CAAFlog » Military Justice Legislation

Congress just released the conference report on the National Defense Authorization Act for Fiscal Year 2020. The full report is available here. A summary is available here.

There are more than two dozen provisions in the legislation that will affect military justice. Three particularly notable ones are:

Section 531. Expansion of pre-referral matters reviewable by military judges and military magistrates in the interest of efficiency in military justice. The Military Justice Act of 2016 created a new Article 30a allowing military judges or military magistrates (a newly-created position under Article 26a) to conduct proceedings prior to referral of charges for the purpose of addressing investigative subpoenas, orders for electronic communications, and matters referred by an appellate court. Section 531 of the conference NDAA adds two additional categories of matters that may be addressed: (1) appointment of an individual to assume an alleged victim’s rights under Article 6b(c) and enforcement of an alleged victim’s rights under Article 6b(e); and (2) matters related to pretrial confinement of an accused, an accused’s mental capacity and responsibility, and an accused’s request for individual military counsel. The President may, however, limit the matters that may be addressed and the relief that may be granted in pre-referral proceedings.

Section 532. Command influence. Article 37 prohibits unlawfully influencing the action of a court, and influence was our #5 Military Justice Story of 2017. The conference NDAA significantly changes Article 37. If enacted, the new Article 37 will read:

[words in italics are new]

Article 37. Unlawfully influencing action of court Command influence.

(a)

(1) No court-martial convening authority, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding.

(2) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence.

(3) No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President.

(4) Conduct that does not constitute a violation of paragraphs (1) through (3) may include, for example—

(A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural aspects of courts-martial;

(B) statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a particular court-martial finding or sentence, or do not relate to a particular accused; or

(C) statements and instructions given in open court by the military judge or counsel.

(5)

(A) Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)—

(i) a superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of this chapter with a subordinate convening authority or officer;

(ii) a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under this chapter.

(B) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer.

(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade advanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial person in a court-martial proceeding.

(c) No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.

(d)

(1) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally.

(2) Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses.

The new Article 37 would take effect on the date of enactment and apply only to offenses committed on or after that date.

Section 537. Guidelines on sentences for offenses committed under the Uniform Code of Military Justice. This section requires the Secretary of Defense to develop nonbinding sentencing guidelines that will “provide the sentencing authority with a suggested range of punishments, including suggested ranges of confinement, that will generally be appropriate for a violation of each offense under such chapter.”

Congress recently passed – and the President will likely soon sign – the National Defense Authorization Act for Fiscal Year 2019. The bill includes a small number of military justice provisions, including:

Sec. 531. Inclusion of strangulation and suffocation in conduct constituting aggravated assault for purposes of the Uniform Code of Military Justice.

Sec. 532. Punitive article on domestic violence under the Uniform Code of Military Justice.  (note: the final text is a significant improvement over the initial proposal, that we discussed here)

Sec. 533. Authorities of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Report on feasibility of expanding services of the Special Victims’ Counsel to victims of domestic violence.

Sec. 535. Uniform command action form on disposition of unrestricted sexual assault cases involving members of the Armed Forces.

Sec. 536. Standardization of policies related to expedited transfer in cases of sexual assault or domestic violence.

Other sections address policies and reporting that have a military justice connection (like Sec. 544. Oversight of registered sex offender management program).

Some details follow.

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A reader called my attention to military justice provisions in the House Armed Services Committee’s markup of the National Defense Authorization Act for Fiscal Year 2019 (H.R. 5515). The Committee’s report (dated today) is available here. The legislation as sent to the full House is available here. An excerpt containing just the military justice provisions (Title V, Subtitle D) in Word format is available here.

The legislation includes six military justice provisions:

Sec. 531. Minimum confinement period required for conviction of certain sex-related offenses committed by members of the Armed Forces.

Sec. 532. Punitive article in the Uniform Code of Military Justice on domestic violence.

Sec. 533. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Modification of Military Rules of Evidence to exclude admissibility of general military character toward probability of innocence in any offense not strictly related to performance of military duties.

Sec. 535. Improved crime reporting.

Sec. 536. Oversight of registered sex offender management program.

Two of these proposals are particularly bad.

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§ 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).

President Trump signed the National Defense Authorization Act for FY18, Pub. L. No. 115-91, last week. The legislation includes nine sections with military justice provisions.

A bookmarked PDF of the military justice provisions is available here.

