Executive Order 12460—Amendments to the Manual for Courts- Martial, United States, 1969 (Revised Edition)

By the authority vested in me as President by the Constitution of the United States and by Chapter 47 of Title 10 of the United States Code (the Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1969 (Revised edition), prescribed by Executive Order No. 11476, as amended by Executive Order No. 11835, Executive Order No. 12018, Executive Order No. 12198, Executive Order No. 12233, Executive Order No. 12306, Executive Order No. 12315, Executive Order No. 12340, and Executive Order No. 12383, it is hereby ordered as follows:

Section 1. Paragraph 75 of the said

Manual for Courts-Martial is amended by adding, after paragraph 75f, the following:

"g. Capital cases.

"(1) In general. Death may be adjudged only when:

"(a) Death is expressly authorized under the code and this Manual for an offense of which the accused has been found guilty or is authorized under the law of war for an offense of which the accused has been found guilty under the law of war; and

"(b) The requirements of 75g (2) and (3) have been met.

"(2) Procedure. In addition to the other provisions in 75, the following procedures shall apply in capital cases—

"(a) Notice. Before arraignment, trial counsel shall give the defense written notice of which aggravating circumstances under 75g(3) the prosecution intends to prove. Failure to provide timely notice under this subsection of any aggravating circumstances under 75g(3) shall not bar later notice and proof of such additional aggravating circumstances unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.

"(b) Evidence of aggravating circumstances. Trial counsel may present evidence in accordance with 75b(4) tending to establish one or more of the aggravating circumstances in 75g(3).

"(c) Evidence in extenuation and mitigation. The accused shall be given broad latitude to present evidence in extenuation and mitigation.

"(d) Necessary findings. Death may not be adjudged unless the members find:

"(i) Beyond a reasonable doubt that one or more of the aggravating circumstances under 75g(3) existed; and

"(ii) That any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances including such circumstances under 75g(3) as the members have found existed.

"(e) Basis for findings. The findings in 75g(2)(d) may be based on evidence introduced before the findings on the issue of guilt, during the sentencing proceeding, or both.

"(f) Instructions. In addition to the instructions required under 76b(1), the military judge shall instruct the members on such aggravating circumstances under 75g(3) as may be in issue in the case and on the requirements and procedures under 75g(2)(d), (e), (g), and (h). The military judge shall instruct the members that they must consider all evidence in extenuation and mitigation before they may adjudge death.

"(g) Voting. In closed session, before voting on a sentence, the members shall vote by secret written ballot separately on each aggravating circumstance under 75g(3) on which they have been instructed. Death may not be adjudged unless all members concur in a finding of the existence of at least one such aggravating circumstance. After voting on all the circumstances on which they have been instructed, the members shall vote on a sentence in accordance with 76b(2) and (3).

"(h) Announcement. If death is adjudged, the president shall, in addition to complying with 76c, announce which aggravating circumstances under 75g(3) were found by the members.

"(3) Aggravating circumstances. Death may be adjudged only if the members find, beyond a reasonable doubt, one or more of the following aggravating circumstances:

"(a) That the offense was committed before or in the presence of the enemy, except that this circumstance shall not apply in the case of a violation of Article 118 or 120;

"(b) That in committing the offense the accused intended to:

"(i) cause substantial damage to the national security of the United States; or

"(ii) cause substantial damage to a mission, system, or function of the United States, provided that this subparagraph shall apply only if substantial damage to the national security of the United States would have resulted had the intended damage been effected;

"(c) That the offense caused substantial damage to the national security of the United States, whether or not the accused intended such damage, except that this circumstance shall not apply in the case of a violation of Article 118 or 120;

"(d) That the offense was committed in such a way or under circumstances that the lives of persons other than the victim, if any, were unlawfully and substantially endangered, except that this circumstance shall not apply to a violation of Article 120;

"(e) That the accused committed the offense with the intent to avoid hazardous duty;

"(f) That, only in the case of a violation of Article 118 or 120, the offense was committed in time of war and in territory in which the United States or an ally of the United States was then an occupying power or in which the armed forces of the United States were then engaged in active hostilities;

"(g) That, only in the case of a violation of Article 118(1):

"(i) The accused was serving a sentence of confinement for 30 years or more or for life at the time of the murder;

"(ii) The murder was committed while the accused was engaged in the commission or attempted commission of any robbery, rape, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an aircraft or vessel, or was engaged in flight or attempted flight after the commission or attempted commission of any such offense;

"(iii) The murder was committed for the purpose of receiving money or a thing of value;

"(iv) The accused procured another by means of compulsion, coercion, or a promise of an advantage, a service, or a thing of value to commit the murder;

"(v) The murder was committed with the intent to avoid or to prevent lawful apprehension or effect an escape from custody or confinement;

"(vi) The victim was the President of the United States, the President-elect, the Vice President, or, if there was no Vice President, the officer next in the order of succession to the office of President of the United States, the Vice-President-elect, or any individual who is acting as President under the Constitution and laws of the United States, any Member of Congress or Member-of-Congress elect, or any judge of the United States;

"(vii) The accused then knew that the victim was any of the following persons in the execution of office: a commissioned, warrant, noncommissioned, or petty officer of the armed services of the United States; a member of any law enforcement or security activity or agency, military or civilian, including correctional custody personnel; or any firefighter;

"(viii) The murder was committed with intent to obstruct justice;

"(ix) The murder was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim; or "(x) The accused has been found guilty in the same case of another violation of Article 118;

"For purposes of this paragraph, 'national security' means the national defense and foreign relations of the United States and specifically includes: (a) a military or defense advantage over any foreign nation or group of nations, (b) a favorable foreign relations position, or (c) a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. Examples of substantial damage to the national security of the United States may include: impeding the performance of a combat mission or operation; impeding the performance of an important mission in a place subject to hostile fire or imminent danger pay (see 37 U.S.C. section 310(a)) and disclosing military plans, capabilities, or intelligence such as to jeopardize any combat mission or operation of the armed services of the United States or its allies or to materially aid an enemy of the United States.

"(h) That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing;

"(i) That, only in the case of a violation of Article 120: "(i) The victim was under the age of 12; or

"(ii) The accused maimed or attempted to kill the victim; or

"(j) That, only in the case of a violation of the law of war, death is authorized under the law of war for the offense.

"(4) Spying. If the accused has been found guilty of spying under Article 106, 75g(1)(b), (2), and (3), and 76 shall not apply. Sentencing proceedings in accordance with 75a through f shall be conducted, but the military judge shall announce that by operation of law a sentence of death has been adjudged."

Sec. 2. Paragraph 76:b(1) is amended by adding in the first sentence after the language "in 76b(g) and 76b(3)," the following language:

"and, in capital cases, 75g(2) (g)."

Sec. 3. Paragraph 76b(3) is amended by adding after the first sentence the following language:

"See 75g(2)(g)."

Sec. 4. Paragraph 126a is amended by adding after the third sentence in the second paragraph the following language: "See 75g."

Sec. 5. Paragraph 126b is amended by adding after the language "by the code" the second time it appears, the following language: "and this Manual"

Sec. 6. These amendments shall be effective immediately. These amendments shall apply in trials of capital offenses committed on or after this date.

Sec. 7. The Secretary of Defense, on behalf of the President, shall transmit a copy of this Order to the Congress of the United States in accord with Section 836 of Title 10 of the United States Code.

RONALD REAGAN

The White House,

January 24, 1984.

[Filed with the Office of the Federal Register, 11:52 a.m, January 25, 1984]