House Votes to “Red Flag” Military Personnel in Veto-Proof Majority
- Thread starter hk940
- Start date
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AlexanderA
Member
More details?
alsaqr
Member
Yep, i found a link to the GOA. We don't know the wording of the applicable portion of H.R. 6395 because the writer failed to quote same.
H.R.6395 - William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
The final bill as passed is not yet available on that link (as of 7/30/20 9am). The originally submitted bill in March had no Section 542 (see below). The above link should have the final bill available soon.
"Reported in House (07/09/2020)
As of 07/30/2020 text has not been received for H.R.6395 - William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed."
From an article 7/25 in the Houston Courant, Gun Control Sneaks by Lackadaisical Republicans
"On page 343 of 1427 lay a section stating: “a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm.”
"Understood in context, Section 542 of the bill codified a new “red flag” gun confiscation order program enforceable against any person subject to the United States Code of Military Justice—meaning both active duty military and retirees, among others. Because these would be issued on an ex parte basis, the gun owner would get no notice, no attorney, and no ability to defend himself against the accusations—in short, no due process."
I will try to find Section 542 and post it in a follow on in this thread.
The final bill as passed is not yet available on that link (as of 7/30/20 9am). The originally submitted bill in March had no Section 542 (see below). The above link should have the final bill available soon.
"Reported in House (07/09/2020)
As of 07/30/2020 text has not been received for H.R.6395 - William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed."
From an article 7/25 in the Houston Courant, Gun Control Sneaks by Lackadaisical Republicans
"On page 343 of 1427 lay a section stating: “a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm.”
"Understood in context, Section 542 of the bill codified a new “red flag” gun confiscation order program enforceable against any person subject to the United States Code of Military Justice—meaning both active duty military and retirees, among others. Because these would be issued on an ex parte basis, the gun owner would get no notice, no attorney, and no ability to defend himself against the accusations—in short, no due process."
I will try to find Section 542 and post it in a follow on in this thread.
1942bull
Member
Title of Section 542
SEC. 542. AUTHORITY OF MILITARY JUDGES AND MILITARY
MAGISTRATES TO ISSUE MILITARY COURT
PROTECTIVE ORDERS.
It is on page 337 of the 1,427 page Bill. The section is long and detailed. It is really to long to reproduce here. Anyone who wants to read it can find the Bill at
https://www.govtrack.us/congress/bills/116/hr6395/text
The easiest way to read the bill is to click on this link to a PDF version of the Bill. Scroll down to page 337, line 11. It will take careful reading to grasp the full extent of the authority and process.
SEC. 542. AUTHORITY OF MILITARY JUDGES AND MILITARY
MAGISTRATES TO ISSUE MILITARY COURT
PROTECTIVE ORDERS.
It is on page 337 of the 1,427 page Bill. The section is long and detailed. It is really to long to reproduce here. Anyone who wants to read it can find the Bill at
https://www.govtrack.us/congress/bills/116/hr6395/text
The easiest way to read the bill is to click on this link to a PDF version of the Bill. Scroll down to page 337, line 11. It will take careful reading to grasp the full extent of the authority and process.
You can find your Senator's contact page at
https://www.senate.gov/senators/contact
I just sent the following to each my my senators:
Senator
Regarding H.R.6395 - William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, under no circumstances should Section 542 be allowed to become law, in any form or modified language. If the Senate cannot completely remove that section from the bill in its entirety, with no compromising modifications considered, then it is essential to vote the entire bill down and not send it to the President.
The very idea of subjecting military members to a “Red Flag Law” protective order, with no Constitutional due process involved, is absolutely outrageous. There are already provisions for due process legal actions to deal with individuals, military and civilian, who may be considered a danger to themselves or others. We do not need such an abominable law affecting your military as Section 542.
SEC. 542. AUTHORITY OF MILITARY JUDGES AND MILITARY MAGISTRATES TO ISSUE MILITARY COURT PROTECTIVE ORDERS.
Most sincerely,
https://www.senate.gov/senators/contact
I just sent the following to each my my senators:
Senator
Regarding H.R.6395 - William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, under no circumstances should Section 542 be allowed to become law, in any form or modified language. If the Senate cannot completely remove that section from the bill in its entirety, with no compromising modifications considered, then it is essential to vote the entire bill down and not send it to the President.
