Sunday, January 15, 2017

Fallout from the Military Justice Act of 2016

With enactment of the Military Justice Act of 2016 as part of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 (2016), countless changes will be needed in the Manual for Courts-Martial. Suggestions can be made by members of the armed forces as well as members of the public. Got any good ideas for things that ought to be in the Manual but aren't? Or specific ways to implement provisions of the new law that are not spelled out in detail in the statute? E.g., there will be uniform "tours of duty" for military judges. How long should they be? Will they be subject to curtailment, unlike fixed terms of office, and if so, by whom and according to what standards?

Unlike the proposed statutory changes, which it is said could not be circulated for comment because of an OMB Circular,* Manual changes can be and typically are circulated for public comment. It seems likely that the comment period for what will certainly be a big batch of changes will be sufficient . . . if commenters have done their homework in advance. In any event, proposed changes that are submitted early are more likely to have any impact since officially-generated changes tend to gain momentum over time.

Feel free to post comments on possible Manual changes on this site. (Real names only, please.) You can also send them to the Joint Service Committee on Military Justice or, presumably, DoD's Military Justice Review Group.

The recent legislation did not address a major issue relating to appellate review of courts-martial: the indefensible limitation on access to the Supreme Court in cases in which the Court of Appeals for the Armed Forces denies review. This is hard-wired into the U.S. Code and cannot be fixed by a mere Manual change. Query: will DoD under the Trump administration finally take the initiative on this and see if it can prevail upon Congress to do the right thing? Maybe Secretary-designate James Mattis and his general counsel (whoever that turns out to be) will see this simple, important and long-overdue reform as worthwhile and fair.

* The OMB Circular should be amended, especially in light of the fact that neither house of Congress conducted a minute of public hearings on the Obama administration's comprehensive package of proposed UCMJ changes.

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