SECRETARY OF DEFENSE 1000 DEFENSE PENTAGON WASHINGTON. DC 20301-1000 JUL 30 2012 MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS CHAIRMAN OF THE JOINT CHIEFS OF STAFF CHAIR. DEFENSE LEGAL POLICY BOARD SUBJECT: Military Justice in Combat Zones The Uniform Code of Military Justice is one of the things that makes the U.S. military great. To ensure that our system of militaryjustice remains fair. credible. and dependable in today's world. I believe we must. from time to time, assess whether certain reforms are warranted. -The application of militaryjustice to Service members alleged to have committed offenses against civilians in combat zones is of particular concern to me. We know that. over the last 10 years in Iraq and Afghanistan. bad things have happened involving combat excesses and innocent civilians in deployed areas. The abuses have been rare among our professional fighting force, but they became huge llash points that threatened to undermine our entire mission and the foundation of our relationship with the host government and its people. Thus, for offenses that take place in a country in which we operate alongside the civilian population. it is critical that our system of military justice be efficient. fair. dependable. and credible. For now and for the future. we must get this right. Therefore, I am today appointing the Honorable Judith Miller (the former General Counsel of the Department of Defense) and Major General (Ret) alter Huffman (former Judge Advocate General of the Army) to co-chair a group of distinguished Americans to review and assess the following: military justice in cases of U.S. Service members alleged to have caused the death. injury. or abusel of non--combatants in Iraq or Afghanistan. As military justice is not just a matter of law. but a comrnander's tool for good order and discipline, 1 am also appointing several retired commanders to this group. including retired Army General Pete Chiarelli and Marine Lieutenant General John Sattler. The review should encompass the period of time dating back to October 2001. the outset of Operation Enduring Freedom in Afghanistan. The review should not encompass allegations of detainee abuse or instances of collateral damage or "friendly fire" incident to a lawful military operation. Nor should the review passjudgment on the results of military justice in particular cases or intrude upon any pending case or investigation. The review should include. but not necessarily be limited to. an assessment of the following: (1) The manner in which such alleged offenses are initially reported and investigated; are there ways to ensure that alleged offenses are reported and investigated thoroughly, and accurately? Are there ways to improve. cooperation with local law enforcement and local communities'? (2) The command level at which the initial and final disposition authority now resides in such cases; is it at the right levels. or should the disposition authority be withheld to a different level? 'Also commonly referred to as "law of war violations." see Directive 231 l.0lE. (3) In joint, deployed areas, should military justice be pursued within the joint force, utilizing joint resources, rather than having cases handled separately and within each component service? (4) In deployed areas, are resources adequate for the investigation of offenses and the administration of military justice? (5) Should the system of military justice be revised _in some manner to improve the way in which cases involving multiple defendants are handled? In cases involving multiple defendants, should the system be revised in some marmer to better secure the testimony and cooperation of those involved in the offense? Are there lessons to be learned from the civilian system'? (6) Does the military justice system in deployed areas fully preserve the rights of the accused, while also respecting the rights and needs of victims and witnesses? This group will be supported by civilian and military personnel within the Department, and it willfunction as a subcommittee of the newly-created Defense Legal Policy Board. I 'am directing that the Defense Legal Policy Board submit to me its own advice and recommendations, based on the subcommittee's report of its review and assessment, along with a copy of the subcommittee report, within 210 days. Prior to that date, the subcommittee's report should be submitted in draft form to the Military Departments for comment. I direct that the Military Departments and all other personnel cooperate fully in the group's review and make personnel and resources available upon reasonable request. All legally recognized privileges, such asthe attorney-client or attorney work product privileges, should be preserved. The Department's General Counsel, Jeh Johnson, is available to provide additional information or guidance in connection with this review. Thank you in advance for your cooperation in this important matter. cc: DepSecDef GC DEFENSE LEGAL POLICY BOARD Board Members Judith A. Miller (Chair) Former General Counsel James B. Comey, Jr. General Counsel, Bridgewater Associates Former Deputy Attomey General Representative Isaac Newton "Ike" Skelton IV Former U.S. Representative for Missouri's congressional district Former Chairman of the House Armed Services Committee Major General (Ret.) Walter B. Huffman Dean Emeritus and Professor of Law, Texas Tech School of Law Former TJAG, U.S. Army John B. Bellinger, Partner, Arnold Porter Former Legal Adviser of the Department of State Former Legal Adviser to the National Security Council Jamie S. Gorelick Partner, WilmerHale Former Deputy Attomey General Former General Counsel Jeffrey H. Smith Partner, Amold Porter Former CIA General Counsel Fonner General Counsel, Senate Armed Services Committee Colonel (Ret.) Daniel J. Dell'Orto General Counsel, AM General Former Acting General Counsel Former Principal Deputy General Counsel Rear Admiral (Ret.) James E. McPherson Executive Director, National Association of Attorneys General Former Judge Advocate General of the Navy Major (Ret.) Carol A. DiBattiste Former Under Secretary of the Air Force Board Members (continued) Brigadier General (Ret.) Michael E. Rich Assistant United States Attorney Former Staff Judge Advocate to the Commandant of the Marine Corps Eugene R. Fidell Senior Research Scholar, Yale Law School President Emeritus, National Institute of Military Justice Roger Panino Retired NYPD squad commander (criminal investigator) Former Marine Corps Corporal Subcommittee *Member of subcommittee only Judith A. Miller (Co-Chair) Former General Counsel Major General (Ret.) Walter B. Huffman (Co-Chair) Dean Emeritus and Professor of Law, Texas Tech School of Law Former TJAG, U.S. Army James B. Comey, Jr. General Counsel, Bridgewater Associates Former Deputy Attorney General General (Ret) Peter W. Chiarelli* Former Vice Chief of Staff of the Army Former Commander, Multi-National Corps-Iraq Lieutenant General (Ret.) John Sattler* Former Commander, U.S. Marine Corps Forces Central Command Major General (Ret.) Amold L. Punaro* Fonner Staff Director, Senate Armed Services Committee Colonel (Ret.) Richard D. Rosen* Professor, Texas Tech School of Law Former Director, Center for Military Law Policy, Texas Tech School of Law Retired Anny JAG Colonel (Ret.) Calvin M. Lederer* Deputy Judge Advocate General, U.S. Coast Guard Retired Army JAG Eugene R. Fidell Senior Research Scholar, Yale Law School President Emeritus, National Institute of Military Justice Charles J. Kovats, Jr.* Assistant United States Attomey for the District of Minnesota Former Army JAG Roger Parrino Retired NYPD squad commander (criminal investigator) Former Marine Corps Corporal Advisers to the Board Colonel David Dales Chief, Military Justice Division, Air Force Legal Operations Agency Colonel Stephen C. Newman Staff Judge Advocate for 2d Marine Aircrafi Wing, U.S. Marine Corps Colonel Charles N. Pede Chief, Criminal Law Division, Office of The Judge Advocate General, U.S. Anny Captain Robert J. Crow Director, Criminal Law Division, Office of the Judge Advocate General, U.S. Navy