In the next few days, President Joe Biden will sign into law the National Defense Authorization Act for Fiscal Year 2024. The measure, which enjoyed bipartisan support, is massive, weighing in at 2306 pages and an $886 billion price tag. It will be popular with military personnel, as it includes a 5.2% pay increase. The bill garnered considerable attention when far-right Republicans members of the House of Representatives objected to the fact that the conferees had not included a variety of provisions they deemed important, such as ending public funding for travel by pregnant servicewomen to secure reproductive-health services not available in the state in which they are stationed, but did include a 4-month extension of a controversial domestic surveillance statute. Other flashpoints include omitted provisions on transgender personnel and diversity policies, to the chagrin of Steve Bannon and others. Those and other skirmishes will certainly resume when Congress reconvenes in January.

In contrast to the hot-button social and political issues that were left on the cutting room floor, the FY24 NDAA includes a number of important provisions relating to military justice, a subject that, in contrast, relates very directly to national defense. I describe below several of these new provisions and changes they entail for the military justice system. The first has to do with the ability of armed forces personnel to appeal cases to the U.S. Supreme Court.

A year ago, I wrote, in a Just Security review of the military justice provisions of the FY23 NDAA:

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. …

The tag line for my essay read: “With luck, the FY23 NDAA can be a harbinger of a new statute rather than yet another exercise in incremental tinkering.”

A year on, how did Congress do?

The big news, overlooked in the Washington Post and other mainstream media outlets,  is under section 533 in subtitle D of the FY24 NDAA: GIs convicted at courts-martial will finally have the same opportunity to seek review by petition for a writ of certiorari the Supreme Court of the United States, even when the U.S. Court of Appeals for the Armed Forces (CAAF) has denied discretionary review.

The provision won’t take effect until a year after signature of the NDAA (to give the Supreme Court time to promulgate an implementing rule) and will apply only to cases on which CAAF has taken action after that date. In other words, cases that are final before that date will remain outside the Supreme Court’s certiorari jurisdiction.

Considering the fact that the exclusion of “ungranted” cases from eligibility for Supreme Court review has been in effect for 40 years, one can only say “better late than never.”

This is not to say that the number of court-martial cases in which the Court will grant certiorari will be substantially greater than the historic trickle, but the principle is important, and military personnel should applaud Congress for finally leveling the playing field. Civilian and military appellate defense counsel will now want to and have to pay attention to whether there are grounds for a certiorari petition in the roughly 90% of cases in which CAAF denies review. Quaere: will some billets need to be added to the services’ appellate defense divisions?

Other provisions of the legislation improve upon prosecutorial powers. The FY22 NDAA created special trial counsels (STCs) with authority to decide on prosecutions for a laundry list of “listed offenses,” “related” and “known” offenses committed by an accused. Section 531(c) of the FY24 NDAA contains a technical amendment that wisely expands the power of these STCs, depending on the offense and when it was committed. Another technical amendment includes “dating partners” within the ambit of the existing Uniform Code of Military Justice (UCMJ) provisions relating to domestic violence and stalking thereby expanding the coverage. In case you were wondering, under section 531(d) a “dating partner” means—

a person who is or has been in a social relationship of a romantic or intimate nature with such specific person based on a consideration of—

(A) the length of the relationship;
(B) the type of relationship;
(C) the frequency of interaction between the persons involved in the relationship; and
(D) the extent of physical intimacy or sexual contact between the persons involved in the relationship.

A major legislative innovation several years ago was replacement of the moribund Code Committee on Military Justice with a high-powered Military Justice Review Panel, to review and make suggestions regarding the military justice system. The FY24 NDAA establishes staggered terms for members of the Review Panel. The Review Panel has been keeping busy with public hearings. Most recently, it recommended significant changes in the preliminary hearing provisions of the UCMJ and the Manual for Courts-Martial.

The new legislation mandates two studies. Section 536 of the FY24 NDAA calls for a Defense Department study to determine the feasibility and advisability of requiring unanimous verdicts in special and general courts-martial. This is in obvious response to the Supreme Court’s 2020 decision in Ramos v. Louisiana, which held that 14th amendment due process requires jury unanimity in state criminal cases. CAAF held in 2023 in United States v. Anderson that Ramos does not apply to courts-martial. A petition for a writ of certiorari is pending in Anderson. It seems likely the Solicitor General will cite the section 536 study as a reason (among others) to deny certiorari. Section 537 of the FY24 NDAA mandates a separate  study  concerning possible removal of sexual assault victim advocates from the victim’s chain of command.

Several provisions that are indirectly related to military justice broadly defined can be found in subtitle C of the FY24 NDAA. Sections 526-528 are fallout of the COVID-19 “mutiny,” when a surprising number of members of the armed forces disobeyed orders to be vaccinated. Reinstatement is required to be considered for those who were discharged if, between August 21, 2021 and February 24, 2023, they had requested exemption on religious, administrative, or medical grounds. Another section requires a discharge review board to assess the characterization of discharges and dismissals that were based solely on disobeying an order to be vaccinated for COVID-19.

Finally, section 529C provides that “[a] military accession [i.e., enlistment, enrollment, commissioning] or a promotion in the Department of Defense shall be based on individual merit and demonstrated performance.” This has nothing to do with military justice, but is too interesting not to mention here. Was the intent to forbid affirmative action in personnel accessions and promotions, as the Conference Report’s account suggests? How does the enacted provision relate to service academy nominations by Senators and Members of Congress?

Despite the progress made in improving the military justice system, Congress’s work in this area is never done. First, of course, is the need to determine whether the shrinking catalog of offenses that remain in the discretion of nonlawyer commanders should be transferred to the STCs. And there are other important matters that merit congressional attention in any event. Among these are whether appellate jurisdiction over courts-martial should be transferred to the U.S. Court of Appeals for the Armed Forces, as I have argued, and whether the military justice system, with its declining caseload, suffers from make-work and bloat, as Colonel (ret) James A. Young and I suggest in Military Justice and Modernity in a forthcoming issue of the Villanova Law Review. Especially for those members of Congress dedicated to improving the military justice system, good bipartisan work remains to be done.

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