The very idea of subjecting military members to a “Red Flag Law” protective order, with no Constitutional due process involved, is absolutely outrageous. There are already provisions for due process legal actions to deal with individuals, military and civilian, who may be considered a danger to themselves or others. We do not need such an abominable law affecting your military as Section 542.
SEC. 542. AUTHORITY OF MILITARY JUDGES AND MILITARY MAGISTRATES TO ISSUE MILITARY COURT PROTECTIVE ORDERS.
Most sincerely,
AlexanderA
Member
Evidently a reaction to the 2017 Sutherland Springs, Texas, church shooting. In that case, the shooter had a domestic violence conviction in the Air Force court-martial system, which for some reason was not entered in the FBI instant-check data base. Those procedures have since been tightened up. But this provision would broaden the prohibition to include ex parte protective orders. Presumably, the disqualification would not be permanent because it would expire once the protective order lapsed, just as in civilian protective orders..
Not sure what can be done about this since it's part of must-pass legislation.
Not sure what can be done about this since it's part of must-pass legislation.
What it sounds like is, if someone makes a complaint against someone in the military. Their firearms could be taken without due process.
748
member
The holy grail for the antis is to make a red flag law with no due process and no accountability.
Yes, that's true - REMEMBER!!
https://www.usatoday.com/story/news...ess-second-white-house-gun-meeting/381145002/
https://www.usatoday.com/story/news...ess-second-white-house-gun-meeting/381145002/
DocRock
member
The House cannot pass legislation that is 'veto-proof', nor can the current House (116th) pass legislation that assures a veto override on a party line basis. Nor, for that matter, can the Senate.
A bill or joint resolution that has been vetoed by the President can become law if two-thirds of the Members voting in the House and the Senate each agree to pass it over the President’s objection.
https://www.senate.gov/CRSpubs/2b1325dc-6a6b-42c4-9a08-506c3a59a251.pdf
If H.R. 6395 were passed in its alleged current format by the Senate and sent to the President and he vetoed it, 291 House members would have to vote for override. The bill passed the House with bi-partisan support and 295 votes in its favor. Dems have 235 seats. Would 56 House Republicans cross the aisle to override a Presidential veto? Highly doubtful. And unlikely to be an issue. The Bill now goes to the Senate. Nothing happens in the Senate. It is where legislation dies. But H.R.6395 is a DOD authorizations bill, so it will be acted on because it is so-called "must pass" legislation (which is why it had bi-partisan support in the House even if it had elements that should have been objected to). It will contain other provisions that the Senate GOP does not like, so it will be amended in Committee. If the NRA and others are on their game, the objectionable provision will be stripped in Committee and addressed in Conference (this not being a measure subject to Reconciliation). Or, defenders of the Second Amendment may offer poison pill amendments to the authorization bill that they know Dems will object to (a ban on DoD operated medical facilities performing abortion, for example) and then trade it away for removal of the objectionable Red Flag provision. This is likely the easiest method as it only requires a single powerful Senator on a relevant Committee to insert and stand by the poison pill amendment. Indeed, the President need only Tweet something to the effect of "House Bill that would Red Flag military personnel had better not pass Senate and will face veto" (albeit in his own inimitable grammatically challenged style), and that should ensure Senate action.
"...the House and Senate can each disagree to the position of the other on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding.Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed.They also are expected to resolve each disagreement within the scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement.On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be “out of scope material” or “new directed spending provisions.” The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President."
https://fas.org/sgp/crs/misc/98-696.pdf
So, in terms of efficiency, the focus should be on (Senate Armed Services Committee) Chairman Inhofe and the following GOP members:
A bill or joint resolution that has been vetoed by the President can become law if two-thirds of the Members voting in the House and the Senate each agree to pass it over the President’s objection.
