Executive Orders EO 13262 1. Changes to Appendix 21, the Analysis Accompanying the Rules for Courts- Martial, United States (Part II, MCM). a. The Analysis to R.C.M. 201(f) is amended by inserting after the second paragraph the following new paragraph: "2002 Amendment: Subsections (f)(2)(B)(i) and (f)(2)(B)(ii) were amended to remove previous limitations and thereby implement the amendment to \1770 U.S.C. \365 8\1779 (Article \1779, UCMJ) contained in section 577 of the National Defense Authorization Act for Fiscal Year 2000, P. L. No. \17706-65, 1\1773 Star. 512 (]\365\365\365). Subject to limitations prescribed by the President, the amend- ment increased the jurisdictional maximum punishment at special courts- martial to confinement for one year and forfeitures not exceeding two- thirds pay per month for one year, vice the previous six-month jurisdic- tional limitation.". b. The Analysis to R.C.M. 701(b) is amended by inserting after the discus- sion of the 1991 Amendment to subsection (b)(2) the following new para- graph: "2002 Amendment: Subsection (b)(4) was amended to take into consider- ation the protections afforded by the new psychotherapist-patient privilege under Mil. R. Evid. 513." c. The Analysis to R.C.M. 707(a) is amended by inserting after the second paragraph the following new paragraph: "2002 Amendment: Burton and its progeny were re-examined in United States v. Kossman, 38 M.J. 258 (C.M.A. 1993), where the Court of Military Appeals specifically overruled Burton and reinstated the earlier rule from United States v. Tibbs, 15 C.M.A. 350, 353, 35 C.M.R. 322, 325 (1965). See Kossman, 38 M.J. at 262. In Kossman, the Court reinstated the "reasonable diligence" standard in determining whether the prosecution's progress to- ward trial for a confined accused was sufficient to satisfy the speedy trial requirement of Article 10, UCMJ." d. The Analysis accompanying R.C.M. 806 is amended by adding at the end the following new paragraphs: "2002 Amendment: Section (d) was added to codify the military judge's power to issue orders limiting trial participants' extrajudicial statements in appropriate cases. See United States v. Ginwood, 16 M.J. 863, 868 (N- M.C.M.R. 1983) (finding military judge was justified in issuing restrictive order prohibiting extrajudicial statements by trial participants), aff'd on other grounds, 20 M.J. 148 (C.M.A. 1985), cert. denied, 474 U.S. 1005 (1985); United States v. Clark, 31 M.J. 721, 724 (A.F.C.M.R. 1990) (sug- gesting, but not deciding, that the military judge properly limited trial par- ticipants' extrajudicial statements). "The public has a legitimate interest in the conduct of military justice proceedings. Informing the public about the operations of the criminal jus- tice system is one of the "core purposes" of the First Amendment. In the appropriate case where the military judge is considering issuing a protec- tive order, absent exigent circumstances, the military judge must conduct a hearing prior to issuing such an order. Prior to such a hearing the parties will have been provided notice. At the hearing, all parties will be provided an opportunity to be heard. The opportunity to be heard may be extended to representatives of the media in the appropriate case. 223
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