[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Presidential Documents]
[Pages 60697-60714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20944]



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Part IV





The President





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Executive Order 13387--2005 Amendments to the Manual for Courts-
Martial, United States
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                         Presidential Documents 
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  Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 60697]]

                Executive Order 13387 of October 14, 2005

                
2005 Amendments to the Manual for Courts-Martial, 
                United States

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including chapter 47 of title 10, United 
                States Code (Uniform Code of Military Justice, 10 
                U.S.C. 801-946), and in order to prescribe amendments 
                to the Manual for Courts-Martial, United States, 
                prescribed by Executive Order 12473, as amended, it is 
                hereby ordered as follows:

                    Section 1. Part II of the Manual for Courts-
                Martial, United States, is amended as follows:
                    (a) R.C.M. 103(2) is amended by replacing the word 
                ``without'' with the word ``with'' and by replacing the 
                word ``noncapital'' with the word ``capital''.
                    (b) R.C.M. 201(e)(2)(B) is amended by adding the 
                word ``general'' between the words ``convene'' and 
                ``courts-martial'' and by inserting the following words 
                after ``armed forces'':
                    ``assigned or attached to a combatant command or 
                joint command''.
                    (c) R.C.M. 201(e)(2)(C) is amended by inserting the 
                words ``assigned or attached to a joint command or 
                joint task force,'' immediately before the words 
                ``under regulations which the superior command may 
                prescribe''.
                    (d) R.C.M. 201(e)(3) is amended by inserting the 
                following immediately after the words ``armed force'':
                    ``, using the implementing regulations and 
                procedures prescribed by the Secretary concerned of the 
                military service of the accused,''.
                    (e) R.C.M. 201(e)(4) is amended by adding the words 
                ``, member, or counsel'' after the words ``military 
                judge''.
                    (f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read 
                as follows:
                    ``(b) The case has not been referred with a special 
                instruction that the case is to be tried as capital.''
                    (g) R.C.M. 307(c)(4) is amended 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.''
                    (h) R.C.M. 501(a)(1) is amended to read as follows:
                    ``(1) General courts-martial.
                    (A) Except in capital cases, general courts-martial 
                shall consist of a military judge and not less than 
                five members, or of the military judge alone if 
                requested and approved under R.C.M. 903.
                    (B) In all capital cases, general courts-martial 
                shall consist of a military judge and no fewer than 12 
                members, unless 12 members are not reasonably available 
                because of physical conditions or military exigencies. 
                If 12 members are not reasonably available, the 
                convening authority shall detail the next lesser number 
                of reasonably available members under 12, but in no 
                event fewer than five. In such a case, the convening 
                authority shall state in the convening order the 
                reasons why 12 members are not reasonably available.''

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                    (i) R.C.M. 503(a)(3) is amended by deleting 
                ``court-martial'' and inserting ``courts-martial'' in 
                lieu thereof.
                    (j) R.C.M. 503(b)(3) is amended by inserting the 
                words ``, a combatant command or joint command'' after 
                the words ``A military judge from one armed force may 
                be detailed to a court-martial convened in a different 
                armed force''.
                    (k) R.C.M. 503(c)(3) is amended by inserting the 
                words ``, a combatant command or joint command'' after 
                the words ``A person from one armed force may be 
                detailed to serve as counsel in a court-martial in a 
                different armed force''.
                    (l) R.C.M. 504, (b)(2)(A) is amended by inserting 
                the following at the end thereof:
                    ``A subordinate joint command or joint task force 
                is ordinarily considered to be ``separate or 
                detached.''''
                    (m) R.C.M. 504, (b)(2)(B) is amended by deleting 
                the word ``or'' at the end of the first element 
                thereof, by deleting the period and adding `` ; or'' at 
                the end of the second element thereof, and by inserting 
                the following as a third element:
                    ``(iii) In a combatant command or joint command, by 
                the officer exercising general court-martial 
                jurisdiction over the command.''
                    (n) R.C.M. 805(b) is amended 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 
                five members are present, or in capital cases, at least 
                12 members are present except as provided in R.C.M. 
                501(a)(1)(B), where 12 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 three members are present except as 
                provided in R.C.M. 912(h).''
                    (o) R.C.M. 912(f)(4) is amended by deleting the 
                fifth sentence and by inserting the following words 
                immediately after the words ``When a challenge for 
                cause has been denied'' in the fourth sentence:
                    ``the successful use of a peremptory challenge by 
                either party, excusing the challenged member from 
                further participation in the court-martial, shall 
                preclude further consideration of the challenge of that 
                excused member upon later review. Further,''
                    (p) R.C.M. 1003(b)(2) is amended by replacing the 
                word ``foreign'' with the word ``hardship.''
                    (q) R.C.M. 1004(b) is amended by inserting the 
                following after ``(1) Notice.'' and before the word 
                ``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.''
                    (r) Insert the following new R.C.M. 1103A after 
                R.C.M. 1103:
                    ``Rule 1103A. Sealed exhibits and proceedings.
                    (a) In general. If the record of trial contains 
                exhibits, proceedings, or other matter ordered sealed 
                by the military judge, the trial counsel shall

