The contempt power under Article 48 may be exercised by a judicial officer specified under subsection (a) of that article.

Under Article 48, the contempt power may be exercised by the following judicial officers: any judge of the Court of Appeals for the Armed Forces and any judge of a Court of Criminal Appeals under Article 66; any military judge detailed to a court-martial, a provost court, a military commission, or any other proceeding under the UCMJ; any military magistrate designated to preside under Article 19; and the president of a court of inquiry. Article 48 makes punishable “direct” contempt, as well as “indirect” or “constructive” contempt. “Direct” contempt is that which is committed in the presence of the judicial officer during the proceeding or in the immediate proximity. “Presence” includes those places outside the courtroom itself, such as waiting areas, deliberation rooms, and other places set aside for the use of the court-martial or other proceeding while it is in session. “Indirect” or “constructive” contempt is non-compliance with lawful writs, processes, orders, rules, decrees, or commands of the judicial officer. A “direct” or “indirect” contempt may be actually seen or heard by the judicial officer, in which case it may be punished summarily. See subsection (b)(1) of this rule. A “direct” or “indirect” contempt may also be a contempt not actually observed by the judicial officer, for example, when an unseen person makes loud noises, whether inside or outside the courtroom, which impede the orderly progress of the proceedings. In such a case the procedures for punishing for contempt are more extensive. See R.C.M. 809(b)(2). The words “any person,” as used in Article 48, include all persons, whether or not subject to military law, except the military judge, members, and foreign nationals outside the territorial limits of the United States who are not subject to the UCMJ. The military judge may order the offender removed whether or not contempt proceedings are held. It may be appropriate to warn a person whose conduct is improper that persistence in a course of behavior may result in removal or punishment for contempt. See R.C.M. 804, 806. Each contempt may be separately punished. A person subject to the UCMJ who commits contempt may be tried by court-martial or otherwise disciplined under Article 134 for such misconduct in addition to or instead of punishment for contempt. See paragraph 85, Part IV; see also Article 131d. The 2011 amendment of Article 48 expanded the contempt power of military courts to enable them to enforce orders, such as discovery orders or protective orders regarding evidence, against military or civilian attorneys. Persons not subject to military jurisdiction under Article 2, having been duly subpoenaed, may be prosecuted in federal civilian court under Article 47 for neglect or refusal to appear or refusal to qualify as a witness or to testify or to produce evidence.

When conduct constituting contempt is directly witnessed by the judicial officer during the proceeding, the conduct may be punished summarily; otherwise, the provisions of paragraph (b)(2) shall apply. If a contempt is punished summarily, the judicial officer shall ensure that the record accurately reflects the misconduct that was directly witnessed by the judicial officer during the proceeding.

When the conduct apparently constituting contempt is not directly witnessed by the judicial officer, the alleged offender shall be brought before the judicial officer outside the presence of any members and informed orally or in writing of the alleged contempt. The alleged offender shall be given a reasonable opportunity to present evidence, including calling witnesses. The alleged offender shall have the right to be represented by counsel and shall be so advised. The contempt must be proved beyond a reasonable doubt before it may be punished.

The judicial officer shall in all cases determine whether to punish for contempt and, if so, what the punishment shall be. The judicial officer shall also determine when during the court-martial or other proceeding the contempt proceedings shall be conducted. In the case of a court of inquiry, the judicial officer shall consult with the appointed legal advisor or a judge advocate before imposing punishment for contempt.

A record of the contempt proceedings shall be part of the record of the court-martial or other proceeding during which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings shall be prepared and forwarded for review in accordance with paragraph (2) or (3), as applicable.

If the contempt punishment was imposed by a court of inquiry, the contempt proceedings shall be forwarded to the convening authority for review. The convening authority may approve or disapprove the contempt finding and all or part of the sentence. The action of the convening authority is not subject to further review or appeal.

If the contempt punishment was imposed by a military judge or military magistrate, the alleged offender may file an appeal to the Court of Criminal Appeals in accordance with the uniform rules of procedure for the Courts of Criminal Appeals. The Court of Criminal Appeals may set aside the finding or the sentence, in whole or in part.

The appeal and defense of a contempt punishment will normally be handled by the Service appellate divisions. In unusual circumstances, the Judge Advocate General may appoint counsel to appeal and defend a contempt punishment. Decisions of the Court of Criminal Appeals may be reviewed by the Court of Appeals for the Armed Forces and the Supreme Court of the United States in accordance with the rules of appellate procedure for each respective Court.

The place of confinement for a civilian or military person who is held in contempt and is to be punished by confinement shall be designated by the judicial officer who imposed punishment for contempt, in accordance with regulations prescribed by the Secretary concerned. A judicial officer who imposes punishment for contempt may delay announcing the sentence after a finding of contempt to permit the person involved to continue to participate in the proceedings.

If imposed by a court of inquiry, the maximum punishment that may be imposed for contempt is a fine of $500. Otherwise the maximum punishment that may be imposed for contempt is confinement for 30 days, a fine of $1,000, or both.

A sentence of a fine pursuant to a finding of contempt by a court of inquiry shall not become effective until approved by the convening authority.

A sentence of confinement pursuant to a finding of contempt by a military judge or military magistrate shall begin to run when it is announced unless—

the person held in contempt notifies the judicial officer of an intent to file an appeal; and

the judicial officer, in the exercise of the judicial officer’s discretion, defers the sentence pending action by the Court of Criminal Appeals under paragraph (d)(3).

A sentence of a fine pursuant to a finding of contempt by a military judge or military magistrate shall become effective when it is announced.

The immediate commander of the person held in contempt, or, in the case of a civilian, the convening authority should be notified immediately so that the necessary action on the sentence may be taken. See R.C.M. 1102.

The person held in contempt shall be informed by the judicial officer in writing of the holding and sentence, if any, of the judicial officer, and of the applicable procedures and regulations concerning execution and review of the contempt punishment. The reviewing authority shall notify the person held in contempt and of the action of the reviewing authority upon the sentence.