From the Chair...
Standing Committee on Legal Assistance
for Military Personnel
As I write this column, we are now in the season when we prepare our standing committee's annual plan as mandated by the ABA Board of Governors Program Evaluation and Planning Committee. As we go through the process of having our work of the last year reviewed and our upcoming planned activities evaluated, I am reminded that a significant aspect of LAMP's charge is to engage in active policy advocacy on civil legal issues affecting military personnel and their families. I thought it appropriate, therefore, to highlight some of the LAMP Committee's recent activities, in close coordination with the ABA Governmental Affairs Office, on a few key policy matters.
The LAMP Committee annually monitors the development of the National Defense Authorization Act (NDAA), and, as of this writing, the U.S. House has completed its version of the NDAA for fiscal year 2013 (H.R. 4310) but not without some necessary fixes to come. Rep. Elijah Cummings (D., MD), for example, sponsored H.R. 5747, the Military Family Home Protection Act, which was amended to H.R. 4310 prior to enrollment. The bill would provide a range of new protections for military families from foreclosure. However, a subsequent House Veterans Affairs Subcommittee hearing, featuring LAMP's own alumnus Col John Odom, USAFR (ret.), shone a light on problems that could arise under the bill. The standalone bill was amended and reported to the full Committee. While the House Defense Authorization bill has been completed, there will be an opportunity to change the language through the Senate's legislation and likely conference report prior to enactment. The Senate's bill, S. 3254, has been reported out of Committee and awaits action on the Senate Floor. The LAMP Committee continues following Congressional action on the 2013 NDAA and, as with the foreclosure protection amendment, will find ways to provide guidance to ensure that problematic issues are addressed.
One additional challenge presented by the House's work on the 2013 NDAA arose with the inclusion of the language of H.R. 4201, the Service Member Family Protection Act. For the past several years, the Section of Family Law Military Law Committee, with support of the LAMP Committee, has actively opposed the objective of this legislation, which would bring child custody issues under the Servicemembers Civil Relief Act and thereby bring these traditionally state–law based matters under federal question jurisdiction. The ABA and a growing coalition of stakeholders sent letters to both House and Senate Armed Services Committees, and the Veterans Affairs Committees, explaining the problems with that standalone bill. Both Stars and Stripes and Army Times wrote articles, the former highlighting problems with the legislation and the politics around it, but the latter included an editorial calling for passage of the legislation. Similarly, every member of House Armed Services Committee was a cosponsor of the H.R. 4201, and it sailed through the full House under a consent calendar, 390–2. The Senate's version of the 2013 NDAA does not include the language and lawmakers are opposed, though LAMP remains vigilant in the event there should be a change. Giving our Committee some hope for a change in direction on this issue, the Uniform Law Commission in July approved its Uniform Deployed Parents Custody and Visitation Act. This uniform act addresses the problems and concerns that prompted the Service Member Family Protection Act, but seeks to remedy these through uniform state family court laws rather than by federalizing child custody determinations. The Uniform Act has already been provided to state legislatures with upcoming sessions; it will be distributed to all fifty states.
Another issue we have tracked under NDAA has been attention to sexual assault. Last Congress, new procedures and laws were enacted to direct the Department of Defense (DoD) in its handling of sexual assault reporting, investigation and prosecution of sexual assault cases. Still, criticism continues including through H.R.3435, the Sexual Assault Training Oversight and Prevention Act (STOP Act). This legislation proposes several substantive changes to how these cases would be administered. The nature of the changes, however, have given rise to opposition from the DoD, and the LAMP Committee joined the ABA Standing Committee on Armed Forces Law its bid for new ABA policy on this issue. To date, the ABA has attempted to educate Congress on technical issues with the STOP Act while adding to the voices that more needs to be done, even since the enactment of new protections in the 2012 NDAA.
Consistent with this, it does seem that Congress will make further strides in sexual assault prevention, training and prosecution. Both the House and Senate 2013 NDAA include a range of proposals to enhance the existing system including several new requested reports back to the Congress on progress. The Senate Armed Services Committee Report also includes language addressing the need for enhanced reporting on sexual assault training, collaboration in prosecution and related language directing the Secretary of Defense to report back on the impact of the extension of several rights to victims in military justice matters.
The Justice for Troops Act, S. 1106
Missing from this year's NDAA is the Justice for Troops Act, S. 1106. This legislation would give the DoD the spending authority to divert up to $500,000 through competitive grants to support pro bono legal assistance efforts, such as the ABA Military Pro Bono Project operated by the LAMP Committee. Early opposition to the bill came from the Obama Administration, in particular the Office of Management and Budget (OMB), which considered the bill a constructive earmark as no national entity could reasonably compete with the ABA. Further, the Department of Defense has come out in opposition to the bill since it is believed that it would require the military services to each contribute funds to it. We do not agree with that interpretation and intend to reach out to the Department to discuss before the 113th Congress. We have been working with our supporters in Congress to demonstrate how the support could be used for purposes not involving the ABA to strengthen the network of programs on which we rely. We have been open to limiting the amount that could go to any single beneficiary, and, of course, we believe the presence of the funding could seed new projects not yet in existence. Still, we understand from congressional staff the proposal is all but dead this Congress given the state of play and the possible stigma that would follow any member pushing for what looks like a new cost, no matter how noble. We continue to support the ABA Governmental Affairs Office in carrying out meetings with House leaders who like the bill, and discussions continue with OMB, the DoD, and others on language.
On the plus side, the Senate Report to NDAA, S. Rept. 112–173, expressly lauds the work of the ABA Military Pro Bono Project and directs the DoD General Counsel to consult the services and make recommendations by March 2013 of additional ways to expand support for the ABA project "in a budget–neutral" manner. It is not yet clear what this may mean, although the ABA is grateful for the DoD's Office of Legal Policy's technical support to date.
There are many other issues working through Congress affecting both active–duty servicemembers as well as veterans that we continue to follow and comment upon when appropriate, but the above matters are reflective of the range of policy work that is central to LAMP's role within the ABA to be the voice of military personnel and their families to policymakers.