Monday, April 13, 2009

Rant: How can we justify retaining five military appellate courts in these budgetary times?

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today's Washington Post. They extol the virtues of the F-22, which "is, unquestionably, the most capable fighter in our military inventory." They suggest that having more is better, but forthrightly indicate that we can't afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can't afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.

If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.


NBM3 said...

Agree, do away with the CCAs. However, CAAF should (as you suggested last year) sit in panels and review cases like the geographical circuit courts of appeal rather than discretionary review. And of course a servicemember should have the automatic right to petition SCOTUS for a writ of certiorari after concluding review in CAAF. As I said last year I’d go as far as elevating the CAAF judges to Article III status when abolishing the CAAs. The fine military judges of the various CAAs can be integrated back into the field. It’s a shame that the services don’t have a trial litigation career track where experienced judge advocate general corps officers serve as either trial or defense counsel at the court-martial level as they rise in rank. The wealth of experience that an 0-5 and/or 0-6 could bring to the courtroom would be beneficial to military justice as a whole especially in complex general courts-martial cases or military death penalty cases.

Anonymous said...

Wouldn't a necessary concomitant to your proposal be an increase in CAAF judges to handle the workload? That is expensive, too. And, let's not overlook the fact that it's the Air Force top brass calling the F22 the most capable fighter in the world. I'd say they're a little biased. Just like the Army aviation folks who said we couldn't do without the Comanche...

Anonymous said...

NBM3: The Navy does have a career track and I believe the Army started one. As for integrating the current CCA judges back into the court room to tap their vast experience it would really depend on if the judges need another tour or desire to be in that geograpic location as that seems to be the primary requirement of a CCA judge.

Mike "No Man" Navarre said...

Like to hear the rebuttal argument to this, though I will admit that I will be predisposed to view as a call for more cowbell.

Anonymous said...

I, too, like the proposal, but I'll play devil's advocate. Since it's early, I'll list my argument.

1. The military justice system is not analogous to the federal system, but to a state system. There, intermediate levels of appeal are common.

2. Even if you reject point one, the quality of justice delivered at courts-martial pales in comparison to that in the federal district courts and needs closer scrutiny.

3. Courts-martial are evanescent things, and review is hindered by their fleeting nature. Having an appellate court within the system mitigates that somewhat by having judges with close familiarity to the system scrutinize it. Put another way, if you've got to reconstruct a court-martial, better to have someone do it who may have actually tried one in the past. (I offer Rehnquist's one-time frolic in a federal district court to get his feet wet at the trial level in the belief that would help his appellate judging).

Like I said, I support the proposal, and not just fiscally.

John O'Connor said...

Witrh some caveats, I would be for getting rid of the CCAs, as it furthers my view that there should be less appellate review of courts-martial. However, I think it would be important to give CAAF the fact-finding powers that exist with the CCAs currently. This furthers the interest in finality by reducing the necessity for remands. I also think it would be necessary to add CAAF judges and sit them in panels.

One way to significantly reduce the caseload that this expanded CAAF would have is to either allow for appellate review waivers as part of a PTA, eliminate appellate review of the findings for which a plea of guilty was entered, or make all appellate review discretionary (I support the first of these options).

If there's going to be a CCA, I think each service should continue to have its own. I'm reflexively against the purple-ization of the services and I also think they each has its own military justice norms that ought to be respected.

Justin said...

Not an argument, but other considerations:

1. Number of Judges. How many judges would be added to CAAF? To take Col Sullivan's example, 4th Cir has 15 judges.

2. Number of Staff. How many other staffers would be added to CAAF? Again, the 4th Cir probably has a couple of clerks for each judge. And a clerk-of-the-court's office that, to judge by the website alone, probably outnumbers Mr. DeCicco's office. And an "Office of the Court Executive," with staff. And an office of Staff Counsel, and a Court Librarian, presumably each with staff.

3. Number of Cases. How many cases would CAAF be expected to hear? 4th Cir, based on a glancing search, issued some sort of opinion on about 80 criminal cases in 2006. (No idea of that's average, what sort of opinions, etc.) Aren't there thousands of Art. 66-eligible cases that come up through the services each year? To judge from the summaries provided in the reporters, 5000? 4000? 6000? Can a court of [X] judges, even sitting in panels, hear that many?

3.a. Method of Reduction. If it is decided that a court of [X] judges, even sitting in panels, cannot hear the thousands of mandatory appeal cases coming its way, What would be the plan for reducing that number? Prosecutorial discretion isn't an option. Would Congress concordantly modify Art. 66? Would we accept waivers of appeals on guilty pleas?

4. Court Make-up. Would we have any uniformed JAGs on the court? If not, what would that mean for the court? If a panel of civilians is the first and only level of oversight for all military justice actions, what does that mean for the court-martial's role as mechanism of enforcing good order and discipline? I ask without presuming an answer one way or the other.

5. Appellate Divisions. Does this idea also presuppose a Joint Appellate Division? What would be the purpose of keeping Navy attorneys on Navy cases and AF on AF cases?

Justin said...

I see immediately that while I was drafting my tome, a couple of the issues have been addressed. Apologies for the redundancy.

Anonymous said...

A lot of good issues have already been raised.

I think the model for Mil Justice is that of an administrative agency (if not, then why does the CA have the right to modify the MJ's sentence?).

An admin agency's decision can be appealed to the USDC, then to the Court of Appeal, and then to the USSC. This model isn't perfect, I know.

Cloudesley Shovell said...

