Saturday, October 06, 2007

SASC's view of CAAF's power to review a CCA's Article 62 ruling

In its ruling in United States v. Tucker, CMA observed that "Congress expressly intended for the amended Article 62 of the Code to be construed to permit either party to appeal an adverse ruling from a Court of Military Review to this Court. S.Rep. No. 53, supra at 23." United States v. Tucker, 20 M.J. 52, 53 (C.M.A. 1985). The cited language from the Senate Armed Services Committee's report on the Military Justice Act of 1983 is, indeed, strong. The report expressly states, "Either party may appeal an adverse ruling from the Court of Military Review to the Court of Military Appeals." S. Rep. No. 98-43 at 23. Here is a link to the Senate Report. The HASC Report, in turn, refers to the section-by-section analysis of the Senate Report. H.R. Rep. No. 98-549 at 21. (The House Report is available here.) This is powerful evidence that the bill's drafters intended CAAF to have jurisdiction in scenarios like those presented by de Victoria and Michael.

I can't find the Congressional Record from 1983 on-line, so I'll have to hit a library to check whether similar language showed up in the floor debate.


Phil Cave said...

Under 18 USC 3731, what does accused get to do, if anything if he loses?

John O'Connor said...

Well, that's the sensible result. The statute is far, far from a model of clarity on that point, though (and I think a plain reading of it supports a finding of no jurisdiction more than it supports a finding of jurisdiction).

Not being a pure "Scalian" on statutory construction, I hope the CAAF takes a statute that plausibly could be construed two ways and resorts to the legislative history, which appears to make contemporary understanding pretty clear.

Sitting here today, it seems to me that the right to petition CAAF for review (or for the JAG to certify a question to CAAF) ought to extend to any case decided by the CCAs. I just don't think any decisions by the CCAs ought to be unreviewable. That was the reason Congress put a civilian court at the top of the military justice system, and there ought to be resort to a court where the President actually decided that its members ought to serve as judges. Of course, Congress is well within its powers to decide otherwise, I just think it would be bad policy.

Anonymous said...

Art 62 does not give either party the right to appeal a CCA decision to CAAF. If Congress had wanted the matter addressed by CAAF, it could have and should have said so. So should we follow the plain language of the statute or the comments of some staff attorney? By the way, were Judges Effron and Stucky part of the SASC back then, and if so, shouldn't they be recused from this issue?