Truth, lies and Afghanistan

How military leaders have let us down

By LT. COL. DANIEL L. DAVIS

I spent last year in Afghanistan, visiting and talking with U.S. troops and their Afghan partners. My duties with the Army’s Rapid Equipping Force took me into every significant area where our soldiers engage the enemy. Over the course of 12 months, I covered more than 9,000 miles and talked, traveled and patrolled with troops in Kandahar, Kunar, Ghazni, Khost, Paktika, Kunduz, Balkh, Nangarhar and other provinces.

What I saw bore no resemblance to rosy official statements by U.S. military leaders about conditions on the ground.

My post discussing the efforts of appellate defense counsel to join the trial defense team in the retrial of United States v. McMurrin, and particularly the discussion in the comments, prompted me to recall my experiences attending training seminars as a Special Assistant US Attorney. During one seminar, at the National Advocacy Center in Columbia, SC, I experienced three days of intensive classroom instruction by AUSAs who were chosen for their knowledge, experience, and classroom demeanor, and flown-in to teach their particular subject. Each of these experts arrived on the day of their class, presented in impressive fashion, freely shared their contact information, and then returned to their districts and significant caseloads.

Thinking about that experience, I realize that in 5 years of active duty (a quarter-career!) I’ve experienced nothing in the military that even comes close. More often than not, military instructors read from old, inaccurate slides, are unfamiliar with the subject matter, and put the class to sleep. Senior officials or true subject-matter experts rarely appear, and if they do they usually give a brief “motivational speech” or “community update.” This is a generalization, but I can recall precious few impressive military instructors, and I suspect my experience is the norm.

Considering that as an armed force we train more than we do anything else, why as a legal community don’t we take it more seriously?

I recently had reason to visit the legal office at Naval Air Station Whidbey Island.  I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world.  The base and surrounding community feel like a time capsule from 40 years ago.  EA-6B Prowlers—now being displaced by an F/A-18 variant—are still seen in the sky, along with the aging P-3, a maritime patrol version of a 1950′s turboprop airliner.  The air station is strewn with modest, semi-permanent buildings erected during the Second World War, making it look like a Beetle Bailey panel.  The base—and some local old-timer retirees—enthusiastically support one of the Navy’s few remaining officers’ clubs.  The surrounding town of Oak Harbor is small, dense with Navy vets, and fervently loyal to Naval Aviation.  I received only one or two aircraft noise complaints during my time there as SJA.  I also received a call from an angry citizen asking if the First Amendment required that the base exchange carry Jane Fonda’s autobiography.  Waves of change seem to just wash over Whidbey Island.

 My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff.  I didn’t sit in on the meetings, so I had some time.  While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it.  I’d seen these before, but hadn’t seen one in a long while.  I always liked these posters.  Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten.  Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.

As I scanned the punitive articles, I paused at Article 120.  Of course it was the pre-2007 version.   I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore.  New Article 120 might have to go on its own poster.  Past the punitive articles were the miscellaneous provisions.  It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment.  I don’t remember this statute being given effect anywhere I have ever served.  Perhaps there is an instructional block on the UCMJ in boot camp that checks this box.  But who tracks folks for their six month anniversary?  Has anyone seen a reenlistment accompanied by a UCMJ brief? 

My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law. 

I thought some more about the implications of a requirement to explain the law to those most affected.  The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge.  It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them. 

I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler.  Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that 

“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .

If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.

Look at Article 121, for example.  You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny.  It’s hard to define, hard to plead, and hard to prove.  But the 140 words that make up Article 121 do just fine.  You can read the article, understand it, and explain it.  Or look at the scant 104 words that comprise Article 128 assault.  It’s easy to understand.  If you’re a practitioner, it draws on things you already know.  Those 104 words get a lot done.  So if 104 words are good, the 2,835 words of Article 120 should be great, right?  I think we’ve all arrived at the same answer.  Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.”  It attempts to be self-sufficient.  But in its quest to become comprehensive, it became incomprehensible.  Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct.  Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice.  Even lawyers think it’s gobbledygook. 

The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem.  Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.”  Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.

