Editor’s note: This article is part of our ongoing series on the National Defense Authorization Act (NDAA) for Fiscal Year 2023.
As readers of Just Security’s series on the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 already know, that mammoth (1772-page) legislation includes a host of important provisions. Although they have attracted less attention, the military justice provisions (found in division A, title V, subtitle E) are important, not only in their own right but also for what they may portend for the future and for what they unfortunately omit.
There’s bad news and good news. The bad news is that Congress did nothing to remedy the current provisions of the U.S. Code that deny military personnel convicted at courts-martial the same access to the Supreme Court as other federal, state, and military commission defendants enjoy. This is inexcusable. Equally inexcusable is Congress’s failure to extend to courts-martial the constitutional requirement that juries be unanimous. On the brighter side, Congress extended appellate review so that anyone convicted by a general or special court-martial will have an appeal as of right to the service court of criminal appeals. It also amended article 25 of the Uniform Code of Military Justice (UCMJ) to provide for a system of randomized selection of panel members (jurors) “to the maximum extent practicable.” This is a major change. Whether it will prove to be more than window-dressing remains to be seen, as the U.S. Court of Appeals for the Armed Forces, which for all intents and purposes has the last word on such matters, has previously rendered violations of the standards for selection of members all but unreviewable by a fanciful approach to the UCMJ’s harmless error standard. [Full disclosure: the author was counsel in the Sullivan case.]
Section 541 is the most noteworthy military provision in the FY23 NDAA. Building on changes Congress enacted in the FY22 NDAA, section 541(a) adds three additional offenses under the UCMJ to the list of “covered offenses” as to which the decision to prosecute is vested in the new Special Trial Counsels rather than, as in the past, nonlawyer commanding officers who are “convening authorities.” The three new “covered offenses” are causing the death or injury of an unborn child (which is a violation of article 119a), mailing obscene matter (which is a violation of article 120a), and sexual harassment (which is a violation of the so-called “General Article,” article 134). The transfer of charging authority as to violations of articles 119a and 120a will apply to offenses that occur after Dec. 27, 2023, while the transfer as to sexual harassment will apply to offenses that occur after Jan. 1, 2025.
The FY22 NDAA had left important questions open with respect to certain important “residual prosecutorial duties and other judicial functions” of convening authorities, such as granting immunity, ordering depositions, and hiring experts in cases over which charging power was to be vested in the new Special Trial Counsels. Congress in section 541(b) directed the President, who has broad rulemaking authority under article 36, to transfer these powers to military judges, special trial counsel, or other officials “as appropriate,” “in consideration of” due process for all parties. The President will have to issue an Executive Order amending the Manual for Courts-Martial to make the necessary changes. Congress should have allocated the residual prosecutorial and judicial functions itself rather than delegate that task to the President. This, it would seem, is one of the prices we pay for enacting important changes to a code of criminal procedure under a looming deadline. Another price is the loss in transparency in the legislative process, since Congress held no hearings of any kind on the military justice changes and important aspects of the legislation, such as which offenses, if any, should be added to the initial catalog of “covered offenses.” Drawing the line between those offenses transferred to the Special Trial Counsels and those over which convening authorities retain charging power seems arbitrary when it is unexplained.
The addition of three more offenses to the list of “covered offenses” is a major victory for Sen. Kirsten E. Gillibrand, and a strong case can be made that her name, rather than that of Senator Inhofe, ought to be on the measure. She and her allies, such as retiring Rep. Jackie Speier, performed a herculean task in changing the basic landscape of military justice, against the determined resistance of the service chiefs, the Judge Advocates General, and the leadership of the House and Senate Committees on Armed Services.
