A BILL
To
amend the Uniform
Code of Military Justice to reassign the functions of the convening authority,
create an independent chief trial counsel and court-martial administrator, limit
court-martial subject matter jurisdiction to service connected offenses, enhance
judicial independence by providing nonrenewable fixed terms of office for
military judges, extend the jurisdiction of the Supreme Court of the United
States to review decisions of the United States Court of Appeals for the Armed
Forces by writ of certiorari, and abolish summary courts-martial and the Code
Committee on Military Justice.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Samuel T. Ansell—Kenneth J. Hodson Military Justice Reform Act of 2014’’.
SEC.
2. REASSIGNMENT OF FUNCTIONS OF THE CONVENING
AUTHORITY, LIMITATION OF COURT-MARTIAL SUBJECT MATTER JURISDICTION, AND RELATED
CHANGES.
(a) Amendment
of Article 4.—Section 804 of title 10, United States Code (article 4 of
the Uniform Code of Military Justice), is amended—
(1)
in subsection (a), by striking “President” the second time that term appears and
inserting “chief trial counsel”; and
(2)
in subsection (b), by striking “President” and inserting “chief trial counsel”.
(b) Amendment
of Article 6(b).—Section 806(b) of title 10, United States Code (article
6(b) of the Uniform Code of Military Justice), is amended by striking
“convening authority” and inserting “commanding officer”.
(c) Amendment
of Article 10.—Section 810 of title 10, United States Code (article 10
of the Uniform Code of Military Justice), is amended by striking “an offense
normally tried by a summary court-martial” and inserting “a minor offense”.
(d) Amendment
of Article 15.—Section 815 of title 10, United States Code (article 15
of the Uniform Code of Military Justice), is amended—
(1)
in subsection (a), by striking “a commanding officer exercising general
court-martial jurisdiction or”; and
(2)
in subsection (b)(1)(B), by striking “an officer exercising general
court-martial jurisdiction or”.
(e) Clerical amendment.—The
table of sections at the beginning of subchapter IV of chapter 47 of title 10,
United States Code (subchapter IV of the Uniform Code of Military Justice), is
amended by striking “Jurisdiction of summary courts-martial” and inserting “[Reserved]”.
(f) Amendment of Article 16.—Section 816
of title 10, United States Code (article 16 of the Uniform Code of Military
Justice), is amended—
(i)
in the first clause, by striking “three” and inserting “two”;
(ii)
at the end of subsection (1)(B), by inserting “and”;
(iii)
at the end of subsection (2)(C), by striking “; and;” and inserting a period;
and
(iv)
by striking subsection (3).
(g) Amendment
of Article 17.—Section 817 of title 10, United States Code (article
17(b) of the Uniform Code of Military Justice), is amended—
(1)
in subsection (a), by inserting before the first sentence “Except for petty
offenses and offenses committed outside the United States, courts-martial shall
have subject matter jurisdiction only of offenses that are service connected.
The fact that the victim of an offense was a dependent of a person subject to
this chapter shall not in itself constitute service connection.”
(2)
in subsection (b), by striking “after that by the officer with authority to
convene a general court-martial for the command which held the trial,”.
(h) Amendment
of Article 19.—Section 819 of title 10, United States Code (article 19
of the Uniform Code of Military Justice), is amended by striking “convening
authority” and inserting “court-martial administrator”.
(i) Repeal of
Article 20.—Section 820 of title 10, United States Code (article 20 of
the Uniform Code of Military Justice), is repealed.
(j) Clerical amendments.—The
table of sections before subchapter V of chapter 47 of title 10, United States
Code (subchapter V of the Uniform Code of Military Justice), is amended—
(1)
by striking “Who may convene general courts-martial” and inserting “Chief trial
counsel”;
(2)
by striking “Who may convene special courts-martial” and inserting
“Court-martial administrator”; and
(3)
by striking “Who may convene summary courts-martial” and inserting “[Reserved]”.
(k) Amendment
of Article 22.—Section 822 of title 10, United States Code (article 22
of the Uniform Code of Military Justice), is amended by striking the entire
text and inserting:
Ҥ 822.
Art. 22. Chief trial counsel.
