The No Man has offered praise for NMCCA’s revamped web site. Maybe I’m being curmudgeonly, but I am more frustrated than impressed. Here’s what NMCCA’s web site tells us about the opinions posted on it:
NMCCA Decisions (Court Opinions)
This section includes final published and unpublished opinions. Published opinions are binding precedent upon this court. Opinions that are unpublished but authored may be cited as persuasive authority. Per Curium opinions (which are neither binding nor persuasive precedent) will not be posted to this Web site unless the U.S. Court of Appeals for the Armed Forces grants a petition for review of that case.
First, note that NMCCA misspells “per curiam.” Not a good sign. (“Per curiam” means “by the court”; “per curium” would mean “by the silvery metallic synthetic radioactive transuranic element.”) Second NMCCA thinks its own per curiam opinions are “not persuasive precedent”? What does that mean? NMCCA’s per curiam opinions — like per curiam opinions of any court whose opinions are not controlling under stare decisis principles — are persuasive to the extent that they are well reasoned. The utility of the distinction between authored unpublished opinions and per curiam opinions mystifies me.
Finally, as I have repeatedly noted, NMCCA is alone among the five military appellate courts in not making ALL of its opinions available on the Internet. NMCCA is also out of step with Article III appellate courts, which are required by statute to make ALL of their opinions — published and unpublished (including per curiam opinions) — available on the ‘net. See E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913-15.
President Obama has indicated great concern with public access to government information. In his 21 January 2009 Memorandum to Heads of Executive Agencies and Departments about FOIA, he wrote:
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
Perhaps President Obama would be open to revising the MCM to require all of the CCAs to make all their opinions available on the Internet. In fact, I think I’ll write up such a proposal and submit it to the JSC.