The 7 July Senate Armed Services Committee hearing on the military commissions system included some interesting exchanges about who should hear commission appeals. Interestingly, DOD General Counsel Jeh Johnson distanced himself from the proposition that a uniformity principle arising from Hamdan (which I criticize in the post below) provides a basis for excluding CAAF from hearing commissions appeals.
Senator Lieberman asked Mr. Johnson, “In light of the judgment of the Supreme Court in the Hamdan case, that certainly to me suggested approval of the Court of Appeals for Armed Forces as the place that the accused here can appeal from a judgment of the military commission, and the Court of Appeals for Armed Forces is not a standard Article III federal court, as you well know. Why is the administration seeking a right of appeal from the military commissions to Article III federal courts?”
DOD General Counsel Johnson replied, “Our view is that we should retain the Court of Military Commissions Review and then have appeal directly to the D.C. Circuit. That would be, in effect, a four-tiered level of review, beginning with the trial court, and, in our view, would resemble in many respects UCMJ justice, because you have that intermediate level of appellate court rather than an appeal directly from the military commission’s trial-level court to the CAAF. So it would be our preference to have an appeal direct to the D.C. Circuit. But we agree with the concept of the expanded scope of review.”
Senator Lieberman followed up by asking whether this was a departure from Hamdan’s uniformity principle: “Is it fair to say, then, that the Administration’s suggested changes in this regard are not rooted in the Supreme Court’s uniformity principles as stated in Hamdan? But they’re rooted in some other requirement, or some sense of the administration about what’s fair and just here?” Mr. Johnson replied, “I think that’s a fair statement, Senator.”
Senator Lieberman later endorsed routing commission appeals through CAAF: “I think the committee has made the right judgment in saying that the right of appeal from the military commissions should be to the U.S. Court of Appeals for the Armed Forces, and that there shouldn’t be an appeal to the circuit court of the D.C. District.”
Under questioning from Senator Martinez, Vice Admiral MacDonald made a point that I make in the post below: while VADM MacDonald expressed a preference for the MCA’s appellate review structure, he testified that CAAF would be perfectly capable of exercising factual sufficiency power if asked to do so: “[W]hat we’re saying is that if you want to, to the extent that you can, stay faithful to the UCMJ, that one way to approach it on appeal would be to allow the Court of Military Commissions Review, either military judges that currently sit on that court now, or a combination of military and civilian judges, that they would have factual and legal sufficiency review powers. And then after that, you can either go into the federal system, to the D.C. Circuit, as it’s constituted today, or you could go to CAAF and mirror the UCMJ system. Either of those paths would lead you ultimately to the Supreme Court. Now, can CAAF do legal, or factual, sufficiency? Yes, Senator, they can. They are very skilled jurists. If the committee — if the bill contains and continues to contain an appeal to the CAAF, and that body is given both factual and legal sufficiency review, CAAF can do that. So I think I would prefer the current system, because our military judges are used to doing factual and legal sufficiency. But if you choose to go the CAAF route, the CAAF judges are capable of doing it.”
At the same hearing, retired Army Major General Altenburg raised what he termed a “quibble” about making CAAF the principal appellate review authority for the commission system and giving that court factual sufficiency power. He testified, “I believe because the service courts have the experience of the fact-finding role, the experience and the expertise honed over years and years, that a more appropriate place for the intermediate appeal would be the existing Court of Military Commissions Review and not the CAAF. The CAAF, I’m sure, as an earlier speaker mentioned, certainly has the expertise to do the fact-finding role. I just think it’s better placed with the military appellate judges because of their experience in that regard. And I think it would be somewhat onerous to place that on the CAAF. Their experience is with criminal law for the most part, military criminal law, is very similar to domestic criminal law, and we’re now into an area of law of war, and some things fairly arcane in dealing with these types of crimes.”