Celebrity Sighting (Redux): Robert Reed Part II

In lieu of actually coming up with additional original thoughts, I will post the comments that I had originally drafted hoping the esteemed Mr. Reed would grant permission to re-print his comments. I have to give serious kudos to Mr. Reed who took the time to talk to me this a.m. about his presentation and posting comments on CAAFlog. BZ, Mr. Reed.
It was a very Brady day (figured I'd keep that tag line) at the ABA Section of Public Contract Law: Battle Space and Contingency Procurements Committee meeting on Friday, June 8. Celebrity presenter Robert Reed made another excellent presentation on expanded Art. 2, UCMJ jurisdiction. His slides should be available on the committee's webpage soon--updated since the CAAF Conference.

Mr. Reed answered questions with great candor and revealed that DoD is currently considering whether to withhold authority under RCM 306(a)/401(a) or cede authority to act to DOJ in all or some subset of expanded Art. 2, UCMJ cases. Mr. Reed revealed he and his office are considering the Joint Service Committee's recommendations on the topic, which were presented to DoD General Counsel last month. According to one source, the JSC collected field inputs from their respective services earlier this year. However, JSC did not publish a formal notice requesting comments from the public. I skimmed DoD Directive 5500.17, and notice was probably not required under the instruction. Further, any superior authority can unilaterally withhold authority to act under RCM 306 or 401. Thus, on further review (and contrary to my earlier comments), DoD's reach down to the JSC was a positive sign that DoD was consulting those most affected by DoD's actions.

Based on that presentation, significant substantive limits under consideration by DoD might include:

1) Withholding authority based on RCM 306/401 in all cases except those where the offense is committed outside the US and the accused is located outside the US at the time of discovery of the offense;
2) Requiring permission from a combatant commander before going forward with a prosecution under expanded Art. 2, UCMJ jurisdiction;
3) Restrict application of non-court-martial procedures (possibly even summary courts-martial, though Reed did not specifically delineate any further) under expanded Art. 2, UCMJ; and
4) Restrict in some way expanded Art. 2, UCMJ jurisdiction to extraordinary cases.

Mr. Reed also mentioned that DoD was considering whether courts-martial under expanded Art. 2, UCMJ that were transferred stateside, as many are, would be passed on to DoJ and the federal district courts. A wise move, in No Man's opinion, if it gets implemented. Mr. Reed's, and others, rough time line on the implementation of these restrictions puts release of DoD guidance some time in Fall 2007. Stay tuned.