The Military Justice Act of 2016: Here Come the Changes

Last December, Congress passed the Military Justice Act of 2016, which then-President Barack Obama subsequently signed. Senator John McCain noted that the Act “constitute[d] the most significant reforms to the Uniform Code of Military Justice since it was enacted.” The Executive Branch issued draft implanting regulations on July 11, 2017, with a goal of issuing the regulations by the statutory deadline of December 23, 2017. The Act will then take effect when directed by the President, but no later than January 1, 2019.

This legislation attempts to improve the effectiveness and efficiency of the military justice system without diminishing due process or good order and discipline throughout the military. To accomplish these goals, the Act makes important structural changes that align the court-martial process more closely with those of federal district courts. Those changes include:

  1. Military judges will have the authority to act on cases before referral to a court-martial. This authority will allow judges to make decisions on requests for investigative subpoenas and wiretaps, as well as take legal action when directed by the appellate courts;
  2. The authority of Military Magistrate position is greatly expanded. While part-time military magistrates currently issue probable-cause warrants and conduct pre-trial confinement reviews, this new statutory office will have the authority to issue subpoenas and wiretaps as well as preside at certain judge-alone courts-martial. Ultimately, the military magistrate will likely have duties comparable to a federal district court magistrate;  
  3. As described above, the Act creates a new judge-alone Special Court-Martial. This court-martial may adjudge confinement for up to six months but may not adjudge a bad-conduct discharge or dishonorable discharge. Upon agreement of both parties, a military magistrate may hear such courts-martial;
  4. New panel member sizes—four for special courts-martial, eight for general courts-martial and…

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