Have you ever stood on a street corner in New York City mesmerized by news headlines scrolling around a building on a light board? Reading NIMJ.org‘s scrolling messages reminds me of that feeling. Here’s the latest message from NIMJ:

Appellate defense and government counsel: Do you have a military justice case in which an amicus curiae brief might be appropriate? Please let us know!

18 Responses to “NIMJ scroll update”

  1. Phil Cave says:

    You have referred to Olson v. Commanding Officer.

    I have filed a motion for leave to appear, and a “contingent” brief on behalf of NIMJ, as Amicus in that case, solely on the All Writs Act jurisdiction.

  2. CAAFlog says:

    Is that brief available on NIMJ’s web site? If so, I’ll put up a link to it.

  3. John O'Connor says:

    If the brief is not available, can you tell us what position NIMJ took on the All Writs issue?

  4. Phil Cave says:


    Our argument is that NMCCA, and by extension CAAF does have jurisdiction over a referred SCM.

    We limited our brief to the jurisdictional issue, and took no position on the merits.

  5. John O'Connor says:

    I can’t say I am surprised. Suffice to say I am rooting against Olson and his allies in the defense bar on that issue.

  6. Phil Cave says:

    Why should Olson be treated any differently under Article 69(b)(d), that accused who gets a non-BCD SPCM, or the GCM accused who doesn’t get a punitive discharge or more than a year confinement. Those two (SCM/GCM), can have a writ, those two can get a 69(d) certification, in the same manner as the person with a referred SCM.

  7. John O'Connor says:

    The difference is that nothing, and by that I mean nothing, that happens at an SCM can give an accused a right of appeal to the CCA. A pending GCM or SpCM has a theoretical result that will give an accused a right of Article 66 appellate review. Here, the ONLY way an SCM accused can get CCA review is if the JAG certifies it over, which is not the normal practice (I think your earlier comment that CAAFlog may know of an instance 15 years ago where an SCM may have been certified over says it all).

    I agree with the Supreme Court’s view in Middendorf v. Henry that Congress created the SCM as a relatively informal, efficient disciplinary tool, and gave an ccused the ultimate protection from those informalities and inefficiencies by giving him an absolute right to refuse trial by SCM. Just as denying an SCM accused a right to counsel is consistent with the expeditious nature of a SCM, so is avoiding delays by a CCA writ, and I can’t imagine Congress would conceive that the CCAs would have a right to meddle in cases that have virtually no chance of ever lading to CCA review.

    Don’t get me wrong, I think it likely that the CCA will exercise jurisdiction because military appellate courts historically have had difficulty, to quote Harry Callahan, “knowing their limitations.” In almost Pinnochio-like fashion, they wish and wish they were Article III courts in the hope that wishing it so will make it so. The fact that the court probably will exercise jurisdiction doesn’t change my mind that such an exercise is improper.

  8. CAAFlog says:

    You are no doubt right that any given SCM is unlikely to wind up in any military appellate court’s ACTUAL appellate jurisdiction. (And, for the record, I don’t even know of one SCM that has actually been certified to a CCA.) But my understanding of the legal test for All Writs Act jurisdiction is that it must fall within the appellate court’s POTENTIAL jurisdiction. And, rightly or wrongly, Congress did put SCMs within the CCAs’ (and, thus, within CAAF’s) potential appellate jurisdiction. So it seems to me that under the law governing All Writs Act jurisdiction, Congress put SCMs within the military appellate courts’ writ jurisdiction. Congress didn’t have to do this and could change it tomorrow, but for today it appears to be there.

    Let me give you one scenario where a writ might be particularly appropriate — hypothesize that a command attempts to proceed with an SCM over an accused’s objection. (I believe that is an aspect of the Olson case itself — if I understand it correctly, the command is saying that having once accepted an SCM that was later overturned on appeal, Olson can’t refuse the government’s second attempt.) Sure there are other potential avenues for relief, but by making it possible for an SCM to reach a CCA, one possible avenue appears to be a writ from a CCA — and Congress either did know or should have known that this is part of what it was doing when it gave the Judge Advocates General the authority to certify SCMs to CCAs.

