Monday, February 09, 2009

Slate's discussion of United States v. Denedo

An alert reader calls our attention to this piece from Slate, written by Slate senior editor Emily Bazelon and Yale Law Professor Judith Resnik.

The piece's subhead encapsulates its point: "The top 10 cases the Obama Justice Department should redo." The article's thesis is that "[t]he overarching Bush effort that Obama's lawyers should reject is the pervasive, insistent attempt to keep people out of the courts." It offers 10 cases in which to reverse that approach. And there at #3 is United States v. Denedo (though, unfortunately the piece refers to CAAF by its previous name—the one Congress changed in 1994). The authors conclude, "This case seems small, but it's another one that raises the important question of access—which the Court of Military Appeals got right. The new DoJ should ask the Supreme Court not to hear the case after all, so that a hearing into the facts surrounding Denedo's guilty plea can proceed in the place it should—the military courts."


Anonymous said...

I think the fact that the article refers to COMA vice CAAF is pretty much all you need to know as to why the current SCOTUS access rules are the way they are.

Anonymous said...

I have my own opinion on which way SCOTUS should go but regardless of the side you take, why shouldn't it be heard? If CAAF got it right then SCOTUS will say so. If CAAF is incorrect then Congress can keep the rules or change them. Why would there be a fear of SCOTUS hearing this case and, if it is the majority opinion, clarifying what finality in a court-martial is?

H Lime said...

Nota Bene: the author of that comment, submitted by the very alert reader, is involved in writing an amicus in Denedo.


Cloudesley Shovell said...

The blurb on Denedo starts off by asserting that Denedo is a "specialist [sic] second class in the Navy." Except, as everyone knows, he is neither a second class petty officer nor in the Navy, having been reduced to Seaman Recruit and discharged with a bad-conduct discharge.

It's rather disappointing that two lawyers, including one who only a year ago received "The Fellows of the American Bar Foundation Outstanding Scholar Award," would make such a fundamental and misleading factual error.

But heck, why let bad facts get in the way of a good argument?

Anonymous said...

Note that CLINTON v. Goldsmith was CLINTON v. Goldsmith and a 9-0 decision. Not every single policy (e.g., limiting military court jurisdiction) gets reversed with a changing of the guard.

Anonymous said...

With such a nuanced and indepth approach to the case I am sure the SGs Office with immediately file a motion to withdraw.

Anonymous said...

With such a nuanced and indepth approach to the case I am sure the SGs Office with immediately file a motion to withdraw.

Anonymous said...

Well today newspaper suggests that Professor Resnik may not be of the majority view in the new administration:

“The Obama administration invoked the same "state secrets" privilege as its predecessor in federal court in San Francisco yesterday in opposing the reinstatement of a lawsuit that alleges that a Boeing Co. unit flew people to countries where they were tortured as part of the CIA's "extraordinary rendition" program…..

Ben Wizner, an ACLU staff lawyer who argued the case for the plaintiffs, condemned the decision as Obama's ratification of the Bush administration's "extreme policies," which he said prevent torture victims from seeking redress.”

Mike "No Man" Navarre said...

After seeing the critical comments of the Slate article above I thought I would actually read it. I have to say that after reading it, the article is light on factual accuracy, but not overly so. I usually agree with Cloudesley or at least respect his opinions, but the specialist 2nd Class comment was just not justified. While yes, the corecy term is Petty Officer, I don't feel that in the context it was inappropriate to refer to him that way. Here is the sentence, "Jacob Denedo, a specialist 2nd class in the Navy, was told by his lawyer that he should plead guilty in 1998 to a minor offense. What his lawyer did not tell him was that, as a 'collateral consequence,' he was at risk of being deported."

That's accurate. The piece in Slate want exactly intended to be an academic piece, but I would expect more from a law professor than what the article gave us. Possibly the most egregious example of poor writing is this passage, "After the Court of Military Appeals agreed and granted the hearing, the Bush administration stepped in and persuaded the Supreme Court to hear the case. To head off the hearing, the government has argued that, because life-tenured judges in the civilian federal courts could conceivably hear Denedo's claim of ineffective assistance of counsel, the military courts could not."

First and foremost, the lower court opinion should have said on page one CAAF and not CoMA, so that mistake in that context is rather bad. Second, that's not even the main thrust of the government's argument. The main argument would have supported the article's premise so I can't really understand why they took this stance.

After typing this out, I think I am beginning to see why Cloudesley and others were all over this.

Anonymous said...

In addition to the above criticisms, you can hardly say that the Bush Administration "stepped in" to have the decision overturned. Code 46 has long lobbied for finality in courts-martial and had to campaign to get the SG to take this. Hardly evidence of a conspiracy to limit access to the courts.

Cloudesley Shovell said...

No Man--

I was not entirely clear. My main criticism was that the lead sentence is in the present tense, insinuating that Denedo is still in the Navy, and that the big bad Bush administration is denying him access to military courts.

The fact that they truncated Mess Management Specialist Second Class was just a quibble. The real misleading "fact" was the suggestion that he was still on active duty (at least that's the way I read it.)

Just another case where one has personal knowledge, and is disappointed that "the media" gets all the facts wrong, which of course makes you wonder about all the other stuff they print.

Anonymous said...

If you use "Note Bene" there is a 90% chance you played the recorder in HS band and went with a family friend to prom. Tool.

Cloudesley Shovell said...

Anon at 913am--

Thanks for the refreshing insight into your character. Please enlighten us with your opinion on anonymous ad hominem attacks.


John O'Connor said...

That last comment is why Cloudesley Shovell has become firmly ensconsed as "most valuable poster."