CAAF decided two more cases, Wise and Shaw yesterday. (By the way Bill, 4 is not the record for a single day, on 30 Sep 2005 for instance, CAAF decided 6 cases and I suspect that CAAF has done more on previous end-of-term days).

United States v. Wise looked at the very interesting question of confining a Soldier with enemy prisoners of war (EPWs). Judge Baker in his majority opinion gets to the bottom line quickly; Appellant did not waive his claims despite his failure to exhaust administrative remedies. But his claim that he was confined with EPWs in violation of Article 12, UCMJ fails and his claim that he was placed in irons in violation of Article 55, UCMJ needs more information, so case was sent back to ACCA for further fact finding or a DuBay hearing.

The decision is a gem. It is particularly fun for anybody interested in how CAAF uses legislative history. Appellant was confined in a confinement area known as the “cage” in Tikrit, Iraq, within 15 feet of EPWs. He was in an area separated from the EPWs by concertina wire. Judge Baker’s opinion looked at the exact nature of concertina wire in determining that Appellant was not confined in “immediate association” with EPWs, therefore there was no Article 12 violation.

While looking at the legislative history, Judge Baker drops a few great lines. Such as during World War II there were two million courts-martial.

Regarding Appellant’s claim that he was unnecessarily kept in irons, CAAF decided it just didn’t have enough facts, so it set the case back to ACCA to develop those facts.

CJ Effron dissents on the exhaustion issue. He points out that Appellant didn’t file an Article 138 complaint, didn’t raise the issue in his clemency matters, and it wasn’t raised in his defense counsel’s 1106 matters. The most interesting part of the dissent is CJ Effron’s suggestion, citing Jones v. Bock, 127 S. Ct. 910 (2007), that perhaps the government should bear the burden of showing a failure to exhaust remedies instead of the appellant proving he did exhaust.

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