Friday, February 15, 2008

A jurisdictional disconnect?

This post will primarily interest our Navy and Marine Corps readers. So Army Lurker (our one token Army reader), please feel free to enjoy this web site while the rest of us explore the finer points of Marine Corps and Navy authority to exercise general court-martial jurisdiction.

Okay, now that it's just we few, we happy few, please pull out or surf to the UCMJ and the JAGMAN. First let's look at Article 22(a)(8). In this provision, Congress authorizes "any other commanding officer designated by the Secretary concerned" to convene a general court-martial. Do we all agree that for our purposes, this establishes two necessary conditions for authority to convene a GCM under this provision: (1) commanding officer status; and (2) SECNAV designation?

Now look at JAGMAN section 0120.a. The section begins by stating, "The Secretary of the Navy, acting under Article 22 (a) (8), UCMJ, has authorized the following officers, when in an active duty or inactive duty training status, to convene general courts-martial." So there's no question that this provision is an exercise of the same authority we looked at above. And everyone on the list meets the second criterion, since this is the SECNAV designation. But look at section 0120.a(2)(c), (d), (e), and (aa). These provisions specify that the Vice Chief of Naval Operations; the Deputy Commander, U.S. Naval Forces, Europe; the Deputy Chief of Naval Personnel; and the Deputy Commander, U.S. Marine Forces Central Command are authorized to convene general courts-martial.

Now I welcome anyone correcting me if I'm wrong about this, but it doesn't appear than any of those four officials is a commanding officer. And even if one or more of those officers is dual hatted, it appears that the JAGMAN gives the convening power to the wrong hat.

If, in fact, any of these officers is not a commanding officer, then any action that official took as a general court-martial convening authority would appear to have been without jurisdiction and therefore void. Perhaps the appellate defense checklist should add a block asking if one of these officials was the CA.

Am I overlooking some obvious point that brings these individuals within Article 22(a)(8)? (I may be -- I have been known to overlook obvious points on occasion.)

3 comments:

Gene Fidell said...

BZ to CAAFlog for this classic illustration of the old adage, "Read the statute." I recall an issue--if possible, even more arcane--from when I was on active duty, concerning the other prong (secretarial designation). (Okay, here we go down Memory Lane.) For years, the Coast Guard (with apologies to Webster, "it is a small service, but there are those who love it") had its list of secretarially-designated convening authorities in the Supplement to the MCM, a/k/a/ "The Green Book." The pub dated from 1951, and still had a promulgation letter signed by one Edward H. Foley, Jr., who was President Truman's Under Secretary of the Treasury from 1948 to 1953, see http://www.trumanlibrary.org/hstpaper/foleyeh.htm, and must have been Acting the day he signed the promulgation. Cf. http://www.trumanlibrary.org/hstpaper/foleyeh.htm (1951); http://www.ustreas.gov/regs/to101-13.htm (1952). (Mr. Foley, a dapper man, http://www.trumanlibrary.org/photographs/displayimage.php?pointer=21220&people=&listid=6; http://cdmdev.lib.utah.edu/cdm4/item_viewer.php?CISOROOT=/truman&CISOPTR=3972&REC=7, who had earlier served as General Counsel of the Treasury under Morgenthau (for whom a 378' high endurance cutter is named), see Dean Acheson, Present at the Creation: My Years in the State Department 22, http://books.google.com/books?id=OirSz3Wtaa0C&pg=PA22&lpg=PA22&dq=edward+h+foley+jr&source=web&ots=fzmBOJPX0D&sig=0rM1NAPkqCslwQJ0wBQZhxUq8OM, appears somewhere in a wonderful Truman Administration group photo available at http://cdm.sos.mo.gov/cdm4/item_viewer.php?CISOROOT=/trumanlib&CISOPTR=1352&CISOBOX=1&REC=4; see also http://www.trumanlibrary.org/photographs/displayimage.php?pointer=6013&people=&listid=1, later headed President Kennedy's inaugural committee in 1961, see http://www.historyinink.com/04-040%20Edward%20H.%20Foley%20TLS.htm; http://books.google.com/books?id=TU_HozbJSC8C&pg=RA1-PA565&lpg=RA1-PA565&dq=edward+h+foley+jr&source=web&ots=TVn29CyFPW&sig=JADaXWqKgo_AazdwU8EPQueKGY8, and was a public member of the Coinage Committee as late as 1970. See http://www.trumanlibrary.org/photographs/displayimage.php?pointer=21220&people=&listid=6.) The UCMJ problem was that somewhere along the line, power to change the Green Book had devolved on the Commandant, thus providing the basis for an argument that the required secretarial imprimatur had been lost. Can you guess the outcome of a challenge to an SPCM convened by Commander, Greater Antilles Section (an official listed by the Green Book as a CA, but not enumerated in the Code).

Phil Cave said...

Is there not something in very command regulation, especially for high level commands, where the Deputy or the Chief of Staff is designated the "commanding officer" for discipline purposes? I believe the purpose behind it is so that the General or Admiral doesn't have to spend time out of his or her busy day dealing with NJP/Office Hours.

There may be something in the Navy SORM about this.

CAAFlog said...

My Liege,
I believe your point implicates the "wrong hat" problem that I mentioned in the post. Surely we would all agree that a commanding officer may not delegate convening authority to a deputy. The only way to make that deputy a convening authority would be to make him or her the commander of some actual command. Let's take an example that will be familiar to us all. The Deputy Judge Advocate General of the Navy is the Commander of Naval Legal Service Command. In the latter capacity, he (or, no doubt at some point in the not-so-distant future, she) is a commanding officer. (He also already falls within JAGMAN section 0120.a(1)'s authorization to convene a general court-martial.) But in the former capacity, he isn't a commanding officer. So if the JAGMAN purported to authorize the Deputy Judge Advocate General of the Navy to convene a GCM (it doesn't), then it would have picked the wrong hat. By definition, a deputy commander isn't a commanding officer. The person who holds that billet may simultaneously hold another command billet. But only when wearing that CO billet hat may that individual convene a GCM. So I still see a jurisdictional defect.