[Weekly Compilation of Presidential Documents Volume 29, Number 51 (Monday, December 27, 1993)]
[Pages 2628-2634]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12888--Amendments to the Manual for Courts-Martial, 
United States, 1984

 December 23, 1993

    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), in order to prescribe amendments to the Manual for Courts-Martial, 
United States, 1984, prescribed by Executive Order No. 12473, as amended 
by Executive Order No. 12484, Executive Order No. 12550, Executive Order 
No. 12586, Executive Order No. 12708, and Executive Order No. 12767, it 
is hereby ordered as follows:
    Section 1. Part II of the Manual for Courts-Martial, United States, 
1984, is amended as follows:

a. R.C.M. 109 is amended to read as follows:
    ``(a) In general. Each Judge Advocate General is responsible for the 
professional supervision and discipline of military trial and appellate 
military judges, judge advocates, and other lawyers who practice in 
proceedings governed by the code and this Manual. To discharge this 
responsibility each Judge Advocate General may prescribe rules of 
professional conduct not inconsistent with this rule or this Manual. 
Rules of professional conduct promulgated pursuant to this rule may 
include sanctions for violations of such rules. Sanctions may include 
but are not limited to indefinite suspension from practice in courts-
martial and in the Courts of Military Review. Such suspensions may only 
be imposed by the Judge Advocate General of the armed service of such 
courts. Prior to imposing any discipline under this rule, the subject of 
the proposed action must be provided notice and an opportunity to be 
heard. The Judge Advocate General concerned may upon good cause shown 
modify or revoke suspension. Procedures to investigate complaints 
against military trial judges and appellate military judges are 
contained in subsection (c) of this rule.
    (b) Action after suspension or disbarment. When a Judge Advocate 
General suspends a person from practice or the Court of Military Appeals 
disbars a person, any Judge Advocate General may suspend that person 
from practice upon written notice and opportunity to be heard in 
writing.
    (c) Investigation of judges.
      (1) In general. These rules and procedures promulgated pursuant to 
Article 6a are established to investigate and dispose of charges, 
allegations, or information pertaining to the fitness of a military 
trial judge or appellate military judge to perform the duties of the 
judge's office.
      (2) Policy. Allegations of judicial misconduct or unfitness shall 
be investigated pursuant to the procedures of this rule and appropriate 
action shall be taken. Judicial misconduct includes any act or omission 
that may serve to demonstrate unfitness for further duty as a judge, 
including but not limited to violations of applicable ethical standards.
      (3) Complaints. Complaints concerning a military trial judge or 
appellate military judge will be forwarded to the Judge Advocate General 
of the service concerned or to a person designated by the Judge Advocate

[[Page 2629]]

