[Congressional Record Volume 167, Number 177 (Thursday, October 7, 2021)]
[Senate]
[Pages S7008-S7010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 3855. Mrs. GILLIBRAND submitted an amendment intended to be 
proposed by her to the bill S. 2792, to authorize appropriations for 
fiscal year 2022 for military activities of the Department of Defense, 
for military construction, and for defense activities of the Department 
of Energy, to prescribe military personnel strengths for such fiscal 
year, and for other purposes; which was ordered to lie on the table; as 
follows:

       At the appropriate place in title V, insert the following:

     SEC. __. AUTHORITY OF MILITARY JUDGES AND MILITARY 
                   MAGISTRATES TO ISSUE MILITARY COURT PROTECTIVE 
                   ORDERS.

       (a) Judge-issued Military Court Protective Orders.--Chapter 
     80 of title 10, United Stated Code, is amended by adding at 
     the end the following new section:

     ``Sec. 1567b. Authority of military judges and military 
       magistrates to issue military court protective orders

       ``(a) Authority to Issue Military Court Protective 
     Orders.--The President shall prescribe regulations 
     authorizing military judges and military magistrates to issue 
     protective orders in accordance with this section. A 
     protective order issued in accordance with this section shall 
     be known as a `military court protective order'. Under the 
     regulations prescribed by the President, military judges and 
     military magistrates shall have exclusive jurisdiction over 
     the issuance, appeal, renewal, and termination of military 
     court protective orders and such orders may not be issued, 
     appealed, renewed, or terminated by State, local, 
     territorial, or tribal courts.
       ``(b) Enforcement by Civilian Authorities.--
       ``(1) In general.--In prescribing regulations for military 
     court protective orders, the President shall seek to ensure 
     that the protective orders are issued in a form and manner 
     that is enforceable by State, local, territorial, and tribal 
     civilian law enforcement authorities.
       ``(2) Full faith and credit.--Any military court protective 
     order shall be accorded full faith and credit by the court of 
     a State, local, territorial, or tribal jurisdiction (the 
     enforcing jurisdiction) and enforced by the court and law 
     enforcement personnel of that jurisdiction as if it were the 
     order of the enforcing jurisdiction.
       ``(3) Reciprocity agreements.--Consistent with paragraphs 
     (1) and (2), the Secretary of Defense shall seek to enter 
     into reciprocity agreements with State, local, territorial, 
     and tribal civilian law enforcement authorities under which--
       ``(A) such authorities agree to enforce military court 
     protective orders; and
       ``(B) the Secretary agrees to enforce protective orders 
     issued by such authorities that are consistent with section 
     2265(b) of title 18.
       ``(c) Purpose and Form of Issuance.--A military court 
     protective order--

[[Page S7009]]

