[Weekly Compilation of Presidential Documents Volume 43, Number 16 (Monday, April 23, 2007)]
[Pages 463-469]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13430--2007 Amendments to the Manual For Courts-Martial, 
United States

April 18, 2007

    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 of April 13, 
1984, 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. 703(b)(1) is amended by adding at the end the following 
new sentences:
    ``With the consent of both the accused and Government, the military 
judge may authorize any witness to testify via remote means. Over a 
party's objection, the military judge may authorize any witness to 
testify on interlocutory questions via remote means or similar 
technology if the practical difficulties of producing the witness 
outweigh the significance of the witness' personal appearance (although 
such testimony will not be admissible over the accused's objection as 
evidence on the ultimate issue of guilt). Factors to be considered 
include, but are not limited to, the costs of producing the witness; the 
timing of the request for production of the witness; the potential delay 
in the interlocutory proceeding that may be caused by the production of 
the witness; the willingness of the witness to testify in person; the 
likelihood of significant interference with military operational 
deployment, mission accomplishment, or essential training; and, for 
child witnesses, the traumatic effect of providing in-court testimony.''
    (b) R.C.M. 804 is amended by redesignating paragraphs (b), (c), and 
(d) as paragraphs (c), (d), and (e), respectively, and inserting the 
following new paragraph (b):
    ``(b) Presence by remote means. If authorized by the regulations of 
the Secretary concerned, the military judge may order the use of 
audiovisual technology, such as videoteleconferencing technology, 
between the parties and the military judge for purposes of Article 39(a) 
sessions. Use of such audiovisual technology will satisfy the 
``presence'' requirement of the accused only when the accused has a 
defense counsel physically present at his location. Such technology may 
include two or more remote sites as long as all parties can see and hear 
each other.''
    (c) R.C.M. 804(c)(2) is redesignated as R.C.M. 804(d)(2) and amended 
to read as follows:
    ``(2) Procedure. The accused's absence will be conditional upon his 
being able to view the witness' testimony from a remote location. 
Normally, transmission of the testimony will include a system that will 
transmit the accused's image and voice into the courtroom from a remote 
location as well as transmission of the child's testimony from the 
courtroom to the accused's location. A one-way transmission may be used 
if deemed necessary by the military judge. The accused will also be 
provided private, contemporaneous communication with his counsel. The

[[Page 464]]

procedures described herein shall be employed unless the accused has 
made a knowing and affirmative waiver of these procedures.''
    (d) R.C.M. 805(a) is amended by adding at the end the following new 
sentence: ``If authorized by regulations of the Secretary concerned, for 
purposes of Article 39(a) sessions solely, the presence of the military 
judge at Article 39(a) sessions may be satisfied by the use of 
audiovisual technology, such as videoteleconferencing technology.''
    (e) R.C.M. 805(c) is amended by adding at the end the following new 
sentences:
    ``If authorized by regulations of the Secretary concerned, for 
purposes of Article 39(a) sessions solely, the presence of counsel at 
Article 39(a) sessions may be satisfied by the use of audiovisual 
technology, such as videoteleconferencing technology. At least one 
qualified defense counsel shall be physically present with the 
accused.''
    (f) R.C.M. 914A is amended by deleting the third sentence of 
paragraph (a).
    (g) R.C.M. 914A is further amended by redesignating paragraph (b) as 
paragraph (c) and inserting the following new paragraph (b):
    ``(b) Definition. As used in this rule, ``remote live testimony'' 
includes, but is not limited to, testimony by videoteleconference, 
closed circuit television, or similar technology.''
    (h) New Rule R.C.M. 914B is inserted after R.C.M. 914A:
    ``Rule 914B. Use of remote testimony.
    (a) General procedures. The military judge shall determine the 
procedures used to take testimony via remote means. At a minimum, all 
parties shall be able to hear each other, those in attendance at the 
remote site shall be identified, and the accused shall be permitted 
private, contemporaneous communication with his counsel.
    (b) Definition. As used in this rule, testimony via ``remote means'' 
includes, but is not limited to, testimony by videoteleconference, 
closed circuit television, telephone, or similar technology.''
    (i) R.C.M. 1001(e)(2)(D) is amended by deleting the ``or'' before 
``former testimony'' and inserting ``, or testimony by remote means'' 
after ``former testimony.''
    Sec. 2. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Paragraph 4.c.(6) is amended by redesignating paragraph (f) as 
paragraph (g) and inserting the following new paragraph (f):
    ``(f) Article 119a-attempting to kill an unborn child''
    (b) Paragraph 12a is amended by replacing the word 
``Transportation'' with the words ``Homeland Security''.
    (c) Paragraph 35a is amended to read as follows:
    ``(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 applicable limit 
under subsection (b), shall be punished as a court-martial may direct.
    (b)(1) For purposes of subsection (a), the applicable limit on 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, such limit is the lesser of--
    (i) the blood alcohol content limit under the law of the State in 
which the conduct occurred, except as may be provided under paragraph 
(2) for conduct on a military installation that is in more than one 
State; or
    (ii) the blood alcohol content limit specified in paragraph (3).
    (B) In the case of the operation or control of a vehicle, aircraft, 
or vessel outside the United States, the applicable blood alcohol 
content limit is the blood alcohol content limit specified in paragraph 
(3) or such lower limit 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 blood alcohol content limits under 
their respective State laws, the Secretary may select one such blood 
alcohol content limit to apply uniformly on that installation.

