13 November 2002
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: November 13, 2002 (Volume 67, Number 219)]
[Notices]
[Page 68838-68841]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no02-37]

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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of summary of public comment received regarding proposed
amendments to the Manual for Courts-Martial, United States (2000 ed.).

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SUMMARY: The JSC is forwarding final proposed amendments to the Manual
for Courts-Martial, United States (2000 ed.) (MCM) to the Department of
Defense. The proposed changes, resulting from the JSC's 2002 annual
review of the MCM, concern the rules of procedure applicable in trials
by courts-martial. The proposed changes have not been coordinated
within the Department of Defense under DoD Directive 5500.1,
``Preparation and Processing of Legislation, Executive Orders,
Proclamations, and Reports and Comments Thereon,'' May 21, 1964, and do
not constitute the official position of the Department of Defense, the
Military Departments, or any other government agency.

ADDRESSES: Comments and materials received from the public are
available for inspection or copying at the Headquarters, U.S. Marine
Corps, Military Law Branch, 2 Navy Annex, Washington, DC 20380-1775,
between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal
Holidays.

FOR FURTHER INFORMATION CONTACT: Major C. G. Carlson, USMC, Executive
Secretary, Joint Service Committee on Military Justice, Headquarters,
U.S. Marine Corps (JAM), 2 Navy Annex, Washington, DC 20380-1775, (703)
614-4250, (703) 695-0335 fax.

SUPPLEMENTARY INFORMATION:

Background

    On 20 May 2002, the JSC published a Notice of Proposed Amendments
to the Manual for Courts-Martial and a Notice of Public Meeting to
receive comment on its 2002 draft annual review of the Manual for
Courts-Martial. On 27 June 2002, the public meeting was held. Three
individuals and two members of the press attended the public meeting.
Only one individual on behalf of an organization provided oral comment.
The JSC received one letter commenting on the proposed amendments.

Purpose

    The proposed changes concern the rules of procedure applicable in
trials by courts-martial. More specifically, the

[[Page 68839]]

proposed changes: require the convening authority to take affirmative
action in referring an eligible offense for trial as a capital case;
clarify rules prohibiting unreasonable multiplication of charges;
provide for trial by twelve members in capital cases, where reasonably
available; make a technical change substituting ``hardship duty pay''
for ``foreign duty pay''; amends the rules and procedures applicable to
sealed exhibits; explain that the military judge must determine as a
matter of law whether an order is lawful; broadens the threat or hoax
offense to include weapons of mass destruction, biological and chemical
agents, and hazardous materials; and increases the maximum punishment
for violation of the threat or hoax article.

Discussion of Comments and Changes

    In response to the request for public comment the JSC received oral
and written comments on behalf of one organization. The JSC considered
the public comments and is satisfied that the proposed amendments are
appropriate to implement without additional modification. The JSC will
forward the public comments and the proposed amendments, as modified,
to the Department of Defense.
    The oral and written comments provided by the organization
regarding the proposed substantive changes follow:
    a. Noted that in the capital courts-martial provisions no effective
date was listed for the application of the twelve-member panel
procedures in the rule even though the statute applied the change to
offenses occurring after December 31, 2002.
    b. Stated that the JSC's expansion of Paragraph 109 may be improper
given that the amendment appears to create a new offense. The
organization objected to this new paragraph on the grounds that the
creation of new offenses is a legislative prerogative and not a
rulemaking task of the President.
    c. Opposed changing Article 90 to make determination of lawfulness
of an order a question of law where the JSC has premised such a change
on U.S. v. New, 55 M.J. 95 (CAAF). The organization contended that New
involved Article 92 instead of Article 90. The organization stated that
an explanation is necessary and change to Article 90 should be held in
abeyance.
    d. Observed that the Analyses as presented are inadequate and do
not provide a sufficient explanation for the Committee's
recommendations.
    The JSC has considered these comments and has determined that the
rulemaking process is adequate, satisfies statutory requirements, and
provides sufficient opportunity for public participation. The JSC has
determined that its proposed amendment to Paragraph 109 does not
improperly infringe on the legislative prerogative of the Congress.
Additionally, the proposed amendment to Article 90 is appropriate
because the definition of lawfulness in Article 92 is identical to the
definition in Article 90 and extending CAAF's holding to Article 90 is
a proper exercise of the President's rulemaking authority.