  9. John O'Connor says:

    Well, when the appellate jurisdiction relies on the exercise of a power by someone other than the court or the litigants, and that power has either never or almost never been used (meaning that the JAGs don’t allow the CCAs to get involved in SCM reviews), then I think the “potential” of appellate jurisdiction is WAY too attenuated.

    From what you have said, the “appellate” process for Olson’s SCM worked pretty well. Why doesn’t he seek relief within the military chain of command, either through an Article 138 or a CONGRINT? That wouldn’t ask a court of limited jurisdiction to meddle in case where it doesn’t belong and where there is (I dare say) a zero chance of that court ever having jurisdiction.

    Thanks for identifying the merits issue. You can disregard in inquiry in response to the post one above this.

  10. John O'Connor says:

    Oh, one last thing before I forget. I’m going from memory, but my recollection is that the word “potential” is not in the All Writs Act. I beleive the language is something akin to “in aid of its jurisdiction.” If we agree that there is virtually no practical chance that this SCM ends up getting Article 66 review, how is issuance of a writ in aid of anything relating to the NMCCA?

  11. CAAFlog says:

    JO’C —
    Agreed on the language of the All Writs Act; the term “potential appellate jurisdiction” is from the Supremes’ construction of the statute. A writ could be in aid of an appellate court’s jurisdiction to resolve an issue that may come to it later rather than waiting. I certainly don’t disagree that there is no real chance that a case like Olson would ever wind up in front of NMCCA, but when Congress expanded the JAGs’ certification power to reach summary courts-martial, the CCAs’ All Writs Act jurisdiction was firmly established and courts’ power to issue a writ based on potential appellate jurisdiction was firmly established. So if a member of Congress considering the amendment to Article 69 actually thought about it, he or she likely would have realized that the amendment placed SCMs within the CCAs’ potential appellate jurisdiction. I think the right answer is that the CCAs may do so and if Congress thinks this is unwise, Congress can easily amend either Article 69 or Article 66 to preclude a CCA from doing so.

  12. John O'Connor says:


    You said “I certainly don’t disagree that there is no real chance that a case like Olson would ever wind up in front of NMCCA.”

    Given that the language of the All Writs Act talks of writs in aid of a court’s jurisdiction, the quotation above is the beginning and the end of the story for me. We’ll just have to agree to disagree.

  13. CAAFlog says:

    Sorry for the serial post, but here’s another thought. The question of the CCAs’ all writs power here is a matter of statutory construction. I doubt when Congress amended Article 69 to allow JAGs to certify cases to the CCAs, Congress thought that the JAGs wouldn’t use this power it had given them. I haven’t looked at the legislative history of this proposal, but I’m largely an adherent to the Scalian view that statutes should be construed based on their language, not on their legislative history. Regardless of how often the JAGs have actually used their certification power, Congress gave them that power and no doubt contemplated that it would be used. The frequency of the JAGs’ actual use of the power since Congress gave it to them can’t tell us anything about the legislative intent since Congress obviously had no way of knowing ahead of time what the actual frequency would be.

    The real question is whether Congress INTENDED a case like Olson to fall within the CCAs’ appellate jurisdiction. The answer to that question isn’t answered by the Vegas odds on RADM MacDonald actually certifying this case to the CCA.

  14. John O'Connor says:

    The history of certification of SCMs (or, shall we say, lack of history) isn’t legislative history. You espouse a Scalian view of legislative history, but then retreat to “potential” jurisdiction throughout this thread when that concept is nowhere in the text of the All Writs Act.

