tag:blogger.com,1999:blog-34853720.post570071189405472876..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Let's honor Chief Judge Baum's memory by repealing Article 142(b)(4)Dwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger19125tag:blogger.com,1999:blog-34853720.post-13754439666867154772009-05-01T13:24:00.000-04:002009-05-01T13:24:00.000-04:00TestTestAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-75096092963055895932009-04-30T21:52:00.000-04:002009-04-30T21:52:00.000-04:00Well this post kicked off a livlier discussion tha...Well this post kicked off a livlier discussion than I would have guessed. Here are some thoughts about the comments.<br /><br />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).<br /><br />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."<br /><br />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.)<br /><br />Anon 0949, that's probably already a de facto rule, even if not a de jure one. :-)Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-73637769450041571582009-04-30T17:25:00.000-04:002009-04-30T17:25:00.000-04:00I've got to run at the moment. I'll be back later ...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. <br /><br />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 Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-38247777593487825822009-04-30T16:58:00.000-04:002009-04-30T16:58:00.000-04:00At the risk of being unpopular, I disagree with ev...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).<br /><br />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.<br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-36293586752654222672009-04-30T15:45:00.000-04:002009-04-30T15:45:00.000-04:00J'OC, Bridget, et al:
I am in complete agreement ...J'OC, Bridget, et al:<br /><br />I am in complete agreement with the idea that exercising court-martial jurisdiction over retirees is constitutionally suspect.<br /><br />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).<br /><br />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.Cloudesley Shovellhttps://www.blogger.com/profile/13344314546798687667noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-25177071464408680612009-04-30T15:07:00.000-04:002009-04-30T15:07:00.000-04:00Duh, proof reading is my friend. I meant to say I...Duh, proof reading is my friend. I meant to say I doubt the constitutionality of court-martialing a RETIREE. Sorry.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-27379514895888600122009-04-30T15:01:00.000-04:002009-04-30T15:01:00.000-04:00I hope that those who have taken the time to comme...I hope that those who have taken the time to comment here will develop and submit their views to the Cox Commission 2d.Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-25856116897117657732009-04-30T14:57:00.000-04:002009-04-30T14:57:00.000-04:00This is how we have chosen set up the reserves. It...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.<br /><br />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.Bridgetnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-72186430536769114772009-04-30T14:33:00.000-04:002009-04-30T14:33:00.000-04:00I have my doubts that it is constitutional to cour...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).<br /><br />And, yes, I know that some courts have held otherwise.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-66425604544033743512009-04-30T14:13:00.000-04:002009-04-30T14:13:00.000-04:00Or perhaps let retirees actually be retired and no...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. <br /><br />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. <br /><br />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. <br /><br />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?].<br /><br />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. <br /><br />Adding, BTW, that my entire military service was in the reserves.Bridgetnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-16591593273266248202009-04-30T13:14:00.000-04:002009-04-30T13:14:00.000-04:00And that is why Judge Mathews is the Greatest. Ir...And that is why Judge Mathews is the Greatest. Irrefutable logic.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-55302323071363982712009-04-30T10:16:00.000-04:002009-04-30T10:16:00.000-04:00Cloudesley: a fair observation. If being subject ...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. <br /><br />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.Christopher Mathewshttps://www.blogger.com/profile/01613318712384842689noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-56989855444405534472009-04-30T09:49:00.000-04:002009-04-30T09:49:00.000-04:00One should be precluded from being a CAAF judge if...One should be precluded from being a CAAF judge if one has ever been an appellate defense counsel.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-21346431027201203782009-04-30T09:15:00.000-04:002009-04-30T09:15:00.000-04:00Judge Stucky was a CCA judge in his prior military...Judge Stucky was a CCA judge in his prior military life.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-89211072879762714882009-04-30T08:42:00.000-04:002009-04-30T08:42:00.000-04:00I'll try not to overstate it, but my general sense...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?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-80415303009989766972009-04-30T08:25:00.000-04:002009-04-30T08:25:00.000-04:00Being subject to jurisdiction shouldn't be a probl...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-43973043133835274092009-04-30T07:55:00.000-04:002009-04-30T07:55:00.000-04:00Anon 0707--
The distinction between a retired res...Anon 0707--<br /><br />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. <br /><br />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.<br /><br />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)).Cloudesley Shovellhttps://www.blogger.com/profile/13344314546798687667noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-1459774149466378372009-04-30T07:49:00.000-04:002009-04-30T07:49:00.000-04:00This comment has been removed by the author.Mike "No Man" Navarrehttps://www.blogger.com/profile/11434921480452541955noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-77109012556435840492009-04-30T07:07:00.000-04:002009-04-30T07:07:00.000-04:00This comment has been removed by the author.Anonymousnoreply@blogger.com