Tuesday, June 03, 2008

Supremes request response in Stevenson

Gene Fidell reports in a comment to a post below that the Supreme Court has asked the Solicitor General to respond to the cert petition in Stevenson v. United States, No. 07-1397.

20 comments:

Anonymous said...

I have to admit, even as a gov't hack I think it's a solid defense argument.

Anonymous said...

why in the heck didn't CAAF grant on this issue?

Anonymous said...

I wish, in an ideal world, there was a one-liner summary and cite that came with each denial from CAAF. The mystery is too much.

Anonymous said...

I think the military should declare it has jurisdiction over every male in the selective service system, too. After all, they "could" "convert" to military pay at any time.

This will be a grant because event the conservatives on the Supreme Court will see the underlying liberal premise of the government's jurisdiction claim: "we pay you, so we own you." (In this case, "we could pay you, so we do own you.") Its the classic trope of all federal funding programs and the hidden premise of usurping so many of our liberties.

Anonymous said...

Doesn't matter what his status was, is or will be since he WAS in the military CAAF has jurisdiction (see Denedo) to listen to his case so therefore the government has jurisdiction to try him...

Anonymous said...

Thanks for that quick loop of circular reasoning. I'm dizzy.

Anonymous said...

Not as dizzy as when I read Denedo and tried to reason its logic.

Cloudesley Shovell said...

Wow, seven anonymous comments in a row . . . inside baseball? Astroturfing? Who cares, all interesting points.

"Why in the heck didn't CAAF grant on this issue?" Good question. I think CAAF knew going in that they'd be reversing on the granted 4th Amendment issue. That the search at issue was illegal was never in doubt, ever, from the moment the first trial judge suppressed the evidence in 1999. It just took eight years of trial and appellate litigation for it to finally dawn on CAAF what an egregious error they'd made back in the first Article 62 appeal in this case.

There is still another 4th Amendment issue pending before NMCCA. I think CAAF knows the case is ultimately going to be flipped on that issue, thus they don't have to touch a jurisdictional issue that might in some infinitesimal way reduce the scope of military jurisdiction. CAAF, after all, has a long and consistent history of construing military court jurisdiction very very broadly, while paying lip service to the rule that jurisdictional statutes are to be strictly construed. If they leave the jurisdictional issue untouched, they preserve the opportunity for military courts to exercise jurisdiction in those one-in-a-decade cases involving a disabled retiree.

As for exercising jurisdiction over everyone in the selective service system--don't be giving CAAF (or Congress) any ideas.

Denedo and Stevenson--will they both be on cert to the Supreme Court? One wonders if (when?) the gov't will send Denedo on up there.

Anonymous said...

cloudesly, i love your posts. Here's another idea for jurisdiction: the interstate highway system was explicitly justified as a method of transporting troops and equipment domestically across state lines. It is actually called the DoD Highway System. Hence, when we drive, we are subject to military jurisdiction.

What about the pay requirement, you ask? Well, acording to the IRS, benefits are income. Hence, our use of the roads constitutes an in-kind payment in the value of services. And worse, such a calculation can never be final. So a "final accounting of pay" can never occur, hence jurisdiction never cutting off.

Yes, military jurisdiction will ONE DAY TAKE OVER THE WORLD!!! HA-HA-HA-HA!! (evil judge scowling while wringing his hands)

Anonymous said...

Once a person retires they are entitled to other compensation besides salary. Wouldn't the status as a retiree, even a medical retiree, be the jurisdictional hook? If so, could a retiree ever renounce status and refuse remuneration?

Anonymous said...

The Defense argument in Stevenson may succeed because is reasonable, not idealogically rabid. Not sure a NIMJ amicus helps paint it as reasonable, as NIMJ is kind of an extremist group. Some of the above comments reflect that.

Gene Fidell said...

If I may post this time on behalf of NIMJ, let me invoke the immortal words of Owen Wister's "The Virginian," "When you call me that, smile." I respectfully move the admission of 0900's silly post as Exhibit A in the case against anonymity.