“The
Secretary concerned shall designate a chief trial counsel who shall be
independent of the chain of command and shall have exclusive authority to refer
charges for trial by special and general courts-martial. He
shall be a
judge advocate in pay grade O–6 or above, certified in accordance with section
827(b) of title 10, United States Code (article 27(b) of the Uniform Code of
Military Justice), and with significant experience in trials by general courts-martial.
Under such regulations as the Secretary concerned may prescribe, the chief
trial counsel may delegate his authority under this subsection to any judge
advocate who is outside the chain of command.”
(l) Amendment
of Article 23.—Section 823 of title 10, United States Code (article 23
of the Uniform Code of Military Justice), is amended by striking the entire
text and inserting:
Ҥ 823.
Art. 23. Court-martial
administrator.
“The
Secretary concerned shall designate a court-martial administrator who shall be
independent of the chain of command and shall have authority to convene general
and special courts-martial. Under such regulations as the Secretary concerned
may prescribe, the court-martial administrator may delegate his authority under
this subsection.”
(m) Repeal of Article
24.—Section 824 of title 10, United States Code (article 24 of the
Uniform Code of Military Justice), is repealed.
(n) Amendment
of Article 25.—Section 825 of title 10, United States Code (article 25
of the Uniform Code of Military Justice), is amended by striking “convening
authority” and inserting “court-martial administrator”.
(o) Amendment
of Article 25a.—Section 825a of title 10, United States Code (article
25a of the Uniform Code of Military Justice), is amended by striking “convening
authority” and inserting “court-martial administrator”.
(p) Amendment
of Article 26(c).—Section 826(c) of title 10, United States Code
(article 26(c) of the Uniform Code of Military Justice), is amended by striking
“Unless the court-martial was convened by the President or the Secretary
concerned, neither” and changing “neither” to “Neither”.
(q) Amendment
of Articles 28 and 29.—Sections 828 and 829 of title 10, United States
Code (articles 28 and 29 of the Uniform Code of Military Justice), are amended
by striking “convening authority” and inserting “court-martial administrator”.
(r) Clerical amendment.—The
table of sections before subchapter VI of chapter 47 of title 10, United States
Code (subchapter VI of the Uniform Code of Military Justice), is amended by
striking “Advice of staff judge advocate and reference for trial” and inserting
“Referral decisions”.
(s) Amendment
of Article 32.—Section 832(a)(2)(B) of title 10, United States Code
(article 32(a)(2)(B) of the Uniform Code of Military Justice), is amended by
striking “the convening authority has” and inserting “there is”.
(t) Amendment
of Article 34.—Section 834 of title 10, United States Code (article 34
of the Uniform Code of Military Justice), is amended as follows:
(1)
The caption shall read: Ҥ 834. Art.
34. Referral decisions.”
(2)
In subsection (a)—
(i) by striking the first sentence; and
(ii) by striking “convening authority” and
inserting “chief trial counsel”;
(3)
in subsection (b), by striking the entire text and inserting “In exercising his
authority under subsection (a), the chief trial counsel shall apply the
charging standards prescribed by the Department of Justice for the prosecution
of criminal cases in the United States district courts.”; and
(4)
by inserting:
“(d)
If the chief trial counsel decides not to refer a minor offense for trial by
general or special court-martial, non-judicial punishment may be imposed in
accordance with section 815 of title 10, United States Code (article 15 of the
Uniform Code of Military Justice).
“(e)
Nothing in this section shall prevent a commanding officer from imposing
non-judicial punishment for minor offenses, as defined by the President, in
accordance with section 815 of title 10, United States Code) (article 15 of the
Uniform Code of Military Justice. If a member demands trial by court-martial,
the commanding officer may refer the charges to the chief trial counsel for
disposition under section 22 of title 10, United States Code (article 22 of the
Uniform Code of Military Justice).”
(u) Amendment
of Article 37(a).—Section 837(a) of title 10, United States Code
(article 37(a) of the Uniform Code of Military Justice), is amended—
(1)
in the first sentence, by striking “authority convening a general, special, or
summary court-martial, or any other commanding officer,” and inserting “person
subject to this chapter”;
(2)
in the second sentence—
(A)
by inserting “chief trial counsel, court-martial administrator, military judge,
appellate military judge,” after “the action of”;
(B)
by inserting “or official” after “judicial”; and
(C)
by striking “convening, approving or”.