https://www.senate.gov/CRSpubs/2b1325dc-6a6b-42c4-9a08-506c3a59a251.pdf
If H.R. 6395 were passed in its alleged current format by the Senate and sent to the President and he vetoed it, 291 House members would have to vote for override. The bill passed the House with bi-partisan support and 295 votes in its favor. Dems have 235 seats. Would 56 House Republicans cross the aisle to override a Presidential veto? Highly doubtful. And unlikely to be an issue. The Bill now goes to the Senate. Nothing happens in the Senate. It is where legislation dies. But H.R.6395 is a DOD authorizations bill, so it will be acted on because it is so-called "must pass" legislation (which is why it had bi-partisan support in the House even if it had elements that should have been objected to). It will contain other provisions that the Senate GOP does not like, so it will be amended in Committee. If the NRA and others are on their game, the objectionable provision will be stripped in Committee and addressed in Conference (this not being a measure subject to Reconciliation). Or, defenders of the Second Amendment may offer poison pill amendments to the authorization bill that they know Dems will object to (a ban on DoD operated medical facilities performing abortion, for example) and then trade it away for removal of the objectionable Red Flag provision. This is likely the easiest method as it only requires a single powerful Senator on a relevant Committee to insert and stand by the poison pill amendment. Indeed, the President need only Tweet something to the effect of "House Bill that would Red Flag military personnel had better not pass Senate and will face veto" (albeit in his own inimitable grammatically challenged style), and that should ensure Senate action.
"...the House and Senate can each disagree to the position of the other on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding.Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed.They also are expected to resolve each disagreement within the scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement.On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be “out of scope material” or “new directed spending provisions.” The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President."
https://fas.org/sgp/crs/misc/98-696.pdf
So, in terms of efficiency, the focus should be on (Senate Armed Services Committee) Chairman Inhofe and the following GOP members:
- Wicker, Roger F. (R - MS)
- Fischer, Deb (R - NE)
- Cotton, Tom (R - AR)
- Rounds, Mike (R - SD)
- Ernst, Joni (R - IA)
- Tillis, Thom (R - NC)
- Sullivan, Dan (R - AK)
- Perdue, David (R - GA)
- Cramer, Kevin (R - ND)
- McSally, Martha (R - AZ)
- Scott, Rick (R - FL)
- Blackburn, Marsha (R - TN)
- Hawley, Josh (R - MO)
1942bull
Member
The Bill contains a due process provision. Understand that in. Previous section it states that it applies to persons subject to the Uniform Code of Military Justice (UCMJ). The UCMJ is a Constitutional act amounting to the law that governs the US Military. The Bill makes the UCMJ preempt state laws in terms of section 542. The military is not quick to jump to conclusions when a service member is involved. Generally there is good Due Process in the military. The bill protects service members from the whims of state courts in which the service member is stationed. There are no civil courts involved under 542.
—————————
‘‘(g) DUE PROCESS.—
‘‘(1) PROTECTION OF DUE PROCESS.—Except as provided in paragraph (2), a protective order author- ized under subsection (a) may be issued only after reasonable notice and opportunity to be heard, di- rectly or through counsel, is given to the person against whom the order is sought sufficient to protect that person’s right to due process.
‘‘(2) EMERGENCY ORDERS.—A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the Presi- dent shall prescribe. In the case of ex parte orders, no- tice and opportunity to be heard must be provided within a reasonable time after the order is issued, suf- ficient to protect the respondent’s due process rights. ‘‘(h) RIGHTS OF VICTIM.—The victim of an alleged sex
or domestic violence offense who seeks a military court pro- tective order has, in addition to any rights provided under section 806b (article 6b), the following rights with respect to any proceeding involving the protective order:
‘‘(1) The right to reasonable, accurate, and time- ly notice of the proceeding and of any change in the status of the protective order resulting from the pro- ceeding.
‘‘(2) The right to be reasonably heard at the pro- ceeding.
‘‘(3) The right to appear in person, with or without counsel, at the proceeding.
‘‘(4) The right be represented by qualified coun- sel in connection with the proceeding, which may in- clude a Special Victims’ Counsel.
‘‘(5) The reasonable right to confer with a rep- resentative of the command of the accused and counsel representing the government at the proceeding, as applicable.
‘‘(6) The right to submit a written statement, di- rectly or through counsel, for consideration by the military judge or military magistrate presiding over the proceeding.
—————————
‘‘(g) DUE PROCESS.—
‘‘(1) PROTECTION OF DUE PROCESS.—Except as provided in paragraph (2), a protective order author- ized under subsection (a) may be issued only after reasonable notice and opportunity to be heard, di- rectly or through counsel, is given to the person against whom the order is sought sufficient to protect that person’s right to due process.
