How the Biden administration sees its ‘historic’ changes to the military justice system

John Kirby:

So let me take each in turn, if I might.

On the jury selection, it is written into laws by statute that a commander selects the members of a court — of a court-martial, a panel, and that can’t be solved — that can’t be solved by an executive order, because it’s law. So, there would have to be legislation to change that.

On how the process will work, commanders will certainly have the ability to help provide context on the availability of members to serve. But, by the randomization that has been added into this, they don’t they won’t get veto authority. They won’t get to — they won’t get to preselect members in that regard, because of this randomization factor that’s been added into the E.O., which will give the system a lot more flexibility.

And then, on your pretrial confinement question, it’s very specifically designed, this E.O., to make it clear that, while, yes, commanders can assign pretrial confinement, they have that authority — they already had it before that — and that they will have the ability if, for operational readiness concerns or other concerns, to want to remove a member from pretrial confinement, that the Special Trial Counsel can override that decision by a commanding officer and demand, if there is justification for it, demand that the accused stay in pretrial confinement.

So, the Special Trial Counsel can come in over the top of a commander and demand that an accused stay in pretrial confinement. Again, they have to be able to justify it in terms of the case, like in terms of maybe the intimidation of witnesses. But there is an override capability built into this E.O.

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