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    (3) For purposes of paragraph (1), the blood alcohol content limit 
with respect to alcohol concentration in a person's blood is 0.10 grams 
of alcohol per 100 milliliters of blood and with respect to alcohol 
concentration in a person's breath is 0.10 grams of alcohol per 210 
liters of breath, as shown by chemical analysis.
    (4) In this subsection:
    (A) The term ``blood alcohol content limit'' means the amount of 
alcohol concentration in a person's blood or breath at which operation 
or control of a vehicle, aircraft, or vessel is prohibited.
    (B) 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.
    (d) Paragraph 35b(2)(c) is amended to read as follows:
    ``(c) the alcohol concentration in the accused's blood or breath 
equaled to or exceeded the applicable limit under subparagraph (b) of 
paragraph 35a. [NOTE: If injury resulted add the following element]''
    (e) Para 35f is amended to read as follows:
    ``In that _________ (personal jurisdiction data), did (at/onboard 
location)(subject matter jurisdiction data, if 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 14 A fighter)(a KC 135 tanker)(_________)][a vessel, to 
wit: (the aircraft carrier USS)(the Coast Cutter)(_____)], [while 
drunk][while impaired by _____][while the alcohol concentration in his 
(blood or breath equaled or exceeded the applicable limit under 
subparagraph (b) of paragraph 35a) as shown by chemical analysis][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) By inserting the new paragraph 44a:
    ``44a. Article 119a--Death or injury of an unborn child
    a. Text.
    (a)(1) Any person subject to this chapter who engages in conduct 
that violates any of the provisions of law listed in subsection (b) and 
thereby causes the death of, or bodily injury (as defined in section 
1365 of title 18 to, a child who is in utero at the time the conduct 
takes place, is guilty of a separate offense under this section and 
shall, upon conviction, be punished by such punishment, other than 
death, as a court-martial may direct, which shall be consistent with the 
punishments prescribed by the President for that conduct had that injury 
or death occurred to the unborn child's mother.
    (2) An offense under this section does not require proof that--
    (i) the person engaging in the conduct had knowledge or should have 
had knowledge that the victim of the underlying offense was pregnant; or
    (ii) the accused intended to cause the death of, or bodily injury 
to, the unborn child.
    (3) If the person engaging in the conduct thereby intentionally 
kills or attempts to kill the unborn child, that person shall, instead 
of being punished under paragraph (1), be punished as provided under 
sections 880, 918, and 919(a) of this title (articles 80, 118, and 
119(a)) for intentionally killing or attempting to kill a human being.
    (4) Notwithstanding any other provision of law, the death penalty 
shall not be imposed for an offense under this section.
    (b) The provisions referred to in subsection (a) are sections 918, 
919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title 
(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
    (c) Nothing in this section shall be construed to permit the 
prosecution <FP1<ls-thn-eq>(1) of any person authorized by state or 
federal law to perform abortions for conduct relating to an abortion for 
which the consent of the pregnant woman, or a person authorized by law 
to act on her behalf, has been obtained or for which such consent is 
implied by law;

[[Page 466]]