General concerned to receive such complaints.
      (4) Initial action upon receipt of a complaint. Upon receipt, a 
complaint will be screened by the Judge Advocate General concerned or by 
the individual designated in subsection (c)(3) of this rule to receive 
complaints. An initial inquiry is necessary if the complaint, taken as 
true, would constitute judicial misconduct or unfitness for further 
service as a judge. Prior to the commencement of an initial inquiry, the 
Judge Advocate General concerned shall be notified that a complaint has 
been filed and that an initial inquiry will be conducted. The Judge 
Advocate General concerned may temporarily suspend the subject of a 
complaint from performing judicial duties pending the outcome of any 
inquiry or investigation conducted pursuant to this rule. Such inquiries 
or investigations shall be conducted with reasonable promptness.
      (5) Initial inquiry.
        (A) In general. An initial inquiry is necessary to determine if 
the complaint is substantiated. A complaint is substantiated upon 
finding that it is more likely than not that the subject judge has 
engaged in judicial misconduct or is otherwise unfit for further service 
as a judge.
        (B) Responsibility to conduct initial inquiry. The Judge 
Advocate General concerned, or the person designated to receive 
complaints under subsection (c)(3) of this rule, will conduct or order 
an initial inquiry. The individual designated to conduct the inquiry 
should, if practicable, be senior to the subject of the complaint. If 
the subject of the complaint is a military trial judge, the individual 
designated to conduct the initial inquiry should, if practicable, be a 
military trial judge or an individual with experience as a military 
trial judge. If the subject of the complaint is an appellate military 
judge, the individual designated to conduct the inquiry should, if 
practicable, have experience as an appellate military judge.
        (C) Due process. During the initial inquiry, the subject of the 
complaint will, at a minimum, be given notice and an opportunity to be 
heard.
        (D) Action following the initial inquiry. If the complaint is 
not substantiated pursuant to subsection (c)(5)(A) of this rule, the 
complaint shall be dismissed as unfounded. If the complaint is 
substantiated, minor professional disciplinary action may be taken or 
the complaint may be forwarded, with findings and recommendations, to 
the Judge Advocate General concerned. Minor professional disciplinary 
action is defined as counseling or the issuance of an oral or written 
admonition or reprimand. The Judge Advocate General concerned will be 
notified prior to taking minor professional disciplinary action or 
dismissing a complaint as unfounded.
      (6) Action by The Judge Advocate General.
        (A) In general. The Judge Advocates General are responsible for 
the professional supervision and discipline of military trial and 
appellate military judges under their jurisdiction. Upon receipt of 
findings and recommendations required by subsection (c)(5)(D) of this 
rule the Judge Advocate General concerned will take appropriate action.
        (B) Appropriate Actions. The Judge Advocate General concerned 
may dismiss the complaint, order an additional inquiry, appoint an 
ethics commission to consider the complaint, refer the matter to another 
appropriate investigative agency or take appropriate professional 
disciplinary action pursuant to the rules of professional conduct 
prescribed by the Judge Advocate General under subsection (a) of this 
rule. Any decision of a Judge Advocate General, under this rule, is 
final and is not subject to appeal.
        (C) Standard of Proof. Prior to taking professional disciplinary 
action, other than minor disciplinary action as defined in subsection 
(c)(5)(D) of this rule, the Judge Advocate General concerned shall find, 
in writing, that the subject of the complaint engaged in judicial 
misconduct or is otherwise unfit for continued service as a military 
judge, and that such misconduct or unfitness is established by clear and 
convincing evidence.
        (D) Due process. Prior to taking final action on the complaint, 
the Judge Advocate General concerned will ensure that the subject of the 
complaint is, at a minimum, given notice and an opportunity to be heard.
      (7) The Ethics Commission.

[[Page 2630]]

        (A) Membership. If appointed pursuant to subsection (c)(6)(B) of 
this rule, an ethics commission shall consist of at least three members. 
If the subject of the complaint is a military trial judge, the 
commission should include one or more military trial judges or 
individuals with experience as a military trial judge. If the subject of 
the complaint is an appellate military judge, the commission should 
include one or more individuals with experience as an appellate military 
judge. Members of the commission should, if practicable, be senior to 
the subject of the complaint.
        (B) Duties. The commission will perform those duties assigned by 
the Judge Advocate General concerned. Normally, the commission will 
provide an opinion as to whether the subject's acts or omissions 
constitute judicial misconduct or unfitness. If the commission 
determines that the affected judge engaged in judicial misconduct or is 
unfit for continued judicial service, the commission may be required to 
recommend an appropriate disposition to the Judge Advocate General 
concerned.

