Tuesday, April 08, 2008

Some thoughts about Denedo

Yesterday I substitute taught a law school military justice class. Part of the assigned reading for the day was Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), so I had both the opportunity and imperative to study it closely.

But before I set out some of my views, let me tell you how the students saw it. We held a moot court (before I provided any of my analysis, so at this point the students were untainted by my views) during which we assumed that the Supremes had granted the SG's hypothetical cert petition to challenge CAAF's jurisdiction decision in Denedo. Following oral argument, the student justices voted 5-4 to reverse CAAF.

Now on to my thoughts.

The Denedo majority and Judge Ryan's dissent weren't two ships passing in the night, each unaware of the other's existence. Rather, the majority was a 74 whose crew largely ignored the dissent frigate as it sailed past, raking the majority with cannon fire from bow to stern. Of course, the 74 remained afloat with that necessary number of three. But the frigate may sink her yet. Judge Ryan's analysis could well become the basis for a cert petition that could send the 74 to the bottom. The power of Judge Ryan's analysis -- already formidable -- might be enhanced still more by her biography. As a former Supreme Court clerk, she is well know to most of the Justices. In his wonderful recent look at the U.S. Chamber of Commerce's Supreme Court practice, GWU Law Professor Jeffrey Rosen observed, "Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, [Robin Conrad, Senior Vice President of the National Chamber Litigation Center,] told me, having well-known former clerks involved in submitting a brief can be especially important." Jeffrey Rosen, Supreme Court Inc. N.Y. Times Mag., March 16, 2008. Having a well-known former clerk as the dissent's author would also seem potentially important.

But even without any such bonus, the dissent might still outgun the 74.

I am a disciple of the Gierkian school of CAAF jurisdiction. As Judge Gierke explained in his dissenting opinions in both Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998), and United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), statutes providing jurisdiction to Article I courts are to be narrowly construed. (Note that this is the Gierkian school rather than the Gierkian/Crawfordian school because Judge Gierke adhered to this position in both Goldsmith -- where it favored the government -- and Leak -- where it favored the defense. Whether his view was right or wrong (and I believe it was right), it was clearly a principled view. Judge Crawford's votes in Goldsmith and Leak -- each supporting the government at the apparent expense of analytic consistency -- at least appeared to be outcome driven.)

I don't adhere to the Gierkian school for any ideological or partisan reason. Rather, I adhere to it in a good faith effort to interpret the law. So I find myself in basic agreement with Judge Ryan's interpretation of Article 76. As a matter of statutory construction, Congress's creation of one and only one specific exception to the general finality rule -- a petition for new trial -- suggests that this was meant to be the only exception. Expressio unius est exclusio alterius.

But an absolutely unadorned interpretation of Article 76's plain language is unavailable and what puts it beyond reach is, of all things, Clinton v. Goldsmith. For in that opinion, the Supremes expressly recognize an additional extra-statutory exception to Article 76: "[I]f a military authority attempted to alter a judgment by revising a court-martial finding and sentence to increase the punishment, contrary to the specific provisions of the UCMJ . . . [and] such a judgment had been affirmed by an appellate court[, then] . . . as the Government concedes, the All Writs power would allow the appellate court to compel adherence to its own judgment." Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (internal citation omitted). This seems to indicate that even post-Article 76 finality, CAAF would have the power to issue a writ to command compliance with its decision.

So say, for example, on 2 January 2007, CAAF issued an opinion reducing PFC Jones' sentence that had the effect of changing Jones' release date from 1 January 2011 to 1 January 2008. Let's further assume that in April 2007, Jones' case became final under Article 76. Then let's assume that come 3 January 2008, Jones was still sitting in his cell at the USDB, where officials refused to release him because they disagreed with CAAF's reasoning in United States v. Jones. Under that language from Goldsmith, Jones could go to CAAF, which could issue a writ of habeas corpus compelling Jones' release even though the case was already final under Article 76.

Judge Ryan's dissent acknowledges that extra-statutory exception to the Article 76 finality rule. See Denedo, slip op. at 9 n.2 (Ryan, J., dissenting). But neither the dissent nor Goldsmith itself appears to explain the source of this authority.

Note that it wasn't necessary for the Supremes to recognize such a post-finality power to compel adherence to CAAF's judgments. Let's say CAAF didn't have that power and Article 76 were understood as barring any exercise of post-final powers by any court established by the UCMJ with the exception of the statutory petition for new trial escape valve. In that case, PFC Jones could file a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the District of Kansas, which would presumably issue the writ. But the Supremes nevertheless chose to recognize such a power in CAAF itself. And I assume that the unarticulated basis for that power is CAAF's status as a "Court." Congress very intentionally chose to establish CMA as a "Court" -- remember that it was originally to be called the "Judicial Council" before the House Armed Services Committee changed it to the Court of Military Appeals. So CAAF's status as a "court" carries with it certain inherent powers of courts.

But what are the limits of those powers? Footnote 2 of Judge Ryan's dissent suggests that those limitations are the ability to compel adherence to its judgments and the power to determine whether it had jurisdiction to issue its initial judgment. But are those the absolute boundaries of the authority that arises from CAAF's status as a court? I'm not sure.