If you get rid of the CCAs and expand CAAF, I'm not sure you'd save any money. The workload is going to be the same.

If you want more efficiency for your money, make CAAF work all twelve months.

The same could be said of the CCAs--it's annoying waiting for more than six months--and counting--for a decision in a case where the parties agree a minor error occurred and also agree that the minor error can be resolved at the appellate level. Ugh.

I think the services should retain separate appellate defense divisions. However, it is my humble opinion that the services should combine the appellate gov't divisions. We all represent the same client, and should be speaking with one voice. You could retain separate service units within the combined appellate gov't division. However, by having everyone in the same office, you'd have much more uniformity from the gov't side, and greatly improved efficiencies not only in brief-writing but also ancillary services like trial counsel assistance.

Just a thought.

And while I'm at it, why three separate justice schools? It's the same UCMJ, regardless of service. The Navy, Marines, and Coast Guard already play together; it shouldn't be that hard to include the Army and Air Force.

John O'Connor said...

I agree with Cloudesley's common-sense argument that the appellate government divisions could (and perhaps should) be combined given that they all have the same client, and perhaps there would be a section or division for each service within this combined entity.

The idea that different services could take different positions on issues (such as appealability of Article 62 decisions) strikes me as silly.

Tony Bologna Full of Macaroni said...

"One way to significantly reduce the caseload that this expanded CAAF would have is to either allow for appellate review waivers as part of a PTA, eliminate appellate review of the findings for which a plea of guilty was entered, or make all appellate review discretionary (I support the first of these options)."Sounds messy. What if you get another situation like Denedo down the road? You'd get the "constitutional right to redress of grievances (right to petition)" argument which may not be so easily curtailed with a written waiver. More IAC claims.

Court Make-up. Would we have any uniformed JAGs on the court? If not, what would that mean for the court? If a panel of civilians is the first and only level of oversight for all military justice actions, what does that mean for the court-martial's role as mechanism of enforcing good order and discipline? I ask without presuming an answer one way or the other.CAAF already has civilian judges. Of course it may be prudent to mandate selection of Civilian Judges with at least x amount of experience as a JAG. That seems to be the common sense practice being exercised now. Although I'm not sure if it's in writing...then again you don't technically have to be a lawyer to be a Supreme Court Justice.

Let's focus on the root of the problem.We have an automatic review of cases to CCA when a service member gets a punitive discharge....

....So let's get rid of punitive discharges, except in severe cases where the individual will be locked away for a while (rape, murder, etc).

Most cases are drug related, a lot of which could be resolved with an Other-Than-Honorable Discharge which has much of the same effect as a BCD anyways.

Take away BCD's for enlisted, rely more on discharge boards, thereby making the TJAG the only review authority for 80% of these cases and you solved 80% the problem.

Honestly, what the hell is the difference? Officers only have a dismissal, enlisted should only have a dishonorable.

Okay, do the Math. Look at the numbers of BCD's adjudjed:

Army: 410 + 339 = 749

Navy/Marine: 108 + 665 = 773

Air Force: 88 + 174 = 262

Coast Guard: 9 + 12 = 21

Total BCD's = 1,805

That's right folks. Now imagine 1,805 fewer cases (most drug related) going to a court of review....very nice, huh?

Now I know, just having the DD for enlisted may increase Dishonorable Discharges for petty offenses, but I don't think it will be significant. And such actions could be curbed thru clemency/inappropriately severe doctrine.

Also this problem could be solved if SJA's and CA's would take the approach of more "sunset" discharges themselves instead of making drug pop cases federal trials.

Oh, and I would make it a year-round affair although I am not certain in fairness what the court does in these breaks, perhaps they need the rest. Perhaps a certain retired Judge can give us his opinion?

Anonymous said...

Bravo! Too many appeals, too much time, too much money. Delayed justice for the victims. Let's have one level of appeal, then finality.

Cloudesley Shovell said...

Tony Bologna F.M. makes an excellent point--convening authorities could avoid a lot of appellate issues simply by approving a sub-jurisdictional sentence.

I also agree with his second excellent point--this is a military justice system, and it should remain military. The more you civilianize the system, and the more Article-III-like you make it, the more it turns into just another federal criminal court, and the more it loses is character as a tool for enforcing good order and discipline. If that's what you want, just dispense with courts-martial and try these cases in federal court and make CAAF the reviewing court. While you're at it, get rid of military trial and defense counsel as well, and replace convening authorities with special US attorneys (civilian of course) to handle military cases.

Bridget said...

Or perhaps to create one CCA, with court members from the services; Untie the matters that can be appealed, currently the sub-juridictional cases, but at the same time let the accused waive appellate review. [that will cut down on the number of cases].

Am I correct in my perception that the USMC gives a disproportionate number of BCDs?

John O'Connor said...

Disproportionate to what?

I've always thought that the other services gave out a disproportionately low number of BCDs.

(To the extent the USMC gives out too many BCDs, I guess sometimes you just can't convince the members to pull the trigger on a DD)


Anonymous said...

"I find it hard to imagine criminal statutes more patently unconstitutional than these vague and uncertain general articles . . ." Parker v. Levy, 417 U.S. 733, 773 (1974) (Stewart, J., dissenting).

Sometimes MJ people think of "civilianized" justice -- a self-refuting term that suggests the military is made up of something other than US citizens with God-given rights -- has been dreamed up in recent years by starry-eyed liberals. It's been debated from the beginning and will hopefully be again soon, with an eye towards equal protection of the laws (or what military people who think they're a separate nation call "civilianization").