‘‘(2) EMERGENCY ORDERS.—A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the Presi- dent shall prescribe. In the case of ex parte orders, no- tice and opportunity to be heard must be provided within a reasonable time after the order is issued, suf- ficient to protect the respondent’s due process rights. ‘‘(h) RIGHTS OF VICTIM.—The victim of an alleged sex
or domestic violence offense who seeks a military court pro- tective order has, in addition to any rights provided under section 806b (article 6b), the following rights with respect to any proceeding involving the protective order:
‘‘(1) The right to reasonable, accurate, and time- ly notice of the proceeding and of any change in the status of the protective order resulting from the pro- ceeding.
‘‘(2) The right to be reasonably heard at the pro- ceeding.
‘‘(3) The right to appear in person, with or without counsel, at the proceeding.
‘‘(4) The right be represented by qualified coun- sel in connection with the proceeding, which may in- clude a Special Victims’ Counsel.
‘‘(5) The reasonable right to confer with a rep- resentative of the command of the accused and counsel representing the government at the proceeding, as applicable.
‘‘(6) The right to submit a written statement, di- rectly or through counsel, for consideration by the military judge or military magistrate presiding over the proceeding.
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alsaqr
Member
The portion pertaining to protective orders is in the scope of sexual assault/sexual harassment/spousal abuse. For years the US military has been plagued by sexual harassment/sexual assault cases, many of which were swept under the rug. The US congress has frequently warned the US military to get serious about sexual harassment/assault, to no avail. Now the US congress has taken action.
Example:
The recent sexual harassment case involving SPC Vanessa Quillen at Fort Hood was botched from the beginning. SPC Guillen disappeared after filing a sexual harassment claim. After two months of foot dragging the Army at Fort Hood began investigating the case; the murderer, a soldier, committed suicide. Murderer's girlfriend was involved in hiding the body.
Today president Trump met with the family of SPC Guillen:
https://www.usatoday.com/story/news...sexual-harassment-orobe-fort-hood/5543352002/
https://www.cbsnews.com/news/trump-vanessa-guillen-bill-fort-hood-soldier-family/
Example:
The recent sexual harassment case involving SPC Vanessa Quillen at Fort Hood was botched from the beginning. SPC Guillen disappeared after filing a sexual harassment claim. After two months of foot dragging the Army at Fort Hood began investigating the case; the murderer, a soldier, committed suicide. Murderer's girlfriend was involved in hiding the body.
Today president Trump met with the family of SPC Guillen:
https://www.usatoday.com/story/news...sexual-harassment-orobe-fort-hood/5543352002/
https://www.cbsnews.com/news/trump-vanessa-guillen-bill-fort-hood-soldier-family/
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542.
Authority of military judges and military magistrates to issue military court protective orders
(a)
Judge-issued military court protective orders
Chapter 80 of title 10, United Stated Code, is amended by adding at the end the following new section
1567b.
Authority of military judges and military magistrates to issue military court protective orders
(a)
Authority to issue military court protective orders
The President shall prescribe regulations authorizing military judges and military magistrates to issue protective orders in accordance with this section. A protective order issued in accordance with this section shall be known as a military court protective order. Under the regulations prescribed by the President, military judges and military magistrates shall have exclusive jurisdiction over the issuance, appeal, renewal, and termination of military court protective orders and such orders may not be issued, appealed, renewed, or terminated by State, local, territorial, or tribal courts.
(b)
Enforcement by civilian authorities
(1)
In general
In prescribing regulations for military court protective orders, the President shall seek to ensure that the protective orders are issued in a form and manner that is enforceable by State, local, territorial, and tribal civilian law enforcement authorities.
(2)
Full faith and credit
Any military court protective order, should be accorded full faith and credit by the court of a State, local, territorial, or tribal jurisdiction (the enforcing jurisdiction) and enforced by the court and law enforcement personnel of that jurisdiction as if it were the order of the enforcing jurisdiction.
(3)
Reciprocity agreements
Consistent with paragraphs (1) and (2), the Secretary of Defense shall seek to enter into reciprocity agreements with State, local, territorial, and tribal civilian law enforcement authorities under which—
(A)
such authorities agree to enforce military court protective orders; and
(B)
the Secretary agrees to enforce protective orders issued by such authorities that are consistent with section 2265(b) of title 18.
(c)
Purpose and form of issuance
A military court protective order may be issued for the purpose of protecting a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, from a person subject to chapter 47 of this title (the Uniform Code of Military Justice) who is alleged to have committed such an offense.
