Wednesday, April 29, 2009

Let's honor Chief Judge Baum's memory by repealing Article 142(b)(4)

When Congress adopted the UCMJ in 1950, it provided that "[t]he Court of Military Appeals shall consist of three judges appointed from civilian life."

In 1990, Congress defined that language in a way that limited the discretion of the President in picking nominees for CMA vacancies. In a section of the National Defense Authorization Act for Fiscal Year 1991 titled "CLARIFICATION OF CERTAIN PROVISIONS IN UNIFORM CODE OF MILITARY JUSTICE," Congress provided: "For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life." 104 Stat. 1565, 1565.

Now I don't know who actually proposed adding that provision to the UCMJ or why. But I can tell you a common belief about the provision's origins. According to military justice lore, the Secretary of Transportation was supporting Joe Baum, who was then the civilian chief judge of the Coast Guard Court of Military Review, for an upcoming vacancy on the Court of Military Appeals and someone in Congress inserted this language into the UCMJ to torpedo his potential nomination. Again, I have no idea whether that's actually true, but that understanding is so widespread that Article 142(b)(4) is typically called the Baum Amendment.

Article 142(b)(4) serves as an ill-advised limitation on the President's discretion. Note that the amendment doesn't preclude the President from nominating a retired -- or even drilling -- reservist to the court, as Presidents have done since the amendment was enacted. But it does preclude the President from exercising his discretion to nominate a distinguished retired active duty judge advocate for a CAAF judgeship.

One would think that a pretty good training ground to serve as a CAAF judge would be service on a Court of Criminal Appeals. Yet those who served on a CCA in an active duty capacity are now statutorily ineligible to serve on CAAF. (Judge Stucky, however, did serve on the Air Force Court as a reservist.) So, for example, the President can't exercise his discretion to nominate a jurist who distinguished himself as an active duty CCA judge and then retired and went into civilian practice -- like our very own Judge Mathews the Greatest. Nor could the President exercise his discretion to nominate a career military lawyer who retired and then distinguished himself on another federal bench, like Judge Wayne Alley (Brigadier General, U.S. Army, Retired) of the U.S. District Court for the Western District of Oklahoma or Judge William A. Moorman (Major General, U.S. Air Force, Retired) of the United States Court of Appeals for Veterans Claims.

To consider the case of the the man who inspired this post, why shouldn't a President have the discretion to decide that the best nominee for CAAF is a 30-year Navy veteran who served for six years on the Navy Court of Military Review before serving as a civilian for many years on the Coast Guard Court? In my view, he should. Congress should rescind Article 142(b)(4)'s unwise limitation on presidential discretion.


Anonymous said...
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Mike "No Man" Navarre said...
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Cloudesley Shovell said...

Anon 0707--

The distinction between a retired reservist and one who retires after 20 years (or more) of active service may be predicated upon the existence of UCMJ jurisdiction.

UCMJ Art. 2(a)(4) extends UCMJ jurisction over all retirees of a regular armed force who are entitled to pay, which means anyone retiring after 20+ years is subject to UCMJ jurisdiction for the remainder of his natural life. One can hardly be considered to be "from civilian life" when one is still in the military (albeit retired) and subject to UCMJ jurisdiction.

Reserve retirees, on the other hand, are not retired from a regular component of the armed forces, and therefore are not subject to UCMJ jurisdiction (except in the extremely unlikely event that the reserve retiree is actually hospitalized in an armed forces hospital, Art. 2(a)(5)).

Anonymous said...

Being subject to jurisdiction shouldn't be a problem, if it isn't a problem for the SecDef. I mean if Congress really doesn't want anyone who was ever affiliated with the military to serve on CAAF, perhaps that should be the rule - "no one who has ever served on active duty in the military service (to include reservists, the National Guard, and the Coast Guard) is eligible to serve on CAAF." But to make some silly distinction between retired reservists and retired active duty folks doesn't make much sense. A cooling off period does appear to me to make more sense. As does a provision to prevent SASC members and counsel from nominating themselves and serving.

Anonymous said...

I'll try not to overstate it, but my general sense is that many of the named players here at CAAFlog are quite critical of the decisions of the Service Courts, and glowing toward those proffered by CAAF. If that be the case, seems a little inconsistent to now lobby to have them considered for nomination to CAAF. Once they take off the uniform does it make them smarter, or write better opinions?

Anonymous said...

Judge Stucky was a CCA judge in his prior military life.

Anonymous said...

One should be precluded from being a CAAF judge if one has ever been an appellate defense counsel.

Christopher Mathews said...

Cloudesley: a fair observation. If being subject to UCMJ jurisdiction is the issue, though, you could just as easily make the statute work the other way, removing CAAF judges from the reach of the Code for the duration of their term on the court.

Such a rule would be more narrowly-tailored, affecting at most the five individuals on the court, instead of the current rule which affects the thousands who might otherwise be eligible.

Anonymous said...

And that is why Judge Mathews is the Greatest. Irrefutable logic.

Bridget said...

Or perhaps let retirees actually be retired and not subject them to Article 2 jurisdiction. The issue of retiree jurisdiction is a curious provision of the code.

Consider that a retiree in a wheelchair, with Alzheimer's is subject to the UCMJ, but a reservist still serving as an "active" reservist is not when not at drill, AT or on some form of AD.

If a retired Coast Guard member molests a neighbor's child he may be prosecuted. If the reservist,not in a drill or similar status does the same, he may not be court-martialed.

