Implementation of policies and procedures pursuant to Section 545 of the National Defense Authorization Act for FY2021

Hon. Lloyd J. Austin III
Secretary of Defense
Department of Defense

Hon. Caroline Krass
General Counsel
Department of Defense

Lieutenant General Stuart W. Risch
Judge Advocate General       
United States Army

Vice Admiral Darse E. “Del” Crandall
Judge Advocate General
United States Navy

Lieutenant General Charles L. Plummer
Judge Advocate General
United States Air Force

Major General David J. Bligh
Staff Judge Advocate to the Commandant of
the Marine Corps

Rear Admiral Melissa Bert
Judge Advocate General & Chief Counsel
United States Coast Guard

Re: Implementation of policies and procedures pursuant to Section 545 of the National Defense Authorization Act for Fiscal Year 2021

Dear Secretary Austin, General Counsel Krass, Lieutenant General Risch, Vice Admiral Crandall, Lieutenant General Plummer, Major General Bligh, and Rear Admiral Bert:

The New York City Bar Association (the “City Bar”) writes with respect to the October 1, 2021 deadline calling for the Secretary of Defense to take action under Section 545 of the National Defense Authorization Act (“NDAA”) for fiscal year 2021. That deadline has now passed. However, to our knowledge, as of the date of this letter, no action has been taken.

Section 545 of the NDAA for fiscal year 2021 required the Secretary of Defense to “establish and maintain a policy and procedure” allowing persons identified in the subject or title block of a law enforcement or criminal investigative report to have their personally identifying information (“PII”) expunged upon showing that no probable cause existed then or currently exists to believe they committed the alleged offense.  

To date, it appears this has not occurred. Thus, the City Bar calls on the Secretary of Defense to satisfy the Section 545 mandate without delay. Specifically, we urge the Secretary of Defense to:

• Order the Secretaries of each military branch to update service-component regulations to reflect the change. For example, in Army Regulation 195-2, Criminal Investigation Activities (dated 21 July 2020) paragraph 4-4(b), change “…if it is determined that credible information did not exist…” to “…if it is determined that probable cause did not exist….”

• Instruct the Defense Counterintelligence and Security Agency (“DCSA”) to implement the new standard and to expunge all records upon a showing of no probable cause.

• Update Department of Defense Instruction 5505.7, Titling and Indexing in Criminal Investigations (dated 28 February 2022), to reflect the change.

Prior to 1992, subjects of Department of Defense criminal investigations were “titled” as “subjects” and indexed in the appropriate databases at the conclusion of the criminal investigation and only if probable cause showed that the accused committed the alleged offense. This system appropriately safeguarded the suspect’s rights by ensuring that she/he was not unjustly disadvantaged during an ongoing investigation and mirroring the burden of proof for arrest by civilian law enforcement.

In 1992, the Department of Defense substantially changed both aspects of this practice.  First, it instructed Department of Defense law enforcement agencies to make titling and indexing decisions as soon as practicable from the outset of the investigation. Second, it lowered the legal standard from probable cause to “credible information.” These changes subjected all persons against whom a “credible” allegation was made to a litany of restrictions and adverse administrative consequences until the criminal investigation was concluded. Additionally, it permanently tainted the reputation and employment prospects of people who were never arrested or charged but instead had the misfortune to be the subject of a law enforcement agency’s credibility determination, no matter how incorrect that determination later proved to be.

This unjust and unfortunate system persisted for nearly 30 years, until the 2021 NDAA addressed half the problem by reverting to the probable cause standard. Specifically, Section 545 provides that persons titled and indexed in Department of Defense-driven law enforcement investigations are entitled to have their related PII expunged from all records upon a showing that no probable cause existed or exists to conclude they committed the accused offense.

Unfortunately, Section 545 stops short of expressly requiring law enforcement agencies to make the probable cause determination prior to titling or indexing, and only at the conclusion of their investigations. However, we applaud Congress for reverting to the legal standard of probable cause in the 2021 NDAA for removal of PII for those wrongfully indexed and titled. Doing so takes a substantial step towards protecting the due process rights of the accused and ensuring that the futures of the wrongly accused are not permanently shadowed by an erroneous, associative guilt, but, to date, the Secretary of Defense has failed to take the required actions necessary to implement the 2021 NDAA.

The deadline for the Secretary of Defense to implement the policies and procedures necessary under the 2021 NDAA was October 1, 2021. Since then, we find no evidence that any action has been taken in this regard. Nor has any subsequent law deleted or revised the language in Section 545. Thus, it remains good law, which is the Secretary of Defense’s obligation to follow accordingly.

To that end, we request that the Secretary of Defense take all steps necessary to ensure that all Department of Defense publications are updated to reflect the new legal standard; that all military service components are directed to implement the new standard and update their publications forthwith; and that all Department of Defense repositories for PII and the agencies controlling them immediately begin expunging the records of all persons for whom it is shown that no probable cause exists to conclude that they committed an accused offense.

Respectfully,

Christopher Amore, Chair
Miliary and Veterans Affairs Committee

Cc:     
Members of the House Judiciary Committee
Members of the Senate Judiciary Committee
Members of the House Committee on Armed Services
Members of the Senate Committee on Armed Services