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Tuesday, December 05, 2006
SASC approves CAAF nominees
The Senate Armed Services Committee just unanimously approved the nominations of Scott Stucky and Meg Ryan to sit as judges on the Court of Appeals for the Armed Forces.
Monday, December 04, 2006
SG waives response in New
The SG waived the government's right to respond to the cert petition in United States, ex rel. New v. Rumsfeld, No. 06-691, the petition that, among other things, challenges the scope of review for collateral challenges to court-martial convictions. See generally "New cert petition (pun intended)," 28 Nov 2006, available at http://caaflog.blogspot.com/2006/11/new-cert-petition-pun-intended.html.
As previously noted, NIMJ weighed in with an amicus brief supporting the cert petition, which is available here: http://www.nimj.org/documents/FinalAmicusBriefreCert.pdf.
The docket on the Supreme Court's web site doesn't yet indicate when New is scheduled for conference. See http://www.supremecourtus.gov/docket/06-691.htm. I'll be surprised if the Court doesn't request a response from the SG before the case goes to conference.
--Dwight Sullivan
As previously noted, NIMJ weighed in with an amicus brief supporting the cert petition, which is available here: http://www.nimj.org/documents/FinalAmicusBriefreCert.pdf.
The docket on the Supreme Court's web site doesn't yet indicate when New is scheduled for conference. See http://www.supremecourtus.gov/docket/06-691.htm. I'll be surprised if the Court doesn't request a response from the SG before the case goes to conference.
--Dwight Sullivan
CAAF confirmation hearing
Sometime in the next couple of days a transcript of today’s CAAF confirmation hearings should be available. (Apparently there’s some confirmation hearing on the Hill tomorrow that’s considered even bigger than today’s CAAF hearing; anyone know what that’s about?) I'll review it and post an analysis when it's ready.
In the meantime, we’ll have to content ourselves with the nominees’ advance policy questions, which are available on the Senate Armed Services Committee’s web site.
Lance-Judge Stucky link:
http://armed-services.senate.gov/statemnt/2006/December/Stucky%2012-04-06.pdf
Lance-Judge Ryan link:
http://armed-services.senate.gov/statemnt/2006/December/Ryan%2012-04-06.pdf
[Seriously, No-Man, how do I paste those in as a hypertext link?]
Here is, by far, the most interesting question:
Please describe the three decisions of the USCAAF since 2001 which you believe have been the most significant.
Lance-Judge Stucky’s answer:
United States v. New, 55 M.J. 95 (2001) (status of legality of an order as question of law; application of political question doctrine to courts-martial).
United States v. Marcum, 60 M.J. 198 (2004) (constitutionality of Article 125 of the UCMJ as applied, in light of Lawrence v. Texas, 539 U.S. 558 (2003)).
United States v. Moreno, 63 M.J. 129 (2006) (due process implications of excessive delays in post-trial review; applicability of Barker v. Wingo, 407 U.S. 514 (1972) to courts-martial).
Lance-Judge Ryan’s answer:
United States v. Wiessen, 56 M.J. 172 (C.A.A.F. 2001) – analyzing challenges for cause based on implied bias of a member and recognizing that implied bias undermines public confidence in the military justice system.
Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003) – emphasizing that the petitioner’s right to a full and fair review of findings and sentence under Article 6 embodies the concomitant right to have that review conducted in a timely fashion, and that these rights must be recognized, enforced, and protected by the government, by the appellate attorneys, and by the USCAAF.
United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) – reemphasizing that unlawful command influence is the mortal enemy of military justice and that, where it is found to exist, judicial authorities must take those steps necessary to preserve both the actual and apparent fairness of criminal proceedings.
It’s interesting that no case appears on both lance-judges’ lists, though Moreno is a direct descendant of Diaz.
What would you, dear CAAFlog reader, list as your top three? (And try not to just list your own cases.)
--Dwight Sullivan
In the meantime, we’ll have to content ourselves with the nominees’ advance policy questions, which are available on the Senate Armed Services Committee’s web site.
Lance-Judge Stucky link:
http://armed-services.senate.gov/statemnt/2006/December/Stucky%2012-04-06.pdf
Lance-Judge Ryan link:
http://armed-services.senate.gov/statemnt/2006/December/Ryan%2012-04-06.pdf
[Seriously, No-Man, how do I paste those in as a hypertext link?]
Here is, by far, the most interesting question:
Please describe the three decisions of the USCAAF since 2001 which you believe have been the most significant.
Lance-Judge Stucky’s answer:
United States v. New, 55 M.J. 95 (2001) (status of legality of an order as question of law; application of political question doctrine to courts-martial).
United States v. Marcum, 60 M.J. 198 (2004) (constitutionality of Article 125 of the UCMJ as applied, in light of Lawrence v. Texas, 539 U.S. 558 (2003)).
United States v. Moreno, 63 M.J. 129 (2006) (due process implications of excessive delays in post-trial review; applicability of Barker v. Wingo, 407 U.S. 514 (1972) to courts-martial).
Lance-Judge Ryan’s answer:
United States v. Wiessen, 56 M.J. 172 (C.A.A.F. 2001) – analyzing challenges for cause based on implied bias of a member and recognizing that implied bias undermines public confidence in the military justice system.
Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003) – emphasizing that the petitioner’s right to a full and fair review of findings and sentence under Article 6 embodies the concomitant right to have that review conducted in a timely fashion, and that these rights must be recognized, enforced, and protected by the government, by the appellate attorneys, and by the USCAAF.
United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006) – reemphasizing that unlawful command influence is the mortal enemy of military justice and that, where it is found to exist, judicial authorities must take those steps necessary to preserve both the actual and apparent fairness of criminal proceedings.
It’s interesting that no case appears on both lance-judges’ lists, though Moreno is a direct descendant of Diaz.
What would you, dear CAAFlog reader, list as your top three? (And try not to just list your own cases.)
--Dwight Sullivan
Sunday, December 03, 2006
The ABA Museum of Law: We tour it so you don't have to
The word “museum” literally means “place of the Muses.” The Muses, of course, were the nine daughters of Zeus and Mnemosyne, whose role was to inspire the arts. The use of that word in the ABA Museum of Law's title seems misplaced, because there is nothing inspirational about it.
One thing the museum certainly hasn’t inspired is visitors. I was there on 29 November. The previous visitor signed the guestbook on 14 November. For comparison purposes, the great travel correspondent Cash Peters (the self-proclaimed “Best Goofy Tour and Kooky Museum Guy in the Business”) tells us that Worcester, Massachusetts’ American Museum of Sanitary Plumbing draws “[a]t least three people a day." Cash Peters, Gullible’s Travels 83 (2003). You would think that the ABA Museum of Law, right there on the heavily-trafficked north bank of the Chicago River, could do better than one visitor a fortnight. Part of the problem might be that the museum seems to be determined to remain as inconspicuous as possible. A pedestrian standing outside the massive office building that houses it would have no idea there's a museum inside. Nor is the museum mentioned in the Chicago listings in the AAA tourbook. (Hey, ABA is only ONE LETTER away from AAA – you would have thought the AAA folks would extend a little professional courtesy to the ABA.) Even a Google search for Chicago museums failed to reveal the ABA Museum of Law’s existence. So only someone who already knows that there is such a museum and where it is will ever visit.
Well, maybe. First you have to make it through security. When I presented myself to the building’s front desk and asked if I was in the right place for the ABA Museum of Law, the blue blazered security person asked me for a form of identification and called me in – to whom I have no idea. Several minutes passed before, apparently, I passed the i.d. check. She then referred me to another blue blazered apparatchik at another desk about 10 yards from the front desk. Does the ABA Museum of Law have some sort of blacklist of potential visitors not to be let beyond security? Does security turn away the roughly 29 visitors per fortnight it would take to raise the ABA Museum of Law up to the American Museum of Sanitary Plumbing’s levels? I have no idea.
The second blue blazered functionary pleasantly directly me around the corner and down an escalator. There, at the top of the escalator, was a sign that was the first indication of the museum’s actual existence. Down at the bottom of the escalator was the “museum” itself. The museum has only one exhibit at a time, and the current one runs into 2008. It is called America’s Lawyer-Presidents: From Law Office to Oval Office. According to the exhibit, 25 of the nation’s 42 presidents have been lawyers. The exhibit seeks to explore how their legal careers affected their presidencies. Or something like that – the exhibit is thematically weak, presenting its information almost exclusively through a series of two conjoined 4’x7’ panels containing blocks of text, pictures, and – in only a handful of instances – artifacts of or about a particular “lawyer-president.” Standing where the two panels join gives the viewer the impression of looking at the crease of a giant but largely uninformative book with its two open pages stretching out to each side. Only Lincoln rates more that two panels. Not even William Howard Taft – who was not only President but had previously served as Solicitor General and would later become Chief Justice of the United States – rates more. The Taft exhibit is distressingly emblematic of the entire museum. Not only is his extensive and significant legal career given remarkably short shrift, but his exhibit features not a single artifact. This is especially inexplicable because after he was President of the United States, Taft served a term as President of the ABA. How could the ABA possibly NOT have some document bearing Taft’s original signature, some chair that once supported Taft’s ample tush, or some other physical thing that Taft once used, touched, or tried to eat? If it does, you wouldn’t know if from a trip to the ABA Museum of Law.
In addition to the panels, the museum also had a couple of electronic exhibits – or, at least, it was supposed to. An electronic exhibit in the Lincoln area wasn’t working the day I visited. There was an interactive exhibit in the “New Century Presidents” area presenting short historical vignettes – such as FDR’s court packing plan or Woodrow Wilson’s free speech restrictions during World War I – and asking if the visitor would have handled it as the president did. While I was glad to be part of a majority opposing Wilson’s free speech restrictions, it was a bit disconcerting to see that the vote was 51% against while 49% voted for.
The museum also flunks a basic candor test. How can an exhibit about lawyer-presidents, which features the obligatory double panel about William Jefferson Clinton, fail to mention that Arkansas suspended his license to practice law for five years? See generally Clinton legal mess ends Clinton fined; law license is suspended, Arkansas Democrat-Gazette, Jan. 20, 2001, at A1. Or that he resigned from the Supreme Court’s bar after having been suspended? See In re Clinton, 534 U.S. 1016 (2001) (“Bill Clinton, of New York, New York, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The Rule to Show Cause, issued on October 1, 2001, is discharged.”); In re Discipline of Clinton, 534 U.S. 806 (2001) (“Bill Clinton, of New York, New York, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.”).
