Search: Burke

CAAF will not order the release of documents in the Bergdahl case

In November, in this post, I noted two writ petitions in the Bergdahl case that sought to compel public access to documents introduced during the Article 32 preliminary hearing. One petition was filed by Sergeant Bergdahl, and the other was filed by a group of media organizations. The Army CCA rejected both petitions, findings that it did not have jurisdiction. CAAF has now affirmed the CCA’s decisions.

Read more »

CAAF dismisses (?)(!) Bergdahl’s third writ-appeal petition

In the ongoing case against former Taliban prisoner Sergeant Bergdahl, there have been four separate petitions for extraordinary relief. The first (discussed here) (denial noted here) sought to disqualify General Milley as the convening authority because he was asserted to be an accuser. The second (discussed here) (also denied) asserted procedural irregularities in the early handling of the case. The third (discussed here and here) sought a writ of mandamus to permit the public release of the investigation into the circumstances of Bergdahl’s capture. The fourth (discussed here) sought relief from an order prohibiting Bergdahl or his counsel from releasing that investigative report, and is particularly notable in that a companion petition was filed by multiple media organizations that seek access to the report.

Last week, in what I think is an astonishing order, CAAF dismissed the third petition:

No. 16-0059/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority, and United States, Appellees. CCA 20150624. On consideration of the writ-appeal petition for review of the U.S. Army Court of Criminal Appeals decision on petition for a writ of mandamus, the motion on behalf of the National Institute of Military Justice for leave to file a brief as amicus curiae, the motion of the Center for Constitutional Rights to file a brief as amicus curiae, the motion of NBC News, a division of NBCUniversal Media, LLC, for leave to file a brief as amicus curiae, and Appellant’s motion for an expedited hearing, it is ordered that the motions of the National Institute of Military Justice, the Center for Constitutional Rights and NBC News to file amicus curiae briefs are hereby granted, that the writ-appeal petition is hereby dismissed, and that the motion for an expedited hearing is hereby denied as moot.

(emphasis added). CAAF’s order is what Alton Brown would describe as wafer thin, but the decision to dismiss the third petition without explanation (such as, perhaps, that the court considers it moot in light of the fourth petition), and also to dismiss it rather than deny it without prejudice (as the first and second petitions were) is really very surprising. It’s also puzzling.

Dismissal is appropriate when the court lacks jurisdiction, such as in 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, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Notably, since CCR was decided, I’m aware of just six extraordinary writ petitions / appeals that were dismissed by CAAF:

  1. Wilson, No. 13-8038/AF: Dismissed “for lack of jurisdiction” on August 2, 2013;
  2. Forry, No. No. 13-8037/AR: Dismissed “for lack of jurisdiction” on September 23, 2013;
  3. [LC], No. 14-8007/NA:  Appellant’s “motion to dismiss the writ-appeal petition” granted on January 15, 2014;
  4. Roukis, No. 15-0170/AR: Dismissed “for lack of jurisdiction” on November 18, 2014;
  5. Andreozzi, No. 15-0403/AR: Dismissed “for lack of jurisdiction” on March 21, 2015;
  6. And now Bergdahl, No. 16-0059/AR: Dismissed for no specified reason on November 23, 2015.

One of these is not like the others (and Bergdahl did not move for dismissal).

The Army CCA finds no jurisdiction to require public access to documents introduced during an Article 32 preliminary hearing

The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture. The CCA’s decision denying the writ states that:

Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.

. . .

Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.

Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.

The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:

The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.

Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).

Writ-appeal petitions of both decisions have been filed at CAAF.

Bergdahl appeals to CAAF (again)

CAAF’s daily journal shows the following entry for Tuesday:

No. 16-0059/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority.  CCA 20150624.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for writ of mandamus was filed under Rule 27(b) on this date. Appellees will file an answer to said writ-appeal petition on or before October 23, 2015.

Prior coverage of the subject of this petition is available here.

Notably, CAAF’s docketing entry includes an order for the Government to file an answer to the petition. Bergdahl’s first writ-appeal petition (discussed here) was docketed without an order to answer, however eleven days later the court issued such an order (discussed here). Bergdahl’s second writ-appeal petition (discussed here) was also docketed without an order to answer, but the court did not order the government to answer.

