Ali CAAF Writ Appeal Add'l Thoughts -- Redux

On the occasion of the first civilian UCMJ case to come before CAAF, I must mention the timing of the writ appeal petition in Ali v. Austin (which, I will admit, was not on my mind until JO'C mentioned it) .

The writ appeal, which attempts to invoke CAAF's All Writs Act jurisdiction over a case that is pending Art. 69 review, comes while the Denedo cert. petition by the U.S. Solicitor General makes its way to SCOTUS for a fall conference---see our prior coverage here, here, and here. As our loyal readers both know, the question presented in Denedo is essentially whether CAAF has the power to review a writ, alleging ineffective assistance of counsel at trial, filed by a former service member after his court-martial has become final. In Denedo, there is no UCMJ provision addressing the power that CAAF asserted. Rather, in Denedo, CAAF premised its assertion of jurisdiction on the All Writs Act.

CAAF, in a 3-2 decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), recently held that the government could take an interlocutory appeal to CAAF when the the Gov't lost at CCA. In Lopez de Victoria, the statute at issue (Art. 62, UCMJ) addressed only CCA jurisdiction and was silent on CAAF jurisdiction.

Both CAAF decisions, Denedo and Lopez de Victoria, have been criticized by the Solicitor General for their expansion of CAAF jurisdiction, as we noted here, though only Denedo is before SCOTUS on petition for certiorari.

The argument for CAAF jurisdiction in Ali, it could be argued, is even weaker than the argument for CAAF jurisdiction in Denedo and Lopez de Victoria. At least in Lopez de Victoria the statute (Art. 62, UCMJ) expressly mentioned CCA's authority to review a government appeal. In Denedo the fact that no statute addressed the particular power CAAF was asserting added some credibility to the All Writs Act argument. However, in Ali, the statute at issue (Art. 69, UCMJ), in fact, expressly states that CCA and CAAF do not have jurisdiction over a case that has resulted in a sub-jurisdictional sentence (i.e. less than one year of confinement awarded in Mr. Ali's case). Of course, the argument could also be made that the case for jurisdiction is the same as in Denedo because no statute specifically addresses the type of appeal at issue in Ali, a writ of habeas corpus seeking limited review of jurisdictional issues in the case.

My point in all of this is not to vote for or against CAAF jurisdiction in Ali, but, rather, seeing as how the Ali brief only devoted a page (in Courier-12 font) to the jurisdictional issue, I wonder if CAAF will order supplemental briefing to address this issue and the Golden CAAF in the room, Clinton v. Goldsmith? And what about the legislative history of the 1989 changes to Art. 69, does it suggest military appellate court intervention in the process? Ali's brief cited McPhail, a 1976 CMA case that held CMA had jurisdiction over sub-jurisdictional cases under the All Writs Act. ACCA has more recently addressed the Art. 69 writ issue in Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998), but did not address the legislative history. The legislative history of the 1989 amendments to Art. 69, UCMJ seem to be more in line with Clinton v. Goldsmith than McPhail. See Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (noting congressional concern over extension of jurisdiction under the All Writs Act in cases like McPhail). How does the logic from Dew and McPhail fare post-Clinton v. Goldsmith? How do any of these cases fare post-Denedo if SCOTUS grants cert.? All issues worth a few more paragraphs.

As far as substantive issues, I throw this out to our readers: could CAAF, if they address the merits of Ali's first argument, resolve the case on narrow factual grounds? The opinion might look something like: (1) we accept Col. Winthrop's position that a civilian cannot constitutionally be made subject to UCMJ jurisdiction in time of peace (a position nominally supported by Reid v. Covert, 354 U.S. 1 (1957) and Kinsella v. Singleton, 361 U.S. 264 (1960)); (2) however, wars of today are not black and white; there is war, there is peace, and there is a whole lot in between that sure seems like war; but (3) where ever that line may fall between war and peace, what was going on in Iraq at the time of Mr. Ali's detention and court-martial was not war.

Just thoughts. Talk amongst yourselves.