Thursday, November 09, 2006

Rebuffing government reconsideration requests

In daily journal entries dated 7 November and posted on its web site today, CAAF denied two government petitions for reconsideration. One was in the case of United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006), where CAAF held that a sitting Senator's simultaneous service as a reserve Air Force CCA judge violated the Constitution's Incompatibility Clause. Long-time CAAFlog readers will remember a running debate between the Super Muppet of Appellate Advocacy and me as to whether the S.G. will file a cert petition. It looks like we might have an answer sometime in early February.

CAAF also denied the Navy-Marine Corps Appellate Government Division's request for reconsideration in Long, 64 M.J. 57 (C.A.A.F 2006). Long held that a Marine had a reasonable expectation of privacy for e-mail messages sent and stored on the Headquarters Marine Corps computer network server. The Long opinion strongly suggests that had the log-on banner more explicitly authorized monitoring of the computer for disciplinary purposes or had command policies and procedures more clearly permitted monitoring for disciplinary purposes, CAAF would not have recognized an objective expectation of privacy. Past practice suggests that the S.G. will generally decline a government agency's request for a cert petition if the agency can accomplish its objective by other means. Here, it appears that the Marine Corps can accomplish its goal through self-help.

So my cert petition predictions are: Lane, yes; Long, no.

--Dwight Sullivan


No Man said...

The last case here, Long, actually is an interesting issue that is part of a larger inter-service conflict. To the best of my knowledge, the Army has traditionally advised commands that monitoring of governemnt computers by systems administrators under the traditional DoD warning cannot be the basis for evidence collection for disciplinary purposes. The Navy and Marine Corps have advised differently and allowed systems administrators to collect evidence of offenses for use at Mast/Office Hors/Art. 15 or courts-martial. I would be interested to know from Army folks if this is still the Army policy and if the appellate government attorneys even realize this larger inter-service policy debate.

Jason Grover said...

The Office of the Assistant Secretary of Defense for Networks and Information Intergration/DOD Chief Information Officer, in a 12 October memo, suggests that there will be a DOD-wide change to the banner. Attachment 1 is the new DOD Notice and Consent Banner. Because DOD appears to be fixing this one for the whole Department, this definitely won't get appealed.

Dwight Sullivan said...

I can't believe the Super Muppet didn't add a comment reiterating his position that the S.G. won't seek cert in Lane. :-)