Thursday, September 10, 2020

Reforming U.S. military justice

In the U.S. National Defense Authorization Act of 2016 (NDAA), the Congress made significant changes to the Uniform Code of Military Justice (UCMJ) and the President's follow-on Executive Order directed conforming changes and implementation in the Manual for Courts-Martial (MCM). All of the materials are available at the DoD Joint Service Committee on Military Justice website. Should you want to delve more deeply into UCMJ history, the Library of Congress, Military Legal Resources is a good place to start.

    So how did we get here and so what?

    Over the years since the 1983 changes to the UCMJ and MCM have been occasional and focused on one or two recurring issues. In the process there has not been a lot of public discussion to be had--the changes happened, generally for the good. When the appellate courts issued significant and consequential decisions the MCM at least was amended to conform to the appellate law. And there are always recommendations for change in the hopper, some of which make sense and some which require a "Whack-a-Mole" operative to act.

    But now we come to the primary motivation for the significant changes arising from this NDAA--efforts to address the issue of sexual assault and how the military justice system holds people accountable.

    A troubled Congress told the DoD to set up an investigation to identify problems within the military justice system that were a barrier to enforcing discipline as it related to sexual assaults. The Judicial Proceedings Panel was born.
The Secretary of Defense, as required by Section 576(a)(1) of the NDAA for Fiscal Year 2013 (Public Law 112-239) and in accordance with [other laws], established the Judicial Proceedings Panel.

The Judicial Proceedings Panel will conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice involving adult sexual assault and related offenses since the amendments made to the Uniform Code of Military Justice by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to such proceedings.

    Over many months the panel took "evidence," held hearings, and produced numerous reports about all aspects of a sexual assault allegation--the identifying of and the treatment of victims, changes to the law defining sexual assaults; and the training, skills, and resources for those prosecuting and defending allegations of sexual assault.

    We had also the Military Justice Review Group.
In August 2013, the Joint Chiefs of Staff recommended that the Secretary of Defense direct a "comprehensive and holistic review" of the Uniform Code of Military Justice (UCMJ) to ensure that the military justice system "most effectively and efficiently does justice consistent with due process and good order and discipline." In October 2013, the Secretary of Defense approved the recommendation and directed the General Counsel of the Department of Defense to conduct a comprehensive review of the UCMJ and the military justice system with support from experts provided by the military Services.

    The recommendations from the MJRG eventually became DoD's proposed changes for the NDAA.

    So how has that gone now we have been operating under the rules made applicable after December 2019. (Some changes took immediate effect; others were phased in and still others did not take effect until 1 January 2020). One of the issues that first arose for trials after the effective changes is what rule or law to follow. We had and continue to have what we call 'bridge cases.' For a case that began before 1 January but was tried after 1 January proceeded on some of the old rules and some of the new rules. These bridge cases are anticipated to go longer (Gene and I have discussed one bridge issue of apparent unlawful command influence concerns--a different rabbit hole beyond this post). 

    So how has everything gone? The simple answer is that we are still adjusting and learning, and it may be some time before we can reflect on the positive or negative effects of the changes. Congress itself has enacted changes that may provide more robust data for analysis. See, e.g., Military Sexual Assault: A Framework for Congressional Oversight, CRS (Updated) September 12, 2017.

    So? Prof. Dave Schlueter (a longtime MJ practitioner and studier of MJ) quickly published a lengthy article about the 2016 changes--an article somewhat descriptive, somewhat analytic, and perhaps somewhat prescient. See David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016, 49 St. Mary’s L.J. 1 (2017).

    Fine, but now we can do some initial compare and contrast in addition to our own anecdotal experiences.

    On 28 August 2020, the Congressional Research Service issued a Report on Military Justice Reform. See Jennifer K. Elsea and Jonathan M. Gaffney, Military Courts-Martial Under the Military Justice Act of 2016 (28 August 2020).

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