    (2) of any person for any medical treatment of the pregnant woman or 
her unborn child; or
    (3) of any woman with respect to her unborn child.
    (d) As used in this section, the term ``unborn child'' means a child 
in utero, and the term ``child in utero'' or ``child who is in utero'' 
means a member of the species homo sapiens, at any stage of development, 
who is carried in the womb.
    b. Elements.
    (1) Injuring an unborn child.
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) (belonging to))] a 
woman;
    (b) That the woman was then pregnant; and
    (c) That the accused thereby caused bodily injury to the unborn 
child of that woman.
    (2) Killing an unborn child.
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property known to (be occupied by) (belong to))] a woman;
    (b) That the woman was then pregnant; and
    (c) That the accused thereby caused the death of the unborn child of 
that woman.
    (3) Attempting to kill an unborn child.
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) (belonging to))] a 
woman;
    (b) That the woman was then pregnant; and
    (c) That the accused thereby intended and attempted to kill the 
unborn child of that woman.
    (4) Intentionally killing an unborn child.
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) (belonging to))] a 
woman;
    (b) That the woman was then pregnant; and
    (c) That the accused thereby intentionally killed the unborn child 
of that woman.
    c. Explanation.
    (1) Nature of offense. This article makes it a separate, punishable 
crime to cause the death of or bodily injury to an unborn child while 
engaged in arson (article 126, UCMJ); murder (article 118, UCMJ); 
voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter 
(article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery (article 
122, UCMJ); maiming (article 124, UCMJ); or assault (article 128, UCMJ) 
against a pregnant woman. For all underlying offenses, except arson, 
this article requires that the victim of the underlying offense be the 
pregnant mother. For purposes of arson, the pregnant mother must have 
some nexus to the arson such that she sustained some ``bodily injury'' 
due to the arson. For the purposes of this article the term ``woman'' 
means a female of any age. This article does not permit the prosecution 
of any--
    (a) person for conduct relating to an abortion for which the consent 
of the pregnant woman, or a person authorized by law to act on her 
behalf, has been obtained or for which such consent is implied by law;
    (b) person for any medical treatment of the pregnant woman or her 
unborn child; or
    (c) woman with respect to her unborn child.
    (2) The offenses of ``injuring an unborn child'' and ``killing an 
unborn child'' do not require proof that--

[[Page 467]]

    (a) the person engaging in the conduct (the accused) had knowledge 
or should have had knowledge that the victim of the underlying offense 
was pregnant; or
    (b) the accused intended to cause the death of, or bodily injury to, 
the unborn child.
    (3) The offense of ``attempting to kill an unborn child'' requires 
that the accused intended by his conduct to cause the death of the 
unborn child (See paragraph b(3)(c) above).
    (4) Bodily injury. For the purpose of this offense, the term 
``bodily injury'' is that which is provided by section 1365 of title 18, 
to wit: a cut, abrasion, bruise, burn, or disfigurement; physical pain; 
illness; impairment of the function of a bodily member, organ, or mental 
faculty; or any other injury to the body, no matter how temporary.
    (5) Unborn child. ``Unborn child'' means a child in utero or a 
member of the species homo sapiens who is carried in the womb, at any 
stage of development, from conception to birth.
    d. Lesser included offenses.
    (1) Killing an unborn child. Article 119a--injuring an unborn child
    (2) Intentionally killing an unborn child.
    (a) Article 119a--killing an unborn child
    (b) Article 119a--injuring an unborn child
    (c) Article 119a--attempts (attempting to kill an unborn child)
    e. Maximum punishment.
    The maximum punishment for (1) Injuring an unborn child; (2) Killing 
an unborn child; (3) Attempting to kill an unborn child; or (4) 
Intentionally killing an unborn child is such punishment, other than 
death, as a court-martial may direct, but shall be consistent with the 
punishment had the bodily injury, death, attempt to kill, or intentional 
killing occurred to the unborn child's mother.
    f. Sample specifications.
    (1) Injuring an unborn child.
    In that _________(personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
_________ 20___, cause bodily injury to the unborn child of , a pregnant 
woman, by engaging in the [(murder) (voluntary manslaughter) 
(involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] 
[(burning) (setting afire) of (a dwelling inhabited by) (a structure or 
property known to (be occupied by) (belong to))] that woman.
    (2) Killing an unborn child.
    In that _________(personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
_________ 20___, cause the death of the unborn child of , a pregnant 
woman, by engaging in the [(murder) (voluntary manslaughter) 
(involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] 
[(burning) (setting afire) of (a dwelling inhabited by) (a structure or 
property known to (be occupied by) (belong to))] that woman.
    (3) Attempting to kill an unborn child.
    In that _________(personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
_________ 20___, attempt to kill the unborn child of , a pregnant woman, 
by engaging in the [(murder) (voluntary manslaughter) (involuntary 
manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) 
(setting afire) of (a dwelling inhabited by) (a structure or property 
known to (be occupied by) (belong to))] that woman.
    (4) Intentionally killing an unborn child.
    In that _________(personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
_________ 20___, intentionally kill the unborn child of , a pregnant 
woman, by engaging in the [(murder) (voluntary manslaughter) 
(involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] 
[(burning) (setting afire) of (a dwelling inhabited by) (a structure or 
property known to (be occupied by) (belong to))] that woman.''
    (g) By inserting the new paragraph 45a to read:
    ``45a. Article 120a Stalking
    a. Text
    (a) Any person subject to this section:
    (1) who wrongfully engages in a course of conduct directed at a 
specific person that would cause a reasonable person to fear

