In an open letter to the Secretary of Defense Leon Panetta, Ms. Nancy Parrish, president of Protect our Defenders and Mr. Greg Jacob, policy director of Service Women’s Action Network, call for dramatic procedural changes in how the military disposes of sexual assault allegations.

Although the letter was addressed to the Secretary, the proposals would require substantial statutory changes, and would functionally remove commanders from their role as convening authority in sexual assault cases.  Instead of having commanders determine the proper disposition of cases, Ms. Parrish and Mr. Jacob urge that “impartial experts” be given the task:

The great deference afforded to command discretion, sets up a dynamic fraught with conflict of interest and potential for abuse of power.

Some are now arguing that base commanders are yielding to political pressure and are automatically referring cases to the UCMJ. Although we have not seen credible data to support this assertion, this claim validates what we are advocating: that the authority to adjudicate cases of sexual assault and rape be given to impartial experts to determine the path of these cases and care of the victims.

In order to solve this problem, we believe that DoD must take the prosecution, reporting, oversight, investigation, and victim care of sexual assaults out of the hands of the normal chain of command and place the jurisdiction in the hands of an impartial office staffed by experts – both military and civilian.

The entire letter can be found here.

The National Defense Authorization Act for FY2012 (H.R. 1540) contains language that almost-completely revises Article 120, UCMJ. The bill was presented to the President for signature on December 21 and, absent a major political shift (a pocket veto appears impossible), will become law. The amendments will take effect 180 days after enactment.

The “Revised Article 120″ splits sexual offenses into three Articles (plus Article 120a – Stalking) and eliminates some of the most difficult aspects of the “New Article 120.” The Revised Article 120:

• Delineates  11 offenses (including stalking):
1. Rape (Art. 120 (a))
2. Sexual Assault (Art. 120 (b))
3. Aggravated Sexual Contact (Art. 120 (c))
4. Abusive Sexual Contact (Art. 120 (d))
5. Stalking (Art. 120a)
6. Rape of a Child (Art. 120b (a))
7. Sexual Assault of a Child (Art. 120b (b))
8. Sexual Abuse of a Child (Art. 120b (c))
9. Indecent Viewing, Visual Recording, or Broadcasting (Art. 120c (a))
10. Forcible Pandering (Art. 120c (b))
11. Indecent Exposure (Art. 120c (c))
• Simplifies defenses to include all defenses available under the Rules for Courts-Martial (of note: An accused must prove a marriage or mistake of fact as to age (defenses to certain offenses with a child) by a preponderance of the evidence).
• Repeals language that eliminated “consent” and “mistake of fact as to consent” as issues (except for offenses against children (Art. 120b)).
• Repeals the burden-shift for an affirmative defense (Art. 120 (t)(16)).
• Expands the definition of “bodily harm” to explicitly include non-consensual sexual acts and contact.
• Expands the definition of “sexual act” to include contact between the penis and the “vulva or anus or mouth,” and to include penetration of the vulva or anus or mouth by “any part of the body” or object.
• Expands the definition of “sexual contact” in include touching of “any body part of any person” if done with requisite intent.

After the break I reproduce the “revised” text, noting repealed sections of the “new” text with strikeouts, new language in the “revised” text with underlines, and my notations in italics.

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Books could (and probably will) be written about provisions in the FY2012 National Defense Authorization Act that didn’t survive the conference committee. But the same can be said about those provisions that did make the cut.

Over at Lawfare Blog, they’re writing extensively about the detention provisions. Ben Wittes provides a quick and dirty rundown. Also, see this post to review only the detention provisions.

The new, new Article 120, which would give us Art. 120: Rape and sexual assault generally; Art. 120a: Stalking (pre-existing); Art. 120b: Rape and sexual assault of a child; and Art. 120c: Other sexual misconduct. I’ve cut the relevant section out of the conference report and provide it as a pdf here.

Finally, Article 47 (Refusal to appear or testify) would be expanded to included the case of a subpoena duces tecum for an Article 32 investigation.

Of course, this all assumes the conference report is adopted by both houses, and it survives the veto threat.

I’ve been watching, with great interest, developments regarding proposed Mil. R. Evid. 514: Victim Advocate – Victim Privilege (see: here and here). Until now, I beleived the proposed Mil. R. Evid. was to be the result of a legislative requirement. Congress, it seems, feels differently.

The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:

Privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and sexual assault response coordinators, victim advocates, and certain other persons

The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.

The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.

The House and the Senate recede. Neither provision is included in the conference report.

The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.

Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here. 

