CAAF decided The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, No. 12-8027/AR, 72 M.J. 126 (CAAFlog case page) (link to slip op.), on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.

Judge Stucky writes for the majority, with Chief Judge Baker and Senior Judge Cox both dissenting, both writing separate dissenting opinions, and both joining the other dissent.

The case began when the Appellants sought extensive access to the trial proceedings of the court-martial of PFC Manning. That request was denied, and they filed a writ-petition with the Army CCA, challenging that denial. The CCA summarily denied the petition, and the Petitioners/Appellants filed a writ-appeal with CAAF, raising the following issues:

I. Whether the First Amendment right of public access (or other public-access rights) applies and guarantees access to the documents Petitioner-Appellants seek (judicial orders, filings, and transcripts) in a timely fashion, contemporaneous with the proceedings to which they relate.
II. Whether First Amendment principles apply to future document sealings going forward, including (a) the right to public notice of a request for sealing, (b) opportunity for interested parties to be heard, and (c) that the trial court be required to ultimately justify any restrictions on public access with caseby-case specific findings of necessity after consideration of less-restrictive alternatives.
III. Whether past R.C.M. 802 conferences should be reconstituted on the public record.
IV. Whether public access to future R.C.M. 802 conferences should be governed by First Amendment principles.

CAAF heard oral argument in October. During the argument, the court expressed skepticism about its jurisdiction to decide this case. The court then issued an order calling for supplemental briefs on the following issues (this was discussed during the oral argument):

I. Whether, in light of Denedo v. United States, 556 U.S. 904 (2009), Clinton v. Goldsmith, 526 U.S. 529 (1999), United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), ABC Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997), United States v. Hershey, 20 M.J. 433 (C.M.A. 1985), Articles 36, 66, and 67, UCMJ, and Rule for Courts-Martial 806, this court and the United States Army Court of Criminal Appeals have subject-matter jurisdiction over Appellants’ request for extraordinary relief.
II. Whether Appellants, non-parties to the court-martial, have standing in this court or the United States Army Court of Criminal Appeals to file a request for extraordinary relief in this matter.
III. Assuming jurisdiction, (1) in the context of the records now at issue, which officials are lawfully authorized to direct public release of such records, and (2) to what extent must Appellants first demonstrate that they have made their initial request to an appropriate records custodian and had such request denied.

Judge Stucky begins his majority opinion with a discussion of jurisdiction in federal courts in general, and the specifically-limited jurisdiction of CAAF, the CCAs, and courts-martial. He also notes the while CAAF has the authority to issue writs under the All Writs Act, the Supreme Court has found that CAAF “is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice.” Clinton v. Goldsmith, 526 U.S. at 529, 536 (1999). Then he gets to the heart of the matter:

Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2006), our jurisdictional statute, states:

In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.

It is vital to note what we are faced with here. This is not a case like United States v. Lopez de Victoria, where the question was the interpretation of our Article 67 jurisdiction within an existing (Article 62) statutory framework. 66 M.J. 67 (C.A.A.F. 2008). This case is not like Denedo v. United States, where the question was the availability of the writ of error coram nobis in cases other than those in which fundamental jurisdictional objections were asserted. 66 M.J. 114 (C.A.A.F. 2008), aff’d., 556 U.S. 904 (2009). Nor is it like Hasan v. Gross, where the harm alleged by the appellant — that the military judge was biased — had the potential to directly affect the findings and sentence. 71 M.J. 416 (C.A.A.F. 2012).

Finally, this case differs in a very important respect from Powell, 47 M.J. 363. In that case, which dealt with the closure of an Article 32 investigation to the press and the public, the accused joined in the proceedings in order to vindicate his right to a public trial. Id. Here, the accused has steadfastly refused to join in the litigation, or, despite the Court’s invitation, to file a brief on the questions presented. We thus are asked to adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief — expedited access to certain documents — that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial.

Slip op. at 7-8 (emphasis added). He concludes his short opinion soon after this passage, with a final reminder that the accused has not joined the petitioners: “We are not foreclosing the accused from testing the scope of public access, but he has not done so here.” Slip op. at 10. However, “[o]n these facts, we hold that Appellants failed to meet their burden of establishing that this Court or the CCA has jurisdiction to grant Appellants the relief they seek.” Id.

But Chief Judge Baker finds fault with the majority’s reliance on Goldsmith, writing that “neither the facts of Goldsmith nor the jurisdictional proscriptions contained therein apply to Appellants’ case.” Baker, C.J. diss. op. at 3. Rather, “Appellate review of military judges’ rulings in courts-martial is at the core of this Court’s jurisdiction. That is what we do.” Id. He sees a paradox in the majority’s approach that finds the issue in this case unreviewable because it (necessarily) occurs before the findings and sentence are approved. He also sees the question as foreclosed in the future:

Moreover, though the majority claims otherwise, today’s opinion bars this Court from exercising jurisdiction in an appeal arising from an accused’s assertion of his R.C.M. 806 right to a public trial. That is because the majority’s view of jurisdiction hinges entirely on the words in Article 67, UCMJ: “[t]he Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority.”

The majority’s interpretation leaves collateral appeal to Article III courts as the sole mechanism to vindicate the right to a public trial found in R.C.M. 806 beyond the initial good judgment of the military judge. This is unworkable and cannot reflect congressional design or presidential intent.

