tag:blogger.com,1999:blog-34853720.post5378439857999988034..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: New AFCCA published decision: the dog days of OctoberDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-34853720.post-60936092506584996972007-10-26T15:03:00.000-04:002007-10-26T15:03:00.000-04:00Isn't there another issue going on here that seems...Isn't there another issue going on here that seems like it has been completely left out? This case came before CAAF decided <I>Adcock</I>. So isn't the argument that the military judge abused his discretion on account of applying the wrong law particularly at issue?<BR/><BR/>Seems to me that they'd have done better to have awarded 1 for 1 credit and just put the issue to bed.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-51180054811831128222007-10-23T22:31:00.000-04:002007-10-23T22:31:00.000-04:00As j'oc points out, the secretaries do have author...As j'oc points out, the secretaries do have authority to police their services. However, they rarely exercise that authority directly, relying instead on the chain of command to do so for them. <BR/><BR/>In my opinion, it would have been far better (and far more effective) for the appropriate commanders at Travis AFB to have taken military justice action against their confinement officials. The unfortunate facts of <I>Adcock</I>, however, were that the chain of command utterly failed. The base confinement officials violated the regulation; the violation was brought to the attention of the SPCMCA's SJA, who at a minimum acquiesced in it; and their conduct provoked no reaction from the GCMCA or his legal staff. The record doesn't show whose bright idea it was to ignore the regulation in the first place, but it does show there wasn't anyone at Travis willing to enforce it. <BR/><BR/>In such a situation, Juvenal's query seems appropriate: who will guard the guardians of military justice? Absent anyone with a personal incentive to push the matter up the chain of command, it's not clear the secretary would even know his authority was being flouted. The person with the most immediate incentive to raise the issue is the detainee ... provided they can expect some sort of relief by doing so. <BR/><BR/>There's certainly an argument to be made that appellate courts have no business policing the integrity of the justice system, but it's not one I accept; when an appropriate enforcement mechanism exists, as CAAF found to be the case, I think courts should be willing to take it up. There's also an argument to be made that granting confinement credit isn't the most effective method of policing, and as I noted above, I'd agree; but you go to court with the remedies you have, not the remedies you'd like to have.Christopher Mathewshttps://www.blogger.com/profile/01613318712384842689noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-9273930742496873612007-10-23T15:19:00.000-04:002007-10-23T15:19:00.000-04:00Putting aside whether or not one agrees with the n...Putting aside whether or not one agrees with the notion of Adcock credit, I guess I just don't buy that sentencing credit is appropriate "as a mechanism to disincentivate cutting corners that the service secretary has determined must be turned squarely." <BR/><BR/>I might disagree with the other rationale -- that credit is appropriate "as compensation to the detainee for a violation of his rights under the applicable regulation" -- but I at least understand the logical reasoning, that this might be the accused's only (or best) opportunity to get relief from the violation of a reg. I might be unconvinced by that rationale, but there is a logical argument to be made that "somebody" has to vindicate an accused's rights under a service regulation because he can't really do it himself (what with being confined and all).<BR/><BR/>But the service secretary is more than able (unlike an accused) to take immediate and direct action when service personnel violate the Secretary's regulations. And if the answer is that the service secretary really might not care enopugh to do anything about violations of his/her regs, then why does it make sense for a court to vindicate a regulation that the Secretary finds insufficiently important to enforce himself/herself?<BR/><BR/>I do agree with Christopher Mathews' comment that it seems bizarre to argue that it's not an abuse of discretion to violate a service regulation. Maybe that should be the new defense to orders violations at courts-martial: "yes, I didn't follow the order, but it was within my discretion not to."John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-12679331558531256032007-10-23T11:21:00.000-04:002007-10-23T11:21:00.000-04:00CAAFlog one liner of the week,I'm . . . troubled b...CAAFlog one liner of the week,<BR/><BR/>I'm . . . troubled by the CCA's apparent continued embrace of a philosophy that seems to suggest breaking the law is not an abuse of discretion.<BR/><BR/>Anoyone that can use a Judas Priest song title with effect should get an award in my book.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-78220439745651194342007-10-23T02:46:00.000-04:002007-10-23T02:46:00.000-04:00Nice catch, CAAFlog. Junior is an interesting dec...Nice catch, CAAFlog. <I>Junior</I> is an interesting decision. I think the AFCCA got it mostly right, but with an important exception. <BR/><BR/>I have no particular qualm about allowing the military judge discretion to determine whether a failure to comply with regulations is sufficiently egregious to warrant granting <I>Adcock</I> credit. A finding of abuse of discretion <I>allows</I> a military judge to grant credit, but does not necessarily <I>require</I> it. <BR/><BR/>There are basically two theories that could justify awarding <I>Adcock</I> credit: as compensation to the detainee for a violation of his rights under the applicable regulation, or as a mechanism to disincentivate cutting corners that the service secretary has determined must be turned squarely. Where the violation has a <I>de minimis</I> impact on the detainee and is the product of excusable inadvertence or exigent circumstances, awarding credit may not be called for. So far, so good.<BR/><BR/>I'm less sanguine about the part of the <I>Junior</I> decision that concludes the Air Force confinement officials did not actually abuse their discretion. The least legally-defensible portion of the AFCCA majority's opinion in <I>Adcock</I> was the conclusion that the MCM grants confinement officials "broad discretion" to violate their own service regulations. CAAF had difficulty swallowing this argument, too, writing: <I>To the contrary, the plain language of R.C.M. 304(f) clearly vests the service secretaries with the discretion to enact the rules but makes no reference to confinement officials.</I><BR/><BR/>Service regulations circumscribe the limit of subordinate officials' discretion. If the Secretary, by regulation, requires an MOA before a detainee can be placed in a civilian facility, and there is no MOA, then the confinement officer who decides to place a detainee in the civilian facility despite the absence of the mandatory MOA abuses his discretion. He may believe he has good reason for doing so; he might, for example, believe that the regulation is unduly onerous, or that noncompliance works negligible hardship on the detainee. He might even be right in his judgment. But if the regulation requires or prohibits certain actions, his judgment isn't particularly germane: he's obliged to do as he's told.<BR/><BR/>So: I'm generally in agreement that Junior need not be granted relief, but troubled by the CCA's apparent continued embrace of a philosophy that seems to suggest breaking the law is not an abuse of discretion.Christopher Mathewshttps://www.blogger.com/profile/01613318712384842689noreply@blogger.com