Friday, July 10, 2009

CAAF and commissions

Senate Bill 1390 (available here), the Senate's version of the National Defense Authorization Act for Fiscal Year 2010, includes revisions of the Military Commissions Act to make the military commissions system more closely resemble the court-martial system. See id. at § 1031. The bill would amend the Military Commissions Act of 2006 to establish CAAF as the primary appellate review authority for the military commissions system. The bill kills off the Court of Military Commission Review, which currently consists of a mix of CCA and civilian judges, and removes the commission system from the D.C. Circuit's jurisdiction. Instead, the bill gives CAAF jurisdiction to review every commission conviction for legal error, factual sufficiency, and sentence appropriateness. The Supreme Court could then review CAAF's decision by writ of certiorari. Under the bill, 10 U.S.C. § 950c would provide that unless the accused waives appellate review, "in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Appeals for the Armed Forces."

10 U.S.C. § 950f would provide:

(a) Review by United States Court of Appeals for the Armed Forces- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

(2) In any case referred to it pursuant to section 950c(a) of this title, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(3) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).


Anonymous said...

Absolutely the correct result -- let the public see something even for those that aren't going to the Article III courts. Legitimacy.

I was very curious how they would handle the jokers at the CCA. Skip them altogether. Again, correct result.

Norbert Basil MacLean III said...

It would also make sense to have court-martial appeals similar to that of these military commission appeals as proposed in the Senate version of the NDAA. Do away with the CCAs as suggested by Mr. Sullivan in past posts. Review court-martial convictions by CAAF the same way as the geographical federal courts of appeals do with criminal convictions coming from the federal district courts with the right to petition the Supreme Court for discretionary review. Instead of CAAF acting as gatekeeper to SCOTUS.

What concerns me is that under this bill those convicted by military commission would have greater access to CAAF than a servicemember convicted by court-martial. A servicemember still must jump through hoops to apply for discretionary review with CAAF. Under this bill, an enemy combatant that has been convicted would have an automatic right to review in CAAF wheareas the majority of servicemembers must apply for discretionary review. 22 plus years of statistics show that CAAF only grants review in less than 20 of cases.

And if the servicemember is convicted with a subjurisdictional sentence (less than a year and no punitive discharge) forget about any military appellate court review.

Whilst I do like the proposed system in this NDAA as it applies to military commissions, I think Congress should overhaul the present military appellate system under the UCMJ for our own troops: (1) do away with the CCAs (saves the American taxpayer heaps of money); (2) make CAAF an Article III court to sit in panels and review cases much like the geographical appellate courts; and (3) right to petition for discretionary review with SCOTUS.

Norbert Basil MacLean III said...

Regarding the above comment I meant to say:

"22 plus years of statistics show that CAAF only grants review in less than 20 percent of cases."

Not 20 cases.

Dew_Process said...

Aside from the inequity of granting a convicted MilCom Accused direct access to the CAAF, if one assumes that CAAF's docket will remain static, every MilCom appeal means that statistically, it will be harder to obtain CAAF's discretionary review.

Abolishing the CCA's - or "civilianizing" them - is long overdue, and I agree that there's considerable merit in expanding CAAF and having it sit in panels.

Norbert Basil MacLean III said...

I'm hearing the full Senate is going to take this up for a vote tomorrow (Monday, 13 July) or on Tuesday.

Anonymous said...

Let's just hope that some important military commission case doesn't arise in the summer. CAAF will be on vacation. Me thinks I'd rather be before an art iii court than CAAF. At least those courts work full time. Senators Graham and McCain can't do anything right.