Monday, December 31, 2007

All quiet on the E Street front

Ah 2006; that was an interesting year for military justice.

Two new CAAF judges were nominated and confirmed. The tenures of Chief Judge Gierke, with his impressive body of procedure-oriented jurisprudence, and Judge Crawford -- who had become an increasingly isolated but vehement voice in dissent -- ended. Chief Judge Effron moved to the middle seat and picked up the gavel. The Supreme Court issued a landmark opinion that provided a fresh interpretation of Article 36 of the UCMJ. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). Congress changed the UCMJ to subject some civilian contractors to court-martial jurisdiction. And CAAF delivered a WWF-worthy smackdown in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

But just as surely as a wild night with one too many mojitos is followed by a quiet morning gently massaging one's temples, 2006 was followed by 2007. And in 2007, nothing happened. Or, to paraphrase Gilbert and Sullivan, well, hardly anything.

2007 is remarkable more for what didn't occur than what did. The SG didn't seek cert in Lane. Congress allowed the Equal Justice for Our Military Act to lapse into a coma and then unobtrusively die. NMCCA didn't release an opinion in Walker. Despite any predictions that Guert or I may have made to the contrary, United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007), resulted in neither the repeal of the UCMJ nor the melting of the polar ice caps. The Supremes denied cert in United States ex rel. New v. Gates, 127 S. Ct. 2096 (2007). And the Judge Advocates General didn't get their third star.

So what were the big military justice stories of 2007? Heck if I know. That's where you come in. Please post your nomination for military justice story of the year. If you are the first to post the winning entry, as selected by our anonymous panel of military justice geeks applying idiosyncratic criteria and answering to no one, you could become the proud owner of a CAAFlog t-shirt. Please post your entries NLT 1930 EST on New Year's Day, 1 January 2008.

15 comments:

John O'Connor said...

To me the story of the year is a CAAF in flux, one that seems to have no discernible alliances. I remember the good old days (or maybe they were the bad old days) early in the Sullivan court (say, 1991-93) when you could basically put the judges on a continuum, and if you were told the vote went a certain way, you pretty much knew which judges went each way. From the government perspective, you had the amazingly reliable Judge Crawford, the pretty reliable Judge Sullivan (before he got more erratic, I mean unpredictable), then you had Judge Cox who was ALWAYS (and I mean always) in the majority, then you had Judge Gierke, and Judge Wiss was always the first one to jump ship. Now, I think the court is more complex, with some judges being more government-oriented (or defense-oriented) on some issues and less so on others. There doesn't seem to be an easy continuum to draw. Maybe that will develop as the judges get more used to each other, but the experience of the Sullivan court was that alliances became less predictable the more familiar the judges became with each other.

My runner-up for story of the year would be judicial immodesty (or self-aggrandizement), with the military appellate courts wading into areas that might need attention from a policy standpoint but, in my mind, are not the proper province of the judiciary. The two examples that spring to my mind immediately are a panel of NMCCA staying a summary court-martial (those judges should be embarrassed for themselves), and the the CAAF unabashedly construing a CA action in Wilson to do exactly the opposite of what the CA clearly intended, the judicial equivalent of my three-year-old's temper tantrums based on CAAF's (understandable) lack of patience with continued incompetence in post-trial processing. (maybe a more charitable way to characterize this last story is "the revolution of judicial correction of badly incompetent post-trial processign continues beyond post-trial delay).

Anonymous said...

One-word: Pflueger

CAAFlog said...

If Pflueger is the military justice story of the year, I'd hate to contemplate what came in second.

I can't find an opinion from NMCCA on remand in Pflueger. Is it still pending?

Anonymous said...

The Kisala/Rose denial of cert by the Supremes, which leaves the CAAF in direct conflict with the federal courts on the legality of anthrax vaccination orders.

Marcus Fulton said...

I'm going to go with the letter written by General Mattis dismissing one of the Haditha cases.

The touching letter reflects a thoughtful approach to military justice in an important case on the part of an informed convening authority. I'm glad we're still making general officers that quote Oliver Wendell Holmes, Jr. in letters about law and war.

Anonymous said...

2007 will ultimately be remembered for the new (and allegedly improved) Article 120. I'm sure the appellate courts will look at this present from congress as the gift that keeps on giving for years to come.

Old Luce said...

2007 will be remembered as the year the White House attempted to quiet the voices of honorable men and women with a failed attempt to politicize the promotions of JAG officers.

Anonymous said...

I'd go with US v. Thomas, 65 MJ 132. Judge Stucky added an element to the wrongful introduction of drugs (i.e. knowledge that one was entering a military installation) without any rationale or legal analysis. Just said he "believed" the element was necessary.

No Man said...

If we are talking MJ story of the year (not what the year will be remembered for) I'd have to go with Marcus, except to add that the "story" can be broadened. I think the inability of the mil jus system to convict soldiers/Marines etc. for killings of Iraqis shows that the more things have changed since Vietnam, the more they have stayed the same. While my use of the word "inability" may be construed by some as a criticism of the system, I think the bottom line is that "inability" is more a factual matter. Trial counsel have not been able to muster the evidence, investigative authorities cannot seem to collect the evidence, and CAs see the effect on morale that such cases cause. Others can discuss the political will of flag officers to prosecute such cases, but I think the fact that so many have been preferred or referred shows there is such will and desire to do justice. In the end only a few will ever receive punishment for killings that some witnesses and investigators have alleged were unjustified.

Anonymous said...

Illegal acts often go unpunished in illegal wars. God help us all.

Anonymous said...

God, how sanctimonious are you?

Anonymous said...

I agree with No Man, though I would not sign onto another poster’s pedantic declaration that "illegal acts often go unpunished in illegal wars." This conclusion is grounded more in emotional rancor towards Bush than it is based on legal reasoning. It also implies that illegal acts do not go unpunished in "legal" wars, which is also fallacious.

Anonymous said...

what's the deal with the usacil cases? anyone with info? what happened to us v luke? this is the case with the DNA examiner's at the USACIL. Heard USACIL/NCIS EVEN FAILED to preserve the evidence? what now?

Anonymous said...

any other cases went to CAAF ON THE USACIL issue? heard the Dna examiner on the hot seat Phillip r mills has been fired, but really it looks like the government is in a bind.Apparently at the Dubay hearing the USACIL director testified that he has ordered all cases touched by Phillip R mills retested for error{signs of cross contamination in DNA TESTING}. ANYWAY, with this admission, it has become apparent that usacil and NCIS failed to preserve the evidence in many of these cases though most of them were still in the appelate channels, specifically the case that started the ball rolling on this mass contamination at USACIL issue USV LUKE. the case was sent back to NMCCA for review? any ideas here of what the eventual outcome maybe?

Anonymous said...

Folks,I believe this is going to be one of the major unfolding drama of 2008 in the military justice system there are over 479 cases and counting with appellants lining up at CAAF ETC. it seems defense's will be the benefiting from a windfall here, government will have a hard time reconciling' USACIL declares it will retest all cases for error, but between goverment and usacil the evidence is destroyed, hence too many defense wont have the benefit of the retest. this is truly going to be interesting. lol