2008 edition - Fort Sam Houston - U.S. Army

this analysis was drafted, the specific page numbers in the statutes
at large were not available.
Composition of the Manual for Courts-Martial (1984)
a. Executive Order (1983).
The Executive Order includes the Manual for Courts-Martial,
which consists of the Preamble, Rules for Courts-Martial, Military
Rules of Evidence, the Punitive Articles, and Nonjudicial
Punishment Procedure. Each rule states binding requirements except
when the text of the rule expressly provides otherwise. Normally,
failure to comply with a rule constitutes error. See Article
59 concerning the effect of errors.
b. Supplementary Materials
As a supplement to the Manual, the Department of Defense, in
conjunction with the Department of Homeland Security, has published
a Discussion (accompanying the Preamble, the Rules for
Courts-Martial, and the Punitive Articles), this Analysis, and various
Appendices.
(1) The Discussion
The Discussion is intended by the drafters to serve as a treatise.
To the extent that the Discussion uses terms such as “must” or
“will”, it is solely for the purpose of alerting the user to important
legal consequences that may result from binding requirements in
the Executive Order, judicial decisions, or other sources of binding
law. The Discussion itself, however, does not have the force
of law, even though it may describe legal requirements derived
from other sources. It is in the nature of treatise, and may be used
as secondary authority. The inclusion of both the President’s rules
and the drafters’ informal discussion in the basic text of the
Manual provides flexibility not available in previous editions of
the Manual, and should eliminate questions as to whether an item
is a requirement or only guidance. See e.g., United States v.
Baker, 14 M.J. 361, 373 (C.M.A. 1973). In this Manual, if matter
is included in a rule or paragraph, it is intended that the matter be
binding, unless it is clearly expressed as precatory. A rule is
binding even if the source of the requirement is a judicial decision
or a statute not directly applicable to courts-martial. If the
President had adopted a rule based on a judicial decision or a
statute, subsequent repeal of the statute or reversal of the judicial
decision does not repeal the rule. On the other hand, if the
drafters did not choose to “codify” a principle or requirement
derived from a judicial decision or other source of law, but
considered it sufficiently significant that users should be aware of
it in the Manual, such matter is addressed in the Discussion. The
Discussion will be revised from time to time as warranted by
changes in applicable law.
(2) The Analysis
The Analysis sets forth the nonbinding views of the drafters as
to the basis for each rule or paragraph, as well as the intent of the
drafters, particularly with respect to the purpose of substantial
changes in present law. The Analysis is intended to be a guide in
interpretation. In that regard, note that the Analysis accompanied
the project from the initial drafting stage through submission to
the President, and was continually revised to reflect changes prior
to submission to the President. Users are reminded, however, that
primary reliance should be placed on the plain words of the rules.
In addition, it is important to remember that the Analysis solely
represents the views of staff personnel who worked on the project,
and does not necessarily reflect the views of the President in
ANALYSIS
approving it, or of the officials who formally recommended approval
to the President.
The Analysis frequently refers to judicial decisions and statutes
from the civilian sector that are not applicable directly to courtsmartial.
Subsequent modification of such sources of law may
provide useful guidance in interpreting rules, and the drafters do
not intend that citation of a source in this Analysis should preclude
reference to subsequent developments for purposes of interp
r e t a t i o n . A t t h e s a m e t i m e , t h e u s e r i s r e m i n d e d t h a t t h e
amendment of the Manual is the province of the President. Developments
in the civilian sector that affect the underlying rationale
for a rule do not affect the validity of the rule except to the extent
otherwise required as a matter of statutory or constitutional law.
The same is true with respect to rules derived from the decisions
of military tribunals. Once incorporated into the Executive Order,
such matters have an independent source of authority and are not
dependent upon continued support from the judiciary. Conversely,
to the extent that judicial precedent is set forth only in the Discussion
or is otherwise omitted from the Rules or the Discussion, the
continuing validity of the precedent will depend on the force of
its rationale, the doctrine of stare decisis, and similar jurisprudential
considerations. Nothing in this Introduction should be interpreted
to suggest that the placement of matter in the Discussion
(or the Analysis), rather than the rule, is to be taken as disapproval
of the precedent or as an invitation for a court to take a
different approach; rather, the difficult drafting problem of choosing
between a codification and common law approach to the law
frequently resulted in noncodification of decisions which had the
u n a n i m o u s s u p p o r t o f t h e d r a f t e r s . T o t h e e x t e n t t h a t f u t u r e
c h a n g e s a r e m a d e i n t h e R u l e s o r D i s c u s s i o n , c o r r e s p o n d i n g
materials will be included in the Analysis.
The Appendices contain various nonbinding materials to assist
u s e r s o f t h i s M a n u a l . T h e A p p e n d i c e s a l s o c o n t a i n i n d e n t
t y p e = ’ h ’ a m t = ’ 1 0 . ’ s f r o m p e r t i n e n t s t a t u t e s . T h e s e i n d e n t
type=’h’ amt=’10.’s are appropriated for judicial notice of law,
see Mil. R. Evid. 201A, but nothing herein precludes a party from
proving a change in law through production of an official codification
or other appropriate evidence.
PART I. PREAMBLE
Introduction.
The preamble is based on paragraphs 1 and 2 of MCM, 1969
(Rev.). See generally Military Justice Jurisdiction of Courts-Martial
, DA PAM 27–174, chapter 1 (May 1980.)
1. Sources of military jurisdiction
This subsection is based on paragraph 1 of MCM, 1969 (Rev.).
The provisions of the Constitution which are sources of jurisdiction
of military courts or tribunals include: Art I, sec. 8, cl. 1,
9–16, 18; Art. II, sec. 2; Art. IV, sec. 4; and the fifth amendment.
As to sources in international law, see e.g., Ex Parte Quirin, 317
U.S. 1 (1942); Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, arts. 82–84, 6 U.S.T. 3316,
3382, T.I.A.S. No. 3365, 75 U.N.T.S. 287. See generally DA
PAM 27–174, supra at paragraph 1–3.
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