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

A while back I noted the Federal Register notice of proposed stylistic changes to the Military Rules of Evidence. That notice includes Mil. R. Evid. 514: Victim Advocate – Victim Privilege. I’ve been curious about the genesis of this rule, especially since I could find no notice of proposed rulemaking.

This morning I figured it out. The privilege is (will likely be) required by the 2012 NDAA. While the bill is in conference to work out differences between the House and Senate versions, the privilege appears in both (so I expect it will survive).

Read more »

Earlier this month the Asia Pacific Center for Military Law at the University of Melbourne Law School held an international symposium to commemorate the Center’s 10th Anniversary. The title of the symposium was “Military Justice in the Modern Age.” The symposium featured discussions on the following topics: Military Courts and Civilian Standards; The Power of Command and Military Justice; Constitutional Dimensions and Military Justice in Australia; Military Justice, Civilians and Rights; Comparative Military Justice; Military Justice in Context; and Military Justice on Operations.
I had the opportunity to attend the symposium and I plan to blog on some of the highlights of the conference over the next few days. First, a word about the Asia Pacific Center for Military Justice. The Center draws together academics, members of the military, practitioners and judges to foster a better understanding of military justice. To my knowledge this center is one-of-a-kind and it is a great model that the U.S. and other countries could learn from. The following link provides more information about the Center: http://www.apcml.org/overview.php.
The symposium began with a lecture by Professor Tim McCormack from Melbourne University Law School titled “A Normative Standard for Military Justice.” Tim’s bio is here: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Tim%20McCormack. Tim’s talk focused primarily on what standards the International Criminal Court (ICC) is likely to look to in determining if a state is unwilling or unable to carry out investigations into alleged war crimes committed by its forces.
Tim suggested that the ICC is likely to look at jurisprudence already developed by the European Court of Human Rights. Under the European Court framework an effective investigation has the following components:
1. The investigation must ensure that the state has protected the right to life and that the state is held accountable.
2. The state must have a process for initiating investigations on its own motion, not relying solely on outside pressure to trigger an investigation.
3. Investigations must have structural and practical independence from the individuals or organizations being investigated.
4. Any evidence must be secured and preserved and tested under accepted forensic standards.
5. Investigations must be prompt.
6. There must be public scrutiny and transparency of investigations.
Professor McCormack acknowledges that these standards were developed primarily in the context of investigating conduct by law enforcement agencies. However, he contends that these standards can also apply to military investigations, even during combat. Tim acknowledges that there are significant differences between investigating conduct by law enforcement agencies and investigating military actions. But Professor McCormack contends that the ICC is likely to contextualize these standards to military operations.

A reader has brought to our attention that Representative Susan Davis has re-introduced the “Equal Justice for our Military Act.” The text of the bill (H.R. 3133) is not yet available on Thomas, but in previous iterations, the bill sought to give the Supreme Court jurisdiction over cases in which CAAF declines to grant review or, in extraordinary writ cases, declines to grant relief. h/t nbm3

Here is a link to the final report of the Independent Review Panel to Study the Judge Advocate Requirements of the Department of the Navy.  The final report is not as warm and fuzzy as the draft we saw from staff back in December, see here.  Here are some of the Panel’s conclusions.

Navy judge advocate manning:

Given the existing budgetary programming authorizations for the Navy JAG Corps over the next five years, there will be a significant shortage of active-duty judge advocates in the U.S. Navy by 2015. The current shortage poses a significant level of legal risk to the DON and the Joint force, and a significant level of professional risk to the Navy JAG Corps. The DON and the U.S. Navy should act to mitigate these risks. 

SJA to the CMC role:

The Panel recommends clarifying and strengthening the role of the SJA to CMC for supervision of the administration of military justice in the Marine Corps, for the delivery of legal assistance services within the Marine Corps, and for the professional and technical supervision of Marine judge advocates.

Marine Corps JAs competing for JAG spot:

Finally, the Panel notes that under sections 5148 and 5149 of title 10, the JAG is appointed from qualified judge advocates of the Navy or the Marine Corps and the Deputy JAG is appointed from qualified judge advocates of the Navy and the Marine Corps.  The Panel does not take any position on whether there should be competition for the JAG or Deputy JAG positions among Navy Judge advocates and Marine judge advocates. The Panel notes that the Secretary of the Navy did not address the issue, nor did the Panel request that he take a position on the issue. Although the Panel has great respect for the strongly held positions of the CNO and the Commandant, in light of our statutory mandate, the Panel does not feel it is appropriate to take a position on this issue.

Here is the link to all of the 506 Panel’s documents.