Actually, the museum flunked an even more basic test: I unsuccessfully searched the museum and all of its surrounding areas on the building’s lower level for a men’s room. There is a clearly marked women’s room, but no male equivalent. Now I’m sure THAT isn’t a problem at Worcester’s American Museum of Sanitary Plumbing. (After bearing the indignity of asking a second female staff member whether there was a men’s room, having failed to learn anything of value upon asking the first – you can just imagine the desperation that warranted that embarrassment – I was finally led to the men’s room down an unmarked secret passage. If any of the male CAAFlog readers decide to visit the museum, send me an advance e-mail and I’ll draw you a map.)
The one thing the museum does right is the cost of admission: it’s free. But a companion book to the exhibit rang in at an astonishing $43.55.
But despite the museum’s many faults, I actually learned some things about, of all things, the history of military law that I hadn’t known before. For example, I was familiar with the court-martial of General William Hull for surrendering Detroit during the War of 1812 without having fired a shot. But I was previously unaware that the special prosecutor at that court-martial was Martin Van Buren.
Van Buren wasn’t the only president who had litigated an important military justice case (or the only president of whose military justice connection I was previously ignorant). For example, I had no idea that the counsel who successfully argued Lambdin Milligan’s case at the United States Supreme Court was James A. Garfield, who was appearing in his first case as a lawyer. Nor did I know that Milligan had successfully sued for damages as a result of his trial by military commission – a case that was defended by Benjamin Harrison. Here is the Harrison exhibit’s description:
Grover Cleveland, the president who both preceded and followed Harrison in office, also had a military justice connection. The Cleveland exhibit provides this description of the Battle of Limestone Ridge:
I also picked up a few interesting non-military justice tidbits along the way. For example, I hadn’t realized that Richard Nixon was the losing counsel in Time v. Hill, 385 U.S. 374 (1967). When Andrew Jackson served as a Tennessee superior court judge, one of his colleagues provided this description of Judge Jackson’s decisions: “[S]hort, untechnical, unlearned, sometimes ungrammatical, and generally right.” And, in an early articulation of the legal realism philosophy, an 1810 letter from Thomas Jefferson to James Madison complained that Chief Justice Marshall’s “twistifications in the case of Marbury (and other cases) show how dexterously he can reconcile law to his personal biases.” I was also surprised to learn that only one President – Rutherford B. Hayes – has been a graduate of Harvard Law School. (If only Woodrow Wilson had graduated from UVA Law, which he attended from 1879-80, my alma mater would have been tied with Harvard Law.)
But a few interesting facts doesn’t rise to the level of inspiration. An hour spent reading virtually any legal book would probably be time better spent than an hour touring the ABA Museum of Law. Heck, an hour at the Chicago Hyatt Regency's Big Bar would probably be time better spent -- and it would probably cost less than the exhibit's companion book.
Perhaps the museum is especially disappointing because the ABA should have the resources and expertise to do far better. I regret that I didn't get to visit the previous exhibit, Famous Trials in American History: Cases that Shaped and Shocked the Nation. And if I'm back in Chicago in 2008, I'll probably at least check to see what the next exhibit is. I might even stop by -- if I can get past all those blue blazered security people for a second time.
Details:
Address: 321 N. Clark Street, Chicago, IL
Web site: www.lawmuseum.org
Hours: M-F 10-4
Admission: Free
Estimated time to see everthing in the exhibt: 1 hour (add 10 minutes if you might need to search for the men’s room)
--Dwight Sullivan
One thing the museum certainly hasn’t inspired is visitors. I was there on 29 November. The previous visitor signed the guestbook on 14 November. For comparison purposes, the great travel correspondent Cash Peters (the self-proclaimed “Best Goofy Tour and Kooky Museum Guy in the Business”) tells us that Worcester, Massachusetts’ American Museum of Sanitary Plumbing draws “[a]t least three people a day." Cash Peters, Gullible’s Travels 83 (2003). You would think that the ABA Museum of Law, right there on the heavily-trafficked north bank of the Chicago River, could do better than one visitor a fortnight. Part of the problem might be that the museum seems to be determined to remain as inconspicuous as possible. A pedestrian standing outside the massive office building that houses it would have no idea there's a museum inside. Nor is the museum mentioned in the Chicago listings in the AAA tourbook. (Hey, ABA is only ONE LETTER away from AAA – you would have thought the AAA folks would extend a little professional courtesy to the ABA.) Even a Google search for Chicago museums failed to reveal the ABA Museum of Law’s existence. So only someone who already knows that there is such a museum and where it is will ever visit.
Well, maybe. First you have to make it through security. When I presented myself to the building’s front desk and asked if I was in the right place for the ABA Museum of Law, the blue blazered security person asked me for a form of identification and called me in – to whom I have no idea. Several minutes passed before, apparently, I passed the i.d. check. She then referred me to another blue blazered apparatchik at another desk about 10 yards from the front desk. Does the ABA Museum of Law have some sort of blacklist of potential visitors not to be let beyond security? Does security turn away the roughly 29 visitors per fortnight it would take to raise the ABA Museum of Law up to the American Museum of Sanitary Plumbing’s levels? I have no idea.
