Saturday, December 20, 2014

President Obama signs NDAA for FY15

On Friday, President Obama signed into law the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015. The Statutes at Large version is not yet available, but the 697-page enrolled bill can be found here. There is much in it that relates directly or indirectly to the administration of justice. Some provisions simply tidy up errors in earlier legislation; others are new and significant. To a considerable extent the new provisions continue the process of carving out a special regime for sexual assaults within the armed forces. Military justice practitioners will want to study in particular §§ 508, 521, 531-47, 552, and 587-88. Here are some noteworthy provisions, with a few editorial comments along the way:
§ 508. Evaluations of command climate must include appraisals of how sexual assault allegations are evaluated, as well as protection of victims from reprisal, including ostracism and group pressure
§ 521. Correction board and discharge review board advisory opinions must include reports from a psychiatrist or clinical psychologist when a case involves mental health issues.
§ 533. The definition of who qualifies for the appointment of special victims counsel has been modified. A victim of a sex-related offense by a member of the armed forces will not qualify if the victim is not either otherwise entitled to military assistance or a reservist who is on active duty, full-time National Guard duty, or inactive duty training . . . or (regardless of duty status) if the offense has a nexus to the victim's military service. (Who said service-connection was dead?)
§ 536. The defense of good military character is essentially abrogated for sex offenses and other offenses as to which good military character is irrelevant.
§ 534. A process is established to involve the victim of a sexual assault in the decision as to whether a case should be tried by court-martial or in a civilian court. Query: why limit this to sex offenses?
§ 541. A procedure is established for the review of decisions not to prosecute certain offenses.
§ 546. A Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces will be created following completion of the work of the current Judicial Proceedings Panel. The proliferation of military justice review bodies continues.
§ 547. The correction boards will be required to have a confidential process for reviewing the characterization of discharges of victims of sexual assaults. This seems to mean that the decisions in such cases would be exempt from any disclosure, even after redaction. A body of secret law looms.
§§ 587-88. The Comptroller General is directed to prepare reports on hazing in the armed forces and the effect of mental and physical trauma on misconduct discharges. 
Missing from the new statute is the fundamental reform advocated by Sen. Kerstin Gillibrand's Military Justice Improvement Act: transferring disposition power to lawyers independent of the chain of command. The commander's power to pick jurors remains intact as well.

Readers who find other provisions of the Levin-McKeon Act noteworthy are encouraged to comment (real names only, please).

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