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                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. This Rule shall be implemented in a 
                manner consistent with Executive Order 12958, as 
                amended, concerning classified national security 
                information.
                    (b) Examination of sealed exhibits and proceedings. 
                Except as provided in the following subsections to this 
                rule, sealed exhibits may not be examined.
                    (1) Examination of sealed matters. For the purpose 
                of this rule, ``examination'' includes reading, 
                viewing, photocopying, photographing, disclosing, or 
                manipulating the documents in any way.
                    (2) 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.
                    (3) 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 from the military judge upon a showing of good 
                cause at a post-trial Article 39a session directed by 
                the Convening Authority.
                    (4) Reviewing and appellate authorities.
                    (A) 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.
                    (B) Reviewing and appellate authorities shall not, 
                however, disclose sealed matter or information in the 
                absence of:
                    (i) Prior authorization of the Judge Advocate 
                General in the case of review under Rule for Courts-
                Martial 1201(b); or
                    (ii) Prior authorization of the appellate court 
                before which a case is pending review under Rules for 
                Courts-Martial 1203 and 1204.
                    (C) 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.
                    (D) The authorizing officials in paragraph (B)(ii) 
                above may place conditions on authorized disclosures in 
                order to minimize the disclosure.
                    (E) For purposes of this rule, reviewing and 
                appellate authorities are limited to:
                    (i) Judge advocates reviewing records pursuant to 
                Rule for Courts-Martial 1112;
                    (ii) Officers and attorneys in the office of the 
                Judge Advocate General reviewing records pursuant to 
                Rule for Courts-Martial 1201(b);
                    (iii) Appellate government counsel;
                    (iv) Appellate defense counsel;
                    (v) Appellate judges of the Courts of Criminal 
                Appeals and their professional staffs;
                    (vi) The judges of the United States Court of 
                Appeals for the Armed Forces and their professional 
                staffs;
                    (vii) The Justices of the United States Supreme 
                Court and their professional staffs; and

[[Page 60700]]

                    (viii) Any other court of competent jurisdiction.''
                    (s) R.C.M. 1301(a) is amended by inserting the 
                following after the second sentence:
                    ``Summary courts-martial shall be conducted in 
                accordance with the regulations of the military service 
                to which the accused belongs.''

                Sec. 2. Part III of the Manual for Courts-Martial, 
                United States, is amended as follows:

                    Mil. R. Evid. 317(b) is amended by replacing the 
                word ``Transportation'' with the words ``Homeland 
                Security.''