      (8) Rules of procedure. The Secretary of Defense or the Secretary 
of the service concerned may establish additional procedures consistent 
with this rule and Article 6a.''

b. R.C.M. 305(f) is amended to read as follows:
    ``Military Counsel. If requested by the prisoner and such request is 
made known to military authorities, military counsel shall be provided 
to the prisoner before the initial review under subsection (i) of this 
rule or within 72 hours of such a request being first communicated to 
military authorities, whichever occurs first. Counsel may be assigned 
for the limited purpose of representing the accused only during the 
pretrial confinement proceedings before charges are referred. If 
assignment is made for this limited purpose, the prisoner shall be so 
informed. Unless otherwise provided by regulations of the Secretary 
concerned, a prisoner does not have a right under this rule to have 
military counsel of the prisoner's own selection.''.

c. R.C.M. 305(h)(2)(A) is amended to read as follows:
    ``(A) Decision. Not later than 72 hours after the commander's 
ordering of a prisoner into pretrial confinement, or after receipt of a 
report that a member of the commander's unit or organization has been 
confined, whichever situation is applicable, the commander shall decide 
whether pretrial confinement will continue.''.

d. R.C.M. 305(i)(1) is amended to read as follows:
    ``(1) In general. A review of the adequacy of probable cause to 
believe the prisoner has committed an offense and of the necessity for 
continued pretrial confinement shall be made within 7 days of the 
imposition of confinement under military control. If the prisoner was 
apprehended by civilian authorities and remains in civilian custody at 
the request of military authorities, reasonable efforts will be made to 
bring the prisoner under military control in a timely fashion. In 
calculating the number of days of confinement for purposes of this rule, 
the initial date of confinement shall count as one day and the date of 
the review shall also count as one day.''.

e. R.C.M. 405(i) is amended to read as follows:
    ``(i) Military Rules of Evidence. The Military Rules of Evidence--
other than Mil. R. Evid. 301, 302, 303, 305, 412, and Section V--shall 
not apply in pretrial investigations under this rule.''.

f. R.C.M. 701(g)(3)(C) is amended to read as follows:
    ``(C) Prohibit the party from introducing evidence, calling a 
witness, or raising a defense not disclosed; and''.

g. R.C.M. 704(e) is amended to read as follows:
    ``(e) Decision to grant immunity. Unless limited by superior 
competent authority, the decision to grant immunity is a matter within 
the sole discretion of the appropriate general court-martial convening 
authority. However, if a defense request to immunize a witness has been 
denied, the military judge may, upon motion of the defense, grant 
appropriate relief directing that either an appropriate general court-
martial convening authority grant testimonial immunity to a defense 
witness or, as to the affected charges

[[Page 2631]]

and specifications, the proceedings against the accused be abated, upon 
findings that:
      (1) The witness intends to invoke the right against self-
incrimination to the extent permitted by law if called to testify; and
      (2) The Government has engaged in discriminatory use of immunity 
to obtain a tactical advantage, or the Government, through its own 
overreaching, has forced the witness to invoke the privilege against 
self-incrimination; and
      (3) The witness' testimony is material, clearly exculpatory, not 
cumulative, not obtainable from any other source and does more than 
merely affect the credibility of other witnesses.''.

h. R.C.M. 910(a)(1) is amended to read as follows:
    ``(1) In general. An accused may plead as follows: guilty; not 
guilty to an offense as charged, but guilty of a named lesser included 
offense; guilty with exceptions, with or without substitutions, not 
guilty of the exceptions, but guilty of the substitutions, if any; or, 
not guilty. A plea of guilty may not be received as to an offense for 
which the death penalty may be adjudged by the court-martial.''.

i. R.C.M. 918(a)(1) is amended to read as follows:
    ``(1) As to a specification. General findings as to a specification 
may be: guilty; not guilty of an offense as charged, but guilty of a 
named lesser included offense; guilty with exceptions, with or without 
substitutions, not guilty of the exceptions, but guilty of the 
substitutions, if any; not guilty only by reason of lack of mental 
responsibility; or, not guilty. Exceptions and substitutions may not be 
used to substantially change the nature of the offense or to increase 
the seriousness of the offense or the maximum punishment for it.''.

j. R.C.M. 920(b) is amended to read as follows:
    ``(b) When given. Instructions on findings shall be given before or 
after arguments by counsel, or at both times, and before the members 
close to deliberate on findings, but the military judge may, upon 
request of the members, any party, or sua sponte, give additional 
instructions at a later time.''.

