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Ärende: Press Release (0510141) for Fri, 2005 Oct 14
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Executive Order: 2005 Amendments to the Manual for Courts Martial, United
States
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For Immediate Release
Office of the Press Secretary
October 14, 2005

Executive Order: 2005 Amendments to the Manual for Courts Martial, United
States



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

Section 1. Part II of the Manual for Courts-Martial, United States, is
amended as follows:

(a) R.C.M. 103(2) is amended by replacing the word "without" with the word
"with" and by replacing the word "noncapital" with the word "capital".

(b) R.C.M. 201(e)(2)(B) is amended by adding the word "general" between the
words "convene" and "courts-martial" and by inserting the following words
after "armed forces":

"assigned or attached to a combatant command or joint command".

(c) R.C.M. 201(e)(2)(C) is amended by inserting the words "assigned or
attached to a joint command or joint task force," immediately before the
words "under regulations which the superior command may prescribe".

(d) R.C.M. 201(e)(3) is amended by inserting the following immediately
after the words "armed force":

", using the implementing regulations and procedures prescribed by the
Secretary concerned of the military service of the accused,".

(e) R.C.M. 201(e)(4) is amended by adding the words ", member, or counsel"
after the words "military judge".

(f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read as follows:

"(b) The case has not been referred with a special instruction that the
case is to be tried as capital."

(g) R.C.M. 307(c)(4) is amended by inserting the following at the end
thereof:

"What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person."

(h) R.C.M. 501(a)(1) is amended to read as follows:

"(1) General courts-martial.

(A) Except in capital cases, general courts-martial shall consist of a
military judge and not less than five members, or of the military judge
alone if requested and approved under R.C.M. 903.

(B) In all capital cases, general courts-martial shall consist of a
military judge and no fewer than 12 members, unless 12 members are not
reasonably available because of physical conditions or military exigencies.
If 12 members are not reasonably available, the convening authority shall
detail the next lesser number of reasonably available members under 12, but
in no event fewer than five. In such a case, the convening authority shall
state in the convening order the reasons why 12 members are not reasonably
available."

(i) R.C.M. 503(a)(3) is amended by deleting "court-martial" and inserting
"courts-martial" in lieu thereof.

(j) R.C.M. 503(b)(3) is amended by inserting the words ", a combatant
command or joint command" after the words "A military judge from one armed
force may be detailed to a court-martial convened in a different armed
force".

(k) R.C.M. 503(c)(3) is amended by inserting the words ", a combatant
command or joint command" after the words "A person from one armed force
may be detailed to serve as counsel in a court-martial in a different armed
force".

(l) R.C.M. 504, (b)(2)(A) is amended by inserting the following at the end
thereof:

"A subordinate joint command or joint task force is ordinarily considered
to be "separate or detached.""

(m) R.C.M. 504, (b)(2)(B) is amended by deleting the word "or" at the end
of the first element thereof, by deleting the period and adding "; or" at
the end of the second element thereof, and by inserting the following as a
third element:

"(iii) In a combatant command or joint command, by the officer exercising
general court-martial jurisdiction over the command."

(n) R.C.M. 805(b) is amended by replacing the current second sentence with
the following:

"No general court-martial proceeding requiring the presence of members may
be conducted unless at least five members are present, or in capital cases,
at least 12 members are present except as provided in R.C.M. 501(a)(1)(B),
where 12 members are not reasonably available because of physical
conditions or military exigencies. No special court-martial proceeding
requiring the presence of members may be conducted unless at least three
members are present except as provided in R.C.M. 912(h)."

(o) R.C.M. 912(f)(4) is amended by deleting the fifth sentence and by
inserting the following words immediately after the words "When a challenge
for cause has been denied" in the fourth sentence:

"the successful use of a peremptory challenge by either party, excusing the
challenged member from further participation in the court-martial, shall
preclude further consideration of the challenge of that excused member upon
later review. Further,"

(p) R.C.M. 1003(b)(2) is amended by replacing the word "foreign" with the
word "hardship."

(q) R.C.M. 1004(b) is amended by inserting the following after "(1)
Notice." and before the word "Before":

"(A) Referral. The convening authority shall indicate that the case is to
be tried as a capital case by including a special instruction in the
referral block of the charge sheet. Failure to include this special
instruction at the time of the referral shall not bar the convening
authority from later adding the required special instruction, provided:

(i) that the convening authority has otherwise complied with the notice
requirement of subsection (B); and

(ii) that if the accused demonstrates specific prejudice from such failure
to include the special instruction, a continuance or a recess is an
adequate remedy.

(B) Arraignment."

(r) Insert the following new R.C.M. 1103A after R.C.M. 1103:

"Rule 1103A. Sealed exhibits and proceedings.

(a) In general. If the record of trial contains exhibits, proceedings, or
other matter ordered sealed by the military judge, the trial counsel shall
cause such materials to be sealed so as to prevent indiscriminate viewing
or disclosure. Trial counsel shall ensure that such materials are properly
marked, including an annotation that the material was sealed by order of
the military judge, and inserted at the appropriate place in the original
record of trial. Copies of the record shall contain appropriate annotations
that matters were sealed by order of the military judge and have been
inserted in the original record of trial. This Rule shall be implemented in
a manner consistent with Executive Order 12958, as amended, concerning
classified national security information.

