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What Changes Did Obama Just Make to Courts Martial?

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In 30 days, changes to Part II (Rules) and IV (Punitive Articles) of the Courts Martial Manual will go into effect. Only, we don’t know what those changes are because the annex that describes them appears to be classified.

All we get is this Executive Order noting the change–and explaining that nothing in yesterday’s order affects acts or legal actions that took place before the EO goes into effect in 30 days.

(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 the same effect as if these amendments had not been prescribed.

I’m particularly interested in this because of two recent high profile events: the Nidal Hasan attack–the report on which DOD just released–and Bradley Manning’s arrest. Both might precipitate some changes in the handling of courts martial, charges, and the handing of charges.

But it’s not clear how.

The JAG Dismisses the Unitary Executive

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Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

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