The second blue blazered functionary pleasantly directly me around the corner and down an escalator. There, at the top of the escalator, was a sign that was the first indication of the museum’s actual existence. Down at the bottom of the escalator was the “museum” itself. The museum has only one exhibit at a time, and the current one runs into 2008. It is called America’s Lawyer-Presidents: From Law Office to Oval Office. According to the exhibit, 25 of the nation’s 42 presidents have been lawyers. The exhibit seeks to explore how their legal careers affected their presidencies. Or something like that – the exhibit is thematically weak, presenting its information almost exclusively through a series of two conjoined 4’x7’ panels containing blocks of text, pictures, and – in only a handful of instances – artifacts of or about a particular “lawyer-president.” Standing where the two panels join gives the viewer the impression of looking at the crease of a giant but largely uninformative book with its two open pages stretching out to each side. Only Lincoln rates more that two panels. Not even William Howard Taft – who was not only President but had previously served as Solicitor General and would later become Chief Justice of the United States – rates more. The Taft exhibit is distressingly emblematic of the entire museum. Not only is his extensive and significant legal career given remarkably short shrift, but his exhibit features not a single artifact. This is especially inexplicable because after he was President of the United States, Taft served a term as President of the ABA. How could the ABA possibly NOT have some document bearing Taft’s original signature, some chair that once supported Taft’s ample tush, or some other physical thing that Taft once used, touched, or tried to eat? If it does, you wouldn’t know if from a trip to the ABA Museum of Law.
In addition to the panels, the museum also had a couple of electronic exhibits – or, at least, it was supposed to. An electronic exhibit in the Lincoln area wasn’t working the day I visited. There was an interactive exhibit in the “New Century Presidents” area presenting short historical vignettes – such as FDR’s court packing plan or Woodrow Wilson’s free speech restrictions during World War I – and asking if the visitor would have handled it as the president did. While I was glad to be part of a majority opposing Wilson’s free speech restrictions, it was a bit disconcerting to see that the vote was 51% against while 49% voted for.
The museum also flunks a basic candor test. How can an exhibit about lawyer-presidents, which features the obligatory double panel about William Jefferson Clinton, fail to mention that Arkansas suspended his license to practice law for five years? See generally Clinton legal mess ends Clinton fined; law license is suspended, Arkansas Democrat-Gazette, Jan. 20, 2001, at A1. Or that he resigned from the Supreme Court’s bar after having been suspended? See In re Clinton, 534 U.S. 1016 (2001) (“Bill Clinton, of New York, New York, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The Rule to Show Cause, issued on October 1, 2001, is discharged.”); In re Discipline of Clinton, 534 U.S. 806 (2001) (“Bill Clinton, of New York, New York, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.”).
Actually, the museum flunked an even more basic test: I unsuccessfully searched the museum and all of its surrounding areas on the building’s lower level for a men’s room. There is a clearly marked women’s room, but no male equivalent. Now I’m sure THAT isn’t a problem at Worcester’s American Museum of Sanitary Plumbing. (After bearing the indignity of asking a second female staff member whether there was a men’s room, having failed to learn anything of value upon asking the first – you can just imagine the desperation that warranted that embarrassment – I was finally led to the men’s room down an unmarked secret passage. If any of the male CAAFlog readers decide to visit the museum, send me an advance e-mail and I’ll draw you a map.)
The one thing the museum does right is the cost of admission: it’s free. But a companion book to the exhibit rang in at an astonishing $43.55.
But despite the museum’s many faults, I actually learned some things about, of all things, the history of military law that I hadn’t known before. For example, I was familiar with the court-martial of General William Hull for surrendering Detroit during the War of 1812 without having fired a shot. But I was previously unaware that the special prosecutor at that court-martial was Martin Van Buren.
Van Buren wasn’t the only president who had litigated an important military justice case (or the only president of whose military justice connection I was previously ignorant). For example, I had no idea that the counsel who successfully argued Lambdin Milligan’s case at the United States Supreme Court was James A. Garfield, who was appearing in his first case as a lawyer. Nor did I know that Milligan had successfully sued for damages as a result of his trial by military commission – a case that was defended by Benjamin Harrison. Here is the Harrison exhibit’s description:
After Lambdin P. Milligan prevailed in the landmark Supreme Court case that bears his name – Ex parte Milligan – he sued the military commission that tried and sentenced him, seeking $100,000 in damages. Milligan stood on firm legal ground, armed with the high court’s ruling that the military commission had no jurisdiction in the earlier case. President Ulysses S. Grant, a named defendant, called upon Benjamin Harrison to lead the defense. In the trial, Harrison’s stirring oratory regarding the valor of Union soldiers and Milligan’s traitorous activities bore fruit. Though Milligan won the case, he was awarded a meager $5.00 in damages.
Grover Cleveland, the president who both preceded and followed Harrison in office, also had a military justice connection. The Cleveland exhibit provides this description of the Battle of Limestone Ridge:
In 1866, about 1500 Irish nationalists conducted an ill-fated invasion of Canada. Brought back to Buffalo and tried for organizing the expedition, Cleveland successfully defended them against the charges. Though they raised money to pay for their defense, Cleveland refused to accept a fee for his services.