(b) Examination of sealed exhibits and proceedings. Except as provided in
the following subsections to this rule, sealed exhibits may not be
examined.

(1) Examination of sealed matters. For the purpose of this rule,
"examination" includes reading, viewing, photocopying, photographing,
disclosing, or manipulating the documents in any way.

(2) Prior to authentication. Prior to authentication of the record by the
military judge, sealed materials may not be examined in the absence of an
order from the military judge based on good cause shown.

(3) Authentication through action. After authentication and prior to
disposition of the record of trial pursuant to Rule for Courts-Martial
1111, sealed materials may not be examined in the absence of an order from
the military judge upon a showing of good cause at a post-trial Article 39a
session directed by the Convening Authority.

(4) Reviewing and appellate authorities.

(A) Reviewing and appellate authorities may examine sealed matters when
those authorities determine that such action is reasonably necessary to a
proper fulfillment of their responsibilities under the Uniform Code of
Military Justice, the Manual for Courts-Martial, governing directives,
instructions, regulations, applicable rules for practice and procedure, or
rules of professional responsibility.

(B) Reviewing and appellate authorities shall not, however, disclose sealed
matter or information in the absence of:

(i) Prior authorization of the Judge Advocate General in the case of review
under Rule for Courts-Martial 1201(b); or

(ii) Prior authorization of the appellate court before which a case is
pending review under Rules for Courts-Martial 1203 and 1204.

(C) In those cases in which review is sought or pending before the United
States Supreme Court, authorization to disclose sealed materials or
information shall be obtained under that Court's rules of practice and
procedure.

(D) The authorizing officials in paragraph (B)(ii) above may place
conditions on authorized disclosures in order to minimize the disclosure.

(E) For purposes of this rule, reviewing and appellate authorities are
limited to:

(i) Judge advocates reviewing records pursuant to Rule for Courts-Martial
1112;

(ii) Officers and attorneys in the office of the Judge Advocate General
reviewing records pursuant to Rule for Courts-Martial 1201(b);

(iii) Appellate government counsel;

(iv) Appellate defense counsel;

(v) Appellate judges of the Courts of Criminal Appeals and their
professional staffs;

(vi) The judges of the United States Court of Appeals for the Armed Forces
and their professional staffs;

(vii) The Justices of the United States Supreme Court and their
professional staffs; and

(viii) Any other court of competent jurisdiction."

(s) R.C.M. 1301(a) is amended by inserting the following after the second
sentence:

"Summary courts-martial shall be conducted in accordance with the
regulations of the military service to which the accused belongs."

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

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

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

(a) Paragraph 14c(2)(a) is amended by inserting the following new
subparagraph (ii) and renumbering existing subparagraphs (a)(ii) through
(iv) as (a)(iii) through (v):

"(ii) Determination of lawfulness. The lawfulness of an order is a question
of law to be determined by the military judge."

(b) Paragraph 16(c)(1)(a) is amended by replacing the word "Transportation"
with the words "Homeland Security".

(c) Paragraph 35a is amended to read as follows:

"a. Text.

(a) Any person subject to this chapter who--

(1) operates or physically controls any vehicle, aircraft, or vessel in a
reckless or wanton manner or while impaired by a substance described in
section 912a(b) of this title (Article 112a(b)), or

(2) operates or is in actual physical control of any vehicle, aircraft, or
vessel while drunk or when the alcohol concentration in the person's blood
or breath is equal to or exceeds the level prohibited under subsection (b),
as shown by chemical analysis, shall be punished as a court-martial may
direct.

(b)(1) For purposes of subsection (a), the applicable level of the alcohol
concentration in a person's blood or breath is as follows:

(A) In the case of the operation or control of a vehicle, aircraft, or
vessel in the United States, the level is the blood alcohol concentration
prohibited under the law of the State in which the conduct occurred, except
as may be provided under paragraph (b)(2) for conduct on a military
installation that is in more than one State, or the prohibited alcohol
concentration level specified in paragraph (b)(3).

(B) In the case of the operation or control of a vehicle, aircraft, or
vessel outside the United States, the level is the blood alcohol
concentration specified in paragraph (b)(3) or such lower level as the
Secretary of Defense may by regulation prescribe.

(2) In the case of a military installation that is in more than one State,
if those States have different levels for defining their prohibited blood
alcohol concentrations under their respective State laws, the Secretary
concerned for the installation may select one such level to apply uniformly
on that installation.

(3) For purposes of paragraph (b)(1), the level of alcohol concentration
prohibited in a person's blood is 0.10 grams or more of alcohol per 100
milliliters of blood and with respect to alcohol concentration in a
person's breath is 0.10 grams or more of alcohol per 210 liters of breath,
as shown by chemical analysis."

(4) In this subsection, the term "United States" includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
American Samoa, and the term "State" includes each of those jurisdictions."

(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 B (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; 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)].

(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.

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