(d)
Timing and manner of issuance
A military court protective order may be issued—
(1)
by a military magistrate, before referral of charges and specifications to court-martial for trial, at the request of—
(A)
a victim of an alleged sex or domestic violence offense; or
(B)
a Special Victims’ Counsel or other qualified counsel acting on behalf of the victim; or
(2)
by a military judge, after referral of charges and specifications to court-martial for trial, at the request of qualified counsel, which may include a Special Victims’ Counsel acting on behalf of the victim or trial counsel acting on behalf of the prosecution.
(e)
Duration and renewal of protective order
(1)
Duration
A military court protective order shall be issued for an initial period of thirty days and may be reissued for one or more additional periods of thirty days in accordance with paragraph (2).
(2)
Expiration and renewal
Before the expiration of any 30 day period during which a military court protective order is in effect, a military judge or military magistrate shall review the order to determine whether the order will terminate at the expiration of such period or be reissued for an additional period of 30 days.
(3)
Notice to protected persons
If a military judge or military magistrate determines under paragraph (2) that a military court protective order will terminate, the judge or magistrate concerned shall provide to each person protected by the order reasonable, timely, and accurate notification of the termination.
(f)
Review of magistrate-issued orders
(1)
Review
A military judge, at the request of the person subject to a military court protective order that was issued by a military magistrate, may review the order to determine if the order was properly issued by the magistrate.
(2)
Standards of review
A military judge who reviews an order under paragraph (1) shall terminate the order if the judge determines that—
(A)
the military magistrate’s decision to issue the order was an abuse of discretion, and there is not sufficient information presented to the military judge to justify the order; or
(B)
information not presented to the military magistrate establishes that the military court protective order should be terminated.
(g)
Due process
(1)
Protection of due process
Except as provided in paragraph (2), a protective order authorized under subsection (a) may be issued only after reasonable notice and opportunity to be heard, directly or through counsel, is given to the person against whom the order is sought sufficient to protect that person's right to due process.
(2)
Emergency orders
A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the President shall prescribe. In the case of ex parte orders, notice and opportunity to be heard must be provided within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.
(h)
Rights of victim
The victim of an alleged sex or domestic violence offense who seeks a military court protective order has, in addition to any rights provided under section 806b (article 6b), the following rights with respect to any proceeding involving the protective order:
(1)
The right to reasonable, accurate, and timely notice of the proceeding and of any change in the status of the protective order resulting from the proceeding.
(2)
The right to be reasonably heard at the proceeding.
(3)
The right to appear in person, with or without counsel, at the proceeding.
(4)
The right be represented by qualified counsel in connection with the proceeding, which may include a Special Victims’ Counsel.
(5)
The reasonable right to confer with a representative of the command of the accused and counsel representing the government at the proceeding, as applicable.
(6)
The right to submit a written statement, directly or through counsel, for consideration by the military judge or military magistrate presiding over the proceeding.
(i)
Restrictions on access to firearms
(1)
In general
Notwithstanding any other provision of law—
(A)
a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and
(B)
a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18.
(2)
Notice to Attorney General
Not later than 72 hours after the issuance of an order described in paragraph (1), the Secretary of Defense shall submit to the Attorney General a record of the order.
(j)
Treatment as lawful order
A military court protective order shall be treated as a lawful order for purposes of the application of section 892 (article 92) and a violation of such an order shall be punishable under such section (article).
(k)
Command matters
(1)
Inclusion in personnel file
Any military court protective order against a member shall be placed and retained in the military personnel file of the member.
(2)
Notice to civilian law enforcement of issuance
Any military court protective order against a member shall be treated as a military protective order for purposes of section 1567a including for purposes of mandatory notification of issuance to civilian law enforcement as required by that section.
(l)
Relationship to other authorities
Nothing in this section may be construed as prohibiting—
(1)
a commanding officer from issuing or enforcing any otherwise lawful order in the nature of a protective order to or against members of the officer’s command;
(2)
pretrial restraint in accordance with Rule for Courts-Martial 304 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule); or
(3)
pretrial confinement in accordance with Rule for Courts-Martial 305 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule)
(m)
Delivery to certain persons
A physical and electronic copy of any military court protective order shall be provided, as soon as practicable after issuance, to the following:
(1)
The person or persons protected by the protective order or to the guardian of such a person if such person is under the age of 18 years.