Now whatever the limits of that power, I don't believe it reaches as far as the authority asserted by the majority to potentially reverse a conviction based on alleged facts and a legal theory that had never been advanced in any military court pre-Article 76 finality. So I don't intend to suggest that CAAF's post-finality power arising from its status as a "Court" justifies the particular exercise of authority at issue in Denedo. And perhaps footnote 2 of Judge Ryan's dissent nails the limits of that power exactly and it extends to those two, and only those two, actions. But if the Supremes are to review Denedo, I would like to see them spell out the precise source of CAAF's extra-statutory post-Article 76 power that it recognized in Goldsmith and the precise limits of that power.


John O'Connor said...

I concur.

Mike "No Man" Navarre said...

That's it, "I concur."? This two part harmony might turn off our readers. Can you at least throw in a jab about NJS teaching unintelligent design or something--our page view metrics are dropping.

John O'Connor said...

Well, to be precise, I guess I would say that I find the Deneio decision more indefensible (I had another word typed in here but discretion caused me to delete it) thabn CAAFlog's post lets on.

But given our sparring on the post two below, I thought it was tidier to just (as John McCain's mom would put it) hold my nose and concur.

Cloudesley Shovell said...

A generally-recognized exception to Article 76 finality is the ability to bring writs of habeas corpus in US District Courts.

Article 76 is, after all, binding on all courts, not just military courts. To construe Article 76 to bar habeas writs, however, would violate the Suspension Clause.

This may be the uncited source for the idea that CAAF can compel adherence to its own judgments. Yes, the guy in Leavenworth can bring a writ in a Federal Court in Kansas, but his lawyer is a military officer back in one of the appellate divisions in Washington, DC. It's lot easier and far more efficient to go to the CCA or CAAF. That being said, as a legal matter, it would be more legally "pure" to require the writ to be filed in Kansas, because now you've let the camel's nose under the Article 76 tent. The inevitable result is that CAAF will find jurisdiction whenever it feels like it.

Let's be very clear--if this was some random case about some guy whining about his 10-year-old conviction, CAAF would never have touched it. The beauty of Denedo lies in the facts, at least from a pro-expansive jurisdiction argument. The facts of this case are extremely compelling and incredibly sympathetic, a one-in-a-million set of circumstances.

Denedo's civilian counsel, the one who allegedly advised him about the immigration consequences of his plea, was later disbarred for being a drunk, and was at least once involuntarily committed by his parents. Denedo's been in the United States for over 20 years, and has a wife and children here in the United States, all US citizens. He has far more connection to the USA than Nigeria. He's a poster child for what's wrong with immigration law. He doesn't deserve to be deported.

Of course CAAF was going to wade into this case. Any court would. The facts are irresistible, and CAAF is trying to prevent what it perceives to be an injustice. That being said, deserve's got nothing to do with it. CAAF has no jurisdiction in this case, because even the most compelling facts in the world justify torturing the law to achieve what a court perceives to be the right outcome. Hard facts, bad law, and all that.

Anonymous said...

"He's a poster child for what's wrong with immigration law. He doesn't deserve to be deported. . . . The facts are irresistible, and CAAF is trying to prevent what it perceives to be an injustice." Ah, rhetoric aside, he is not an innocent party and courts cannot and should not legislate from the bench, even if he were.

Anonymous said...

"Yes, the guy in Leavenworth can bring a writ in a Federal Court in Kansas, but his lawyer is a military officer back in one of the appellate divisions in Washington, DC."

No, the guy in Leavenworth CAN'T bring a writ in a Federal Court. See the service regulations that prohibit military attorneys doing this without permission from their respective HQ's.

egn said...

Anonymous #2: Yes, the guy in Leavenworth can, and often does, bring a writ in Federal court in Kansas. Just not with the assistance of his military counsel.

This mirrors criminal practice in other Federal jurisdictions. Federal Public Defenders assigned to a criminal case may represent their clients through the direct appeal process, but there is no continued right to counsel in non-capital post-conviction relief proceedings. The petitioner must file by himself and may then be appointed counsel by the court.

Cloudesley Shovell said...

Anon at 9:31 am--

Yes, that was my point exactly.

CAAF has been chafing under Goldsmith for 9 years, and I think CAAF was very happy to get such a wonderful set of facts upon which to attack Goldsmith.

No matter how sympathetic Denedo's situation is, the military courts are not the place to litigate. Denedo's last chance to challenge his conviction expired two years after CA's action, per Article 73, UCMJ.

Let us not forget that Denedo still has plenty of opportunity to challenge deportation in courts well-equipped to deal with those legal issues. CAAF has not (and could not) issue a stay of any immigration court proceedings, and as far as I know (there being no evidence to the contrary) the immigration court proceedings continue notwithstanding anything the military courts are doing.

Anonymous said...

As I read the majority's argument, they say, at least in part, that the Article III courts won't hear the case because the military courts have jurisdiction, and the military courts have jurisdiction because the Article III courts won't hear it (or maybe vice versa - with a circular argument, it's always hard to tell where to start).