NPR this morning portrayed the Gates confirmation hearing as a play with insufficient drama and too much love. If so, perhaps the committee was feeling the residual effects of Monday’s CAAF confirmation love fest.
I’ve now read a transcript of the CAAF confirmation hearing. As one would expect when the committee is considering the nomination of one of its own long-serving staff members, the hearing completely amicable. And why not? Both nominees are exceptionally qualified for their new positions.
The couple of interesting moments during the hearing arose from the Senators’ questions rather than the nominees’ answers. The only Senators who participated in the hearing were Chairman Warner and Senator Levin, the soon-to-be chairman. Each asked one question that seemed to suggest an issue playing on his mind. Chairman Warner noted that “each state has the authority and responsibility to establish its own criminal code to be applied to the National Guard of the respective states. A model UCMJ has been drafted at congressional direction, but implementation has been slow to perhaps change that.” He asked whether there should be “a UCMJ for the National Guard” and whether CAAF should help make one happen. Lance Judge Stucky opined that “the states would benefit from greater uniformity in this area if their legislatures see fit to adopt it,” but didn’t see a role for CAAF in helping to persuade them. Lance Judge Ryan then concurred with her judicial brother-to-be.
Senator Levin asked an even more interesting question. (YES! Can you believe it? Even more interesting that a model National Guard UCMJ!) He asked about CAAF review of military commission cases. He noted that while Congress considered giving CAAF jurisdiction to review military commission convictions, the Military Commissions Act took a different approach (creating a new Court of Military Commission Review with follow-on review — sometimes mandatory and sometimes discretionary — by the D.C. Circuit and then SCOTUS review by cert). Senator Levin asked whether CAAF would “have the appropriate qualifications and expertise to handle such jurisdiction should we change course.” Lance Judge Stucky answered that “if what is contemplated is simply taking direct review of final decisions of the commissions from the D.C. circuit and placing it in USCAAF, in my opinion USCAAF has the personnel and the organization to do that.” But giving CAAF habeas jurisdiction over Combatant Status Review Tribunals (CSRTs) would “completely change the character of the court and would place in it administrative litigation of a kind it’s never seen. And I’d have to — that would be a different matter. Your question went to resources and ability. I’m not sure that if the whole CSRT thing were placed over there the court would be set up to handle that.” Lance Judge Ryan added that CAAF’s judges “all certainly appear to have the requisite integrity, intellectual capability, and other abilities and resources to handle those matters.” Does Senator Levin’s question foreshadow legislation during the new Congress?
I was quite surprised that Senator Graham didn’t take part in the hearing. He would seem to have the greatest interest in the military justice system of all the Senators on SASC.
When you look up the phrase “class act” in the dictionary, there’s a picture of Senator Warner. This CAAF confirmation hearing, one of his last wielding the chairman’s gavel, was classy, cordial and collegial. The CAAF nomination and confirmation process has seemed remarkably smooth thus far. I hope it will be capped off with a quick floor vote this week.