(2)
The person subject to the protective order.
(3)
To such commanding officer in the chain of command of the person subject to the protective order as the President shall prescribe for purposes of this section.
(n)
Definitions
In this section:
(1)
Contact
The term contact includes contact in person or through a third party, or through gifts,
(2)
Communication
The term communication includes communication in person or through a third party, and by telephone or in writing by letter, data fax, or other electronic means.
(3)
Covered sex or domestic violence offense
The term covered sex or domestic violence offense means—
(A)
an alleged sex-related offense (as defined in section 1044e(h)); or
(B)
an alleged offense of domestic violence under section 928b of this title (article 128b of the Uniform Code of Military Justice) or an attempt to commit such an offense that is punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).
(4)
Military judge and military magistrate
The terms military judge and military magistrate mean a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge or magistrate by the Judge Advocate General of the armed force of which the officer is a member.
(5)
Protective order
The term protective order means an order that—
(A)
restrains a person from harassing, stalking, threatening, or otherwise contacting or communicating with a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, or engaging in other conduct that would place such other person in reasonable fear of bodily injury to any such other person;
(B)
by its terms, explicitly prohibits—
(i)
the use, attempted use, or threatened use of physical force by the person against a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, that would reasonably be expected to cause bodily injury;
(ii)
the initiation by the person restrained of any contact or communication with such other person; or
(iii)
actions described by both clauses (i) and (ii).
(6)
Special Victims’ Counsel
The term Special Victims Counsel means a Special Victims’ Counsel described in section 1044e and includes a Victims’ Legal Counsel of the Navy.
.
(b)
Clerical amendment
The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
1567b. Authority of military judges and military magistrates to issue military court protective orders.
.
(c)
Implementation
The President shall prescribe regulations implementing section 1567b of title 10, United States Code, not later than one year after the date of the enactment of this Act.
Authority of military judges and military magistrates to issue military court protective orders
(a)
Judge-issued military court protective orders
Chapter 80 of title 10, United Stated Code, is amended by adding at the end the following new section
1567b.
Authority of military judges and military magistrates to issue military court protective orders
(a)
Authority to issue military court protective orders
The President shall prescribe regulations authorizing military judges and military magistrates to issue protective orders in accordance with this section. A protective order issued in accordance with this section shall be known as a military court protective order. Under the regulations prescribed by the President, military judges and military magistrates shall have exclusive jurisdiction over the issuance, appeal, renewal, and termination of military court protective orders and such orders may not be issued, appealed, renewed, or terminated by State, local, territorial, or tribal courts.
(b)
Enforcement by civilian authorities
(1)
In general
In prescribing regulations for military court protective orders, the President shall seek to ensure that the protective orders are issued in a form and manner that is enforceable by State, local, territorial, and tribal civilian law enforcement authorities.
(2)
Full faith and credit
Any military court protective order, should be accorded full faith and credit by the court of a State, local, territorial, or tribal jurisdiction (the enforcing jurisdiction) and enforced by the court and law enforcement personnel of that jurisdiction as if it were the order of the enforcing jurisdiction.
(3)
Reciprocity agreements
Consistent with paragraphs (1) and (2), the Secretary of Defense shall seek to enter into reciprocity agreements with State, local, territorial, and tribal civilian law enforcement authorities under which—
(A)
such authorities agree to enforce military court protective orders; and
(B)
the Secretary agrees to enforce protective orders issued by such authorities that are consistent with section 2265(b) of title 18.
(c)
Purpose and form of issuance
A military court protective order may be issued for the purpose of protecting a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, from a person subject to chapter 47 of this title (the Uniform Code of Military Justice) who is alleged to have committed such an offense.
(d)
Timing and manner of issuance
A military court protective order may be issued—
(1)
by a military magistrate, before referral of charges and specifications to court-martial for trial, at the request of—
(A)
a victim of an alleged sex or domestic violence offense; or
(B)
a Special Victims’ Counsel or other qualified counsel acting on behalf of the victim; or
(2)
by a military judge, after referral of charges and specifications to court-martial for trial, at the request of qualified counsel, which may include a Special Victims’ Counsel acting on behalf of the victim or trial counsel acting on behalf of the prosecution.
(e)
Duration and renewal of protective order
(1)
Duration
A military court protective order shall be issued for an initial period of thirty days and may be reissued for one or more additional periods of thirty days in accordance with paragraph (2).
