We previously discussed language in the Senate version of the DOD Authorization Act that would make CAAF the principal appellate review authority for military commission cases. Last Thursday, the House Armed Services Committee held a hearing on the military commission system at which the Judge Advocates General of the Navy, Air Force, and Army and the Staff Judge Advocate to the Commandant of the Marine Corps testified. In both their written statements and oral testimony, the Judge Advocates General of the Army and Air Force opposed authorizing CAAF to hear appeals of commission cases. Both would provide more robust review by the Court of Military Commissions Review by requiring that court to review commission cases for factual sufficiency and sentence appropriateness, as well as legal errors.
Under current law, military commission cases first go on appeal to the Court of Military Commissions Review (which consists of a mix of CCA judges and civilians with its own support staff and reviews cases only “with respect to . . . matter[s] of law”), followed by a further appeal as of right to the United States Court of Appeals for the District of Columbia Circuit applying a narrow scope of review, see 10 U.S.C. § 950g(c), followed by discretionary SCOTUS cert jurisdiction.
Lieutenant General Black’s written statement provided the most in-depth discussion of the issue. His statement said:
I disagree with the Senate’s proposal to establish the Court of Appeals for the Armed Forces as an intermediate court of appeals for those convicted by military commission. I favor, instead, the Administration proposal to modify the responsibility and authority of the Court of Military Commission Review by infusing that court with the same responsibility and authority of our service Courts of Criminal Appeals under Article 66 of the Uniform Code of Military Justice (UCMJ).
The nature of this armed conflict does not require departure from the uniformity principle addressed by the Supreme Court in Hamdan, as applied to appellate review, but, rather, warrants adoption of an appellate system that more closely resembles that mandated by the UCMJ. The only departure from that system warranted by the history of military commissions and present circumstances is designation of a Federal Court of Appeals and the Supreme Court for ultimate civilian appellate review.
I caution against encumbering the Court of Appeals for the Armed Forces (CAAF) with a separate set of responsibilities in relation to review of military commissions in addition to those it has in relation to courts-martial, namely the need to review convictions for factual as well as legal sufficiency. CAAF’s role and responsibility under the UCMJ is well-defined. It should not be confused with additional and significantly different duties when such are unnecessary for the proper review of commissions. It is better to rely on an intermediate court comprised of military judges already familiar with such review to serve as an additional check upon unreliable results at commission before resort to a traditional legal review in higher appellate courts.
That seems like a strange rationale. Factual sufficiency review and sentence appropriateness review aren’t rocket science; I’m pretty sure CAAF can figure it out. Heck, one of the CAAF judges (Judge Stucky) used to be a CCA judge. And CAAF judges routinely police the CCAs’ application of the standards of review for factual sufficiency and sentence appropriateness — and sometimes have to correct the CCAs’ articulation of those standards of review. See, e.g., United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).
Nor is concern about “encumbering” CAAF particularly compelling when CAAF is on pace to issue only 46 opinions of the court this term. Granted, CAAF has to review a large number of petitions and other filings, but the court certainly hasn’t even approached its maximum sustainable operational tempo.
But what seems strangest is the argument that CAAF should be shielded from the commission system (or perhaps the commission system shielded from CAAF) based on “the uniformity principle addressed by the Supreme Court in Hamdan.” After Hamdan, Congress repealed that “uniformity principle.” When SCOTUS decided Hamdan v. Rumsfeld, 548 U.S. 557 (2008), Article 36(b) of the UCMJ stated: “All rules and regulations made under this article shall be uniform insofar as practicable.” In Hamdan, SCOTUS used this language to hold, as a statutory matter, that the military commission system was invalid because it departed from the court-martial system without any showing that it would be impracticable for commissions to follow court-martial procedures. The Court held that Article 36(b) “demands that the rules applied in courts-martial, provost courts, and military commissions–whether or not they conform with the Federal Rules of Evidence–be ‘uniform insofar as practicable.’ § 836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable.” Id. at 622.
In the wake of Hamdan, Congress amended Article 36(b) to repudiate any “uniformity principle” tethering the military commission system to court-martial procedures. Article 36(b) now reads, “All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.” So relying on “the uniformity principle addressed by the Supreme Court in Hamdan” is like trying to attack a court-martial conviction based on O’Callahan v. Parker‘s service connection requirement; the effort is doomed to failure because the foundation just isn’t there anymore. Perhaps, if we must have a separate military commissions system, making it as similar to the court-martial system as possible is a good idea; I certainly think so. But the reason for favoring such parallelism can’t be the uniformity principle addressed by the Supreme Court in Hamdan because Hamdan was a statutory construction opinion and the statute it construed has been changed precisely to prevent courts from applying a uniformity principle.
But let’s assume that for reasons independent of Hamdan or the old Article 36(b), making the military commission system closely resemble the court-martial system is desirable as a policy matter. Which is more like the court-martial system — providing for an appeal to the Court of Appeals for the Armed Forces followed by discretionary Supreme Court review or providing for an appeal to a military-commission-system-specific court followed by an appeal to the D.C. Circuit followed by discretionary Supreme Court review? The former is far more closely aligned with the current military justice system than is the second — in which presumably D.C. Circuit precedent rather than CAAF precedent will be controlling.
Are there additional unstated reasons why two of the Judge Advocates General testified in opposition to placing the military commission system under CAAF? Are there relevant differences in existing D.C. Circuit and CAAF case law or, alternatively, in expectations concerning how CAAF’s review of the military commission system might differ from the D.C. Circuit’s?