Randomized Selection of Court Members

Currently, the court-martial convening authority is required to “detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(e)(2) (emphasis added). As part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Congress amended Article 25(e), UCMJ, regarding the detailing of court members, by adding a new paragraph (4), requiring a convening authority for courts-martial to “detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.” Pub. L. No. 117-263, § 543(a) (2022) (emphasis added). The President is required to prescribe implementing regulations by 23 December 2024, when the amendment takes effect, for courts-martial convened on after that date. § 543(b), (c).

The new provision was not part of the original House bill; it was added, apparently without much deliberation, by Senate amendment No. 5499. See Joint Explanatory Statement to Accompany the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, at 83. https://www.armed-services.senate.gov/imo/media/doc/fy23_ndaa_
joint_explanatory_statement.pdf. Regardless of your sentiments on the merits of the issue, § 543 is an abysmal piece of legislation.

Typically, when Congress wishes an amendment to supersede an earlier statute, or it intends the earlier statute to remain in effect for some, but not all, purposes, it says so in the amendment. In fact, it “can strongly be presumed that Congress will specifically address language on the statute books that it wishes to change.” United States v. Fausto, 484 U.S. 439, 453 (1988). “[R]epeals by implication are not favored and will not be presumed unless the legislature’s intention to repeal is clear and manifest. Statutory repeal will not be inferred unless the later statute expressly contradicts the original act or such a construction is absolutely necessary to give the later statute’s words any meaning at all.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 646 (2007) (cleaned up).

On one hand, congressional intent is not clear and manifest. If Congress intended to repeal the first sentence of Article 25(e)(2), why not directly amend that provision to reflect a randomized court member selection process, rather than add a contrary provision in the same subsection of the statute? On the other hand, the amendment expressly contradicts the original act. Where the statute gave the convening authority almost unfettered discretion in selecting members, after applying statutory criteria, the amendment requires the President to establish procedures for the random selection of members but severs the convening authority from the actual selection process.

Article 25(e)(4) meets both criteria for inferring statutory repeal of the first sentence of Article 25(e)(2). It expressly contradicts the original act and repeal of the latter is absolutely necessary to give any meaning to the words of the amendment.

In the random selection amendment, Congress placed only one restriction on the President’s plan: the court members must be “qualified” members of the armed forces. The only qualifications under the current Article 25 require the individual selected for court-martial duty to be an active-duty member of the armed forces (Article 25(a), (b), (c)) and, when it can be avoided, not be inferior in rank or grade to the accused (Article 25(e)(1)).

In drafting a plan, the President will have to deal with other issues. Under Article 25(c)(2)(B), an enlisted accused has the right to select trial before a panel consisting of only officers or one in which at least one-third of the members are enlisted. With the vastly more numerous enlisted personnel than officers, random selection of members will inevitably result in some court panels consisting of enlisted members only. Will the President somehow restrict the random selection process so that officer representation on the panel is ensured? Congress seems to have foreclosed such restrictions in its mandate that the President’s plan randomize the selection process to “the maximum extent practicable.” The term “practicable” means “capable of being accomplished; feasible; possible.” Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed. 1995). Certainly, a court-martial with an all-enlisted panel is feasible and possible.

Regardless of how the President resolves the officer/enlisted and other questions that may arise, the congressional requirement that the selection process be randomized to the maximum extent practicable raises its own question: Who decides whether the President’s plan establishes randomization to the maximum extent practicable?

The term “practicable” is used elsewhere in the UCMJ but, normally, it is associated with a grant of authority to the President to determine what is practicable. See, e.g., Article 36(a) (permitting the President to prescribe court-martial procedures “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (emphasis added)). Although some may quibble, the President has executed this duty faithfully. The rules of evidence and procedure in courts-martial now pretty much track those in federal district courts, except where otherwise contrary to provisions of the UCMJ. And the courts are not flooded with litigation on whether it would be practicable to adopt more of the federal rules.

Ultimately, of course, Congress will be the final arbiter. But Congress acts slowly, leaving the question ripe for judicial intervention.
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Good luck to the Joint Services Committee that is responsible for drafting the presidential regulations to implement the new Article 25(e)(4).

Jim Young