Comments on: Green brief

By: Cossio

Cossio — Fri, 04 Dec 2009 04:48:56 +0000

Cloudesley Shovell: The second issue would be very interesting if the court were to substantively address it. CAAF’s jurisprudence on the matter of whether a discharge is “valid” or not is absolutely shameful. CAAF has abandoned all pretense that jurisdiction is strictly construed and given the gov’t every benefit of the doubt in order to save convictions in spite of the fact that the gov’t had validly discharged the accused.

Yes. Couldn't say it better myself. Seemingly you can be discharged 18 months after the fact and the Government can somehow have jurisdiction, according to the CCA's

By: Craig Manson

Craig Manson — Fri, 04 Dec 2009 01:22:43 +0000

Non-delegation is indeed a loser here. The issue is whether Congress has articulated “an intelligible principle” to side-board executive discretion. See J.W. Hampton, Jr. & Co. v. United States, 276 US 394, 409 (1928); Whitman v. American Trucking Assns., 531 US 457 (2001). In enacting both the UCMJ and MEJA, Congress has done that. But here’s where John O’Connor’s coment becomes salient. In the absence of MEJA (and setting aside the precise jurisdictional issue for a second) in the post-Solorio world, choice of forum would be discretionary with the Executive branch as part of the President’s duty to “take care that the laws be faithfully executed,” if not part of his duties as Commander-in-Chief. This is not so much an application of “political question” doctrine as it is a separation of powers issue. But MEJA does exist and it does deprive the Executive of some discretion in that it prohibits prosecution of military members subject to the UCMJ. 18 USC 3261(d). On the other hand, a person who “while a member of the Armed Forces subject to [the UCMJ]” engages in conduct defined in MEJA [18 USC 3261(a)(2)], can be punished under MEJA if “such member ceases to be subject to [the UCMJ].” 18 USC 3261(d)(1). So Green’s case is all about whether he “cease[d] to be subject to [the UCMJ].”

One final note on the choice of forum issue: MEJA actually preserves Executive discretion in one situation: that being where a person subject to the UCMJ is accused in an information or indictment with one or more other persons not subject to the UCMJ. Since statute does not strip jurisdiction from a court-martial for persons subject to the UCMJ, the Government had the choice of whether to try Green’s co-actors in a court-martial (which is what happened) or in the District Court with Green.

By: Cloudesley Shovell

Cloudesley Shovell — Thu, 03 Dec 2009 23:39:47 +0000

The second issue would be very interesting if the court were to substantively address it. CAAF’s jurisprudence on the matter of whether a discharge is “valid” or not is absolutely shameful. CAAF has abandoned all pretense that jurisdiction is strictly construed and given the gov’t every benefit of the doubt in order to save convictions in spite of the fact that the gov’t had validly discharged the accused.

By: John O'Connor

John O'Connor — Thu, 03 Dec 2009 20:34:14 +0000

Dew:

I don’t see how choice of forum is a political question. The forum either has jurisdiction or it doesn’t. I think the thrust of the argument is that, as I recall it, MEJA doesn’t create federal court jurisdiction over servicemembers who can be court-martialed except in narrow circumstances (such as where they have a civilian co-conspirator and the government wants to proceed against them in one court).

By: Dew_Process

Dew_Process — Thu, 03 Dec 2009 19:52:37 +0000

Reply 1024 – it may also fall into the “political question” arena. The “Executive” chose which of 2 forums were available, and being on AD does not legally or constitutionally preclude trial in federal court.

Cossio, by filing the appeal challenging jurisdiction, they’ve waived any former jeopardy claim.

By: Cossio

Cossio — Thu, 03 Dec 2009 16:59:44 +0000

I agree with you, its Game Over either way, just throwing a Hypo there.

You broke it down to the Lowest Common Denominator, some people find that distasteful, but I happen to think it works just as well as the Highest Common Factor.

By: Reply

Reply — Thu, 03 Dec 2009 15:24:41 +0000

1. Non-delegation is a dead letter. Sentencing differential isn’t constitutional error.

2. Court doesn’t care about compliance w army regs. Discharge is a discharge.

Game over, please insert 25c to play again.

By: Cossio

Cossio — Thu, 03 Dec 2009 04:49:52 +0000

I had a question for the other Anons who in the last post assume that if Green wins his appeal (to question II) that he will subject to a CM;

Assuming arguendo that he wins #II, wouldn’t you expect them (his defece team) to make some double jeopardy claim (which would have merit) ?

By: Cossio

Cossio — Thu, 03 Dec 2009 04:42:11 +0000

The Feds respone to #2 will be whatever is good for the Goose (Government) is not good for the Gander (small guy).

In other words, the clearing process only matters when we want to burn someone at the stake, not when someone has a legitmate grievance.

Even if Green could have been CM (was still in the military), whether they choose a Federal Civilian Court or Court-Martial is of no consequence.