Perhaps only of interest to those of us who are Guard law geeks, that is me and Freedus and two guys at the Army Jag School, is the proposed State Model Code of Military Justice which if adopted be the states would extend 24-7 jurisdiction over Guard members where the crime has a service connection. [Who says O'Callahan is dead?].

I have always found it odd that a retiree who commits an offense in a "civilian" environment can be prosecuted in military courts, but not serving reservists.

Adding, BTW, that my entire military service was in the reserves.

John O'Connor said...

I have my doubts that it is constitutional to court-martial a reservist, period (or at least that such prosecutions are constitutionally suspect without first overruling Reid v. Covert, Guagliardo v. McElroy, Kinsella v. Singleton, and Grisham v. Hagan).

And, yes, I know that some courts have held otherwise.

Bridget said...

This is how we have chosen set up the reserves. It is a choice to have the reservist not in a military status subject to CM jurisdiction when not drilling. How different is it to give a reservist a 24/7 military status than a retiree? For retirees, it is often said, "As long as you are getting a paycheck, they have you". Not so different really. We have modified Articles 2 and 3 to expand jurisdiction over the years.

Which digresses slightly from the 142(b)(4) issue. It does seem odd to exclude military justice career professionals from the pool. It also seems something that can be changed.

Gene Fidell said...

I hope that those who have taken the time to comment here will develop and submit their views to the Cox Commission 2d.

John O'Connor said...

Duh, proof reading is my friend. I meant to say I doubt the constitutionality of court-martialing a RETIREE. Sorry.

Cloudesley Shovell said...

J'OC, Bridget, et al:

I am in complete agreement with the idea that exercising court-martial jurisdiction over retirees is constitutionally suspect.

Nonetheless, it is the law. Not only that, per NMCCA at least, Art. 2(a)(4) jurisdiction extends over all regular retirees, regardless of the reason for retirement, so all the wounded veterans medically retired are included within Art. 2(a)(4)'s scope. This includes those retirees receiving VA disability compensation rather than retired pay, because, in theory, the retiree could renounce the VA disability and once again receive military retired pay, thus the retiree is always "entitled to pay." United States v. Stevenson, 65 MJ 639, 643-44 (NMCCA 2006) (overruled on other grounds, 66 MJ 15 (CAAF 2008)). (CAAF did not address the jurisdiction issue).

As far as why Art. 142(b)(4) makes the distinction it does, I just threw out the idea about regular vs. reserve retirees. I have no idea why it would or should matter for service at CAAF. The various consiracy theories make for fun reading, though.

Anonymous said...

At the risk of being unpopular, I disagree with everyone. Putting aside whether civilian judges are "better" or more academic, we can all agree that they are different. People who have had the military command structure as a formative experience in their lives are not providing that different, civilian view of court-martial convictions. (n.1).

For my part, I hope Obama's judge this term (and hopefully in his second term as well) have zero military background. See also Supreme Court dicta, Congress intended that the CMA judges "WOULD LEARN" about military law. Not that they already know.

n.1. Although I come to the opposite conclusion, I agree with the comment that permitting Colonel Stucky to take the bench makes little sense when those with more active duty time may not.

Dwight Sullivan said...

I've got to run at the moment. I'll be back later to provide some thoughts about previous posts. But to the most recent poster, President Obama could, of course, nominate a judge for CAAF with no military experience. I don't think that would be a good idea, but it is a matter within his discretion. I think the President should also have the discretion to nominate someone who happens to be a retired active duty servicemember. The central problem with Article 142(b)(4) is that it constrains the President's discretion in choosing the most qualified nominee.

Judge Wiss -- who was a fabulous judge during his all-too-short tenure on CAAF -- was a retired reservist RADM. I believe that Judge Everett -- one of the brightest stars ever in the military justice firmament -- is a retired Air Force Reserve colonel. And, as noted, Judge Stucky is a retired Air Force Reserve colonel. So there's no reason why a retired reservist can't be a fabulous CAAF judge. I don't think there's any reason why a retired active duty servicemember couldn't be either.

Dwight Sullivan said...

Well this post kicked off a livlier discussion than I would have guessed. Here are some thoughts about the comments.

U.S. district and circuit judges are subject to the same criminal laws that they interpret and apply, so I can't see why it would be problematic to have a CAAF judge who happened to be subject to the UCMJ (as all or almost all CCA/CMR judges have been).

As 0707 Anon very astutely pointed out, we know that Congress doesn't think the term "appointed from civilian life" inherently excludes active duty retirees because 10 U.S.C. 113(a) expressly includes some active duty retirees within the class of those in "civilian life."

0820 Anon, I think your point is overly general. CAAFlog contributors have made favorable comments about many CCA decisions and unfavorable comments about many CAAF decisions. We have certainly recognized some CCA judges as extraordinary jurists, such as AFCCA's Judge Mathews the Greatest. The late Guert Gansevoort bestowed the title of "the Great" on NMCCA's Judge Couch. To the extent that you take my repeated proposal to do away with the CCAs as an insult to the CCAs, I think you're being too sensitive. My point is that there is enormous redundancy in our current military appellate system and that it would save large sums of money to eliminate that redundancy. If we were to do so by eliminating the CCAs, I don't think the results of the process would change very much at all and I would be willing to accept whatever change did result in exchange for greater efficiency. (I do think that the overall product would be incrementally better because the AVERAGE CAAF opinion is better than the AVERAGE CCA opinion. But the important point here is that there are above average CCA judges who would make outstanding CAAF judges and the President should have the discretion to nominate them to fill CAAF openings.)

Anon 0949, that's probably already a de facto rule, even if not a de jure one. :-)

Anonymous said...