(v) Amendment
of Article 49.—Section 849 of title 10, United States Code (article 49
of the Uniform Code of Military Justice), is amended by striking “an authority
competent to convene a court-martial for the trial of those charges” and inserting
“the court-martial administrator”.
(w) Amendment
of Article 56a.—Section 856a of title 10, United States Code (article
56a of the Uniform Code of Military Justice), is amended by striking “— (A)
action taken by the convening authority, the Secretary concerned, or another
person authorized to act under section 860 of this title (article 60); or (B)
any other”.
(x) Amendment
of Article 57(a).—Section 857(a) of title 10, United States Code
(article 57(a) of the Uniform Code of Military Justice), is amended by—
(a)
in subparagraph (1), striking “the earlier of— (A)” and “; or” and subparagraph
(B);
(b)
in subparagraph (2), striking “convening authority” and inserting “military
judge”; and
(c)
striking subparagraph (4).
(y) Amendment
of Article 57a.—Section 857a of title 10, United States Code (article
57a of the Uniform Code of Military Justice), is amended—
(1)
by striking subsection (a);
(2)
by renumbering subparagraph (b)(1) as subparagraph (a)(1), and striking
“convening authority” and inserting “military judge”;
(3)
by renumbering subparagraph (b)(2) as subparagraph (a)(2); and
(4)
by renumbering subsection (c) as subsection (b).
(z) Amendment
of Article 58b(b).—Section 858b(b) of title 10, United States Code
(article 58b(b) of the Uniform Code of Military Justice), is amended by striking
“convening authority or other person acting under section 60 of this title
(article 60)” and inserting “military judge”.
(aa) Clerical
amendment.—The table of sections before subchapter IX of chapter 47 of
title 10, United States Code (subchapter IX of the Uniform Code of Military
Justice), is amended by striking “Action by the convening authority” and
inserting “[Reserved]”.
(bb) Amendment
of Article 59(a).—Section 859(a) of title 10, United States Code
(article 59 of the Uniform Code of Military Justice), is amended by inserting
“a” after “sentence of”.
(cc) Repeal of
Article 60.—Section 860 of title 10, United States Code (article 60 of
the Uniform Code of Military Justice), is repealed.
(dd) Amendment
of Article 61.—Section 861 of title 10, United States Code (article 61
of the Uniform Code of Military Justice), is amended—
(1)
in subsection (a), by—
(a) striking “”as approved under section
860(c) of this title (article 60(c))” in subsection (a);
(b) striking “convening authority” in the
first sentence and inserting “military judge”;
(c) striking “action under section 860(c)
of this title (article 60(c)) is served on the accused or defense counsel or
other person acting under section 60 of this title (article 60)” and inserting
“trial”; and
(d) striking “convening authority or other
person taking such action” and inserting “military judge”; and
(2)
in subsection (b), by striking “as approved under section 860(c) of this title
(article 60(c))”.
(ee) Amendment
of Article 64.—Section 864 of title 10, United States Code (article 64
of the Uniform Code of Military Justice), is amended—
(1)
in subsection (b), by—
(a) striking “person exercising general
court-martial jurisdiction over the accused at the time the court was convened
(or to that person’s successor in command)” and inserting “military judge who
presided at trial (or another military judge if that judge is not reasonably
available)”; and
(b) striking “approved under section
860(c) of this title (article 60(c))”; and
(2)
in subsection (c)(2), striking “convening authority” and inserting “chief trial
counsel”.
(ff) Amendment
of Article 67.—Section 867 of title 10, United States Code (article 67
of the Uniform Code of Military Justice), is amended—
(a)
in subsection (c), by striking “as approved by the convening authority”; and
(b)
in subsection (e)—
(1)
by striking “convening authority” and inserting “court-martial administrator”
in the second sentence; and
(2)
by striking “convening authority” and inserting “chief trial counsel” in the
third sentence.
SEC. 3. TERMS OF OFFICE FOR MILITARY
JUDGES.
(a) Amendment
of Article 26(a).—Section
826(a) of title 10, United States Code (article 26(a) of the Uniform Code of Military
Justice), is amended by inserting after the third sentence: “A military judge shall
have a nonrenewable fixed term of office of ten years, subject to appointment
as an appellate military judge, retirement, or removal for cause in accordance
with section 6a of this title (article 6a).”
