[Weekly Compilation of Presidential Documents Volume 41, Number 41 (Monday, October 17, 2005)]
[Pages 1536-1542]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13387--2005 Amendments to the Manual for Courts-Martial, 
United States

October 14, 2005

    By the authority vested in me as President by the Constitution and 
the laws of the United States of America, including chapter

[[Page 1537]]

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.''
    (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

[[Page 1538]]

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 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

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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
    (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

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Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American 
Samoa, and the term ``State'' includes each of those jurisdictions.''
    (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
    (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;

[[Page 1541]]

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 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.
    (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)].

[[Page 1542]]

    (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 may proceed in the same manner and with the same 
effect as if these amendments had not been prescribed.
                                                George W. Bush
 The White House,
 October 14, 2005.

 [Filed with the Office of the Federal Register, 8:45 a.m., October 17, 
2005]

Note: This Executive order will be published in the Federal Register on 
October 18.