k. R.C.M. 1103(g)(1)(A) is amended to read as follows:
    ``In general. In general and special courts-martial which require a 
verbatim transcript under subsections (b) or (c) of this rule and are 
subject to review by a Court of Military Review under Article 66, the 
trial counsel shall cause to be prepared an original and four copies of 
the record of trial. In all other general and special courts-martial the 
trial counsel shall cause to be prepared an original and one copy of the 
record of trial.''.
    Sec. 2. Part III of the Manual for Courts-Martial, United States, 
1984, is amended as follows:

a. Mil. R. Evid. 311(e)(2) is amended to read as follows:
    ``(2) Derivative Evidence. Evidence that is challenged under this 
rule as derivative evidence may be admitted against the accused if the 
military judge finds by a preponderance of the evidence that the 
evidence was not obtained as a result of an unlawful search or seizure, 
that the evidence ultimately would have been obtained by lawful means 
even if the unlawful search or seizure had not been made, or that the 
evidence was obtained by officials who reasonably and with good faith 
relied on the issuance of an authorization to search, seize, or 
apprehend or a search warrant or an arrest warrant. Notwithstanding 
other provisions of this Rule, an apprehension made in a dwelling in a 
manner that violates R.C.M. 302(d)(2) & (e) does not preclude the 
admission into evidence of a statement of an individual apprehended 
provided (1) that the apprehension was based on probable cause, (2) that 
the statement was made subsequent to the apprehension at a location 
outside the dwelling, and (3) that the statement was otherwise in 
compliance with these rules.''.

b. Mil. R. Evid. 505(a) is amended to read as follows:
    ``(a) General rule of privilege. Classified information is 
privileged from disclosure if disclosure would be detrimental to the 
national security. As with other rules of privilege this rule applies to 
all stages of the proceedings.''.

c. Mil. R. Evid. 505(g)(1)(D) is amended by adding the following at the 
end:

[[Page 2632]]

    ``All persons requiring security clearances shall cooperate with 
investigatory personnel in any investigations which are necessary to 
obtain a security clearance.''.

d. Mil. R. Evid. 505(h)(3) is amended to read as follows:
    ``(3) Content of notice. The notice required by this subdivision 
shall include a brief description of the classified information. The 
description, to be sufficient, must be more than a mere general 
statement of the areas about which evidence may be introduced. The 
accused must state, with particularity, which items of classified 
information he reasonably expects will be revealed by his defense.''.

e. Mil. R. Evid. 505(i)(3) is amended to read as follows:
    ``(3) Demonstration of national security nature of the information. 
In order to obtain an in camera proceeding under this rule, the 
Government shall submit the classified information and an affidavit ex 
parte for examination by the military judge only. The affidavit shall 
demonstrate that disclosure of the information reasonably could be 
expected to cause damage to the national security in the degree required 
to warrant classification under the applicable executive order, statute, 
or regulation.''.

f. Mil. R. Evid. 505(i)(4)(B) is amended to read as follows:
    ``Standard. Classified information is not subject to disclosure 
under this subdivision unless the information is relevant and necessary 
to an element of the offense or a legally cognizable defense and is 
otherwise admissible in evidence. In presentencing proceedings, relevant 
and material classified information pertaining to the appropriateness 
of, or the appropriate degree of, punishment shall be admitted only if 
no unclassified version of such information is available.''.

g. Mil. R. Evid. 505(j)(5) is amended to read as follows:
    ``(5) Closed session. The military judge may exclude the public 
during that portion of the presentation of evidence that discloses 
classified information.''.

