4517929 (pb)

There was a request for a citation of rules regarding a "threshold hearing" for determination that a detained individual could be tried by a military tribunal (instead of a civilian court.)

In a Federal Register copy of the revised court-martial rules (large file 53 MB), Rule 405 seems to detail the "preliminary hearing" that seems to fulfill this function.

https://docs.regulations.justia.com/entries/2018-03-08/2018-04860.pdf

I was interested in finding anything in the rules that defined any time requirements for when a preliminary hearing would be held (how soon after detention the hearing needs to be held.) I did not find any specific timeline required. (There was some material about an initial review within 72 hours, but my impression is that was about detention at all, even before the detained person is informed of charges.)

The headings of the rules describe the process flow:

Rule 301. Report of offense

Rule 302. Apprehension

Rule 303. Preliminary inquiry into reported offenses

Rule 304. Pretrial restraint

Rule 305. Pretrial confinement

Rule 306. Initial disposition

Rule 307. Preferral of charges

Rule 308. Notification to accused of charges

Rule 309. Pre-referral judicial proceedings

Rule 401. Forwarding and disposition of charges in general

Rule 402. Action by commander not authorized to convene courts-martial

Rule 403. Action by commander exercising summary court-martial jurisdiction

Rule 404. Action by commander exercising special court-martial jurisdiction

Rule 404A. Initial disclosures

Rule 405. Preliminary hearing

Screenshots attached for some relevant sections of the document.

Although courts-martial rules mostly discuss trial of US military, the rules also apply to "persons who by the law of war are subject to trial by military tribunals".

The Executive Order taking effect on Jan 1 applies to all preliminary hearings held after that date, regardless of when someone was arrested, or when the offense occurred.

There's probably more in this PDF worth researching, or knowing about in case tribunals start happening. The format of the PDF has an introductory section (the EO from the White House website) describing what the changes apply to (but not the changes themselves); a list of changes to the rules; then a full presentation of the new rules with the changes incorporated.