Marrying up the two themes of the week

CAAFlog's themes of the week have been: (1) fixation with the prospect of the first U.S. court-martial of a civilian since Vietnam; and (2) agitating for appellate review of subjurisdictional courts-martial.

Let's marry up those two themes.

A civilian can't be sentenced to a punitive discharge and so a civilian can't qualify for Article 66 review of a special court-martial conviction unless he or she were absolutely maxed out on confinement. So any civilian prosecuted by a court-martial is likely to have no right to appellate review. The civilian could petition the Judge Advocate General under Article 69 and the Judge Advocate General could refer the case to a CCA under Article 69(d), but the civilian with a brand-spankin' new federal conviction would have no assurance of any direct judicial appeal.

The civilian could qualify for a right to appellate review of a GCM conviction only if sentenced to death or a year or more of confinement. A contractor's GCM felony conviction with a resulting sentence of confinement for 11 months would be reviewed in the Office of the Judge Advocate General -- from which it could be referred to a CCA -- but the civilian contractor would have no right to a direct judicial appeal.

Perhaps Senator Graham -- who inserted the language into the DOD Authorization Act extending jurisdiction over civilians accompanying our forces in contingency operations -- could slip some language into next year's DOD Authorization Act closing the subjurisdictional gap.