Friday, August 29, 2008

Airing of grievances

A crucial part of Festivus is the airing of grievances. It seems that the Acting SG has been saving up some of his grievances toward CAAF. At the end of a hard-hitting cert petition that largely adopts and presents Judge Ryan's dissent from Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), the Acting SG concludes by airing some of his pre-Denedo grievances:

The decision below represents the latest iteration of that court's efforts to expand its role beyond its congressionally prescribed jurisdiction to "review * * * specified sentences imposed by courts-martial." Goldsmith, 526 U.S. at 534; see, e.g., United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008) (permitting appeals to the CAAF from the decisions of the Courts of Criminal Appeals in interlocutory appeals by the government); United States v. Tamez, 63 M.J. 201 (C.A.A.F. 2006) (permitting extension, for "good cause," of the statutory deadline for filing appeals to the CAAF); Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) (asserting jurisdiction under the All Writs Act to entertain petitions for habeas corpus after there is a final judgment); Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (employing All Writs Act to regulate defendant's place of confinement); Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998) (employing All Writs Act to enjoin the government from administratively discharging Air Force Officer), rev’d, 526 U.S. 529 (1999). This Court's intervention is warranted, once again, in order to confine the CAAF to its statutory jurisdiction.


Paul said... is Festivus for the rest of us.

Phil Cave said...

Actually this sounds like the SG has adopted the draft provided by the Appellate Government Division, which I'm certain was staffed through higher echelons of the TJAGO.

Anonymous said...

Having had experience with DoJ in both civil/general litigation as well as criminal/military law I would seriously doubt the SG took a draft of the government and submitted it as their own. Such a draft would have been circulated to other services as well for input and then the SG's office drafts their own document.

Anonymous said...

And how substantially do you think the other services would have contributed to this petition, given their other workloads, and the fact that the petition was already drafted by Code 46?

Even if the SG drafted its own document, it likely deferred heavily to the input offered by Code 46 -- as some would say, it's their bone to pick. In reality, I doubt the SG has much riding on stuffing CAAF back in its box.

Anonymous said...

You're right, since I am the one who's worked with them I'd not be in a position to know those things. If you read the DoD instruction you would know it HAS to be vetted by the other services. The SG is the representative of the US government in its entirety. You don't think CAAF extending their jurisdiction beyond their statutory limits impacts the other services? If the SG were to just put on a different signature cover there would be no need to have SG approval to file. And, on the bottom line, DoJ has such a high opinion of themselves there is NO WAY they would file something entirely drafted by the government.

Anonymous said...

Anon 2122/2215:
The SG has a lot more to worry about than the services. As has been much discussed previously here, military law hardly registers on the radar of Supreme Court practice. So the fact that the other services may have a lot riding on CAAF's extension of its jurisdiction is irrelevant to how much work they put into it.

As for the amount of work DOJ puts into a case vis-a-vis the attorneys' high opinions of themselves, I'd have to say that it varies from person to person. Granted, the folks working at SG's office are some of the most diligent and talented attorneys you'll find in DOJ. That said, they have large amounts of work to do. Anything that has been done for them by Appellate Government is less work for them to do.

Not saying they merely slap a cover page on the work and turn it in -- that's oversimplifying things. But don't underestimate the weight of Appellate Government's contribution to the ultimate filing. In the end, it IS their dog, their fight, and the SG's attorneys do defer to the day-to-day practitioners in matters of military justice.

And yes, I am familiar with the DOD instruction. I have been through the process; and I have worked with DOJ in both civil litigation and in criminal/military law.

Oh, and I might just have had a little bit of insight into this particular process as well.

--Anon 2205

John O'Connor said...

I have to say that J O'C likey the section quoted by CAAFlog, which I refer to as the "cert is necessary because this is a court that needs a spanking." I just wish the SG had added to the string cite a cite to the case where the CAAF found it within its powers to grant sentence relief when the service fails to follow its own confinement regs, even when there is no pretrial punishment or RCM 305 violation.

I also wish the SG had noted that the NMCCA stayed a summary court-martial last year pursuant to its alleged writ powers.

Anonymous said...

I would argue military law is on the radar of the SG now. Not only in the Kennedy decision but the entire habeas cases of the detainees, the DTA, MCA and the military commissions would force DoJ to be aware of military law. And if I were the SG I would rely on the input for the services but I would also have to figure how this one case would impact the entire mission of the SG. Just because CAAF got it obviously wrong does not open the door to the Supreme Court. Obviously the SG's office takes input and concerns form the services but at the end it is his name that gets signed to the document so I am not so sure that his reliance on any draft provided by the government is as large as many think.

Anonymous said...

J O'C:

Why stop at summary court-martial? Way back in 1995, Code 45 got CAAF to stay a captain's mast in Fletcher v. Covington. (I'd give you the cite if I had it).

John O'Connor said...


Wow. Part of me wishes that the CA in the summary court-martial case (and, for that amtter the CO affected in the Fletcher case you referenced) simply went ahead anyway and said I don't answer to the NMCCA for matters below a special court-martial.

Anonymous said...

Fletcher wasn't a NMCCA case -- we took it straight to CAAF, if memory serves.

Anonymous said...

It is beyond dispute that judicial activism has taken root in the military judiciary at all levels.

Anonymous said...

Hmm, Judicial activism, isn't that when to court issues a decision I don't like?