    I agree that the starting point is that writ jurisdiction exists only “in aid” of the CCA’s jurisdiction. To me, the fact that neither the accused nor the CCA can EVER perfect CCA jurisdiction over an SCM generally would be dispositive under the language of the All Writs Act, as I do not believe exercise of writ jurisdiction is in aid of the CCA’s direct appeal power under these circumstances. That said, I readily admit that my judgment about that might be affected if the JAGs regularly certified SCMs for Article 66 review. In such a case, Article 66 review might become such a regularized part of SCMs that a CCA might, in a proper case, have an interest in protecting the proceedings so that its post-trial jurisdiction is not rendered worthless. But the unsurprising fact that the JAGs never certify SCMs doesn’t CHANGE the result in my mind, it merely CONFIRMS my conclusion (dfrom the plain language of the statutes involved) that a writ on an SCM is not in aid of a CCA’s jurisdiction (what with the statutory default being no juisdiction whatsoever).

    That’s not legislative history, but facts that inform a court’s judgment on whether the plain meaning of the All Writs Act confers jurisdiction under these circumstances.

  15. CAAFlog says:

    The “potential appellate jurisdiction” language is not some creation of the military appellate courts. That language comes from the Supreme Court. Right or wrong, both NMCCA and CAAF are obliged to apply it under the doctrine of stare decisis. So the question for NMCCA is not whether the “potential appellate jurisdiction” standard is a good one — it is whether this case falls within that test established by the Supreme Court. (Obviously if NMCCA or CAAF were to grant extraordinary relief under this test, the SG could ask the Supremes to review the case at which point the propriety of that interpretation of the All Writs Act could come into play.)

    One key here, of course, is that the All Writs Act is not a jurisdiction granting statute. The grant of jurisdiction must come from elsewhere. So the decisional issue for purposes of Issue I becomes whether Article 69(d) grants jurisdiction to the CCAs to grant extraordinary relief in an onging SCM case that has not yet been referred to the CCA.

    I continue to believe that the actual certification pratice of the Judge Advocates General since the Defense Authorization Act for Fiscal Years 1990 and 1991 was passed can’t be relevant to this question of statutory construction. Whether Congress granted the CCAs jurisdiction in this instance can’t be resolved as if it is some sort of springing executory interest, coming to life only if the Judge Advocates General act in a certain way. I’m not sure of the Act’s actual effective date, but let’s hypothesize that it was 1 October 1989. What if Olson’s case had arisen on 2 October 1989, before there was any experience to know how the Judge Advocates General would use their newly expanded power? On 2 October 1989, under the governing statutes (as applied by inferior courts respecting superior courts’ interpretation of those statutes), jurisidiction either existed or it didn’t. Surely the answer to that question of statutory construction couldn’t have changed as the result of JAG practice over the next 18 years. Nor is any provision in Clinton v. Goldsmith relevant to answering that question.

    The statutes haven’t changed and the case law from superior courts construing the relevant statutes hasn’t changed. Either the CCAs were authorized to issue a writ in an ongoing SCM proceeding on 2 October 1989 and today or they weren’t authorized to do so on 2 October 1989 or today. I believe the answer is the former — but in no event do I believe that the correct answer is influenced by the discretionary decisions of the various Judge Advocates General over the intervening 18 years.

  16. John O'Connor says:

    Well, my belief from the statutory scheme is that, under your hypothetical, the CCAs lacked power to issue a writ in an angoing SCM on 2 October 1989, though I believe that evidence of reasonably regular Article 66 review by CCAs, through JAG certification, could lead me to the conclusion that issuance of a writ WOULD be in aid of the CCA’s direct review jurisdiction notwithstanding that third party action by a JAG was required for Article 66 review. In my defense, I am writing this while a six-year-old and three-year-old are yelling at me in each year about The Wacky races and my basketball card collection, so if this is more incoherent than usual, you know why.

  17. No Man says:

    What a detente? I was hoping for a post every 15 minutes, the . . . Nothing. What do you two have something better to do on a 72 degree F Sunday?

  18. John O'Connor says:

    I’m a fan of Syracuse University and the Miami Dolphins. What else am I supposed to do during football season???

    But basketball practice starts in two weeks (whew!).