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