I know Congress is having another crack at Article 120.  I hope they have Article 137 in mind when they draft the new new Article 120.  If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code.  It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused.  It’s a separate system that operates in a separate society.  I hope Congress remembers that this year.

The Navy posted 10 “Sexual Assault Prevention Tips” on its Facebook page:

Link to Facebook posting here.

Responding to predictable immediate criticism, the Navy posted this followup:

Navy fans, we’re appreciative of the interest on a topic that doesn’t get enough serious scrutiny. A few things we’d offer: 1) This is not a Navy-generated poster, but we extended it to get your attention; 2) As sad as it is, you’d be surprised how many people need to be told these seemingly basic things; 3) It’s everyone’s responsibility to stop sexual assault. Let’s get to it. (AG)

Fox News has the story here.

On Tuesday, bookstores received copies of Jerome Corsi’s book with the OBE title, “Where’s the Birth Certificate?” 

The book has a 3/4 page synopsis of LTC Lakin’s case, which appears on page 289.  That 3/4 of a page includes three glaring errors.

First, the book repeats the falsehood that Judge Lind said she denied discovery of evidence concerning the President’s birth to avoid embarrassment to the President.  I know that the book’s author, Jerome Corsi, knows that claim is untrue because he and I engaged in an email exchange about that claim when he referred to it in a WorldNetDaily article in November 2010.  Yet Corsi lies by repeating that false claim in his book.

A second error could be a deliberate falsehood or the result of negligence; either of those possibilities is probative of the accuracy of Corsi and his book.  The book states that a military jury convicted LTC Lakin of orders violations.  Not so.  LTC Lakin pleaded guilty to three orders violations; the only contested charge — of which LTC Lakin was convicted — was missing movement by design.  Corsi must not have made the slightest effort to get the facts right, since merely the slightest effort would have been required to discover that LTC Lakin pled guilty to the three orders offenses on the charge sheet.

The third error is a typo.  The book refers to laws “allegedly violated by Lind.”  That sentence should have referred to laws allegedly violated by Lakin.

Three obvious errors in 3/4 of a page.

I understand that some in the Birther camp are willing to say just about anything — regardless of the truth– in an attempt to discredit the President.  But I’m particularly repulsed that Birthers like Corsi are so willing to make false claims about a dedicated, honorable military officer like Colonel Lind. 

In an interview from Friday posted on the Terry Lakin Action Fund’s website, LTC Lakin says he received a signed copy of Corsi’s book — one of three provided to him by “several nice people.”  TLAF Trustee Marco Ciavolino then states, “We’ll be interested to hear your thoughts on that book.”  So will I.  Will a man whose mantra was “The Truth Matters” allow Corsi’s lie about Judge Lind’s ruling to go uncorrected?  Or will LTC Lakin let his followers know that Corsi made a false allegation concerning Judge Lind’s ruling — and made a couple of additional mistakes about his case as well?

Won’t you agree with me that we should insist on keeping the expression on active duty, which alleges subject matter jurisdiciton, after the word did in our specifications?  I almost never see it there anymore.  I usually find it crammed in with the allegation of personal jurisdiction at the beginning of the specification.

It occurred to me today when re-reading the Prawfblawg post The Most Inexplicable One-Year Delay in Appellate History?, the one that links to our post on the CMR decisions in Hamdan and al-Bahul, that the title of the post is another Rodney Dangerfield moment in military justice.  To wit, would anyone that has read anything out of CAAF regarding appellate delay in the past two years (and there have been whole volumes) think a one-year appellate delay was even remarkable?  I wonder if a librarian from a local law school could tell us which reporter volumes accumulate dust in the library the quickest?  I’d put money n the M.J. reporter.  Thanks to Prawfsblawg for the link though.

My frequent refrain when people criticize our choice of topics on CAAFlog is that if you don’t like our choices, start your own blog.  To that end I offer this constructive advice from former Drug and Device Law blogger Mark Herrmann, courtesy of the ABA’s Litigation magazine.  This piece of wisdom should resonate with our fair leader:

Blogging is addictive. You can watch readers post comments on your blog, reacting to a new post within minutes of its publication. Google Analytics gives nearly instantaneous feedback on the broader results of your work. If you publish a post that attracts attention, you see an immediate surge in traffic to your blog.  . . . The immediacy of reactions on the Web, and your ability to monitor and influence those reactions in real time, can become addictive. . . . People with compulsive personalities should not launch blogs.