       ``(1) may be issued for the purpose of protecting a victim 
     of an alleged covered offense, or a family member or 
     associate of the victim, from a person subject to chapter 47 
     of this title (the Uniform Code of Military Justice) who is 
     alleged to have committed such an offense; and
       ``(2) shall include--
       ``(A) a finding regarding whether such person represents a 
     credible threat to the physical safety of such alleged 
     victim;
       ``(B) a finding regarding whether the alleged victim is an 
     intimate partner or child of such person; and
       ``(C) if applicable, terms explicitly prohibiting the use, 
     attempted use, or threatened use of physical force that would 
     reasonably be expected to cause bodily injury against such 
     intimate partner or child.
       ``(d) Burden of Proof.--In determining whether to issue a 
     military court protective order, a military judge or military 
     magistrate shall make all relevant findings by a 
     preponderance of the evidence. The burden shall be on the 
     party requesting the order to produce sufficient information 
     to satisfy the preponderance of the evidence standard 
     referred to in the preceding sentence.
       ``(e) Timing and Manner of Issuance.--A military court 
     protective order may be issued--
       ``(1) by a military magistrate, before referral of charges 
     and specifications to court-martial for trial, at the request 
     of--
       ``(A) a victim of an alleged covered offense; or
       ``(B) a Special Victims' Counsel or other qualified counsel 
     acting on behalf of the victim; or
       ``(2) by a military judge, after referral of charges and 
     specifications to court-martial for trial, at the request of 
     qualified counsel, which may include a Special Victims' 
     Counsel acting on behalf of the victim or trial counsel 
     acting on behalf of the prosecution.
       ``(f) Duration and Renewal of Protective Order.--
       ``(1) Duration.--A military court protective order shall be 
     issued for an initial period of up to 180 days and may be 
     reissued for one or more additional periods, each of which 
     may be up to 180 days, in accordance with paragraph (2).
       ``(2) Expiration and renewal.--Before the expiration of any 
     period during which a military court protective order is in 
     effect, a military judge or military magistrate shall review 
     the order to determine whether the order will terminate at 
     the expiration of such period or be reissued for an 
     additional period of up to 180 days.
       ``(3) Notice to protected persons.--If a military judge or 
     military magistrate determines under paragraph (2) that a 
     military court protective order will terminate, the judge or 
     magistrate concerned shall direct that each person protected 
     by the order be provided with reasonable, timely, and 
     accurate notification of the termination.
       ``(g) Review of Magistrate-issued Orders.--
       ``(1) Review.--A military judge, at the request of the 
     person subject to a military court protective order that was 
     issued by a military magistrate, may review the order to 
     determine if the order was properly issued by the magistrate.
       ``(2) Standards of review.--A military judge who reviews an 
     order under paragraph (1) shall terminate the order if the 
     judge determines that--
       ``(A) the military magistrate's decision to issue the order 
     was an abuse of discretion, and there is not sufficient 
     information presented to the military judge to justify the 
     order; or
       ``(B) information not presented to the military magistrate 
     establishes that the military court protective order should 
     be terminated.
       ``(h) Due Process.--
       ``(1) Protection of due process.--Except as provided in 
     paragraph (2), a protective order authorized under subsection 
     (a) may be issued only after reasonable notice and 
     opportunity to be heard and to present evidence, directly or 
     through counsel, is given to the person against whom the 
     order is sought sufficient to protect that person's right to 
     due process.
       ``(2) Emergency orders.--A protective order on an emergency 
     basis may be issued on an ex parte basis under such rules and 
     limitations as the President shall prescribe. In the case of 
     ex parte orders, notice and opportunity to be heard and to 
     present evidence must be provided within a reasonable time 
     not to exceed 30 calendar days after the date on which the 
     order is issued, sufficient to protect the respondent's due 
     process rights.
       ``(i) Rights of Victim.--The victim of an alleged covered 
     offense who seeks a military court protective order has, in 
     addition to any rights provided under section 806b (article 
     6b), the following rights with respect to any proceeding 
     involving the protective order:
       ``(1) The right to reasonable, accurate, and timely notice 
     of the proceeding and of any change in the status of the 
     protective order resulting from the proceeding.
       ``(2) The right to be reasonably heard at the proceeding.
       ``(3) The right to appear in person, with or without 
     counsel, at the proceeding.
       ``(4) The right be represented by qualified counsel in 
     connection with the proceeding, which may include a Special 
     Victims' Counsel.
       ``(5) The reasonable right to confer with a representative 
     of the command of the accused and counsel representing the 
     government at the proceeding, as applicable.
       ``(6) The right to submit a written statement, directly or 
     through counsel, for consideration by the military judge or 
     military magistrate presiding over the proceeding.
       ``(j) Restrictions on Access to Firearms.--
       ``(1) In general.--Notwithstanding any other provision of 
     law--
       ``(A) a military court protective order issued on an ex 
     parte basis shall restrain a person from possessing, 
     receiving, or otherwise accessing a firearm; and
       ``(B) a military court protective order issued after the 
     person to be subject to the order has received notice and 
     opportunity to be heard on the order, shall restrain such 
     person from possessing, receiving, or otherwise accessing a 
     firearm in accordance with section 922 of title 18.
       ``(2) Notice to attorneys general.--
       ``(A) Notice of issuance.--Not later than 72 hours after 
     the issuance of an order described in paragraph (1), the 
     Secretary concerned shall submit a record of the order--
       ``(i) to the Attorney General of the United States; and
       ``(ii) to the Attorney General of the State or Territory in 
     which the order is issued
       ``(B) Notice of recission or expiration.--Not later than 72 
     hours after the recission or expiration of an order described 
     in paragraph (1), the Secretary concerned shall submit notice 
     of such recission or expiration to the Attorneys General 
     specified in subparagraph (A).
       ``(k) Treatment as Lawful Order.--A military court 
     protective order shall be treated as a lawful order for 
     purposes of the application of section 892 (article 92) and a 
     violation of such an order shall be punishable under such 
     section (article).
       ``(l) Command Matters.--
       ``(1) Inclusion in personnel file.--Any military court 
     protective order against a member shall be placed and 
     retained in the military personnel file of the member, except 
     that such protective order shall be removed from the military 
     personnel file of the member if the member is acquitted of 
     the offense to which the order pertains, it is determined 
     that the member did not commit the act giving rise to the 
     protective order, or it is determined that the protective 
     order was issued in error.
       ``(2) Notice to civilian law enforcement of issuance.--Any 
     military court protective order against a member shall be 
     treated as a military protective order for purposes of 
     section 1567a including for purposes of mandatory 
     notification of issuance to Federal and State civilian law 
     enforcement agencies as required by that section.
       ``(m) Relationship to Other Authorities.--Nothing in this 
     section may be construed as prohibiting--
       ``(1) a commanding officer from issuing or enforcing any 
     otherwise lawful order in the nature of a protective order to 
     or against members of the officer's command;
       ``(2) pretrial restraint in accordance with Rule for 
     Courts-Martial 304 (as set forth in the Manual for Courts-
     Martial, 2019 edition, or any successor rule); or
       ``(3) pretrial confinement in accordance with Rule for 
     Courts-Martial 305 (as set forth in the Manual for Courts-
     Martial, 2019 edition, or any successor rule).
       ``(n) Delivery to Certain Persons.--A physical and 
     electronic copy of any military court protective order shall 
     be provided, as soon as practicable after issuance, to the 
     following:
       ``(1) The person or persons protected by the protective 
     order or to the guardian of such a person if such person is 
     under the age of 18 years.
       ``(2) The person subject to the protective order.
       ``(3) To such commanding officer in the chain of command of 
     the person subject to the protective order as the President 
     shall prescribe for purposes of this section.
       ``(o) Definitions.--In this section:
       ``(1) Contact.--The term `contact' includes contact in 
     person or through a third party, or through gifts,
       ``(2) Communication.--The term `communication' includes 
     communication in person or through a third party, and by 
     telephone or in writing by letter, data fax, or other 
     electronic means.
       ``(3) Covered offense.--The term `covered offense' means 
     the following:
       ``(A) An alleged offense under section 920, 920a, 920b, 
     920c, or 920d of this title (article 120, 120a, 120b, 120c, 
     or 120d of the Uniform Code of Military Justice).
       ``(B) An alleged offense of stalking under section 930 of 
     this title (article 130 of the Uniform Code of Military 
     Justice).
       ``(C) An alleged offense of domestic violence under section 
     928b of this title (article 128b of the Uniform Code of 
     Military Justice).
       ``(D) A conspiracy to commit an offense specified in 
     subparagraphs (A) through (C) as punishable under section 881 
     of this title (article 81 of the Uniform Code of Military 
     Justice).
       ``(E) A solicitation to commit an offense specified in 
     subparagraphs (A) through (C) as punishable under section 882 
     of this title (article 82 of the Uniform Code of Military 
     Justice).
       ``(F) An attempt to commit an offense specified in 
     subparagraphs (A) through (C) as punishable under section 880 
     of this title (article 80 of the Uniform Code of Military 
     Justice).

