Thursday, February 01, 2007

CAAF Recap

So far this week, CAAF has announced five opinions. These cases capped off a remarkably productive start of the 2007 term. CAAF issued more opinions from October to January this term than in any other comparable period starting in 1997, the first term for which the court's opinions are available on its web site.

This term has also been characterized by remarkable unanimity. During no other term for which opinions are available on the CAAF web site did the court decide its first 18 cases without a single separate opinion. Of course, it is both mathematically and practically easier to reach unanimity with three judges than five. Perhaps we should refer to the first four months of this term as "The Era of Three-Part Harmony."

Thus far Chief Judge Effron has authored six opinions, Judge Erdmann has authored six, Judge Baker has authored five, and the court has issued one per curiam opinion.

Other than the one case set for reargument, only two cases argued in October and November have yet to be decided. The first is Gutierrez, No. 06-5005/AR, a case in which The Judge Advocate General of the Army certified the rather unhelpfully worded issue of "Whether the United States Army Court of Criminal Appeals erred in holding that the trial defense counsel did not affirmatively waive an affirmative defense instruction with respect to a lesser-included offense." It was argued on 14 November.

The second November case remaining to be decided is Wise, No. 06-0610/AR. Wise presents an unusually interesting issue: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued 28 November.

CAAF heard three cases on 28 November. Chief Judge Effron has written the opinion of the court in one (Green) and Judge Erdmann has written the opinion of the court in another (Carruthers). So I expect to see Judge Baker as the author judge in Wise. Judge Baker's national security background would also seem to make him a logical candidate for assignment as the Wise author judge.

CAAF heard four cases the week of 14 November. Chief Judge Effron has written for the court in one (Perez), while Judge Erdmann wrote for the court in another (Brooks). Judge Baker has not yet written an opinion of the court for a case argued that week. But one case from that week (Moran) will be reargued. CAAF didn't announce that reargument until 10 January, so it appears that Moran was probably assigned to a judge at the conference for the 14 November arguments. If Judge Baker was originally assigned as the author judge in Moran, then each judge would have had one opinion from that week and one of the judges would have received a second with Gutierrez. So while Judge Baker is not the author judge of any opinion released yet from the week of 14 November, it doesn't seem safe to assume that he will be the author judge in Gutierrez.

--Dwight Sullivan
Posted by Dwight Sullivan at 9:41 PM

8 comments:

John O'Connor said...

Regarding Wise, I'm at a loss as to how the CAAF would have jurisdiction over complaints about the character of post-trial confinement, though I have little doubt that the court will in fact find it appropriate to pass on the issue.

It must be liberating to operate free from all jurisdictional restraints. I may just start filing garden variety tort claims in the CAAF instead of those pesky state courts and federal district courts.

Thu Feb 01, 10:15:00 PM EST
Anonymous said...

I am not sure how one can doubt CAAF has jurisdiction over post trial confinement conditions. It is akin to asking how a district court judge has jurisdiction over an injunction he issued to a state/federal government entity. In both the district court case and the CAAF instance the manner in which the government entity carries out the court's orders is at issue. In one case it is an injunction to stop doing X, in the other it is a mandate to confine prisoner for X amount of time. The distinction is a distinction without a differnce because CAAF wants to ensure its order is not carried out in an unconstitutional manner just as a district court would not want its order likewise carried out.

Fri Feb 02, 08:32:00 AM EST
John O'Connor said...

I posted a long response, but it looks like the system blew it up. Apologize if this is a repeat post.

My basic thought is that CAAF is an Article I court with narrowly prescribed jurisdiction. Three thoughts lead me to the conclusion that CAAF has no jurisdiction over conditions of post-trial confinement.

First, let's change the facts of Wise a little bit, and say that his appellate review was complete before he was placed in conditions of confinement that he believed violated his rights (such as being confined with enemy prisoners of war). Can he just file something with CAAF, as sort of a roving commission overseeing all aspects of the military justice apparatus? I doubt anyone would think that CAAF is the proper forum for such a claim.

If you accept that CAAF would not be the court with jurisdiction over that claim, then why would CAAF properly have jurisdiction over a claim challenging conditions of post-trial confinement based on the fortuity of whether appellate review was complete? That doesn't strike me as a respectable basis for jurisdiction. It seems to me that the court with jurisdiction over this claim must be the same regardless of whether the military appellate courts have finished reviewing something else entirely, whether the approved findings and sentence are correct in law and fact.