Proposed Amendments After Consideration of Public Comment Received

    The proposed amendments to the Manual for Courts-Martial are as
follows:

    Amend R.C.M. 103(2) by deleting ``without'' and replacing with
``with'' and by deleting ``noncapital'' and replacing with
``capital.''
    Amend the Analysis accompanying R.C.M. 103(2) by inserting the
following prior to the discussion of subsection (3):
    ``200-- Amendment: This definition is based on United States v.
Mathews, 16 M.J. 354 (C.M.A. 1983), and R.C.M. 1004, and is
consistent with the numerous affirmative steps required of a
convening authority in order to refer a court-martial case as
capital. See R.C.M. 1004 and accompanying analysis at Appendix 21,
R.C.M. 1004.''
    Amend R.C.M. 201(f)(1)(A)(iii)(b) by substituting the following
therefor:
    ``(b) The case has not been referred with a special instruction
that the case is to be tried as capital.''
    Amend the Analysis accompanying R.C.M. 201(f) by inserting the
following prior to the discussion of subsection (f)(2):
    ``200-- Amendment: Subsection (1)(A)(iii)(b) was changed to
reflect that a convening authority must affirmatively act to refer a
capital punishment eligible offense for trial as a capital case.''
    Amend R.C.M. 307(c)(4) by inserting the following at the end
thereof:
    ``What is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one
person.''
    Amend the Discussion accompanying R.C.M. 307(c)(4) by striking
the first sentence.
    Amend the Analysis accompanying R.C.M. 307(c)(4) by inserting
the following prior to the discussion of subsection (c)(5):
    ``200-- Amendment: The first sentence of the non-binding
discussion was moved, en toto, to subsection (4) to reflect the
decision of United States v. Quiroz, which identifies the
prohibition against the unreasonable multiplication of charges as a
`a long-standing principle' of military law. See United States v.
Quiroz, 55 M.J. 334 (CAAF 2001).''
    Amend R.C.M. 501(a)(1)(A) to read as follows:
    ``(A) A military judge and, except in capital cases, not less
than five members.''
    Amend R.C.M. 501(a)(1) by inserting the following subparagraph
(C) to read as follows:
    ``(C) In all capital cases, a military judge and no fewer than
twelve members, unless twelve members are not reasonably available
because of physical conditions or military exigencies. If fewer than
twelve members are reasonably available, the convening authority
shall detail the next lesser number of reasonably available members
under twelve, but in no event fewer than five. In such a case, the
convening authority shall state in the convening order the reasons
why twelve members are not reasonably available.''
    Amend R.C.M. 805(b) by replacing the current second sentence
with the following:
    ``No general court-martial proceeding requiring the presence of
members may be conducted unless at least 5 members are present, or
in capital cases, at least twelve members are present except as
provided in R.C.M. 501(a)(1)(C), where twelve members are not
reasonably available because of physical conditions or military
exigencies. No special court-martial proceeding requiring the
presence of members may be conducted unless at least 3 members are
present except as provided in R.C.M. 912(h).''
    Amend R.C.M. 1003(b)(2) by deleting ``foreign'' and substituting
``hardship'' therefor.
    Amend the Analysis accompanying R.C.M. 1003(b)(2) by inserting
the following paragraph:
    ``200-- Amendment: Hardship Duty Pay (HDP) superceded Foreign
Duty Pay (FDP) on 3 February 1999. HDP is payable to members
entitled to basic pay. The Secretary of Defense has established that
HDP will be paid to members (a) for performing specific missions, or
(b) when assigned to designated areas.''
    Amend R.C.M. 1004(b) by inserting the following after ``(1)
Notice.'' and before ``Before'':
    ``(A) Referral. The convening authority shall indicate that the
case is to be tried as a capital case by including a special
instruction in the referral block of the charge sheet. Failure to
include this special instruction at the time of the referral shall
not bar the convening authority from later adding the required
special instruction, provided:
    (i) that the convening authority has otherwise complied with the
notice requirement of subsection (B); and
    (ii) that if the accused demonstrates specific prejudice from
such failure to include the special instruction, a continuance or a
recess is an adequate remedy.
    ``(B) Arraignment.''
    Amend the analysis accompanying R.C.M. 1004(b) by substituting
the following paragraph for the current first paragraph:
    ``200-- Amendment: Subsection (1)(A) is intended to provide
early and definitive notice that the case has been referred for
trial as a capital case. Subsection (1)(B) is intended to provide
the defense written notice of the aggravating factors it intends to
prove, yet afford some latitude to the prosecution to provide later
notice, recognizing that the exigencies of proof may prevent early
notice in some cases.''