                Sec. 3. Part IV of the Manual for Courts-Martial, 
                United States, is amended as follows:

                    (a) Paragraph 14c(2)(a) is amended 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.''
                    (b) Paragraph 16(c)(1)(a) is amended by replacing 
                the word ``Transportation'' with the words ``Homeland 
                Security''.
                    (c) Paragraph 35a is amended to read as follows:
                    ``a. Text.
                    (a) Any person subject to this chapter who--
                    (1) operates or physically controls any vehicle, 
                aircraft, or vessel in a reckless or wanton manner or 
                while impaired by a substance described in section 
                912a(b) of this title (Article 112a(b)), or
                    (2) operates or is in actual physical control of 
                any vehicle, aircraft, or vessel while drunk or when 
                the alcohol concentration in the person's blood or 
                breath is equal to or exceeds the level prohibited 
                under subsection (b), as shown by chemical analysis, 
                shall be punished as a court-martial may direct.
                    (b)(1) For purposes of subsection (a), the 
                applicable level of the alcohol concentration in a 
                person's blood or breath is as follows:
                    (A) In the case of the operation or control of a 
                vehicle, aircraft, or vessel in the United States, the 
                level is the blood alcohol concentration prohibited 
                under the law of the State in which the conduct 
                occurred, except as may be provided under paragraph 
                (b)(2) for conduct on a military installation that is 
                in more than one State, or the prohibited alcohol 
                concentration level specified in paragraph (b)(3).
                    (B) In the case of the operation or control of a 
                vehicle, aircraft, or vessel outside the United States, 
                the level is the blood alcohol concentration specified 
                in paragraph (b)(3) or such lower level as the 
                Secretary of Defense may by regulation prescribe.
                    (2) In the case of a military installation that is 
                in more than one State, if those States have different 
                levels for defining their prohibited blood alcohol 
                concentrations under their respective State laws, the 
                Secretary concerned for the installation may select one 
                such level to apply uniformly on that installation.
                    (3) For purposes of paragraph (b)(1), the level of 
                alcohol concentration prohibited in a person's blood is 
                0.10 grams or more of alcohol per 100 milliliters of 
                blood and with respect to alcohol concentration in a 
                person's breath is 0.10 grams or more of alcohol per 
                210 liters of breath, as shown by chemical analysis.''
                    (4) In this subsection, the term ``United States'' 
                includes the District of Columbia, the Commonwealth of 
                Puerto Rico, the Virgin Islands, Guam, and American 
                Samoa, and the term ``State'' includes each of those 
                jurisdictions.''

[[Page 60701]]

                    (d) Paragraph 35b(2)(c) is amended to read as 
                follows:
                    ``(c) the alcohol concentration level in the 
                accused's blood or breath, as shown by chemical 
                analysis, was equal to or exceeded the applicable level 
                provided in paragraph 35a above.''
                    (e) Paragraph 35f is amended as follows:
                    ``In that -------- ----(personal jurisdiction 
                data), did (at/on board--required), on or about 20----
                --, (in the motor pool area) (near the Officer's Club) 
                (at the intersection of ---- -- and ------) (while in 
                the Gulf of Mexico) (while in flight over North 
                America) physically control [a vehicle, to wit: (a 
                truck) (a passenger car) (------)] [an aircraft, to 
                wit: (an AH-64 helicopter)(an F-14A fighter)(a KC-135 
                tanker) (---- --)] [a vessel, to wit: (the aircraft 
                carrier USS ------) (the Coast Guard Cutter) (-- ----
                )], [while drunk] [while impaired by ------] [while the 
                alcohol concentration in his (blood)(breath) was, as 
                shown by chemical analysis, equal to or exceeded (.10) 
                (---- --) grams of alcohol per (100 milliliters of 
                blood) (210 liters of breath), which is the limit under 
                (cite applicable State law) (cite applicable statute or 
                regulation)] [in a (reckless) (wanton) manner by 
                (attempting to pass another vehicle on a sharp curve) 
                (by ordering that the aircraft be flown below the 
                authorized altitude)] [and did thereby cause said 
                (vehicle) (aircraft) (vessel) to (strike and) (injure 
                ------ ------ )].''
                    (f) Paragraph 97 is amended by (1) inserting the 
                following new subparagraph (b)(2) and renumbering the 
                existing subparagraphs (b)(2) and (b)(3) as (b)(3) and 
                (b)(4); (2) adding the words ``and patronizing a 
                prostitute'' after the word ``Prostitution'' in 
                subparagraph (e)(1); and (3) inserting the following 
                new subparagraph (f)(2) and renumbering the existing 
                subparagraphs (f)(2) and (f)(3) as (f)(3) and (f)(4):
                    ``(b)(2) Patronizing a prostitute.
                    (a) That the accused had sexual intercourse with 
                another person not the accused's spouse;
                    (b) That the accused compelled, induced, enticed, 
                or procured such person to engage in an act of sexual 
                intercourse in exchange for money or other 
                compensation; and
                    (c) That this act was wrongful; and
                    (d) 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.''
                    ``(f)(2) Patronizing a prostitute.
                    In that ---- -- (personal jurisdiction data), did, 
                (at/on board--location) (subject-matter jurisdiction 
                data, if required), on or about ------ 20------, 
                wrongfully (compel) (induce) (entice) (procure) ---- -- 
                , a person not his/her spouse, to engage in (an act) 
                (acts) of sexual intercourse with the accused in 
                exchange for (money) (------ ------).''
                    (g) Paragraph 109 is amended to read as follows:
                    ``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