h. Mil. R. Evid. 609(a) is amended to read as follows:
    ``(a) General rule. For the purpose of attacking the credibility of 
a witness, (1) evidence that a witness other than the accused has been 
convicted of a crime shall be admitted, subject to Mil. R. Evid. 403, if 
the crime was punishable by death, dishonorable discharge, or 
imprisonment in excess of one year under the law under which the witness 
was convicted, and evidence that an accused has been convicted of such a 
crime shall be admitted if the military judge determines that the 
probative value of admitting this evidence outweighs its prejudicial 
effect to the accused; and (2) evidence that any witness has been 
convicted of a crime shall be admitted if it involved dishonesty or 
false statement, regardless of the punishment. In determining whether a 
crime tried by court-martial was punishable by death, dishonorable 
discharge, or imprisonment in excess of one year, the maximum punishment 
prescribed by the President under Article 56 at the time of the 
conviction applies without regard to whether the case was tried by 
general, special, or summary court-martial.''.

i. Mil. R. Evid. 1101(d) is amended to read as follows:
    ``(d) Rules inapplicable. These rules (other than with respect to 
privileges and Mil. R. Evid. 412) do not apply in investigative hearings 
pursuant to Article 32; proceedings for vacation of suspension of 
sentence pursuant to Article 72; proceedings for search authorizations; 
proceedings involving pretrial restraint; and in other proceedings 
authorized under the code or this Manual and not listed in subdivision 
(a).''.
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, 
1984, is amended as follows:

a. Paragraph 37c is amended by inserting the following new subparagraphs 
(10) and (11) at the end thereof:
    ``(10) Use. `Use' means to inject, ingest, inhale, or otherwise 
introduce into the human body, any controlled substance. Knowledge of 
the presence of the controlled substance is a required component of use. 
Knowledge of the presence of the controlled substance may be inferred 
from the presence of the controlled substance in the accused's body or 
from other circumstantial evidence. This

[[Page 2633]]

permissive inference may be legally sufficient to satisfy the 
government's burden of proof as to knowledge.
    ``(11) Deliberate ignorance. An accused who consciously avoids 
knowledge of the presence of a controlled substance or the contraband 
nature of the substance is subject to the same criminal liability as one 
who has actual knowledge.''.

b. The last paragraph of paragraph 37e is amended to read as follows:
    ``When any offense under paragraph 37 is committed: while the 
accused is on duty as a sentinel or lookout; on board a vessel or 
aircraft used by or under the control of the armed forces; in or at a 
missile launch facility used by or under the control of the armed 
forces; while receiving special pay under 37 U.S.C. Section 310; in time 
of war; or in a confinement facility used by or under the control of the 
armed forces, the maximum period of confinement authorized for such an 
offense shall be increased by 5 years.''.

c. Paragraph 43d is amended to read as follows:
    ``d. Lesser included offenses.
    (1) Premeditated murder and murder during certain offenses. Article 
118(2) and (3)--murder
    (2) all murders under Article 118.
      (a) Article 119--involuntary manslaughter
      (b) Article 128--assault; assault consummated by a battery; 
      aggravated assault
      (c) Article 134--negligent homicide
    (3) Murder as defined in Article 118(1), (2), and (4).
      (a) Article 80--attempts
      (b) Article 119--voluntary manslaughter
      (c) Article 134--assault with intent to commit murder
      (d) Article 134--assault with intent to commit voluntary 
      manslaughter''.

d. Para 45d(1) is amended by adding the following at the end thereof:
    ``(e) Article 120(b)--carnal knowledge''.

e. Para 45f(1) is amended to read as follows:
    ``(1) Rape.
      In that ________ (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
__________ 19____, rape ____________ (a person who had not attained the 
age of 16 years).''.