I also picked up a few interesting non-military justice tidbits along the way. For example, I hadn’t realized that Richard Nixon was the losing counsel in Time v. Hill, 385 U.S. 374 (1967). When Andrew Jackson served as a Tennessee superior court judge, one of his colleagues provided this description of Judge Jackson’s decisions: “[S]hort, untechnical, unlearned, sometimes ungrammatical, and generally right.” And, in an early articulation of the legal realism philosophy, an 1810 letter from Thomas Jefferson to James Madison complained that Chief Justice Marshall’s “twistifications in the case of Marbury (and other cases) show how dexterously he can reconcile law to his personal biases.” I was also surprised to learn that only one President – Rutherford B. Hayes – has been a graduate of Harvard Law School. (If only Woodrow Wilson had graduated from UVA Law, which he attended from 1879-80, my alma mater would have been tied with Harvard Law.)
But a few interesting facts doesn’t rise to the level of inspiration. An hour spent reading virtually any legal book would probably be time better spent than an hour touring the ABA Museum of Law. Heck, an hour at the Chicago Hyatt Regency's Big Bar would probably be time better spent -- and it would probably cost less than the exhibit's companion book.
Perhaps the museum is especially disappointing because the ABA should have the resources and expertise to do far better. I regret that I didn't get to visit the previous exhibit, Famous Trials in American History: Cases that Shaped and Shocked the Nation. And if I'm back in Chicago in 2008, I'll probably at least check to see what the next exhibit is. I might even stop by -- if I can get past all those blue blazered security people for a second time.
Details:
Address: 321 N. Clark Street, Chicago, IL
Web site: www.lawmuseum.org
Hours: M-F 10-4
Admission: Free
Estimated time to see everthing in the exhibt: 1 hour (add 10 minutes if you might need to search for the men’s room)
--Dwight Sullivan
CAAF confirmation hearing tomorrow
SASC will hold its confirmation hearing for the two CAAF nominees tomorrow at 1430. Here is the hearing notice from the SASC web site:
UNITED STATES SENATE
COMMITTEE ON ARMED SERVICES
_________________________________________________
There will be a meeting of the Committee on
ARMED SERVICES
Monday, December 4, 2006
2:30 PM
Room SR-222, Russell Senate Office Building
OPEN
To consider the following nominations:
--------------------------------------------------------------------------------
Mr. Scott W. Stucky
to be a Judge of the United States Court of Appeals
for the Armed Forces
Ms. Margaret A. Ryan
to be a Judge of the United States Court of Appeals
for the Armed Forces
The nominees will be present.
UNITED STATES SENATE
COMMITTEE ON ARMED SERVICES
_________________________________________________
There will be a meeting of the Committee on
ARMED SERVICES
Monday, December 4, 2006
2:30 PM
Room SR-222, Russell Senate Office Building
OPEN
To consider the following nominations:
--------------------------------------------------------------------------------
Mr. Scott W. Stucky
to be a Judge of the United States Court of Appeals
for the Armed Forces
Ms. Margaret A. Ryan
to be a Judge of the United States Court of Appeals
for the Armed Forces
The nominees will be present.
Saturday, December 02, 2006
A Kisala cert petition by any other name smells as sweet?
On Friday, 1 December, LT Brian Mizer of the Navy-Marine Corps Appellate Defense Division filed a cert petition challenging CAAF's ruling in United States v. Kisala, 64 M.J. 50 (C.A.A.F. 2006), which upheld the legality of an order to submit to the anthrax vaccine. But LT Mizer, who is one of the leading members of the military appellate bar, is not counsel in Kisala, an Army case. Rather, he filed his cert petition in a case with the unlikely caption of Ocean T. Rose, Lance Corporal, United States Marine Corps, et al. v. United States. Rose is one of the many Kisala trailer cases. See United States v. Rose, 64 M.J. 56 (C.A.A.F. 2006). The Rose cert petition is filed on behalf of ten Marines and one Sailor. No case number is assigned yet and the cert petition isn't yet on the Supremes' web site because it must first be screened, ironically enough, for anthrax.
The Rose cert petition sets out the QPs in Garnerian "deep issue" format, culminating in these two questions:
1. Were the orders given to Petitioners to take Anthrax Vaccine Absorbed lawful when Petitioners had not given informed consent?
2. If the orders given to Petitioners were not barred by Executive Order 13139, and 10 U.S.C. § 1107, do servicemembers have a due process right to refuse unwanted medical treatment, including vaccines that are used as a prophylaxis against chemical and biological warfare?
This excerpt from the Reasons for Granting the Petition section provides a flavor of the arguments:
While almost any cert petition that doesn't list the S.G. as counsel of record is a long shot, this one seems likely to receive some serious consideration. Along with the cert petition seeking review of the unsuccessful collateral challenge in New, I put Rose on my list of military cert petitions to watch.
Will Kisala's counsel also file a cert petition? If so, and if the Supremes buck the odds and decide to consider the anthrax vaccine issue, which will be argued? Stay tuned to CAAFlog for all the exciting details.
--Dwight Sullivan
The Rose cert petition sets out the QPs in Garnerian "deep issue" format, culminating in these two questions:
1. Were the orders given to Petitioners to take Anthrax Vaccine Absorbed lawful when Petitioners had not given informed consent?