Bergdahl seeks a third extraordinary writ

Sergeant Bergdahl has filed another petition for extraordinary relief – this time seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture.

A copy of the petition is available here.

According to the petition, during last week’s public Article 32 preliminary hearing, the investigative report and a transcript of MG Dahl’s interview of Bergdahl were submitted to the preliminary hearing officer. Sergeant Bergdahl wants to make these materials available to the public. However, Sergeant Bergdahl and his counsel are all subject to a protective order prohibiting them from releasing the materials (a copy of the order is attached to the petition; pages 89-90 of the PDF).

The petition also reveals that Sergeant Bergdahl’s counsel sought a advisory opinion from the Army’s Professional Responsibility Council regarding the ethics of releasing these materials in violation of the protective order. The request for the opinion is provided as an attachment to the petition and states that:

The defense is asking the convening authority to clarify or modify the protective order to permit the defense to disseminate unclassified case documents such as the transcript of SGT Bergdahl’s interrogation and MG Dahl’s executive summary. The defense wishes to be able to disseminate both of those documents at such time as they are marked in evidence by the preliminary hearing officer. This is important as a matter of affording SGT Bergdahl a fair hearing in the court of public opinion, since the government’s live witnesses’ testimony will be heard by the numerous news media representatives who are expected to attend the preliminary hearing, whereas mere documentary evidence will not be accessible by them or other new media in real time. In effect, the public will have only the government’s side of the story, but not the defense’s, as part of the critical news cycle.

Pet. Ex. 6 at 5 (page 47 of the pdf). Astonishingly, the Professional Conduct Council refused to issue any advisory opinion on the matter.

While concern about the “court of public opinion” is a debatable (perhaps dubious) basis for relief from a protective order, the writ petition presents the issue in a more fundamental context:


There is strong precedent that an Article 32 must be open to the public and the press unless “compelling circumstances dictated a different result.” ABC, Inc. v. Powell, 47 M.J. 363, 366 (C.A.A.F. 1997). However, “every case that involves limiting access to the public must be decided on its own merits. Furthermore, the scope of closure must be tailored to achieve the stated purposes and should also be reasoned, not reflexive.” Id. at 365 (marks and citation omitted). The protective order in the Bergdahl case is very broad and seems to run afoul of this requirement.

Notably, neither the protective order nor the petition reference Mil. R. Evid. 506: The privilege for Government information other than classified information (one of the few privileges that I believe the Government should be able to assert under the UCMJ). That privilege applies at Article 32 preliminary hearings (in accordance with the new R.C.M. 405(h)). Yet it appears that the Government has not (yet) claimed that specific privilege.

The Government may well have the right to deny the public access to some of the materials that Sergeant Bergdahl wants to release, however I think there’s a very strong argument to be made that it has failed to narrowly tailor the restriction to meet only legitimate protective needs.

CAAF denies SGT Bergdahl’s second writ-appeal

CAAF denied SGT Bergdahl’s second writ-appeal on Friday, with the following order:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority and United States, Appellees. CCA 20150463.  On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

I discussed this filing here. All of our Bergdahl coverage is available here.

Sergeant Bergdahl seeks extraordinary relief (again)

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

This Week in Military Justice – January 25, 2015

Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, January 30, 2015, at One Liberty Center, Suite 150, Conference Room, 875 North Randolph Street, Arlington VA 22203. Additional information is available here.

This week at SCOTUS: I’m not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, January 27, 2015, beginning at 9 a.m.:

United States v. Olson, No. 14-0166/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page)

I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

Case Links:
ACCA opinion (73 M.J. 859)
Blog post: The Army enforces Jencks
Blog post: The Army JAG certifies Jencks issue in Muwwakkil
Appellant’s (Government) brief
Appellee’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, Monday, January 26, 2015, at 2 p.m.:

United States v. Burke, No. 20120448

I. United States v. Miranda requires that a suspect be read his rights when the suspect is interrogated while the subject’s freedom of action is deprived in any significant way. Here, Appellant’s commander ordered Appellant to report to the battalion headquarters to perform “special duty” where he was informed of his wife’s death, he was not dismissed by his superiors or otherwise free to leave, and then was interviewed by civilian law enforcement. Thus, when Appellant was questioned, his freedom of action was deprived in a significant way, and the military judge abused his discretion when [he] admitted Appellant’s statements to law enforcement absent Miranda warnings.
II. Servicemembers must be read their Article 31(b), UCMJ, rights when they are suspected of an offense and questioned by a party subject to the code or otherwise an agent of one subject to the code. Here, civilian law enforcement agents coordinated a suspect interview with appellant’s command, came onto the military installation, and conducted the interview in the battalion conference room, appellant’s appointed place of duty. In availing themselves of the benefits of using the military command and installation to conduct their suspect interview, the government cannot show that the subtle pressures of the military environment were not present, and thus, the military judge erred in ruling that article 31(b) rights warnings were not required prior to questioning.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. O’Connor, No. 38420, on Friday, January 30, 2015, at 10 a.m.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Argument Preview: United States v. Lee, No. 07-0725/MC

CAAF will hear oral argument in the case of United States v. Lee, No. 07-0725/MC (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single issue:

 Whether the Court of Criminal Appeals erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of appellant’s name from the Texas sex offender registry.

The facts of this case are likely well known to most regular readers of this site; however, I’ll provide a refresher/consolidated summary.  Appellant was convicted in 2005 by a military judge sitting as a general court-martial, after mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and a gentleman, and five specifications of indecent assault in violation of Articles 129, 133 and 134, UCMJ, respectively. He was sentenced to confinement for three years, forfeiture of all pay and allowances, and a dismissal.

Read more »

Military Justice News for November 15, 2013

A commenter mentioned something about “The Weirick.” A little research turned up this story in the Marine Corps Times:

The Marine whistle-blower who was fired from his job in September received a poor performance evaluation after his removal — more proof of reprisal, his attorney says, for voicing concerns about senior leaders’ involvement in the legal proceedings stemming from a high-profile scandal.

Maj. James Weirick, a Marine attorney stationed in Quantico, Va., received his most recent fitness report in late October from Col. Donald Riley, the supervisor who ousted him from his post after Weirick wrote a confrontational email to Peter Delorier, a former legal adviser to Marine Corps Commandant Gen. Jim Amos. Dated Oct. 24, the document rates Weirick as average or below average in individual skills, character and leadership competencies, and recommends he not be promoted.

If this keeps up then I’m going to have to issue a retraction of my post where I argued that the existing prohibitions on retaliation for reporting offenses are strong enough.

The Marine Corps Times also has this story of an acquittal in a long-running court-martial in California:

A combat-wounded Marine accused of defrauding the government as part of a massive embezzlement scheme was acquitted this month after defense attorneys argued during his court-martial that his command took extraordinary measures to ensure he was punished.

The criminal case against Staff Sgt. Anthony Rios Jr., 38, is significant because his legal team tied the aggressive effort to prosecute him to a presentation delivered last year to thousands of Marines around the world from the service’s commandant, Gen. Jim Amos. Amos’ so-called Heritage Brief took aim at what he saw as a rash of misbehavior in the ranks — everything from sex assault and hazing to monkey business in the war zone — and called for Marines to hold one another accountable when they screw up.

Rios, a forward observer with 3rd Air Naval Gunfire Liaison Company, was charged in 2011 with conspiring to steal $3,000 through bogus travel claims.

Law and Order: SVU has a new episode titled “Military Justice.” A full rundown of the episode is here (spoilers galore), and includes this:

Amelia [alleged rape victim] comes by the precinct after word of the arrests [of those she accused]. Just as she begins to open up about the female hazing that takes place on the base, several officers barge into the office, arresting Amelia for fraternization, disorderly conduct, and adultery. They drag her out of the office. Shocked, Liv doesn’t understand how they can charge her with adultery when she’s single. Barba explains that since Lipitt is her junior, he won’t be charged. What’s more, now that she’s been charged, the charges against the men will be dropped. The next step will be an Article 32 hearing — which is like a grand jury, except that they can ask anything they want. As if a grand jury wasn’t traumatizing enough.