(2)
Expiration and renewal
Before the expiration of any 30 day period during which a military court protective order is in effect, a military judge or military magistrate shall review the order to determine whether the order will terminate at the expiration of such period or be reissued for an additional period of 30 days.
(3)
Notice to protected persons
If a military judge or military magistrate determines under paragraph (2) that a military court protective order will terminate, the judge or magistrate concerned shall provide to each person protected by the order reasonable, timely, and accurate notification of the termination.
(f)
Review of magistrate-issued orders
(1)
Review
A military judge, at the request of the person subject to a military court protective order that was issued by a military magistrate, may review the order to determine if the order was properly issued by the magistrate.
(2)
Standards of review
A military judge who reviews an order under paragraph (1) shall terminate the order if the judge determines that—
(A)
the military magistrate’s decision to issue the order was an abuse of discretion, and there is not sufficient information presented to the military judge to justify the order; or
(B)
information not presented to the military magistrate establishes that the military court protective order should be terminated.
(g)
Due process
(1)
Protection of due process
Except as provided in paragraph (2), a protective order authorized under subsection (a) may be issued only after reasonable notice and opportunity to be heard, directly or through counsel, is given to the person against whom the order is sought sufficient to protect that person's right to due process.
(2)
Emergency orders
A protective order on an emergency basis may be issued on an ex parte basis under such rules and limitations as the President shall prescribe. In the case of ex parte orders, notice and opportunity to be heard must be provided within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.
(h)
Rights of victim
The victim of an alleged sex or domestic violence offense who seeks a military court protective order has, in addition to any rights provided under section 806b (article 6b), the following rights with respect to any proceeding involving the protective order:
(1)
The right to reasonable, accurate, and timely notice of the proceeding and of any change in the status of the protective order resulting from the proceeding.
(2)
The right to be reasonably heard at the proceeding.
(3)
The right to appear in person, with or without counsel, at the proceeding.
(4)
The right be represented by qualified counsel in connection with the proceeding, which may include a Special Victims’ Counsel.
(5)
The reasonable right to confer with a representative of the command of the accused and counsel representing the government at the proceeding, as applicable.
(6)
The right to submit a written statement, directly or through counsel, for consideration by the military judge or military magistrate presiding over the proceeding.
(i)
Restrictions on access to firearms
(1)
In general
Notwithstanding any other provision of law—
(A)
a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and
(B)
a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18.
(2)
Notice to Attorney General
Not later than 72 hours after the issuance of an order described in paragraph (1), the Secretary of Defense shall submit to the Attorney General a record of the order.
(j)
Treatment as lawful order
A military court protective order shall be treated as a lawful order for purposes of the application of section 892 (article 92) and a violation of such an order shall be punishable under such section (article).
(k)
Command matters
(1)
Inclusion in personnel file
Any military court protective order against a member shall be placed and retained in the military personnel file of the member.
(2)
Notice to civilian law enforcement of issuance
Any military court protective order against a member shall be treated as a military protective order for purposes of section 1567a including for purposes of mandatory notification of issuance to civilian law enforcement as required by that section.
(l)
Relationship to other authorities
Nothing in this section may be construed as prohibiting—
(1)
a commanding officer from issuing or enforcing any otherwise lawful order in the nature of a protective order to or against members of the officer’s command;
(2)
pretrial restraint in accordance with Rule for Courts-Martial 304 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule); or
(3)
pretrial confinement in accordance with Rule for Courts-Martial 305 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor rule)
(m)
Delivery to certain persons
A physical and electronic copy of any military court protective order shall be provided, as soon as practicable after issuance, to the following:
(1)
The person or persons protected by the protective order or to the guardian of such a person if such person is under the age of 18 years.
(2)
The person subject to the protective order.
(3)
To such commanding officer in the chain of command of the person subject to the protective order as the President shall prescribe for purposes of this section.
(n)
Definitions
In this section:
(1)
Contact
The term contact includes contact in person or through a third party, or through gifts,
(2)
Communication
The term communication includes communication in person or through a third party, and by telephone or in writing by letter, data fax, or other electronic means.
(3)
Covered sex or domestic violence offense
The term covered sex or domestic violence offense means—
(A)
an alleged sex-related offense (as defined in section 1044e(h)); or
(B)
an alleged offense of domestic violence under section 928b of this title (article 128b of the Uniform Code of Military Justice) or an attempt to commit such an offense that is punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).
