Users may have noticed a site outage this morning. The cause was a faulty piece of hardware (a switch). It’s been repaired.
Update: The links are fixed.
The Coast Guard redesigned its website and, in the process, broke our links to the Coast Guard CCA’s website.
The new Coast Guard website is awful, emphasizing pictures and graphics over substance, and I can’t find any working links to the Coast Guard legal community’s pages.
If any reader has a working link to the Coast Guard CCA’s website, please post it in the comments or send me email at firstname.lastname@example.org
In this post I noted the publication of proposed changes to the MCM for 2017. Last week I submitted a public comment regarding those proposed changes. It’s not available on the docket website (yet), so you can read it here.
My comment addresses only one of the proposed changes: the proposal to rewrite R.C.M. 1103A (direct link) to limit appellate defense counsel review of sealed materials attached to the record of trial but not disclosed to the trial participants. This was an idea advanced last year by the Air Force Appellate Government Division (discussed here and here). The proposed change seems to be a direct response to the refusals of the AFCCA and CAAF to judicially rewrite the rule in order to limit such review. In my public comment I assert that:
There is no rational justification to allow appellate military judges to review the complete record of trial but not afford a similar right to appellate counsel (who may – and often do – outrank the judges themselves). Furthermore, protective orders issued by a court of criminal appeals or by CAAF are more than adequate to protect the privacy interests of victims, witnesses, and others whose private affairs may become part of a record of trial by court-martial.
R.C.M. 1103A was established in 2005 and reflects the considered judgment of the President informed by the decisions of the Court of Appeals for the Armed Forces (CAAF) in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). There are no new circumstances that warrant upsetting this settled, functional, and practical rule. The proposed amendment should be rejected.
My comment also suggests a number of additional changes to the MCM. I want to highlight one of these in particular: that the Rules for Courts-Martial explicitly state that Government counsel represent either the prosecution or the appellate government division, but not the Government at large.
Part II of the MCM repeatedly references the prosecution as a party to a court-martial, and so trial counsel should refer to themselves as the prosecution (and not as the Government or the United States). Furthermore, the arguments advanced by attorneys assigned to the various appellate government divisions are not coordinated among the divisions or with any central authority (like the Attorney General), and so the divisions should avoid the exaggerated claim that they speak for the entire Government. CAAF’s Rule 26(a) (and the AFCCA’s Rule 15.3(a)) actually allows each of the appellate government divisions to file amicus curiae briefs without invitation, emphasizing the independence of each division. If, however, each appellate government division represents the entire Government, then the rule would allow the Government to file an amicus curiae brief in support of itself.
This isn’t intended as an attack on the counsel who prosecute courts-martial and court-martial appeals. They’re professionals who represent a side in our adversarial system. But it’s at least incredibly awkward when individual prosecutors or an individual appellate government division personifies the United States. It’s also an uncomfortable characterization in a trial by court-martial where all of the participants are agents of the Executive Branch (and it could have an undue influence on the process). I realize that Article 38(a) states that trial counsel “shall prosecute in the name of the United States,” that Article 70(b) states that appellate government counsel “shall represent the United States,” and that courts-martial are captioned United States v. [Accused]. Nevertheless, I believe that use of the prosecution and the appellate government division makes an important semantic distinction.
I have already made this change in my writing on this blog, generally referring to trial counsel as members of the prosecution and to appellate government briefs as the product of the division involved.
I’m really happy to announce that beginning tomorrow, Isaac “Zeke” Kennen will join CAAFlog as a contributor and will revive the Scholarship Saturday weekly feature.
In 1998, shortly after graduating from high school, Zeke left a working-class community along the foothills of the Blue Ridge Mountains to enlist in the Air Force. He completed an undergraduate degree and deployed to the Balkans during that enlistment, separating in 2003 to attend law school at the University of Colorado in Boulder where he focused on international law and land use. He graduated in 2006 and spent a year adjudicating employment discrimination complaints for the State of Colorado before returning to the Air Force.
Zeke was commissioned into the Air Force JAG Corps in 2007, where he continues to serve. His past assignments include duty as a deputy staff judge advocate, trial counsel, trial defense counsel, appellate defense counsel, and legal adviser to the NATO Commander of Kandahar Airfield in Afghanistan.
Like the rest of us, Zeke’s contributions to this blog will be made in his personal capacity and will reflect only his personal opinions. His contributions do not in any way reflect the official policy or position of the United States Air Force, the Department of Defense, or the U.S. Government.
Each December we count down the top ten military justice stories from the past year. Past lists are available here.
As we crunch the numbers and build this year’s list, we want your nominations for the Top Ten Military Justice Stories of 2016. Please post them in the comments section or email them to email@example.com
CAAF’s Clerk of Court, William A. DeCicco, is retiring and the court is advertising to fill the position: https://www.usajobs.gov/GetJob/ViewDetails/457121600
We wish Mr. DeCicco fair winds and following seas.
The Air Force CCA’s website has been offline since late last week. The site administrators are aware of the problem.
I’m proud to announce that CAAFlog is on the 2016 ABA Journal Blawg 100 list of the best legal blogs.
Thanks to all our readers.
Access restored this morning.
CAAF’s website (and also the AFCCA’s website that is hosted on the same Air Force server) is currently inaccessible. The court is aware of the problem but has no estimate for its resolution.
Public access to the CAAF and Air Force CCA websites has been restored.
The websites of CAAF and the AFCCA (which are hosted on the same servers) are currently inaccessible to the public. However, users on the military networks may still have access.
The websites for CAAF and the AFCCA are now accessible.
Today CAAF issued its opinion in the certified Coast Guard case of United States v. Cooley, No.15-0384/CG & 15-0387/CG (CAAFlog case page).
While CAAF’s website is down, the opinion is available here.
Analysis to follow.
In (sort of) related news, the Army CCA’s website is now accessible to the public.
I’ve been informed that CAAF is optimistic that its website will be restored tomorrow (the AFCCA’s site is on the same server and is also currently inaccessible).