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                    (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 means any device, explosive or otherwise, 
                that is intended, or has the capability, to cause death 
                or serious bodily injury to a significant number of 
                people through the release, dissemination, or impact 
                of: toxic or poisonous chemicals, or their precursors; 
                a disease organism; or radiation or radioactivity.
                    (4) Biological agent. The term ``biological agent'' 
                means 12 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--
                    (a) death, disease, or other biological malfunction 
                in a human, an animal, a plant, or another living 
                organism;
                    (b) deterioration of food, water, equipment, 
                supplies, or materials of any kind; or
                    (c) 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 or a munition or device, 
                specifically designed to cause death or other harm 
                through toxic properties of those chemicals that 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.

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                    (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, substance, or weapon; chemical agent, substance, 
                or weapon; 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) [explosive; weapon of mass destruction; biological 
                agent, substance, or weapon; chemical agent, substance, 
                or weapon; and/or (a) hazardous material(s)], to wit: 
                ------, which information was false and which the 
                accused then knew to be false.''

                Sec. 4. Part V of the Manual for Courts-Martial, United 
                States, is amended as follows:

                    (a) Paragraph 1(h) is amended by redesignating 
                existing paragraph 1(h) as 1(i) and inserting the 
                following new paragraph 1(h):
                    ``h. Applicable standards. Unless otherwise 
                provided, the service regulations and procedures of the 
                servicemember shall apply.''
                    (b) Paragraph 2(a) is amended by replacing the 
                words ``Unless otherwise'' with the word ``As''.
                    (c) Paragraph 2(a) is amended by inserting the 
                following after the second sentence:
                    ``Commander includes a commander of a joint 
                command.''
                    (d) Paragraph 2(a) is amended by inserting the 
                words ``of a commander'' in the third sentence after 
                the words ``the authority.''

                Sec. 5. These amendments shall take effect 30 days from 
                the date of this order.

                    (a) Nothing in these amendments shall be construed 
                to make punishable any act done or omitted prior to the 
                effective date of this order that was not punishable 
                when done or omitted.
                    (b) Nothing in these amendments shall be construed 
                to invalidate any nonjudicial punishment proceeding, 
                restraint, investigation, referral of charges, trial in 
                which arraignment occurred, or other action begun prior 
                to the effective date of this order, and any such 
                nonjudicial punishment proceeding, restraint, 
                investigation, referral of charges, trial, or other 
                action

[[Page 60704]]

                may proceed in the same manner and with the same effect 
                as if these amendments had not been prescribed.

                    (Presidential Sig.)B

                THE WHITE HOUSE,

                    October 14, 2005.

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                [FR Doc. 05-20944 Filed 10-17-05 8:45 am]

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