Motion filed to extend Navy JAG’s deadline for certifying Serianne
Greetings from Camp Lejeune.
Yesterday’s CAAF daily journal noted the filing of a motion to enlare the Navy JAG’s time for certifying NMCCA’s en banc decision in Serianne. The No Man previously discussed that opinion here.
I challenge the JAG (any JAG) to certify the question of whether CAAF has the power to set a 30-day time limit on JAG certifications.
Of course, to my knowledge, they’ve never enforced it–CAAF always grants extra time when a JAG asks for it.
The very interesting question is whether CAAF loses jurisdiction to consider a JAG certification if JAG attempts to certify a case after it becomes final per Art. 71.
Do military courts not have inherent authority for those type things like Art. III courts do?
Commander:
I love the sauce for the goose is sauce . . . Arguments. Would like to see Serianne’s counsel raise it. There are some weasel word arguments to be made by the government, eg “and the case is not otherwise under review by that Court”. Still would be a good argument.
To continue the previous thread on Serianne, and a fascinating argument “Justin” offered, that if a servicemember “reasonably believed” that reporting something would “cause the initiation of an investigation,” the servicemember would never need to report anything that might reflect badly upon him or her. Justin pointed to United States v. Chessani (NMCCA 200800299, March 17, 2009) and proposed that the logic behind the “pro-5th Amendment” argument would undercut many Navy reporting requirements, and would render them unconstitutional, voiding, for example, the prosecution of someone like LtCol Chessani.
Wendel responded with the good point that LtCol Chessani was prosecuted for failure to report “others,” not necessarily himself. As NMCCA said: “The essence of the charges in this case is that (LtCol Chessani) failed to accurately report and thoroughly investigate the Haditha incidents.”
My thoughts:
1. This is a fairly novel area of military law and courts should avoid the Kabuki Theater of pretending that the precedents are clear here. They are not and the court should be honest and up front about that.
2. “Bad cases make bad law” – And I do not think the battlefield is where we should construct Fifth Amendment law. The battlefield should be the exception and not the rule. A DUI arrest on a domestic road used by U.S. civilians most closely resembles civilian law and society, and traditional Fifth Amendment concepts should apply to such situations. It is also likely that the Courts will create a “battlefield exception” to the usual rule, somewhat like a “Feres Doctrine” of Constitutional law.
3. The failure to investigate should be clearly distinguished from the failure to report. As Wendel argues, reporting on “others” does not present a self-incrimination problem.
4. On the issue of how likely the self-report would “cause the initiation” of an investigation, a military court should probably adopt the reasoning of New York Court of Appeals Chief Judge Benjamin Cardozo in Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), was a decision by the (the highest state court in New York) that helped establish the concept of proximate cause, a limitation of negligence with respect to scope of liability. As we all remember from our first week of law school, Cardozo reasoned that the relationship of the guard’s action to Palsgraf’s injury was too indirect to make him liable. Likewise, the proximity and likelihood of an ensuing criminal investigation will probably be a critical factor in making a determination.
5. I do not put it past the military mind to create an artificial distinction between “administrative” investigations and “criminal” investigations. It’s a completely bogus dichotomy that would effectively eliminate the right to not self-incriminate – but the temptation will be too great to resist.
Socrates, that’s quite a comedown from the snide, “5th amendment does indeed apply in the military” rhetoric of your previous comment.
As to Wendell’s “good point,” I’ll acknowledge that LtCol Chessani was prosecuted for failing to report others. But I also think that a battalion commander, in considering his duty to report the killings of 25 (possible) civilians by members of his unit, might “reasonably believe” that such a report would lead to an investigation into his own role in the kllings (on questions of orders, training methods, ROE protocol, etc).
In fact, without going to far into unknowns, might that not be … exactly what happened? And nothing in Serianne distinguishes this situation.
So, seeing this round hole for our Serianne square peg, we arrive at a “battlefield exception.” Is this an effort to understsand or clarify the law, or are we making proposals?
To the repeated notion that reporting “others” raises no self-incrimination concerns, I would agree.
However, I also would have thought — pre-Serianne — that reporting completely neutral facts like “A policeman arrested me” raised no self-incrimination concerns, either. After all, it’s a reponse that’s possible on every form we fill out in the military.
Now, I know: any statement about any activity that one might “reasonably believe” would “lead to an investigation” is protected by the 5th Amendment. Such is the law of the Navy on 10 December 2009.
Justin,
The logical structure of your argument is fairly usual – the argumentum ad absurdum. You intentionally overstate your case. While your language is not “snide,” as I guess my little attempt at lightness was, your argument is essentially a sarcastic one. You say “ANY” activity. I say, no, that’s where lawyers & judges earn their pay – looking at factors, making distinctions. You seem to be unwilling, or at least suspicious of such activities, sneering at them as “proposals.” Well, I’m sorry, there is no UNIVAC computer that spits out black letter law. If you don’t like it, chose another profession.
Oh, by the way, “I killed the man” is a completely neutral fact, especially if I, in fact, killed the man. But its still protected against self-incrimination. You need to explain what you mean by “completely neutral.”
Sigh.
Neutral in the sense that it describes no substantive, chargeable, criminal activities. Neutral in the sense that it does not incriminate the speaker.
I’m perfectly happy to reason by analogy, which is why I raised the Chessani case as a hypothetical. I used sweeping language in my assessment of Serianne’s fallout only because the court’s holding, unbound by precedential reasoning and constitutional language, sweeps so much reporting away.
And since we’re reopening Logic 101 textbooks, I’d like to read a further explanation of your “tempest in a teapot” quip, which is a stereotype of its own. Your hypothetical Sailor asks for leave to attend to his court date and his command asks why. You’re sanguine about his response. Under Serianne, though, your Sailor doesn’t have to respond, or at least doesn’t have to respond truthfully (as this question poses the proverbial respondent’s trilemma), or at all, does he?