[[Page 68840]]

    Insert the following new R.C.M. 1103A to read as follows:
    ``Sealed exhibits and proceedings. If the record of trial
contains exhibits, proceedings, or other matter ordered sealed by
the military judge, the trial counsel shall cause such materials to
be sealed so as to prevent indiscriminate viewing or disclosure.
Trial counsel shall ensure that such materials are properly marked,
including an annotation that the material was sealed by order of the
military judge, and inserted at the appropriate place in the
original record of trial. Copies of the record shall contain
appropriate annotations that matters were sealed by order of the
military judge and have been inserted in the original record of
trial. Except as provided in the following subsections to this rule,
sealed exhibits may not be opened by any party.
    (1) Examination of sealed matters. For the purpose of this rule,
``examination'' includes unsealing the sealed documents, reading,
viewing, or manipulating them in any way. ``Examination'' under this
rule does not include photocopying, photographing, duplicating, or
disclosing in any manner in the absence of an order from appropriate
authority.
    (A) Prior to authentication. Prior to authentication of the
record by the military judge, sealed materials may not be examined
in the absence of an order from the military judge based on good
cause shown.
    (B) Authentication through action. After authentication and
prior to disposition of the record of trial pursuant to Rule for
Courts-Martial 1111, sealed materials may not be examined in the
absence of an order. Such order may be issued from the military
judge upon a showing of good cause at a post-trial Article 39a
session directed by the Convening Authority.
    (C) Reviewing and appellate authorities.
    (i) Reviewing and appellate authorities may examine sealed
matters when those authorities determine that such action is
reasonably necessary to a proper fulfillment of their
responsibilities under the Uniform Code of Military Justice, the
Manual for Courts-Martial, governing directives, instructions,
regulations, applicable rules for practice and procedure or rules of
professional responsibility.
    (ii) Reviewing and appellate authorities shall not, however,
disclose sealed matter or information in the absence of:
    (a) Prior authorization of the Judge Advocate General in the
case of review under Rule for Courts-Martial 1201(b); or
    (b) Prior authorization of the appellate court before which a
case is pending in the case of review under Rules for Courts-Martial
1203 and 1204.
    (iii) In those cases in which review is sought or pending before
the United States Supreme Court, authorization to disclose sealed
materials or information shall be obtained under that Court's rules
of practice and procedure.
    (iv) The authorizing officials in paragraph (ii) above may place
conditions on authorized disclosures in order to minimize the
disclosure.
    (v) Reviewing and appellate authorities include:
    (a) Judge advocates reviewing records pursuant to Rule for
Courts-Martial 1112;
    (b) Officers and attorneys in the office of the Judge Advocate
General reviewing records pursuant to Rule for Courts-Martial
1201(b);
    (c) Appellate government counsel;
    (d) Appellate defense counsel;
    (e) Appellate judges of the Courts of Criminal Appeals and their
professional staffs;
    (f) The judges of the United States Court of Appeals for the
Armed Forces and their professional staffs;
    (g) The Justices of the United States Supreme Court and their
professional staff; and
    (h) Any other court of competent jurisdiction.''
    Insert the following Analysis to accompany new R.C.M. 1103A:
    ``200--Amendment: The 1998 amendments to the Manual for Courts-
Martial introduced the requirement to seal M.R.E. 412 (rape shield)
motions, related papers, and the records of the hearings, to ``fully
protect an alleged victim of [sexual assault] against invasion of
privacy and potential embarrassment.'' MCM Appendix 22, p. 36. As
current rule 412(c)(2) reads, it is unclear whether appellate courts
are bound by orders sealing 412 information issued by the military
judge. See, e.g., United States v. Stirewalt, 53 M.J. 582
(C.G.C.C.A. 2000).
    On a larger scale, the effect and scope of a military judge's
order to seal exhibits, proceedings, or materials is similarly
unclear. Certain aspects of the military justice system,
particularly during appellate review, seemingly mandate access to
sealed materials. For example, appellate defense counsel have a need
to examine an entire record of trial to advocate thoroughly and
knowingly on behalf of a client. Yet there is some uncertainty about
appellate defense counsel's authority to examine sealed materials in
the absence of a court order.
    The rule is designed to respect the privacy and other interests
that justified sealing the material in the first place, while at the
same time recognizing the need for certain military justice
functionaries to review that same information. The rule favors an
approach relying on the integrity and professional responsibility of