And there are multiple stories about an apparent shift (and who didn’t see this coming) in the focus of effort to “reform” the military justice system. From this Stars and Stripes story:

“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand, who chairs the Senate Armed Services personnel subcommittee, told reporters. “We already have a majority on our current bill. … We may need 60 (votes) and we’re looking intently to undecided colleagues about what makes the bill stronger.”

Emphasis added. The story also notes:

Military officials said setting up the new independent office would cost about $113 million a year, including salaries for about 600 attorneys and support staff.

Finally, in news from the Naval Academy, the Associated Press got their hands on a copy of the Investigating Officer’s report in the former football players sexual assault case. An excerpt from this Washington Times story:

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

The story continues with a comment from Susan Burke:

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Someone please help me out. What does Ms Burke consider to be “a win?” Because last I checked:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

Hey. Why are you laughing?

US District Court Declines to Intervene in USNA Court-Martial

Here (AP via ABC News) is coverage of US District Judge Ellen Hollander’s decisin from the bench today declining to intervene in the court-martial of three former USNA football players at the request of the alleged victim’s counsel, Susan Burke. She reportedly stated, “I think for me to stick my nose in the Navy’s business right now would be a far cry from appropriate.”

Burke sought to have the court remove [USNA Superintendent VADM Mike] Miller from deciding whether the case of the three former football players, Tra’ves Bush, Josh Tate and Eric Graham, proceeds to a court-martial. She contends the superintendent is biased against her client because he thinks the case reflects badly on the academy and his leadership.

“He’s angry at the victim for speaking out,” Burke said.

Hollander noted that Burke went straight to federal court, without first seeking relief in the separate military system. The judge said Burke was asking the court to “micromanage the investigation.” She also said the request “trivializes the importance” of having a separate military justice system.

Doe v. Superintendent USNA Complaint

Here is a link to the Complaint filed by Susan Burke on behalf of the victim in the Naval Academy sexual assault Art. 32 hearing held last week.  Thanks to many for forwarding it.

Victim’s Counsel Files District Court Lawsuit to DQ USNA Superintendent

So Susan Burke has gone from witness in the Art. 32 hearing to advocate asking the Superintendent to disqualify himself, AP (via ABC News) report here:

A midshipman accusing three former U.S. Naval Academy football players of sexually assaulting her at an off-campus toga party has asked in a federal lawsuit for the school’s superintendent to remove himself from deciding whether the men will be court-martialed, her attorney said Thursday.

The suit filed in Maryland seeks a court order directing Vice Adm. Michael Miller to recuse himself, Attorney Susan Burke said. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.

Ms. Burke has interesting notions of standing so this should be . . . interesting, see Cioca v. Rumsfeld here and here.  H/t LB

Military Justice News for Jun. 18, 2013

The Manning case will take a hiatus from testimony as Judge Lind hears oral arguments on evidentiary issues today and the government and defense negotiate witness statements for witnesses that are unable to appear. Coverage from AP (via WaPo) here

Arguments in the CCR lawsuit in D.Md. district court were held yesterday, AP (via ABC News) reports here. It would appear that the Army’s proposed 2 day turn around time on documents from the case will satisfy the district court. Now why can’t the Army do that in all courts-martial?

Here’s a headline I couldn’t have predicted “Pending Hasan trial having positive economic impact,” see Temple Daily Telegram here (subscription required).

Though a little dated, a San Antonio based Air Force recruiter, TSGT Jaime Rodriguez, was sentenced to 27 years in the brig for aggravated sexual assault and other charges stemming from contact with recuruits and potential recruits.  Texas Public Radio report here and AF Times report here.

Three Naval Academy football players are going to face an Art. 32 hearing for sexual assault charges stemming from an incident last year.  USAToday reports here that the investigation of the case was re-opened after the alleged victim retained a lawyer, Susan Burke, and cooperated with investigators.  The report states that “that one of the accused football players told the victim not to cooperate with NCIS and that the academy closed the investigation in 2012, citing the victim’s unwillingness to cooperate as the reason.”

In the rocky legal terrain


Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.