2. If the orders given to Petitioners were not barred by Executive Order 13139, and 10 U.S.C. § 1107, do servicemembers have a due process right to refuse unwanted medical treatment, including vaccines that are used as a prophylaxis against chemical and biological warfare?
This excerpt from the Reasons for Granting the Petition section provides a flavor of the arguments:
The lower court’s willingness to give deference to the FDA order that the District Court held was entitled to no deference, and that it ultimately invalidated more than a year before the lower court’s decision, has put the military courts squarely at odds with their civilian counterparts. This conflict has led to the absurd result that the orders given to Petitioners, and those similarly situated, were simultaneously illegal, according to the government-wide injunction issued by the District Court, and legal, according to the Court of Appeals for the Armed Forces. Only this Court can resolve this conflict. Absent review by this Court, the military convictions of those servicemembers who refused orders to receive AVA will be final.
While almost any cert petition that doesn't list the S.G. as counsel of record is a long shot, this one seems likely to receive some serious consideration. Along with the cert petition seeking review of the unsuccessful collateral challenge in New, I put Rose on my list of military cert petitions to watch.
Will Kisala's counsel also file a cert petition? If so, and if the Supremes buck the odds and decide to consider the anthrax vaccine issue, which will be argued? Stay tuned to CAAFlog for all the exciting details.
--Dwight Sullivan
Extending court-martial jurisdiction to civilians accompanying the forces in contingency operations
CAAFlog has previously written about the FY 2007 DOD Authorization Act's expansion of court-martial jurisdiction to cover civilians accompanying our military forces in contingency operations. See New UCMJ amendment, 22 Oct 2006, http://caaflog.blogspot.com/2006/10/new-ucmj-amendment.html. The 13 November issue of U.S. News and World Report included a short but interesting piece explaining this provision's origin:
The New Long Arm of the (Military) Law
A tiny provision in the $532.8 billion defense authorization act signed by President Bush October 17 could have a big impact on civilian contractors working with the military in Iraq, Afghanistan, and other hot spots. Previously only "in time of war" could civilians "accompanying an armed force in the field" face a court-martial for alleged criminal acts. Now that provision has been expanded to include a "contingency operation" like the conflict in Iraq, which is not a declared war. Republican Sen. Lindsey Graham, himself a military lawyer, sponsored the provision; an aide says Graham wanted civilians to be subject to the same rules as military personnel in conflicts. "Will they use that authority?" asks Eugene Fidell, an expert on military law. "I don't know, but if they do, there is certain to be a constitutional challenge."
The New Long Arm of the (Military) Law
A tiny provision in the $532.8 billion defense authorization act signed by President Bush October 17 could have a big impact on civilian contractors working with the military in Iraq, Afghanistan, and other hot spots. Previously only "in time of war" could civilians "accompanying an armed force in the field" face a court-martial for alleged criminal acts. Now that provision has been expanded to include a "contingency operation" like the conflict in Iraq, which is not a declared war. Republican Sen. Lindsey Graham, himself a military lawyer, sponsored the provision; an aide says Graham wanted civilians to be subject to the same rules as military personnel in conflicts. "Will they use that authority?" asks Eugene Fidell, an expert on military law. "I don't know, but if they do, there is certain to be a constitutional challenge."
Moreno effect?
Tonight, the weather over parts of the Mid-West is being influenced by the "lake effect." I wonder if there is a "Moreno effect" that will influence the behavior of the Courts of Criminal Appeals. As CAAF demands quicker resolution of appeals, will the CCAs respond by issuing fewer published opinions, placing a premium on speed over judicial craftsmanship?
It's WAY too early to draw any conclusions, but let's look at the numbers so far. Over the last five years, the CCAs appear to have issued fewer published opinions in FY 2007 than in a comparable period during any other year, though not by much. There are four published opinions available on the CCAs' web sites or on either of the major electronic research services issued between 1 October and 1 December. (Of course, it is possible that for some unknown reason, one or more of the CCAs is sitting on a published opinion that it doesn't deign to share with the outside world. I can't imagine why CCA published opinions don't go up on their web sites the day they are released -- or at least with the same "regularity" with which the CAAF web site updates its "daily" journal.) Two are Air Force Court opinions, while the Army and Navy-Marine Corps Courts have contributed one apiece. United States v. Brooks, __ M.J. ___, 2006 WL 3361952 (A. Ct. Crim. App. Nov. 21, 2006); United States v. Attucks, 64 M.J. 518 (A.F. Ct. Crim. App. 2006); United States v. Viera, 64 M.J. 524 (A.F. Ct. Crim. App. 2006); United States v. Falcon, __ M.J. ___, 2006 CCA LEXIS 252 (N-M. Ct. Crim. App. Oct. 10, 2006). (For reason that I can't fathom, Falcon isn't even on WESTLAW yet.)
Here are the stats for the same period during the previous four fiscal years:
FY 2006: 16
FY 2005: 5
FY 2004: 6
FY 2003: 16
So FY 2007 could catch up with FYs 2005 and 2004 if the CCAs pump out even a slightly above average number of published opinions in December. But it will be interesting to track the long-term trend lines to see if there appears to be a Moreno effect at play.
