Motion to extend time to file certificate of review in Neal

The No Man previously discussed NMCCA's en banc opinion unanimously rejecting a constitutional challenge to the new Article 120. United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc).

Today's CAAF daily journal online update included notice of a motion for enlargement of time for the Judge Advocate General of the Navy to file a certificate of review in the case. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 14, 2009). The notice doesn't indicate whether Code 45 or Code 46 filed the enlargement request. Could someone in the know fill in that detail for us?

It's unusual but hardly unprecedented for a Judge Advocate General to certify to CAAF a case that the government won at the CCA level. One of the most famous military justice cases of all time -- United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) -- was certified to CMA by the Judge Advocate General of the Air Force after the government had prevailed before an Air Force Board of Review. A more recent example is United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004)--the infamous "Latin movie" case--which the Judge Advocate General of the Navy certified to CAAF after the government had prevailed before NMCCA.

There would seem to be a firm rationale for the Judge Advocate General of the Navy to certify this case, to expedite a final determination of the new Article 120's constitutionality. Of course, this case wouldn't resolve every constitutional challenge to Article 120, but more certainty is better than less certainty.