CMCR clarifies that Chief Judge O’Toole isn’t in Judge Price’s rating chain
Yesterday we noted challenges that had been filed to the Court of Military Commission Review’s present organization. One of those challenges, filed by counsel for al Bahlul in the Hamdan appeal, sought to remove Chief Judge of the Navy O’Toole as Judge Price’s reporting senior, since both sit on the Court of Military Commission Review. The CMCR issued this ruling today clarifying that Chief Judge O’Toole isn’t Judge Price’s reporting senior. The ruling explains that the Judge Advocate General of the Navy is the reporting senior of both Chief Judge O’Toole and Judge Price. (Under the JAG Notice that the ruling cites, the Judge Advocate General of the Navy would also have been the reporting senior of the recently retired Judge Geiser of NMCCA and the CMCR.)
Still pending is Hamdan’s counsel’s challenge to Chief Judge O’Toole’s and Judge Thompson’s authority to sit on the CMCR now that neither is a CCA judge.
This O’Toole issue further taints an already tainted process. When you add the fact that O’Toole can detail himself as a trial judge and he is the senior for appellate judges, O’Toole taints the military justice process as well.
Anon 0003: I fail to see how J. O’Toole’s ability to detail himself as a trial judge taints the MilJus process. Please explain.
Anon 0812 hours–the taint is that you have the potential for the rater of the appellate judges to detail himself as a trial judge. How likely do you think it would be that the NMCCA judges would find error with the trial judge who also writes your performance report? Yeah, not likely, unless you’re preparing for retirement. For more on this subject, check out U.S. v. Lane, 64 MJ 1 (CAAF 2006).
Did either of you read this post? O’Toole is NOT Price’s reporting senior. Therefore, he doesn’t write the appellate judge’s fitreps.
Criticism of all things commissions comes in a variety of flavors. Uninformed self-righteousness, ala anon0003 and to a lesser extent ama goste, is one of the favors.
“…one of the flavors”, that is.
Anon 1024 hours and Publius–Perhaps I was not clear in my post that I was not referring to the commissions at all. The taint to the MilJus process referred to the UCMJ process, not that under the MCA.
O’Toole does write the NMCCA judges’ fitness reports. However, as the linked response points out, the TJAG writes the fitness reports if the AJAG (O’Toole) has a conflict. While the response only speaks to the AJAG’s conflict vis-a-vis the CMCR, the TJAG Notice makes plain that the TJAG will write the fitness report for any subordinate of the AJAG in the event of a conflict. Presumably, this means the TJAG would write the fitreps of all the NMCAA judges assigned to a panel considering an appeal of a case to which the AJAG was assigned as a trial judge.
What was that comment about uninformed self-righteousness? Too much coffee this am?
No more coffee than usual. Notice my “lesser extent”. Now that you’ve made clear that you weren’t referring to commissions at all, that can recede to “no extent”. Your comment, within the confines of a discussion about the commissions, might- pending clarification- forgivably be construed as a comment about the commissions. You’ve clarified, so all’s well.
As for “uninformed self-righteousness”, notice also it is but one of the flavors of commissions criticism. Tastier flavors exist. It seems to me an unremarkable to point out that at this late date some commissions’ critics are proudly and rigidly ideological. Anon 0003 for example. Pending clarification, of course.
Thanks for the clarification, Publius.
Anon Sep 17/1203 – an important facet of your statement depends on the premise that O’Toole CAN detail himself as a trial judge. What do you base this assertion on?