Thursday, March 20, 2008

Interesting denial of extraordinary relief

Today's daily journal update includes an interesting order denying a writ appeal. Lis v. United States, __ M.J. ___, Misc. No. 08-8007/AR (C.A.A.F. Mar. 19, 2008). Lis (rank unknown -- as usual I can't find any electronic trace of ACCA's consideration of the case) is facing preferred charges arising from his alleged desertion with intent to shirk important service. Lis "claims that he is not a member of the armed forces and is therefore not subject to the jurisdiction of a court-martial." Accordingly, he sought a writ of habeas corpus from CAAF ordering the government to "release him from military custody and control." Presumably we all agree that such an order is beyond CAAF's power, but presumably we also agree that CAAF had jurisdiction, had it so chosen, to order charges against him dismissed for lack of jurisdiction. (The case hasn't yet gone to an Article 32, but the preferral of charges would bring the case within CAAF's potential appellate jurisdiction.)

While expressing no doubt about its jurisdiction over the case, CAAF decides not to exercise it:

[I]t appears that there are significant disputed questions of fact with respect to the Appellant's military status. On this record, the Appellant has not met the significant burden to obtain extraordinary relief from this Court during the normal processes of trial and appeal. The necessary processes exist in the Article 32, UCMJ, investigation and the trial, if charges are referred to trial by court-martial, for the resolution of these factual disputes. The ordinary processes of justice should be allowed to take their course.


Anonymous said...

I guess CAAF's expansive jurisdiction now cuts both ways.

Anonymous said...

Notwithstanding CAAF's recent expansions of its jurisdiction, this writ is plainly within even a narrow view of ordinary appellate court writ jurisdiction.

Seeing as how this accused didn't even have the patience to litigate the jurisdictional issue at any forum below (whether at an Art. 32 or before the military judge), CAAF very correctly passed on this one, pending resolution of factual issues.

Anonymous said...

Lis is a 2LT and the Art 32 was on 21 MAR 08.