(b) Amendment
of Article 66(a).—Section
866(a) of title 10, United States Code (article 66(a) of the Uniform Code of
Military Justice), is amended by inserting after the first sentence: “An appellate
military judge shall have a nonrenewable fixed term of office of ten years,
subject to retirement or removal for cause in accordance with section 6a of
this title (article 6a).”
SEC.
4.
JURISDICTION OF THE SUPREME COURT OF THE
UNITED STATES TO REVIEW DECISIONS OF THE UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES.
(a) Amendment
of Article 67a(a).—Section
867a(a) of title 10, United States Code (article 67a(a) of the Uniform Code of Military
Justice), is amended by striking the second sentence.
(b) Amendment
of Judicial Code.—Section 1259(4) of title 28, United States Code is
amended by striking “granted relief” and inserting “taken action”.
SEC. 5. CODE COMMITTEE.
(a) Abolition
of Code Committee.—Section 946 of title 10, United States Code (article
146 of the Uniform Code of Military Justice), is amended by striking the caption
and current text and inserting:
Ҥ
946. Art. 146. Annual report.
“(a) The judges of the United
States Court of Appeals for the Armed Forces and the Judge Advocates General of
the Army, Navy, Air Force, and Coast Guard, and the Staff Judge Advocate to the
Commandant of the Marine Corps shall each year submit a consolidated report on
military justice—
(1)
to the Committee on Armed Services of the Senate and the Committee on Armed
Services of the House of Representatives; and
(2)
to the Secretary of Defense, the Secretaries of the military departments, and
the Secretary of Homeland Security.
(b) Each report under subsection
(a) shall include the following:
(1)
Information on the number and status of pending cases.
(2)
Information from the Judge Advocates General and the Staff Judge Advocate to
the Commandant of the Marine Corps on the following:
(A)
The appellate review process, including—
(i)
information on compliance with processing time goals;
(ii)
discussions of the circumstances surrounding cases in which general
court-martial or special court-martial convictions are reversed as a result of unlawful
command influence or denial of the right to a speedy review or otherwise remitted
due to loss of records of trial or other administrative deficiencies; and
(iii)
discussions of cases in which a provision of this chapter is held
unconstitutional.
(B)
Measures implemented by each armed force to ensure the ability of judge
advocates to competently participate as trial and defense counsel in, and
preside as military judges over, capital cases, national security cases, sexual
assault cases, and proceedings of military commissions.
(C)
The independent views of the Judge Advocates General and the Staff Judge
Advocate to the Commandant of the Marine Corps on the sufficiency of resources
available within their respective armed forces, including total workforce, funding,
training, and officer and enlisted grade structure, to capably perform military
justice functions.
(c) Any recommendation relating
to—
(A)
uniformity of policies as to sentences;
(B)
amendments to this chapter; and
(C)
any other matter relating to the administration of military justice, including
compliance with international agreements to which the United States is a party.”
(b) Clerical amendment.—The
table of sections at the beginning of subchapter XII of chapter 47 of title 10,
United States Code (subchapter XII of the Uniform Code of Military Justice) is
amended by striking “Code Committee” and inserting “Annual report”.
SEC. 6. EFFECTIVE DATE.
Section 2 of this Act shall be effective one year
after enactment. The remainder shall be effective one hundred twenty days after
enactment.
Explanatory Note
The principal purposes
of this bill are to update the Uniform Code of Military Justice with respect to
the role of commanders and restore the requirement that court-martial offenses
be service-connected. Other provisions are easy fixes to longstanding defects.
The bill is named for two distinguished Army lawyers who championed the cause
of military justice reform in the twentieth century.
The
Wilkerson and Sinclair cases have of course drawn widespread public attention to
the role of commanders as “convening authorities” under the UCMJ. The Wilkerson case drew outrage because the
convening authority overturned a court-martial verdict even before the appellate
process had begun. The Sinclair case
demonstrated the weakness in the current system whereby a lay commander
abdicated his decisional discretion to a crime victim and overrode serious professional
responsibility concerns of an experienced career prosecutor. The bill would end
convening authorities’ control over the disposition and review processes and
other aspects of military justice. It would not, however, prevent them from
making their views about disposition known to the chief trial counsel, provided
the defense and any victim are afforded timely access to and an opportunity to
respond to those views.