My third thought is whether the accused would have a federal forum available to him to challenge conditions of post-trial confinement? I know the Supreme Court has erected barriers to bringing Bivins and Section 1983 claims against military superiors, but my instinct is that a claim challenging post-trial conditions of confinement HAS to be available in federal district court, perhaps through habeas or mandamus, because otherwise the military could do WHATEVER IT WANTED with someone whose direct appellate review was complete (if you accept that CAAF would have no jurisdiction over such claims, at least once direct review was complete).

Regardless, though, I just don't see this as within CAAF's jurisdiction, though, as I said in my original post, I have little doubt that the CAAF will find that it has jurisdiction, consistent with its prior actions in granting itself jurisdiction over virtually anything involved in the military justice system (see Clinton v. Goldsmith).

Fri Feb 02, 09:31:00 AM EST
Anonymous said...

I would agree with Former USDB, and, if appellate review was complete I think the analogy Former USDB sets out is even better. In that case, CAAF would have specifically issued a mandate ordering his sentence "executed" (bad word, but we will use it). The USDB by placing him in unlawful post-trial confinement (i.e. in conditions that amount to UPTC) is, allegedly, violating the 8th Amendment in carrying out that mandate. Doesn't CAAF have some power to say how its mandate is carried out, that it not be carried out in an unconstitutional manner? There is no need to employ a roving court of review on the MilJus system because there is a specific order to be enforced. Or is executive discretion in the military broad enough that it divests CAAF of jurisdiction over how that mandate is carried out once it is issued? Someone with a background in executive discretion in the military matters should weigh in because I don't.

Fri Feb 02, 01:17:00 PM EST
John O'Connor said...

No Man,

I certainly don't claim to be an expert on prisoner litigation. But my sense is that prisoners can tend to be a litigious sort, and if CAAF was the place to go for relief once direct review concluded, I would have thought that we would have seen cases in the CAAF like you see in the federal district courts where a prisoner complains about the food, library access, cable TV, etc. That I haven't really seen those types of cases in CAAF leads me to the conclusion that those cases probably get brought somewhere else (such as federal district court). If that's correct, then why would CAAF have jurisdiction over such claims based on the fortuity of whether direct appellate review was finished?

Fri Feb 02, 02:13:00 PM EST
John O'Connor said...

Having now spent five minutes researching it, CAAF has held that it has the power to review conditions of post-trial confinement on direct appeal. United States v. White, 54 M.J. 469 (CAAF 2001). The White case left open whether the Court has jurisdiction over conditions of confinement through collateral proceeding.

As I have said above, I'm not at all surprised that this is what CAAF thinks, but I think they're probably wrong.

Fri Feb 02, 02:20:00 PM EST
Anonymous said...

Ok, this is late, but then again, I came to this site late. O'Connor is correct that CAAF does not have jurisdiction over complaints about how is post-trial confinement is carried out. In the Federal system, complaints about how confinement is carried out is a CIVIL action brought under section 1983 seeking to enforce the 8th Amendment.

The confusion lies in when a court is reviewing the sentence itself as a violation of the 8th Amendment vs. how the prison officials carry out a sentence that does not violate the 8th Amendment, but the manner in which it is carried out may violate the 8th.

In the first, an appellate court may review the sentence imposed by the district court in the criminal proceeding. In the second instance, the prisoner files a section 1983 claim (for example, I was beat up by a prison guard for no reason).

CAAF still has not learned Clinton v. Goldsmith. CAAF is not a civil court, it has no jurisdiction over civil claims, including claims that fall under section 1983. So I would say that CAAF has no authority to hear cases that address how the executive carries out the sentence of a court-martial, and by the way, it is the executive that executes the sentence, not CAAF. CAAF would have jurisdiction to decide whether the sentence imposed by the court-martial violates the 8th.

Mon Oct 01, 06:17:00 PM EDT
Anonymous said...

Hmm...I cannot view PDF's from work, so I do not know what this is coming from. But I will say while I was at Lackland the guards would routinely eavesdrop on calls/mail/letters/ etc.

They would pick up the phone on the other side of the glass (which you could barely see through). I remember I was waiting on hold for my counsel and one of the guards (Airman Humphrey---yes, I name names) said "man, they've been having you on hold for a while". I told him how about getting off the f---- phone when I am speaking to my lawyer.

Then there was the time they used subterfuge and did a surprise "inspection" while I was talking to my counsel about certain letters I wrote praising the prosecutor (cynically).

Then there was the times the guards made us work and received benefits and gratuity for our work details.

Yep, those were the days. I thought about raising a stink about it, but thanks to the decision of the court of appeals, I feel vindicated. They routinely prove my thesis:

They are useless and serve only to legitimize criminal acts perpetrated by the Government.

Thu May 01, 09:24:00 PM EDT

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