Military courts could sentence some criminals to life without parole and forbid witnesses to talk to reporters under changes to the manual for courts-martial issued by the White House.
The changes also spell out for the first time rules for prosecuting members of the military for adultery. The rules say the adultery must either damage military order and discipline or hurt the military's reputation.
The new rules, issued Friday, take effect May 15. As commander in chief, President Bush has the power to write regulations controlling military courts.
Bush's new rules allow military courts to sentence defendants to life in prison either with or without parole for serious crimes such as murder, rape and kidnapping. Previously, the courts could sentence those criminals to a life sentence with no determination of whether parole would be allowed.
The new rules also allow military judges to issue "gag orders" prohibiting witnesses or parties to a case from discussing the case outside the courtroom. Civilian courts sometimes issue such orders to prevent public statements judges believe could improperly influence jurors.
Eric Seitz, a California lawyer who has been involved with more than 1,000 court-martial cases, said the gag order could be unconstitutional, depending on how broadly it is applied.
"I suppose that in the military people can be ordered not to communicate to people outside the command structure," Seitz said. "But outside of that, there may be a problem with a military judge ordering civilians not to talk."
Adultery by a member of the military is a crime that can lead to a dishonorable discharge and up to one year in prison.
The new rules state that adultery "is clearly unacceptable conduct" but that to be a crime it "must either be directly prejudicial to good order and discipline or service discrediting." That means the adultery must have a divisive effect on a military unit or be so well known that it dishonors the military.
In deciding whether to charge someone with criminal adultery, commanding officers should consider circumstances including the rank of the offenders, the misuse of government time or resources, whether the adultery persisted despite orders to halt it and its impact on the military unit.
"The way in which adultery is pursued as a crime has been vastly unfair for years," Seitz said. "High-ranking officials have affairs in full view of other officials and then the military decides to make an example of a private. If these rules create a more fair situation, I am for it."
Earlier rules had said that adultery must damage military discipline or hurt the military's reputation to be a crime, but they did not spell out how that was to be determined.
The military had several public cases of adultery during the late 1990s. In 1997, Lt. Kelly Flinn, the Air Force's first female B-52 pilot, resigned rather than face adultery charges for an affair with the husband of another Air Force member.
Flinn's case led to charges by critics that there was a double standard that shielded male officers from adultery charges.
Since then, at least four generals and admirals have been punished for adultery and related offenses. They include retired Maj. Gen. David Hale, the highest-ranking Army officer to face a court-martial since 1952, and Sergeant Major of the Army Gene C. McKinney, then the Army's highest-ranking enlisted soldier.
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