Id. at 6. The Chief Judge sees four adverse consequences to the involvement of Article III courts in collateral appeals regarding public access to courts-martial: First, it would result in the uneven application of the law based on the various federal circuits. Second, trial judges will be dependent on collateral review to determine the scope of the judge’s control of the proceedings. Third, that collateral review will then become the subject of review by the military appellate courts in the event of a conviction. Finally, the Article III courts “might exercise comity and wisely avoid the prospect of interfering in an ongoing court-martial,” thus leaving the public without a legal mechanism to assert a right to access. Id. at 8. “This array of absurd consequences is most assuredly not what Congress intended when it established a uniform system of military justice.” Id.

Senior Judge Cox also dissents, writing that he believes “without reservation” that both the military judge and CAAF have “the jurisdiction, indeed the responsibility,” to ensure the proper scope of public access to a court-martial. Cox, S.J., diss. op at 1. But the Senior Judge also has a different perspective on this case:

This case is about the “office” of military judge. Therefore, in my judgment, this case is about the authority of a military judge to manage her courtroom and to supervise the preservation of evidence, create an accurate record of trial, and control the ebb and flow of spectators and members of the press into the courtroom. This case is about process, not the constitutional rights of Appellants. The military judge’s confusion as to what authority she possesses over trial documents is evident from the record. In the same Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session, the military judge approved the publication of defense motions, pursuant to an agreement with the Government, on a defense website, yet then stated she does not possess the authority to authorize release of court documents in response to Appellants’ original request before the court, a request which included documents filed with the court such as defense motions.

To me the fundamental questions are what is the role of the military judge in the conduct of a court-martial and are her actions reviewable by the appellate courts. We are remiss, therefore, in not taking this opportunity to clarify what authority the military judge has regarding the control of the court-martial process, including documents, evidence, and transcripts produced during the trial. “Military judges perform duties prescribed by statute and the executive order when detailed to a specific court-martial.” Weiss, 36 M.J. at 228. When the position of the military judge was created, the intention was that the military judge would preside over a court-martial in the same manner as a federal district judge, with “roughly equivalent powers and functions.”

Id. at 2-3 (citations omitted). Senior Judge Cox’s discussion about the “office” of a military judge is interesting, but his citation to Weiss betrays just how limited military judges really are. Weiss was a case challenging the authority of a military judge under the Appointments and Due Process Clauses of the Constitution, and it went all the way. But the Supreme Court rejected the challenge, finding no constitutional infirmity in the position of a military judge. Chief Justice Rehnquist wrote for the Court, and his opinion included this significant passage:

[T]he position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. As the lead opinion in the Court of Military Appeals noted, military judges do not have any “inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank.” Military appellate judges similarly exercise judicial functions only when they are “assigned” to a Court of Military Review.

Weiss v. United States, 510 U.S. 163, 175-76 (1994) (citation omitted) (emphasis added). Judge Gierke first penned those word in 1992, and his opinion was joined by then-Judge Cox. Nothing in Senior Judge Cox’s dissent in this case signals a significant shift in his view of the limited authority of a military judge as a “judge” in the ordinary (civil) sense of the term. Rather, the Senior Judge seems frustrated by an apparent lack of interest in discussing how to apply the limited authority of a military judge to the situation in this case, as shown in a footnote:

This case would have been an appropriate matter for the Judge Advocates General to have filed an amicus brief. It is bizarre that the services would advocate that an Article III court review the conduct of a military judge in the midst of a court-martial. It would be interesting to learn if that were indeed their view.

Id. at 1 N.1. I doubt that the Government’s position was taken without consideration of the prudential concerns and just because it seemed like the best way for the Government to “win,” but it certainly seems that way.

Finally, as noted in this post, the majority’s opinion received some strong criticism from Professor Vladeck at Lawfare Blog:

As with the CMCR’s denial of a similar claim arising out of the 9/11 military commission proceedings, these decisions may simply reflect hostility to the First Amendment claims on the merits. But whereas the jurisdictional issue was only raised by Judge Silliman’s concurrence in the CMCR, it is the entire basis for CAAF’s holding here–and, as the above analysis suggests, it does not withstand even modest scrutiny.

Unfortunately, and unlike the CMCR decision (which may still be challenged in the D.C. Circuit), it’s not clear that the Supreme Court has jurisdiction to review yesterday’s CAAF ruling. [. . .] Instead, the battleground may shift to the district court–which may yet reach the very serious First Amendment issues presented in these cases on their merits, but which will, in the process, only further undermine the independent authority and integrity of the military justice system as a self-contained unit.

Despite the spirited debate between Judge Stucky’s majority opinion and the two dissents, the resolution of this case is anti-climatic. It’s also a crippling blow to the mindset of outsiders who consider wading into the waters of the military justice system to litigate collateral issues. CAAF’s resolution in this case means that the next time such a group of outsiders seeks to mount a challenge the military way of dispensing justice, that challenge is almost certainly going to be litigated outside of our system and away from our strongest influence.

Case Links:
• ACCA opinion [summary disposition]
Appellants’ brief (writ-appeal petition)
Appellee’s (government) brief
Appellants’ reply brief
Blog Post: Interesting order from CAAF
Blog Post: Argument preview
Oral argument audio
Blog post: CAAF calls for supplemental briefs
Blog post: What if this blog depended on FOIA? Argument Recap
Blog post: What Transparency Looks Like
CAAF opinion
Blog post: CAAF decides Center for Constitutional Rights v. United States
Blog post: Professor Steve Vladeck criticizes CAAF’s CCR opinion
Blog post: Opinion analysis

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