[Federal Register Volume 67, Number 219 (Wednesday, November 13, 2002)]
[Notices]
[Pages 68838-68841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28725]


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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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