Secretary of Defense Robert Gates and former SECDEF Donald Rumsfeld were named as defendants today in a Bivens class-action suit, alleging among other things that they “failed to . . . provide an adequate judicial system as provided by the Uniform Code of Military Justice Act.” 

The complaint states that the Armed Forces have not been able to “eradicate a well-entrenched misogynistic military culture that permits Command to scoff at rape allegations, threaten victims with courts martial and exercise unfettered discretion to decide to use ‘non-judicial punishment’ to penalize rape and sexual assault.”

The suit is filed by 17 veterans represented by Susan Burke.  The complaint is available here.

Here’s a link to the Honorable Ray Mabus’s letter to the 506 panel.  He indicates that he’ll seek legislation to give the SJA to the Commandant more authority over Marine Corps lawyers:  “I will propose legislation that will establish a direct relationship between the Secretary and the SJA to CMC and provide the SJA to CMC with the authority to supervise the administration of military justice and legal assistance in the Marine Corps.”

The link also includes letters from the Commandant of the Marine Corps and the Chief of Naval Operations concerning whether it’s appropriate to select a Marine judge advocate as the Judge Advocate General of the Navy or Deputy Judge Advocate General.  Care to guess which one said yes and which one said no?  From General Amos’s letter:  “I am strongly in favor of Marines competing for these and other Departmental leadership positions.  Leaving aside the benefit that would likely accrue to the Marine Corps, I believe that such competition can only make the Department a stronger and better integrated team.”  From Admiral Roughead’s letter:  “Having a Marine judge advocate serve as JAG or Deputy JAG would change what I regard as a logical and efficient construct that has served the Department of the Navy and the U.S. Navy extremely well.”  He argues that there are 328,000 members of the Navy compared to 202,000 Marines.  And there are 828 active duty Navy JAGs compared to 435 Marine active duty judge advocates.  He also notes that the ratio of flag officers to judge advocates is the same within the existing Navy and Marine Corps judge advocate communities.  He also argues that the U.S. Navy receives collateral benefits from the Judge Advocate General of the Navy and that the senior Navy lawyer should lead the Navy JAG Corps.

Here (subscription required) is a link to a National Law Journal article about the Navy’s revamp of its lawyer corps.   Here is an excerpt on the separate defense command progress:

Navy defense and prosecution lawyers have been operating “without a lot of support and assistance” available to them, Houck said. That was not a problem in the 1980s, when court-martial was a big practice and the lawyers’ main line of work. “By organizing the way we are now — by setting up a defense counsel assistance program and trial counsel assistance program, and also putting Region and Naval Legal Service Offices in slightly different chains of command in which they each report to another senior Navy captain with experience in their business — we will give more assistance and oversight,” he said. Houck acknowledged that the Marine Corps is “a little further along” in that it has a separate defense command, which only does criminal defense and is entirely independent of the prosecution function. The Army also created a separate command solely for defense counsel in 1980. Houck said, “We’ll be there in about two years.”

The unflappable JO’C is quoted in the story saying, “I do think for trial counsel and defense counsel in the field, the training and mentorship are very much hit or miss. Having a defense counsel assistance program is a very positive development.”  I think we can all agree on that.

As we all know, it is impermissible to include a waiver of appellate review as a pretrial agreement term in a court-martial.  See R.C.M. 705(c)(1)(B) (“A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: . . . the complete and effective exercise of post-trial and appellate rights”); see also United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007).  JO’C has written a law review article proposing the elimination of that ban on waiving appellate review as a PTA term.  John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008).  And the Cox Commission II report noted that proposal and suggested that it be studied.

The military commissions system provides an opportunity to study a system that is somewhat similar to the court-martial system but that allows waiver of appellate review as a PTA term.  The PTA under which Omar Khadr pleaded guilty last week (available here, courtesy of the Miami Herald) included a requirement for waiving appellate review.  Here’s what it provided:

I offer and agree to . . . f.  Sign and execute the document found at Attachment B, a two (2) page document that is Military Commission Form 2330, Waiver/Withdrawal of Appellate Rights, within the specified timeframe found within Attachment B and R.M.C. 1110. In doing so I understand I will. at the time of execution of Attachment B, waive my rights to appeal this conviction, sentence, and/or detention to the extent permitted by law, or to collaterally attack my conviction, sentence, and/or detention in any judicial forum (found in the United States or otherwise) or proceeding, on any grounds, except that I may bring a post-conviction claim if any sentence is imposed in excess of the statutory maximum sentence or in violation of the sentencing limitation provisions contained in this agreement. I have been informed by my counsel orally and in writing of my post-trial and appellate rights.

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.