JMTG began his dissent by observing: "This case presents the question: Must the government obey its own laws? Today, regrettably, a majority of this Court concludes it need not." 63 M.J. at 523. Why did JMTG have to retire?
But two passages from the CAAF Adcock dissent disturb me even more than the majority's misspelling of the name of the Official CAAFlog Favorite CCA Judge (OCFCJ).
First, Judge Stucky writes:
This decision . . . involves this Court in areas relating to facilities, conditions of confinement, and administrative decisions with respect to prisoners where there is no Article 13, UCMJ, violation. The President gave authority to the service secretaries to address these matters. See R.C.M. 304(f).
Huh? The majority isn't usurping the Secretary of the Air Force's authority; rather, the majority is enforcing the rules that the Secretary of the Air Force adopted. It may or may not be the right answer to enforce those rules by awarding an additional day of confinement credit, but CAAF can hardly be faulted for considering the appropriate remedy where both the trial judge and the CCA agreed that First Lieutenant Adcock's pretrial confinement conditions did violate the relevant Air Force Instruction.
In fact, if anyone should be criticized for stepping on the Secretary of the Air Force's toes, it should be the officials at Travis Air Force Base who deliberately decided to violate the Air Force Instruction. It was they, not CAAF, who usurped the authority of the Secretary of the Air Force. As JMTG explained:
The violations of AFI 31-205 cited by the appellant were well known to the government prior to her trial. The trial counsel conceded that Solano County confinement facility officials previously advised authorities at Travis AFB that the county did not comply with AFI 31-205's prohibitions against commingling pretrial detainees and convicted criminals. The government was further on notice that detainees held by the county were required to wear the same uniforms as convicts. County officials advised the authorities at Travis AFB that they had no intention of ever complying with Air Force standards on commingling or the wear of prisoner uniforms.
There were, according to the trial counsel, "numerous" challenges by detainees to the incarceration plan used by Travis AFB prior to the appellant's trial. Despite these challenges, and although the government was aware that the county facilities did not conform to the requirements of the law embodied in AFI 31-205, the government did not change its practice of using the county as its jailor. Furthermore, the record discloses no effort by any official at Travis AFB to bring the conditions of the appellant's detention by Solano County into line with AFI 31-205.
The government took no steps to move the appellant to a suitable military facility, nor did it apparently even consider doing so, until 7 May 2004. On that date, the government lost a motion for pretrial confinement credit filed by the accused in United States v. Fletcher, an unrelated case. The accused in that case was also incarcerated in the Solano County jails and subjected to substantially the same conditions as the appellant. The military judge in Fletcher awarded the accused two-for-one credit against his time spent in the county jails. According to representations by the trial counsel, the government immediately "contemplated" moving the appellant to a military confinement facility. Travis AFB officials, not named by the trial counsel, even went so far as to calculate the cost of the move. According to the trial counsel, however, those officials eventually concluded that moving the appellant to a facility that obeyed the AFI would be "more of a burden" than leaving her in one that did not; and the appellant remained locked up in the county jails.
United States v. Adcock, 63 M.J. 514, 524 (A.F. Ct. Crim. App. 2006) (Mathews, J., concurring/dissenting) (footnote omitted).
The CAAF Adcock dissent then posits a slippery slope. I find it extremely unlikely that the military justice system will actually slide down this slope, but we will find out, since the Adcock majority has already taken the first step that Judge Stucky predicts will cause the system to careen to the bottom:
[This decision] will encourage servicemembers to spend their time in pretrial confinement poring over service regulations, cataloging every possible discrepancy to raise as a reason for additional confinement credit, even if the actual conditions of confinement are not unduly harsh. At trial, military judges will face protracted litigation concerning the minutiae of confinement programs and whether a particular facility or guard violated some provision of a service regulation. Appellate court dockets will be flooded with pleas that military judges abused their discretion in not granting additional credit. Ultimately, this Court may find itself the de facto supervisor of substantive conditions of confinement involving members of the armed forces -- a function that we are exceedingly ill suited to perform.
I'll bet nothing like that happens. Trial defense counsel will certainly bone up on their respective services' pretrial confinement regs and quiz their clients about whether they have been violated. But, of course, the government has a simple way of avoiding considerable litigation in this area: by following the regs. Regarding the specifics that led to this case, one of three things will happen: (1) Travis Air Force Base will bring itself in compliance with the Air Force Instruction; (2) Travis Air Force Base will continue to choose to violate the AFI; or (3) the Air Force will change the AFI. If the first were to happen, then further litigation will be minimal. If the second were to happen, then military judges can, should, and will award extra confinement credit, meaning that the issue is unlikely to bother the appellate courts very much. Interestingly, JMTG's dissent suggests that when the Army Court issued an earlier ruling similar to Adcock, the Army followed the third route and changed its confinement regulation. See Adcock, 63 M.J. at 528 & 528 n.24 (Mathews, J., concurring/dissenting) (discussing United States v. Herrin, 32 M.J. 983, 986 (A.C.M.R. 1991) and United States v. Quintero, 54 M.J. 562, 567 (A. Ct. Crim. App. 2000)). Shepard's Citations tells us that since the regulation upon which Herrin relied was superseded in 1996, Herrin has been cited precisely twice -- by Quintero, which held that "[t]o the extent that our previous opinion in United States v. Herrin, 32 M.J. 983, relied upon provisions of Army Regulation 190-47 that subsequently have been superseded, it should no longer be followed," and by JMTG's Adcock dissent.
I'll bet that when we Shepardize Adcock in a few years, there will be no sign of the "flood" that Judge Stucky predicts. Let's make a note. On 3 May 2009, let's have a CAAFlog post reporting on the Shepardization of Adcock. Kabul Klipper -- will you write yourself a note on your cave's wall to do that for us?