Here are the most significant provisions (based on my initial review), in the order in which they appear in the legislation:

Section 531(a) amends Article 6b(e)(3) to add a reference to CAAF review of an alleged victim’s Article 6b petition, giving CAAF jurisdiction over such petitions and thereby reversing the court’s decision in Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

Section 531(n)(1) allows the President to prescribe regulations applying the changes in the Military Justice Act of 2016 to offenses alleged to have been committed before the effective date of the changes.  Section 531(o), however, provides that sentencing in cases involving pre- and post-MJA cases will use the pre-MJA sentencing rules unless the accused requests post-MJA sentencing (and presumably this could occur as part of a plea agreement).

Section 531(n)(2) makes the new 10-year statute of limitations of child abuse offenses in Section 5225 of the MJA (amending Article 43(b)(2)(A)) retroactive to the date of enactment of the MJA (December 22, 2016), regardless of the effective date of the rest of the MJA.

Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.

Section 533 creates a new Article 117a prohibiting the wrongful broadcast or distribution of intimate visual images. The new Article is similar to the provision enacted by the House in May (discussed here), avoids the serious flaws in Article 1168, U.S. Navy Regulations (analyzed here), and includes as an element of the offense that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”

Section 1081(c) makes technical and clerical corrections to the MJA. Among these, Section 1081(c)(1)(H) corrects the new Article 53a(d) to make plea agreements binding on members (an error I noted in my public comment on the proposed MCM changes implementing the Military Justice Act of 2016).

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 Regulations.gov folder is available here.

The Regulations.gov 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 Regulations.gov 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 http://jpp.whs.mil/​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.

The House Armed Services Committee recently met to debate the National Defense Authorization Act for 2018. Congressman Steve Russell (R-OK) (a retired Lieutenant Colonel in the Army) had some harsh words for critics of the UCMJ. In the course of a debate over a proposal to make court-martial panel selection random (taking from commanders the responsibility to select the members), Congressman Russell said this:

And again, I go back, Mr. Chairman. Honestly, I didn’t know that I was such a knuckle-dragger, that I was so closed minded, that I was a rapist, that I was a murderer, that I was a sexual assaulter, that I were all of these things until I came to Congress and often heard from my colleagues how horrible I was when I was in uniform as a commander and how incapable I was in being able to do justice and make decisions. But now I’ve learned that maybe I just didn’t realize who I was. What I would suggest is that, once again, we do not break the Uniform Code of Military Justice. It is the glue that holds our discipline and good order together.

Here’s a clip (link if video does not show below):

And here is a link to his full remarks in context.

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.

This story in The Hill alerted me to the “Protecting the Rights of IndiViduals Against Technological Exploitation Act” (PRIVATE Act), H.R.2052, which passed the House with no nay votes on May 24, 2017, and has been referred to the Senate Armed Services Committee. A separate (but identical) bill was also introduced in the Senate (S.1296).

The bill proposes a new Article 117a of the UCMJ to prohibit the “wrongful broadcast or distribution of intimate visual images.” The text of the proposed article – which seems to avoid the problems I identified in the new Article 1168, U.S. Navy Regulations – is after the jump.

Read more »

Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The FY17 NDAA (link) – which includes major changes to the UCMJ (noted here) – has passed Congress and was sent to the President for signature on Wednesday.

The long awaited report of the conference committee considering the National Defense Authorization Act for Fiscal Year 2017 was just released. It is available here: https://rules.house.gov/conference-report/s-2943

The conference version of the NDAA includes a great many significant changes to the Uniform Code of Military Justice. In particular, the legislation adopts many – but not all – of the changes proposed by the Military Justice Review Group.

Some significant notes:

• The conference version does not eliminate members sentencing in non-capital cases. Instead, § 5182 amends Article 25 to give the accused the option to elect sentencing by members (when trial was before members) after the findings are announced.

• § 5164 of the conference version amends Article 20 to state that “a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.”

• § 5205 modifies a staff judge advocate’s pretrial advice to require only a probable cause determination rather than the current conclusion that “the specification is warranted by the evidence.”

• § 5330 modifies Article 66 to require automatic review by the courts of criminal appeals only in cases that include death, dismissal, a dishonorable or bad-conduct discharge, or confinement for two years or more. In cases involving confinement for more than six months or more (but less than two years) an accused may petition for review.

Edited to add: • § 5330 also preserves the requirement that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.”

• § 5301 modifies Article 56 to allow the prosecution to appeal a sentence on the grounds that “(A) the sentence violates the law; or (B) the sentence is plainly unreasonable.”

• § 5301 modifies Article 56 requires a sentence adjudged by a military judge alone to be segmented (confinement and fine only) by offense. Where sentencing is by members, the court-martial will continue to adjudge a single sentence for all offenses.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

From the Code Committee, here:

This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.