The bill gives the
charging power to a chief trial counsel, who would be the equivalent of a
director of military or service prosecutions in each branch of the service.
“Trial counsel” is the traditional term for the prosecutor in American military
justice, and there is no need to abandon it, although it should be noted that
the Military Commissions Act creates a “Chief Prosecutor.” The chief trial
counsel would be independent of the chain of command. He or she would be required
to apply the same charging standards that Department of Justice prosecutors
employ in the trial of criminal cases in the United States district courts.
Commanding officers
would retain their power to impose non-judicial punishment for minor offenses,
and could also exercise that power if the chief trial counsel decides not to
refer a charge to court-martial. What constitutes a minor offense would be
determined by the President of the United States. If a member refuses
nonjudicial punishment and demands trial by court-martial, the commanding
officer will have discretion to refer the charges to the chief trial counsel
for disposition.
Courts-martial would be
convened and panel members (jurors) detailed by a court-martial administrator
independent of the chain of command.
The bill makes these
changes for all offenses, not simply for sexual assault. The reason for this is
that underlying the dismaying pattern of sex cases lies a structural flaw that
runs through the system as a whole, affecting cases arising under all of the
UCMJ’s punitive articles. Military personnel may be as reluctant to report a
war crime they have witnessed as to come forward with information about a sex
offense, whether it involves them or someone else. Commanders called upon, as
they are under present law, to make disposition decisions may be as burdened by
conflicts of interest in war crimes and other cases as in cases involving
sexual assault. The bill seeks to maintain the structural integrity of the
military justice system by keeping all types of serious criminal offenses under
a single legal regime rather than singling out one subset, concerning though it
is.
Except in cases arising
outside the United States or involving petty offenses, courts-martial would
have jurisdiction only over service connected offenses. It is intended to restore
subject matter jurisdiction to what it was before the United States Court of
Military Appeals and the Supreme Court’s decisions in United States v. Solorio, 21 M.J. 251 (C.M.A. 1986), aff’d, 483 U.S. 435 (1987). Cases
lacking service connection, such as most off-base offenses, would be tried by
federal and/or state civilian criminal courts.
The
bill adjusts the Supreme Court’s certiorari jurisdiction so that any case
decided by the United States Court of Appeals for the Armed Forces would be
eligible for review by writ of certiorari. This would put military defendants
on the same footing as all federal and state criminal defendants as well as all
unlawful combatants who are convicted by military commissions.
The
bill abolishes the Code Committee on Military Justice, which has proven to be unworkable,
but preserves the current reporting requirements. The only addition is a
requirement to include recommendations with respect to compliance with
international agreements to which the United States is a party. The purposes of
this clause are to ensure that those responsible for the administration of
military justice are mindful of the potential impact of international
agreements (such as the International Covenant on Civil and Political Rights)
that apply to courts-martial and to facilitate congressional oversight of
United States compliance with its international obligations.
The bill abolishes
summary courts-martial. The Supreme Court held nearly 40 years ago that summary
courts-martial, in which relatively junior officers without legal training may
be called upon to make legal judgments, apply the Military Rules of Evidence,
and above all perform incompatible roles as prosecutor, defense counsel, judge
and jury, are not criminal prosecutions. Middendorf
v. Henry, 425 U.S. 25 (1976). The accused can refuse trial by summary
court-martial in any case. The use of these “courts” has declined and the
function they perform can be performed as well, if not better, through the
imposition of commanding officer’s non-judicial punishment under Article 15. In
FY2013, the armed services conducted only 1101 summary courts-martial, and
imposed non-judicial punishment 62,148 times.
The bill mandates
nonrenewable ten year terms of office for military trial and appellate judges
to enhance their independence and foster public confidence in the
administration of justice.
The
bill includes a substantially delayed effective date for section 2, to allow
sufficient time to (a) draft, circulate, obtain public comments on, and promulgate
the necessary revisions to the Manual for
Courts-Martial and (b) promulgate any necessary changes to service military
justice regulations. The remainder of the measure would take effect 120 days
after enactment.
 |
| Maj. Gen. Kenneth J. Hodson |
 |
| Brig. Gen. Samuel T. Ansell |
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