[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.
[[Page 465]]
(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
[[Page 468]]
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
[[Page 469]]
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.