Monday’s daily journal includes this entry:

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent, and United States, Real Party in Interest. U.S. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, we note that this Court previously ordered the United States to show cause why the requested relief should not be granted. We also ordered the United States to “specifically address the jurisdiction of this Court to grant the requested relief.” Hasan v. United States Army Court of Criminal Appeals and United States, No. 19-0054, __ M.J. __ (C.A.A.F. Dec. 28, 2018) (order).

Citing Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), the United States submitted an answer that in two sentences conceded jurisdiction of this Court over this case. In reply, Petitioner stated that the United States had correctly conceded jurisdiction and cited LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013), and Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012). We consider the answer of the United States to be inadequate. Accordingly, it is ordered that the United States is directed to specifically address the jurisdiction of this Court to grant the requested relief, including citation to all relevant authorities, in light of the fact that the Army Court of Criminal Appeals has not completed its appellate review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012), and to do so on or before February 11, 2019. See, e.g., United States v. Denedo, 556 U.S. 904 (2009), Clinton v. Goldsmith, 526 U.S. 529 (1999).

Petitioner may file a reply within 5 days of the filing by the United States.

(emphasis added).

Unfortunately, this sort of thing has happened before.

7 Responses to “CAAF “consider[s] the answer of the United States to be inadequate””

  1. Cloudesley Shovell says:

    Fascinating to watch CAAF’s changing approach to its jurisdiction over the last 15 years. 
    Also, this is yet another reason why there should only be one Government Appellate Office for all the services.  The United States needs to sing with one voice on jurisdiction (and all other legal issues under the UCMJ).  10 years ago Denedo goes all the way to the Supreme Court on jurisdictional issues, and now CAAF has to exhort the same government to pay attention to jurisdictional issues and not concede them?  In one of the most prominent court-martial cases of the last decade? Really?
    Kind regards,

  2. Dwight Sullivan says:

    [Standard Disclaimer:  I offer these thoughts purely in my private capacity; they should not be imputed to anyone or anything else.]  Didn’t SCOTUS resolve this issue half a century ago?  SCOTUS’s Noyd v. Bond decision included a footnote that read, in part:  “we do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court.”  Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).  SCOTUS cited that very footnote in Denedo for the proposition that “military courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act.”  United States v. Denedo, 556 U.S. 904, 911 (2009).
    Isn’t that dispositive?  The Hasan case is one “which may ultimately be reviewed by” CAAF.  Noyd, 395 U.S. at 695 n.7. I don’t see any reason why CAAF could — or would even want to — avoid the Noyd.  The concept that appellate courts may issue writs in cases that fall within their potential appellate jurisdiction seems uncontroversial, in addition to being blessed by SCOTUS in this very context.  See also, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir. 2000) (“jurisdiction to issue writs of mandamus under 28 U.S.C. § 1651 lies in cases in which potential appellate jurisdiction exists”).  Am I missing something?

  3. Cloudesley Shovell says:

    Ah, hello Mr. Sullivan! 
    Avoid the Noyd!  I love the alliteration.  But on to substance.  I have no doubt whatsoever that you have all of the law exactly correct.  No quibble there.  But I think you would agree that CAAF has indeed perhaps shown a renewed interest in jurisdictional issues, with fresh vigor applied towards its status as an Article 1 court with strictly circumscribed statutory jurisdiction.
    Once again, I’ll defer to you completely on the law.  I’m a bit rusty these days on the nuances of appellate writ jurisdiction (my most recent foray into the law, as opposed to hunting for lost emeralds and other such pursuits involving Bernoulli, Pratt, and Whitney, was assisting a fellow practitioner with the precise trial mechanics of a slip and fall case . . . mundane stuff like cross-examination of the plaintiff, evidentiary foundations, jury instructions, witness lists, defenses v. affirmative defenses, hearsay rules, impeachment thru prior inconsistent statements.  Great stuff!) What caught my eye was CAAF’s instruction to brief up the issue of the ACCA still having the case under Art. 66.  Perhaps a hint that another court would be the more proper venue for the writ at this stage of the appellate proceedings?  An invitation to the United States to advance the understanding of the law when it comes to thorny issues of jurisdiction in the UCMJ? 
    The United States’ concession here may have had more to do with just letting the appellate circus in a death penalty case run its course without creating more issues for more appeals later.  But whatever the motivation, I applaud CAAF for insisting on more thorough briefing.
    Most kind regards,

  4. Dwight Sullivan says:

    [Standard Disclaimer:  I offer these thoughts purely in my private capacity; they should not be imputed to anyone or anything else.]  Another interesting application of the potential appellate jurisdiction approach was a ruling by the D.C. Circuit in the 9/11 cases.  It seems particularly apropos here because the petition for extraordinary relief involved a challenge to one of the CMCR judges — quite similar to what I understand in the nature of the petition for extraordinary relief in this case, substituting ACCA for CMCR.  Before granting the requested relief, the D.C. Circuit explained why it had jurisdiction:
    “The statutes governing military commissions afford this Court jurisdiction only over ‘a final judgment rendered by a military commission.'” In re Khadr, 823 F.3d 92, 97 n.2 (D.C. Cir. 2016) (quoting 10 U.S.C. § 950g(a)). But, as we have explained, “[t]he All Writs Act allows us to issue ‘all writs necessary or appropriate in aid of [our] jurisdiction[,]'” such that we “can issue a writ of mandamus now to protect the exercise of our appellate jurisdiction later.” In re al-Nashiri, 791 F.3d 71, 75-76 (D.C. Cir. 2015) (quoting 28 U.S.C. § 1651). The Government does not contest our jurisdiction to entertain Petitioner’s writ.
    In re Khalid Shaikh Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (per curiam).

  5. Steve Vladeck says:

    When you’re right, you’re right. Not only are Noyd and Denedo clear in the specific context of CAAF’s authority, but the question CAAF implicitly seems to be asking in this most recent order (specifically noting “the fact that the Army Court of Criminal Appeals has not completed its appellate review pursuant to Article 66”) is also settled. The Supreme Court has made it clear since 1966 that mandamus is available even to protect an appellate court’s _potential_ future jurisdiction. (FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966).)
    I covered much (if not most) of this in my Green Bag piece on “Military Courts and the All Writs Act”:

  6. Alfonso Decimo says:

    I thought the “has happened before” link would take us back to Moreno.

  7. stewie says:

    What’s the substance of the writ?