Some thoughts about Denedo

Yesterday I substitute taught a law school military justice class. Part of the assigned reading for the day was Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), so I had both the opportunity and imperative to study it closely.

But before I set out some of my views, let me tell you how the students saw it. We held a moot court (before I provided any of my analysis, so at this point the students were untainted by my views) during which we assumed that the Supremes had granted the SG's hypothetical cert petition to challenge CAAF's jurisdiction decision in Denedo. Following oral argument, the student justices voted 5-4 to reverse CAAF.

Now on to my thoughts.

The Denedo majority and Judge Ryan's dissent weren't two ships passing in the night, each unaware of the other's existence. Rather, the majority was a 74 whose crew largely ignored the dissent frigate as it sailed past, raking the majority with cannon fire from bow to stern. Of course, the 74 remained afloat with that necessary number of three. But the frigate may sink her yet. Judge Ryan's analysis could well become the basis for a cert petition that could send the 74 to the bottom. The power of Judge Ryan's analysis -- already formidable -- might be enhanced still more by her biography. As a former Supreme Court clerk, she is well know to most of the Justices. In his wonderful recent look at the U.S. Chamber of Commerce's Supreme Court practice, GWU Law Professor Jeffrey Rosen observed, "Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, [Robin Conrad, Senior Vice President of the National Chamber Litigation Center,] told me, having well-known former clerks involved in submitting a brief can be especially important." Jeffrey Rosen, Supreme Court Inc. N.Y. Times Mag., March 16, 2008. Having a well-known former clerk as the dissent's author would also seem potentially important.

But even without any such bonus, the dissent might still outgun the 74.

I am a disciple of the Gierkian school of CAAF jurisdiction. As Judge Gierke explained in his dissenting opinions in both Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998), and United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), statutes providing jurisdiction to Article I courts are to be narrowly construed. (Note that this is the Gierkian school rather than the Gierkian/Crawfordian school because Judge Gierke adhered to this position in both Goldsmith -- where it favored the government -- and Leak -- where it favored the defense. Whether his view was right or wrong (and I believe it was right), it was clearly a principled view. Judge Crawford's votes in Goldsmith and Leak -- each supporting the government at the apparent expense of analytic consistency -- at least appeared to be outcome driven.)

I don't adhere to the Gierkian school for any ideological or partisan reason. Rather, I adhere to it in a good faith effort to interpret the law. So I find myself in basic agreement with Judge Ryan's interpretation of Article 76. As a matter of statutory construction, Congress's creation of one and only one specific exception to the general finality rule -- a petition for new trial -- suggests that this was meant to be the only exception. Expressio unius est exclusio alterius.

But an absolutely unadorned interpretation of Article 76's plain language is unavailable and what puts it beyond reach is, of all things, Clinton v. Goldsmith. For in that opinion, the Supremes expressly recognize an additional extra-statutory exception to Article 76: "[I]f a military authority attempted to alter a judgment by revising a court-martial finding and sentence to increase the punishment, contrary to the specific provisions of the UCMJ . . . [and] such a judgment had been affirmed by an appellate court[, then] . . . as the Government concedes, the All Writs power would allow the appellate court to compel adherence to its own judgment." Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (internal citation omitted). This seems to indicate that even post-Article 76 finality, CAAF would have the power to issue a writ to command compliance with its decision.

So say, for example, on 2 January 2007, CAAF issued an opinion reducing PFC Jones' sentence that had the effect of changing Jones' release date from 1 January 2011 to 1 January 2008. Let's further assume that in April 2007, Jones' case became final under Article 76. Then let's assume that come 3 January 2008, Jones was still sitting in his cell at the USDB, where officials refused to release him because they disagreed with CAAF's reasoning in United States v. Jones. Under that language from Goldsmith, Jones could go to CAAF, which could issue a writ of habeas corpus compelling Jones' release even though the case was already final under Article 76.

Judge Ryan's dissent acknowledges that extra-statutory exception to the Article 76 finality rule. See Denedo, slip op. at 9 n.2 (Ryan, J., dissenting). But neither the dissent nor Goldsmith itself appears to explain the source of this authority.

Note that it wasn't necessary for the Supremes to recognize such a post-finality power to compel adherence to CAAF's judgments. Let's say CAAF didn't have that power and Article 76 were understood as barring any exercise of post-final powers by any court established by the UCMJ with the exception of the statutory petition for new trial escape valve. In that case, PFC Jones could file a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the District of Kansas, which would presumably issue the writ. But the Supremes nevertheless chose to recognize such a power in CAAF itself. And I assume that the unarticulated basis for that power is CAAF's status as a "Court." Congress very intentionally chose to establish CMA as a "Court" -- remember that it was originally to be called the "Judicial Council" before the House Armed Services Committee changed it to the Court of Military Appeals. So CAAF's status as a "court" carries with it certain inherent powers of courts.

But what are the limits of those powers? Footnote 2 of Judge Ryan's dissent suggests that those limitations are the ability to compel adherence to its judgments and the power to determine whether it had jurisdiction to issue its initial judgment. But are those the absolute boundaries of the authority that arises from CAAF's status as a court? I'm not sure.

Now whatever the limits of that power, I don't believe it reaches as far as the authority asserted by the majority to potentially reverse a conviction based on alleged facts and a legal theory that had never been advanced in any military court pre-Article 76 finality. So I don't intend to suggest that CAAF's post-finality power arising from its status as a "Court" justifies the particular exercise of authority at issue in Denedo. And perhaps footnote 2 of Judge Ryan's dissent nails the limits of that power exactly and it extends to those two, and only those two, actions. But if the Supremes are to review Denedo, I would like to see them spell out the precise source of CAAF's extra-statutory post-Article 76 power that it recognized in Goldsmith and the precise limits of that power.