Section 541(d) is quite an interesting provision. It requires that the Rules for Courts-Martial be amended so that the name, rank, or position of the convening authority will not be announced in open court at the beginning of any court-martial, unless the convening authority happens to be the President, the Secretary of Defense, or the service secretary. The purpose, presumably, is to avoid any whiff of command influence that might derive from the very fact that a senior officer had decided there was sufficient merit to send the charges to trial. Whether this was ever much of a concern as a practical matter is not apparent, but one does wonder why cases referred for trial by the Commander in Chief and other senior civilian officials who are statutory convening authorities would be excluded.
Finally, section 541(f) erects a series of critical annual reporting requirements to permit Congress to gauge how the FY22 NDAA’s reassignment of charging power is working out:
The report shall include the following elements:
(1) An overall assessment of the effect such reforms have had on the military justice system and the maintenance of good order and discipline in the ranks.
(2) The percentage of caseload and courts-martial assessed as meeting, or having been assessed as potentially meeting, the definition of “covered offense” under . . . article 1(17) of the Uniform Code of Military Justice (as added by section 533 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 17 Stat. 1695)), disaggregated by offense and military service where possible.
(3) An assessment of prevalence and data concerning disposition of cases by commanders after declination of prosecution by special trial counsel, disaggregated by offense and military service when possible.
(4) Assessment of the effect, if any, the reforms contained in such subtitle have had on non-judicial punishment concerning covered and non-covered offenses.
(5) A description of the resources and personnel required to maintain and execute the reforms made by such subtitle during the reporting period relative to fiscal year 2022.
(6) A description of any other factors or matters considered by the Secretary to be important to a holistic assessment of those reforms on the military justice system.
This reporting requirement will—or should—permit Congress to make an informed judgment down the road as to whether the transfer of charging power effected by the FY22 and FY23 NDAAs should be retained, jettisoned as a failed experiment, or completed by transferring whatever remains of the convening authorities’ charged caseload to the Special Trial Counsels, as had been suggested. Congress will at some point have to decide whether a tipping point has been reached and whether the cases over which the convening authorities retained charging power have so atrophied that the expense and complexity of maintaining two parallel systems to exercise the same function makes no sense and can no longer be justified, as some of us (the author included) already believe to be the case.
Congress’s use of the word “holistic” twice in section 541(f) is telling. Over the past several cycles of defense authorization bills, Congress it has repeatedly modified the military justice system in ways large and small, both as to the punitive articles that define offenses and as to procedure. Some of these changes literally modified the UCMJ, while others were freestanding measures not directly incorporated in the Code. This pattern of haphazard legislative activity has complicated the task of learning and practicing military justice.
Legislative agendas are of course often less than tidy, responding as they do to the felt needs of the moment. Important changes in the last decade have understandably reflected both a growing frustration with the services’ inability to reduce the incidence of sexual assault in the armed forces and a growing recognition of racial disparities in the administration of justice. Thus, ad hoc legislation, attacking first one issue and then another, without necessarily taking into account the effect on the system as a whole, including its coherence, may be the country’s fate when it comes to military justice reform. Nevertheless, Congress’s search for data from which it can start to make wise holistic judgments about the reforms already enacted and others that might be warranted is encouraging and potentially tremendously good news.
Section 541(f) should be a wake-up call for all the players—governmental and otherwise—to put on their long-range thinking caps. This includes the Joint Service Committee on Military Justice and the blue-ribbon Military Justice Review Panel Congress created in 2016 to replace the long-moribund Code Committee on Military Justice. The Review Panel has a sweeping charter and is only now swinging into action, but there is little time to lose. Similarly, the Defense Advisory Committee on Investigation, Prosecution and Defense of Sexual Assault in the Armed Forces (also known as DAC-IPAD) should be a contributor to any holistic appraisal. NGOs such as Protect Our Defenders, which was deeply involved in the FY22 and FY23 NDAAs, and the National Institute of Military Justice, whose 2001 and 2009 Cox Commissions generated influential reports, should also be planning ahead, especially as the 75th anniversary of the UCMJ looms. With luck, the FY23 NDAA can be a harbinger of a new statute rather than yet another exercise in incremental tinkering.