Obama changes court-martial rules, but doesn’t explain how

Illustration by Art Lien

On August 31, the White House was forthcoming enough to announce that President Obama had just signed a new Executive Order that supposedly amends the Manual for Courts-Martial, but was not forthcoming enough to explain in any way how these amendments will actually change the rules under which courts-martial are conducted.

Those changes were apparently described in an “Annex,” to Executive Order 13552, which was not made public, perhaps because it is deemed to be classified.

This lapse in White House “transparency” has not yet drawn the attention of the mainstream media, to the best of GSN’s knowledge, but it did catch the eye of a blogger called emptywheel, which was appropriately skeptical.

“In 30 days, changes to Part II (Rules) and IV (Punitive Articles) of the Courts Martial Manual will go into effect,” noted emptywheel, “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.”

Those insights from emptywheel elicited a slew of comments, some of which actually made sense:

“Just don’t do anything wrong,” dead-panned one commenter. “How can you not do anything wrong if you don’t know what ‘wrong’ is? Did I just commit a crime with that last question?”

Added a second commenter: “Crimes are defined by statute. They consist of a prohibited act or causing a particular result (e.g., as in causing the death of another) committed with a particular mental state. One of the most basic principles of criminal law is a notice requirement: People cannot be prosecuted for committing a crime unless they have notice of what constitutes the crime. Therefore, new criminal statutes have to be reported or published by the media together with notice regarding when the new statute goes into effect. We saw that procedure followed in AZ with SB 1070, for example.

Perhaps the White House will release the missing information in the hours preceding Hurricane Earl’s arrival and the beginning of the long Labor Day Weekend.