CAAFlog » October 2018 Term » Hasan v. ACCA

On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Lewis, No.19-0109/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast. (update: audio fixed)

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

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Wednesday, March 27, 2019, beginning at 9:30:

United States v. Lewis, No.19-0109/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Note: This case is an Article 62 interlocutory appeal, and so the only briefs are the initial pleadings to CAAF.

Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page)

Major Hasan seeks extraordinary relief in the nature of a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 28, 2019, at 1 p.m.:

United States v. Moore, No. 20180692

Issues:
I. Whether the military judge’s ruling “terminates the proceedings with respect to” Specification 2 of Additional Charge I.

II. Whether the military judge erred when he found that the Government’s pre-referral change to Specifications 2 and 3 of Additional Charge I constituted a major change.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

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

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.