--Dwight Sullivan
It's WAY too early to draw any conclusions, but let's look at the numbers so far. Over the last five years, the CCAs appear to have issued fewer published opinions in FY 2007 than in a comparable period during any other year, though not by much. There are four published opinions available on the CCAs' web sites or on either of the major electronic research services issued between 1 October and 1 December. (Of course, it is possible that for some unknown reason, one or more of the CCAs is sitting on a published opinion that it doesn't deign to share with the outside world. I can't imagine why CCA published opinions don't go up on their web sites the day they are released -- or at least with the same "regularity" with which the CAAF web site updates its "daily" journal.) Two are Air Force Court opinions, while the Army and Navy-Marine Corps Courts have contributed one apiece. United States v. Brooks, __ M.J. ___, 2006 WL 3361952 (A. Ct. Crim. App. Nov. 21, 2006); United States v. Attucks, 64 M.J. 518 (A.F. Ct. Crim. App. 2006); United States v. Viera, 64 M.J. 524 (A.F. Ct. Crim. App. 2006); United States v. Falcon, __ M.J. ___, 2006 CCA LEXIS 252 (N-M. Ct. Crim. App. Oct. 10, 2006). (For reason that I can't fathom, Falcon isn't even on WESTLAW yet.)
Here are the stats for the same period during the previous four fiscal years:
FY 2006: 16
FY 2005: 5
FY 2004: 6
FY 2003: 16
So FY 2007 could catch up with FYs 2005 and 2004 if the CCAs pump out even a slightly above average number of published opinions in December. But it will be interesting to track the long-term trend lines to see if there appears to be a Moreno effect at play.
--Dwight Sullivan
Friday, December 01, 2006
CAAF show cause order in Dearing
I'm home for a brief pit stop before hitting the road for Philly in the morning. (Go Navy! Beat Army!)
While I was gone, by far the most important development was a show cause order from CAAF.
In an order dated 24 November, CAAF compelled the government to show cause by 4 December (!) why the requested writ of mandamus shouldn't issue. Dearing v. United States, __ M.J. ___ No. No. 07-036 (C.A.A.F. Nov. 24, 2006).
CAAFlog has gotten its hands on the petition for extraordinary relief that led to the show cause order. I don't want to say that the petition was thin on support, but if you put the Dearing petition and Mary-Kate Olsen in a line-up, any witness would finger the Dearing petition as the anorexic one. Yet, without bothering to cite even a single case in support of its position, the Dearing petition achieved the rather rare distinction of producing a show cause order. How? The case involves what appears to be the United States Disciplinary Barracks' direct challenge to CAAF's authority.
On 18 September 2006, CAAF ruled in Dearing's favor on his appeal. 63 M.J. 478 (C.A.A.F. 2006). CAAF held that "the military judge erred in failing to instruct the panel on the concept of escalation of the conflict as it relates the issue of self-defense." Id. at 479. CAAF also held that "Appellant was denied his due process right to speedy post-trial and appellate review." Id. As a result of these holdings, the finding of guilty to the most serious offense was set aside and Dearing remained guilty of only an obstruction of justice offense. As CAAF noted in its post-trial delay analysis, "Appellant was sentenced on March 14, 2000, and is presently incarcerated. The maximum sentence for the offense of obstruction of justice is five years. . . . In our view Appellant has already suffered prejudice as he has served more than the maximum punishment for the single offense that he stands convicted." Id. at 487 n.45.
Based on this procedural history, it seems apparent that Dearing was entitled to be released from confinement when CAAF issued its mandate on 22 November. See, e.g., Buber v. Harrison, 61 M.J. 70, 70-71 (C.A.A.F. 2005) (summary disposition) ("Having determined that Petitioner has already served confinement in excess of the affirmed sentence, and that the Respondents have failed to show cause why the requested relief should not be granted, we find that he is entitled to the requested relief in this case. Accordingly, it is ordered that said petition for extraordinary relief in the nature of a writ of habeas corpus is hereby granted. Respondents are directed to release Petitioner from post-trial confinement immediately.").
But what seems apparent to me and (I hope) you, dear reader, wasn't apparent to the government. Dearing's petition for writ of mandamus recounts: "This Court’s Mandate in Petitioner’s case was provided to the United States Disciplinary Barracks by counsel for Petitioner. Through conversations with the Disciplinary Barracks legal staff and with counsel for the Government, counsel for the Petitioner has learned that Petitioner will not be released from incarceration. Additionally, his status as a prisoner at the Disciplinary Barracks will not change." Petition for Extraordinary Relief in the Nature of Writ of Mandamus at 3-4.
So it appears that the USDB is telling CAAF that it doesn't care what it held. Challenging a court's authority is generally a good way to get one's name on the losing end of a writ. It will be interesting to see whether the government chooses to moot this case before filing its answer on Monday by either releasing Dearing or changing his status to pretrial confinement and giving him an IRO hearing.
--Dwight Sullivan
While I was gone, by far the most important development was a show cause order from CAAF.
In an order dated 24 November, CAAF compelled the government to show cause by 4 December (!) why the requested writ of mandamus shouldn't issue. Dearing v. United States, __ M.J. ___ No. No. 07-036 (C.A.A.F. Nov. 24, 2006).