those functionaries, and assumes that they can review sealed
materials and at the same time protect the interests that justified
sealing the material in the first place. Should disclosure become
necessary, then the party seeking disclosure is directed to an
appropriate judicial or quasi-judicial official or tribunal to
obtain a disclosure order.''
    Amend Manual for Courts-Martial, Part IV, Paragraph 14c(2)(a),
by inserting the following new subparagraph (ii) and renumbering
existing subparagraphs (a)(ii) through (iv) as (a)(iii) through (v):
    ``(ii) Determination of lawfulness. The lawfulness of an order
is a question of law to be determined by the military judge.''
    Amend Manual for Courts-Martial, Part IV, Paragraph 109, by
deleting the current text and replacing with the following:
    ``109. ARTICLE 134--Threat or hoax designed or intended to cause
panic or public fear.
    a. Text. See paragraph 60.
    b. Elements.
    (1) Threat.
    (a) That the accused communicated certain language;
    (b) That the information communicated amounted to a threat;
    (c) That the harm threatened was to be done by means of an
explosive, weapon of mass destruction, biological, or chemical
agent, substance, or weapon, or hazardous material;
    (d) That the communication was wrongful; and
    (e) That, under the circumstances, the conduct of the accused
was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed forces.
    (2) Hoax.
    (a) That the accused communicated or conveyed certain
information;
    (b) That the information communicated or conveyed concerned an
attempt being made or to be made by means of an explosive, weapon of
mass destruction, biological, or chemical agent, substance or
weapon, or hazardous material to unlawfully kill, injure, or
intimidate a person or to unlawfully damage or destroy certain
property;
    (c) That the information communicated or conveyed by the accused
was false and that the accused then knew it to be false;
    (d) That the communication of the information by the accused was
malicious; and
    (e) That, under the circumstances, the conduct of the accused
was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed forces.
    c. Explanation:
    (1) Threat. A ``threat'' means an expressed present
determination or intent to kill, injure, or intimidate a person or
to damage or destroy certain property presently or in the future.
Proof that the accused actually intended to kill, injure,
intimidate, damage, or destroy is not required.
    (2) Explosive. ``Explosive'' means gunpowder, powders used for
blasting, all forms of high explosives, blasting materials, fuses
(other than electrical circuit breakers), detonators, and other
detonating agents, smokeless powders, any explosive bomb, grenade,
missile, or similar device, and any incendiary bomb or grenade, fire
bomb, or similar device, and any other explosive compound, mixture,
or similar material.
    (3) Weapon of mass destruction. A weapon of mass destruction is
a device designed or intended to cause death or serious bodily
injury through the release, dissemination, or impact of toxic or
poisonous chemicals, or their precursors; or any weapon involving a
disease organism; or any weapon that is designed to release
radiation or radioactivity at a level dangerous to human life.
    (4) Biological agent. The term ``biological agent'' means any
micro-organism (including bacteria, viruses, fungi, rickettsiac, or
protozoa), pathogen, or infectious substance, and any naturally
occurring, bioengineered, or synthesized component of any such
micro-organism, pathogen, or infectious substance, whatever its
origin or method of production, that is capable of causing--