[[Page S7010]]

       ``(4) Military judge and military magistrate.--The terms 
     `military judge' and `military magistrate' mean a 
     commissioned officer of the armed forces who is a member of 
     the bar of a Federal court or a member of the bar of the 
     highest court of a State and who is certified to be 
     qualified, by reason of education, training, experience, and 
     judicial temperament, for duty as a military judge or 
     magistrate by the Judge Advocate General of the armed force 
     of which the officer is a member.
       ``(5) Protective order.--The term `protective order' means 
     an order that--
       ``(A) restrains a person from harassing, stalking, 
     threatening, or otherwise contacting or communicating with a 
     victim of an alleged covered offense, or a family member or 
     associate of the victim, or engaging in other conduct that 
     would place such other person in reasonable fear of bodily 
     injury to any such other person;
       ``(B) by its terms, explicitly prohibits--
       ``(i) the use, attempted use, or threatened use of physical 
     force by the person against a victim of an alleged covered 
     offense, or a family member or associate of the victim, that 
     would reasonably be expected to cause bodily injury;
       ``(ii) the initiation by the person restrained of any 
     contact or communication with such other person;
       ``(iii) any other behavior by the person restrained that 
     the court deems necessary to provide for the safety and 
     welfare of the victim of an alleged covered offense, or a 
     family member or associate of the victim; or
       ``(iv) actions described by any of clauses (i) through 
     (iii).
       ``(6) Special victims' counsel.--The term `Special Victims 
     Counsel' means a Special Victims' Counsel described in 
     section 1044e and includes a Victims' Legal Counsel of the 
     Navy.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is amended by adding at the end the 
     following new item:
``1567b. Authority of military judges and military magistrates to issue 
              military court protective orders.''.
       (c) Implementation.--The President shall prescribe 
     regulations implementing section 1567b of title 10, United 
     States Code (as added by subsection (a)), by not later than 
     one year after the date of the enactment of this Act.
                                 ______