f. The following new paragraph is inserted after paragraph 96:
    ``96a. Article 134 (Wrongful interference with an adverse 
administrative proceeding)
    a. Text. See paragraph 60.
    b. Elements.
      (1) That the accused wrongfully did a certain act;
      (2) That the accused did so in the case of a certain person 
against whom the accused had reason to believe there were or would be 
adverse administrative proceedings pending;
      (3) That the act was done with the intent to influence, impede, or 
obstruct the conduct of such adverse administrative proceeding, or 
otherwise obstruct the due administration of justice;
      (4) 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. For purposes of this paragraph ``adverse 
administrative proceeding'' includes any administrative proceeding or 
action, initiated against a servicemember, that could lead to discharge, 
loss of special or incentive pay, administrative reduction in grade, 
loss of a security clearance, bar to reenlistment, or reclassification. 
Examples of wrongful interference include wrongfully influencing, 
intimidating, impeding, or injuring a witness, an investigator, or other 
person acting on an adverse administrative action; by means of bribery, 
intimidation, misrepresentation, or force or threat of force delaying or 
preventing communication of information relating to such administrative 
proceeding; and, the wrongful destruction or concealment of information 
relevant to such adverse administrative proceeding.
    d. Lesser included offenses. None.
    e. Maximum punishment. Dishonorable discharge, forfeiture of all pay 
and allowances, and confinement for 5 years.
    f. Sample specification. In that ______ (personal jurisdiction 
data), did, (at/on board--location) (subject-matter jurisdiction

[[Page 2634]]

data, if required), on or about ______ 19____, wrongfully (endeavor to) 
[impede (an adverse administrative proceeding) (an investigation) 
(______)] [influence the actions of ______, (an officer responsible for 
making a recommendation concerning the adverse administrative 
proceeding) (an individual responsible for making a decision concerning 
an adverse administrative proceeding) (an individual responsible for 
processing an adverse administrative proceeding) (______)] [(influence) 
(alter) the testimony of ______ a witness before (a board established to 
consider an adverse administrative proceeding or elimination) (an 
investigating officer) (______)] in the case of ______, by [(promising) 
(offering) (giving) to the said ______, (the sum of $______) (______, of 
a value of about $______)] [communicating to the said ______ a threat to 
______] [______], (if) (unless) the said ______, would [recommend 
dismissal of the action against said ______] [(wrongfully refuse to 
testify) (testify falsely concerning ______) (______)] [(at such 
administrative proceeding) (before such investigating officer) (before 
such administrative board)] [______].''.
    Sec. 4. These amendments shall take effect on January 21, 1994, 
subject to the following:
    a. The amendments made to paragraphs 37c, 37e, 43d(2), 45d(1), and 
96a of Part IV shall apply to any offense committed on or after January 
21, 1994.
    b. The amendments made to Section III shall apply only in cases in 
which arraignment has been completed on or after January 21, 1994.
    c. The amendment made to Rules for Courts-Martial 405(i), 
701(g)(3)(C), and 704(e) shall apply only in cases in which charges are 
preferred on or after January 21, 1994.
    d. The amendments made to Rules for Courts-Martial 910, 918, and 920 
shall apply only to cases in which arraignment occurs on or after 
January 21, 1994.
    e. The amendments made to Rule for Court-Martial 305 shall apply 
only to cases in which pretrial confinement is imposed on or after 
January 21, 1994.
    f. The amendment to Rule for Courts-Martial 1103(g)(1)(A) shall 
apply only in cases in which the sentence is adjudged on or after 
January 21, 1994.
    g. Nothing contained in these amendments shall be construed to make 
punishable any act done or omitted prior to January 21, 1994, which was 
not punishable when done or omitted.
    h. The maximum punishment for an offense committed prior to January 
21, 1994, shall not exceed the applicable maximum in effect at the time 
of the commission of such offense.
    i. 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 January 21, 1994, and any such restraint, investigation, 
referral of charges, trial, or other action may proceed in the same 
manner and with the same effect as if these amendments had not been 
prescribed.
    Sec. 5. The Secretary of Defense, on behalf of the President, shall 
transmit a copy of this order to the Congress of the United States in 
accord with section 836 of title 10 of the United States Code.
                                            William J. Clinton
The White House,
December 23, 1993.

[Filed with the Office of the Federal Register, 2:48 p.m., December 27, 
1993]

Note: This Executive order will be published in the Federal Register on 
December 29.