(4)
Military judge and military magistrate
The terms military judge and military magistrate mean a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge or magistrate by the Judge Advocate General of the armed force of which the officer is a member.
(5)
Protective order
The term protective order means an order that—
(A)
restrains a person from harassing, stalking, threatening, or otherwise contacting or communicating with a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, or engaging in other conduct that would place such other person in reasonable fear of bodily injury to any such other person;
(B)
by its terms, explicitly prohibits—
(i)
the use, attempted use, or threatened use of physical force by the person against a victim of an alleged sex or domestic violence offense, or a family member or associate of the victim, that would reasonably be expected to cause bodily injury;
(ii)
the initiation by the person restrained of any contact or communication with such other person; or
(iii)
actions described by both clauses (i) and (ii).
(6)
Special Victims’ Counsel
The term Special Victims Counsel means a Special Victims’ Counsel described in section 1044e and includes a Victims’ Legal Counsel of the Navy.
.
(b)
Clerical amendment
The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
1567b. Authority of military judges and military magistrates to issue military court protective orders.
.
(c)
Implementation
The President shall prescribe regulations implementing section 1567b of title 10, United States Code, not later than one year after the date of the enactment of this Act.
You don't want to oppose the entire Defense Authorization Bill, just the relevant section.
We need to be clear, this is a House bill, not the Senate's. There will have to be resolution of the differences between the House and Senate bills before POTUS sees it.
Here's the Senate bill. S. 4049: National Defense Authorization Act for Fiscal Year 2021
https://www.govtrack.us/congress/bills/116/s4049/text
There's nothing in it about protective orders.
That means your best course is to identify the Senators on the Committee that the Senate version is in and direct your concerns to them to prevent section 452 from making through.
Here's the Senate bill. S. 4049: National Defense Authorization Act for Fiscal Year 2021
https://www.govtrack.us/congress/bills/116/s4049/text
There's nothing in it about protective orders.
That means your best course is to identify the Senators on the Committee that the Senate version is in and direct your concerns to them to prevent section 452 from making through.
daniel craig
Member
- Joined
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- 2,815
The military has the means already to provide the protections of an order of protection for service members without need for a duplicate civilian like process. So, the section of the funding bill doesn't provide anything that isn't already in place AND risks leaving someone with a permanent prohibition on firearms ownership (making them a prohibited person) due to the lack of experience of military judicial officers. Lacking the protection that a civilian has, this potentially puts service members at risk of a permanent and irreversible denial of 2A rights.
alsaqr
Member
The US military has steadfastly refused to get serious with soldiers who sexually harass and and sexually harass other soldiers. i spent a career in the US Army, retiring in 1979. The US military blew off sexual assault and sexual harassment then and it's gotten much worse since. For years the retired sergeant major neighbor denied the military had a problem, blaming it on the females. Then his soldier daughter was sexually assaulted and he became a believer.
Currently soldiers who live off post are prosecuted in civilian courts. When they get slapped with a domestic violence charge and a permanent restraining order by the local judge their Second Amendment rights are gone. Under the proposed legislation the service members case would be handled by the military, regardless of there the incident/s took place.
JTHunter
Member
Contacting IL-ANNOY's two senators is a waste of time as they probably had their slimy fingers in the writing of this piece of trash.
That would seem to be unintended since I don't think the civilian authority can be superseded by the military.
spctrbytz
Member
Not sure of the reach of this, but generally any on suicide watch end up not having any firearms at home, and also any domestic or other assault subject to a protective order. Possibly this practice had not been enforced in some cases. This appears to expand upon this for no apparent reason, unless there was some specific loophole that it was meant to shore up?
Brutuskend
Member
Good to know.
Ex Marine here.
Not sure if it would effect me however. The only guns I own that anyone knows about are black powder. Does anyone know if they fall in the same catagory as " modern" fire arms. I know they changed the deffinition of what a fire arm is here in Oregon basically making black powder guns on the same level as other guns.
Ex Marine here.
Not sure if it would effect me however. The only guns I own that anyone knows about are black powder. Does anyone know if they fall in the same catagory as " modern" fire arms. I know they changed the deffinition of what a fire arm is here in Oregon basically making black powder guns on the same level as other guns.
Not firearm under federal law.
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