taken this position on Section 1037 of House Bill 5136, which the No Man previously discussed here:

Section 1037 of H.R. 5136, National Defense Authorization Act for Fiscal Year 2011 charges the Inspector General of the Department of Defense with conducting an investigation of conduct and practices of lawyers, military and civilian, who are representing individuals the subject of either habeas corpus actions or military commissions.

The Judge Advocates Association opposes this legislation. The U.S. Department of Justice has initiated and is continuing to conduct an investigation into matters which are the subject of this proposed legislation. The Department of Justice is the agency with primary jurisdiction in these matters. The Judge Advocates Association believes it unwise to require another agency to conduct an investigation while the Department of Justice has an open criminal investigation.

Any concerns about ethical conduct of judge advocates are properly the responsibility of the appropriate military department Judge Advocate General or the Staff Judge Advocate to the Commandant of the Marine Corps.

[Disclosure:  while I'm a member of the JAA's board, I abstained from voting on this measure due to my previous duty as the military commission system's chief defense counsel.]

A friend o’ CAAFlog has alerted us that Rep. Kay Granger (R-Tex.) has introduced H.R. 5374, a bill obviously designed to reimburse the recently acquitted Navy SEALs for the cost of their civilian counsel, though the bill would reach beyond those three cases.

The bill would amend Article 27 by adding the following new subsection (d):

(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial.

(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case.

(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist.

(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.

The bill would apply retroactively to any applicable cases in which charges were “brought under the Uniform Code of Military Justice after September 11, 2001.”

There doesn’t appear to be any cap on attorneys’ fees under the bill.

The bill currently has 30 co-sponsors, all of them Republicans.

A friend o’ CAAFlog called our attention to H.R. 5136, the proposed National Defense Authorization Act for Fiscal Year 2011.  It includes two UCMJ amendments.  The second is particularly significant — it would authorize subpoena duces tecum power for an Article 32 investigation.  The first amendment would allow military judges to exercise contempt power for violations of their orders, thereby greatly expanding the contempt power beyond the current direct contempt limitation.  It would also increase the maximum fine for contempt from $100 to $1,000.  (True story:  when I was the chief defense counsel for the military commission system, I took $100 in cash to every commission session, just in case):

SEC. 531. ENHANCED AUTHORITY TO PUNISH CONTEMPT IN MILITARY JUSTICE PROCEEDINGS.
(a) In General- The text of section 848 of title 10, United States Code (article 48 of the Uniform Code of Military Justice), is amended to read as follows:
`(a) Authority To Punish Contempt- A military judge detailed to any court-martial, a Court of Inquiry, the Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or military commission may punish for contempt any person who–
`(1) uses any menacing word, sign, or gesture in its presence;
`(2) disturbs its proceedings by any riot or disorder; or
`(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of same.
`(b) Punishment- The punishment for contempt under subsection (a) may not exceed confinement for 30 days or a fine of $1,000, or both.
`(c) Inapplicability to Military Commissions Under Chapter 47A- This section does not apply to a military commission established under chapter 47A of this title.’.
(b) Effective Date- The amendment made by this section shall apply with respect to acts of contempt described in section 848(a) of title 10, United States Code (article 48(a) of the Uniform Code of Military Justice), as amended by subsection (a), that are committed after the date of the enactment of this Act.
SEC. 532. AUTHORITY TO COMPEL PRODUCTION OF DOCUMENTARY EVIDENCE PRIOR TO TRIAL IN MILITARY JUSTICE CASES.
(a) Subpoena Duces Tecum- Section 847 of title 10, United States Code (article 47 of the Uniform Code of Military Justice), is amended–
(1) in subsection (a)(1), by striking `board;’ and inserting `board or has been duly issued a subpoena duces tecum for an investigation, including an investigation pursuant to section 832(b) of this title (article 32(b)); and’; and
(2) in subsection (c), by striking `or board,’ and inserting `board, trial counsel, or convening authority,’.
(b) Repeal of Obsolete Provisions Relating to Fees and Mileage Payable to Witnesses- Such section is further amended–
(1) in subsection (a)–
(A) by striking paragraph (2); and
(B) by redesignating paragraph (3) as paragraph (2); and
(2) by striking subsection (d).
(c) Technical Amendments- Subsection (a) of such section is further amended by striking `subpenaed’ in paragraphs (1) and (2) (as redesignated by subsection (b)(1)(B)) and inserting `subpoenaed’.
(d) Effective Date- The amendments made by subsection (a) shall apply with respect to subpoenas issued after the date of the enactment of this Act.

Saw this in my ABA Washington Summary today:

HR 4738 (McKeon, R-CA), to prohibit the use of Department of Defense military installations in the United States, its territories, or possessions for the prosecution of individuals involved in the 9/11/01 terrorist attacks; to Armed Services. H1103, CR 3/3/10. . . .

The Emerging Threats and Capabilities Subcommittee, Senate Armed Services Committee, will hold a hearing on U.S. government efforts to counter violent extremism and the role of the U.S. military in those efforts. 3/10/10, 10 am, 222 Russell.

 I will link to the text of HR 4758 when the bill text is available.   Here is the Thomas page.

The Congressional Budget Office yesterday issued a cost estimate on H.R. 569, the Equal Justice for Our Military Act that the House Judiciary Committee favorably reported to the full House.  The cost estimate is available here.  CBO says that if enacted, the bill ”would cost less than $1 million each year.”  CBO explains:

We expect that the bill would make several hundred service members eligible to file petitions each year, but that only a small portion of those individuals would pursue review by the Supreme Court (based on the experience of individuals whose cases currently qualify for Supreme Court review). CBO cannot predict whether the Supreme Court would grant review of any particular petition. If the Supreme Court agreed to review any petitions, DoD would probably spend no more than $1 million in any year from appropriated funds to defend those cases. (Any such amounts would depend on the number and complexity of such cases.) Enacting H.R. 569 would not affect direct spending or revenues.