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death or bodily harm, including sexual assault, to himself or herself or 
a member of his or her immediate family;
    (2) who has knowledge, or should have knowledge, that the specific 
person will be placed in reasonable fear of death or bodily harm, 
including sexual assault, to himself or herself or a member of his or 
her immediate family; and
    (3) whose acts induce reasonable fear in the specific person of 
death or bodily harm, including sexual assault, to himself or herself or 
to a member of his or her immediate family; is guilty of stalking and 
shall be punished as a court-martial may direct.
    (b) In this section:
    (1) The term ``course of conduct'' means:
    (A) a repeated maintenance of visual or physical proximity to a 
specific person; or
    (B) a repeated conveyance of verbal threat, written threats, or 
threats implied by conduct, or a combination of such threats, directed 
at or towards a specific person.
    (2) The term ``repeated,'' with respect to conduct, means two or 
more occasions of such conduct.
    (3) The term ``immediate family,'' in the case of a specific person, 
means a spouse, parent, child, or sibling of the person, or any other 
family member, relative, or intimate partner of the person who regularly 
resides in the household of the person or who within the six months 
preceding the commencement of the course of conduct regularly resided in 
the household of the person.
    b. Elements.
    (1) That the accused wrongfully engaged in a course of conduct 
directed at a specific person that would cause a reasonable person to 
fear death or bodily harm to himself or herself or a member of his or 
her immediate family;
    (2) That the accused had knowledge, or should have had knowledge, 
that the specific person would be placed in reasonable fear of death or 
bodily harm to himself or herself or a member of his or her immediate 
family; and
    (3) That the accused's acts induced reasonable fear in the specific 
person of death or bodily harm to himself or herself or to a member of 
his or her immediate family.
    c. Explanation. See Paragraph 54.c(1)(a) for an explanation of 
``bodily harm''.
    d. Lesser included offenses. Article 80--attempts.
    e. Maximum punishment. Dishonorable discharge, forfeiture of all pay 
and allowances, and confinement for 3 years.
    f. Sample Specification.
    In that _________(personal jurisdiction data), who (knew)(should 
have known) that ______ would be placed in reasonable fear of 
(death)(bodily harm) to (himself) (herself) (______, a member of his or 
her immediate family) did (at/on board--location), (subject-matter 
jurisdiction data, if required), (on or about _________ 20___)(from 
about ______to about ______ 20__), wrongfully engage in a course of 
conduct directed at ______, to wit: _________ ________ thereby inducing 
in ________, a reasonable fear of (death)(bodily harm) to 
(himself)(herself) (____, a member of his or her immediate family).''
    Sec. 3. Part V of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Paragraph 5.c.(8) is amended by replacing the word ``foreign'' 
with the word ``hardship.''
    (b) Paragraph 7(e) is amended by replacing the word 
``Transportation'' with the words ``Homeland Security''.
    Sec. 4. Part IV of the Manual for Courts-Martial, United States, is 
amended by replacing the word ``Transportation'' with the words 
``Homeland Security.''
    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 proceedings, 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, restraint, investigation, referral of charges, trial, or 
other action may proceed in the same manner and with

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the same effect as if these amendments had not been prescribed.
                                                George W. Bush
 The White House,
 April 18, 2007.

 [Filed with the Office of the Federal Register, 8:45 a.m., April 20, 
2007]

Note: This Executive order was published in the Federal Register on 
April 23.