[[Page 68841]]

    (i) death, disease, or other biological malfunction in a human,
an animal, a plant, or another living organism;
    (ii) deterioration of food, water, equipment, supplies, or
materials of any kind; or
    (iii) deleterious alteration of the environment.
    (5) Chemical agent, substance, or weapon. A chemical agent,
substance or weapon refers to a toxic chemical and its precursors
and or a munition or device, specifically designed to cause death or
other harm through toxic properties of those chemicals which would
be released as a result of the employment of such munition or
device, and any equipment specifically designed for use directly in
connection with the employment of such munitions or devices.
    (6) Hazardous material. A substance or material (including
explosive, radioactive material, etiologic agent, flammable or
combustible liquid or solid, poison, oxidizing or corrosive
material, and compressed gas, or mixture thereof) or a group or
class of material designated as hazardous by the Secretary of
Transportation.
    (7) Malicious. A communication is ``malicious'' if the accused
believed that the information would probably interfere with the
peaceful use of the building, vehicle, aircraft, or other property
concerned, or would cause fear or concern to one or more persons.
    d. Lesser included offenses.
    (1) Threat.
    (a) Article 134--communicating a threat
    (b) Article 80--attempts
    (c) Article 128--assault
    (2) Hoax. Article 80--attempts.
    e. Maximum punishment. Dishonorable discharge, forfeitures of
all pay and allowances and confinement for 10 years.
    f. Sample specifications.
    (1) Threat.
    In that ---------- (personal jurisdiction data) did, (at/on
board--location) on or about --------20----, wrongfully communicate
certain information, to wit: --------, which language constituted a
threat to harm a person or property by means of a(n) [explosive,
weapon of mass destruction, biological agent or substance, chemical
agent or substance and/or (a) hazardous material[s])].
    (2) Hoax.
    In that ---------- (personal jurisdiction data) did, (at/on
board--location), on or about -------- 20,----, maliciously
(communicate) (convey) certain information concerning an attempt
being made or to be made to unlawfully [(kill) (injure) (intimidate)
--------] [(damage) (destroy) --------] by means of a(n) [explosion,
weapon of mass destruction, biological agent or substance, chemical
agent or substance, and/or (a) hazardous material(s)], to wit: ----
----, which information was false and which the accused then knew to
be false.''
    Amend the Analysis accompanying Punitive Article 134, Paragraph
109, subparagraph c, by inserting the following at the end thereof:
    ``200-- Amendment: This paragraph has been expanded to
annunciate the various means by which a threat or hoax is based.
Whereas explosives were the instruments most commonly used in the
past, new types of weapons have developed. These devices include
weapons of mass destruction, chemical agents, biological agents, and
hazardous materials.''
    Amend the Analysis accompanying Punitive Article 134, Paragraph
109, subparagraph e, by inserting the following at the end thereof:
    ``200-- Amendment: This amendment increases the maximum
punishment currently permitted under paragraph 109 from 5 years to
10 years. Ten years is the maximum period of confinement permitted
under 18 U.S.C. 844(e), the U.S. Code section upon which the
original paragraph 109 is based.
    Amend the Analysis accompanying Punitive Article 90 by inserting
the following new subparagraph c(2)(a)(ii) and renumbering existing
subparagraphs (a)(ii) through (iv) as (a)(iii) through (v):
    ``200-- Amendment: The Court of Appeals for the Armed Forces
held that the lawfulness of an order is a question of law to be
determined by the military judge, not the trier of fact. See United
States v. New, 55 M.J. 95 (C.A.A.F.).''

    Dated: November 4, 2002.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 02-28725 Filed 11-12-02; 8:45 am]

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