Gene Fidell said...

Belay my last--the time of the silly post to which I was referring was 0809 hours.

CAAFlog said...

I certainly agree that the question of anonymous/pseudonymous posting is a difficult one. But I still think that on balance it's a good idea. It's been quite helpful to me -- such as when an anonymous commentator pointed out a mistake in a cert petition on which I had worked and we were able to correct that mistake before the petition was distributed. I don't know that that would have happened but for the anonymous comment. And without allowing pseudonymous comments, we never would have had Guert before he apparently turned over in his grave and died again. I certainly enjoy a world in which we were graced by Guert when he was with us more than one in which he never logged onto the Net from his graveyard in upstate New York.

As for 0809 Anon's comment, even something like that contributes to the marketplace of ideas. The idea that NIMJ is "kind of an extremist group" will strike reasonable people as silly. Articulation of that silly idea gives reasonable people an opportunity to reject it as silly. Exposing and rejecting silly ideas was one of the very benefits that John Stuart Mill posited for a marketplace of ideas.

I doubt 0809 Anon will consider me a reasonable person, but for those readers who do, place another check mark in the reasonable- person-who-thinks-NIMJ-is-a-highly-respected-and-respectable-organization column.

Anonymous said...

As the anonymous poster who was waxing philosophical about various theories of jurisdiction, these were obviously reductio ad absurdum arguments.

If 8:09 poster thinks these comments were serious, hence extreme, and can't discern pun, then he/she has other issues as well.

Although military justice is mostly serious business, I get worried when people hang on too tight and can't have a sense of humor. And somebody who thinks that NIMJ is a "kind of an extremist group" is just wrapped too tight.

Gene Fidell said...

Thanks, CAAFlog. I take your point, but I still think anyone who wants to badmouth an entire organization as "kind of extremist" should have the moral courage to do so in his/her own name (and get specific, rather than simply engage in name-calling).

Here's how the United States Army defines "extremist organizations":

"A group which advocates racial, gender, or ethnic hatred or intolerance; advocates, create, or engage in illegal discrimination based on race, color, gender, religion, or national origin; advocates the use of or use force, violence or unlawful means to deprive individuals of their rights under the United States Constitution or the laws of the United States or any State by unlawful means." DA Pam 600-15 (2000)(Glossary).

Sound like NIMJ?

CAAFlog said...

1107 Anon, be assured there were those who understood and appreciated your reductio ad absurdum presentation.

Gene, I agree that the anonymous drive-by ad hominem post is an exercise in moral cowardice. I've been trying to call out such posts recently and appreciate your doing so with 0809 Anon. What possible justification could someone have for declining to reveal his or her name when criticizing NIMJ? Leaving aside the huge problem with the unsubstantiated -- and unsubstantiable -- nature of the criticism, NIMJ doesn't write the poster's fitrep. (NOT that it would be okay to anonymously criticize someone who did write the poster's fitrep, but at least then we would UNDERSTAND, even if we didn't agree with, the reason for anonymity.)

Anonymous said...

The anonymous poster was somebody who got up as early as at 8:00 on Sunday morning to read CAAFlog. The person was therefore not out on Saturday night, and therefore does not drink. The person is humorless. The person is thus not liked by his/her peers. The person is probably female, because use of the phrase "kind of" is a classic female "tell." (Females are stereotypically less confrontational, so they commonly use such modifiers). The person is probably in the Navy, because she is following the Stevenson case, and even gives it a kind of begrudging respect. The person is also ridiculously conservative (to a caricature) and reflexively favors the government.

8:09 Anon is a Mormon female Navy JAG. We know who you are, Ma'am.

Anonymous said...

Such reasoning is Vizzini-like.

Anonymous said...

I posted that. It was a spoof. I don't really know anybody who meets that description. But it sounds plausible, no? Can I get a job with NCIS?