CAAFlog has gotten its hands on the petition for extraordinary relief that led to the show cause order. I don't want to say that the petition was thin on support, but if you put the Dearing petition and Mary-Kate Olsen in a line-up, any witness would finger the Dearing petition as the anorexic one. Yet, without bothering to cite even a single case in support of its position, the Dearing petition achieved the rather rare distinction of producing a show cause order. How? The case involves what appears to be the United States Disciplinary Barracks' direct challenge to CAAF's authority.
On 18 September 2006, CAAF ruled in Dearing's favor on his appeal. 63 M.J. 478 (C.A.A.F. 2006). CAAF held that "the military judge erred in failing to instruct the panel on the concept of escalation of the conflict as it relates the issue of self-defense." Id. at 479. CAAF also held that "Appellant was denied his due process right to speedy post-trial and appellate review." Id. As a result of these holdings, the finding of guilty to the most serious offense was set aside and Dearing remained guilty of only an obstruction of justice offense. As CAAF noted in its post-trial delay analysis, "Appellant was sentenced on March 14, 2000, and is presently incarcerated. The maximum sentence for the offense of obstruction of justice is five years. . . . In our view Appellant has already suffered prejudice as he has served more than the maximum punishment for the single offense that he stands convicted." Id. at 487 n.45.
Based on this procedural history, it seems apparent that Dearing was entitled to be released from confinement when CAAF issued its mandate on 22 November. See, e.g., Buber v. Harrison, 61 M.J. 70, 70-71 (C.A.A.F. 2005) (summary disposition) ("Having determined that Petitioner has already served confinement in excess of the affirmed sentence, and that the Respondents have failed to show cause why the requested relief should not be granted, we find that he is entitled to the requested relief in this case. Accordingly, it is ordered that said petition for extraordinary relief in the nature of a writ of habeas corpus is hereby granted. Respondents are directed to release Petitioner from post-trial confinement immediately.").
But what seems apparent to me and (I hope) you, dear reader, wasn't apparent to the government. Dearing's petition for writ of mandamus recounts: "This Court’s Mandate in Petitioner’s case was provided to the United States Disciplinary Barracks by counsel for Petitioner. Through conversations with the Disciplinary Barracks legal staff and with counsel for the Government, counsel for the Petitioner has learned that Petitioner will not be released from incarceration. Additionally, his status as a prisoner at the Disciplinary Barracks will not change." Petition for Extraordinary Relief in the Nature of Writ of Mandamus at 3-4.
So it appears that the USDB is telling CAAF that it doesn't care what it held. Challenging a court's authority is generally a good way to get one's name on the losing end of a writ. It will be interesting to see whether the government chooses to moot this case before filing its answer on Monday by either releasing Dearing or changing his status to pretrial confinement and giving him an IRO hearing.
--Dwight Sullivan
CAAFlog book group
At Borders today, I saw a recently published book by Charles W. Henderson called Jungle Rules: A True Story of Marine Justice in Vietnam. Here's the publisher's synopsis:
I have some immediate suspicions about the book due to the synopsis's reference to "Captain Terry O'Connor of the JAG Corps." Of course it's possible that O'Connor was in the Army or Navy JAG Corps. But if he was a Devil Dog, the only Corps he was in was the Marine Corps. (Of course, it is also possible that the error was strictly the publisher's and doesn't reflect any such loose terminology in the book.) I guess the next time I'm at Borders, I'll thumb through it at least enough to determine which branch O'Connor served with.
Before I shell out $17.96 (Barnes & Noble member price) for the book or devote a much more precious asset -- time -- to reading it, it seems prudent to solicit a review. Have any of you read it?
--Dwight Sullivan
A true story of murder, justice, and the military from the author of Marine Sniper, the Vietnam classic with more than a million copies in print.
In Vietnam, they're known as "Jungle Rules"- those by which the U.S. military tries to keep control, often allowing inconvenient facts and regulations to conveniently slip between the cracks. This is the battlefield Captain Terry O'Connor of the JAG Corps is stepping onto.
There's been a murder. After a long day on patrol, Private Celestine Anderson returned to base, only to come under fire from a group of racist white marines. He finally snapped, killing one of his tormentors-and now the inexperienced O'Connor must defend him. But the case pulls O'Connor into the heart of the Vietnam conflict, where bullets overrule books and death is the only judge of men.
About the Author: Charles Henderson is a veteran of more than 23 years in the U.S. Marine Corps, with a distinguished career spanning from Vietnam to the Gulf War, after which he retired as a Chief Warrant Officer.
I have some immediate suspicions about the book due to the synopsis's reference to "Captain Terry O'Connor of the JAG Corps." Of course it's possible that O'Connor was in the Army or Navy JAG Corps. But if he was a Devil Dog, the only Corps he was in was the Marine Corps. (Of course, it is also possible that the error was strictly the publisher's and doesn't reflect any such loose terminology in the book.) I guess the next time I'm at Borders, I'll thumb through it at least enough to determine which branch O'Connor served with.
Before I shell out $17.96 (Barnes & Noble member price) for the book or devote a much more precious asset -- time -- to reading it, it seems prudent to solicit a review. Have any of you read it?
--Dwight Sullivan
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