Amen.

[Warning 100% non-military justice, non-law related post]

It occurs to me that this winter the Mid-Atlantic states can count on exactly two things, more snow and more taxes.  Here’s my conundrum.  Howard County, Maryland has the highest local tax in a state ranked 4th nationally in highest overall tax burden.   If I can count on more taxes than why is it that I was stuck in my neighborhood for 3 days after this snowfall and had not seen a snow plow on my road?  Ok, maybe it was the storm of the century here and 32 inches of snow is a lot no matter where you are from, so I’ll cut the hard working plowman some slack . . . so, at least I’m not on a mountain pass north of Kabul or the Chief of the Sri Lankan Army (warning, slightly military justice related).

There has been a lot of debate in the comments about Rep. Burton’s letter and the politics behind it. What seems to have faded from the comments after the first few is whether the facts/analysis used in the letter is even accurate. So, let’s take the letter paragraph by paragraph (sentence by sentence, if we have to) and see if it is fact or fiction. Skipping the introductory pleasantries, the first substantive sentence says,

Ahmed Hashim Abed was one of the most wanted terrorists in Iraq; responsible for the murders of innocent American civilians and numerous attacks on American and coalition forces.

No arguing there, from all I have seen and heard reported that is 100% fact.

Next we have

The injuries to Mr. Abed were, as you readily admit, relatively minor and certainly pale in comparison to the brutality of the crimes he helped perpetrate.

While I have to say that I don’t see the relevance of the comparison, vigilante justice has been decried in the modern world for . . . a long time, I will admit that this is an alleged fact in the case. Facts 2, Fiction 0.

Next,

While Petty Officers Huertas, McCabe and Keefe may have been wrong to not fully cooperate with investigators, it seems to me that the punishment still far exceeds the crime.

What punishment?  The charges have been referred and there will be a trial and sentencing. If the government proves it’s case beyond a reasonable doubt and extracts a harsh punishment that is too severe, MG Cleveland can grant clemency. If the good congressman is referring to the referral, I believe going to court-martial was the accuseds’ choice. MG Cleveland sent the offenses to Mast and they refused. Very few commanders will just back down when an accused refuses Mast, talk about a having an effect on G.O. and D.? Analysis is fiction. As for the congressman’s admission that the sailors were wrong not to cooperate with the investigation, that’s an alleged fact. And somehow the significance of that alleged fact in a military context is lost on the congressman. In the military if you lie to your boss, that’s an offense. While defense counsel and former defense counsel (like myself) like to view false official statements as piling on, that is the law.  As far as the allegation of trying to impede an investigation by asking others to not cooperate or lie, really congressman?  In Congress if you lie to the American people, your boss, or a House investigation, I guess they call that politics. Facts 3, Fiction 1.

Next is the sentence that set me off on this rant,

First, the fact that fellow U.S. service personnel initially raised the accusations against Petty Officers Huertas, McCabe and Keefe strongly suggests that we have created a culture within our Armed Forces where our military personnel are now more concerned about protecting themselves from legal jeopardy for every action or statement, than they are about fighting the enemy.

Now that MG Cleveland’s letter has trashed Rep. Burton’s argument about believing a terrorist in charging a hero, he comes up with this straw man.  Long before Sep. 11, 2001 or Operation Iraqi Freedom there was a thing called the Navy Regulations.  Chapter 11 of the Navy Regulations is called, General Regulations.  Section 4 of that Chapter, Duties of individuals, requires all naval personnel to “report as soon as possible to superior authority all offenses under the [UCMJ] which come under their observation. . .”  There is probably some sort of a de minimis exception here, you don’t need to report your buddy every time he goes 1 MPH over the base speed limit.  But, since when is an allegation that a uniformed service member punched a detainee in US custody de minimis?  Didn’t such things get a bunch of uniformed service members into a bunch of trouble at a little place called Abu Ghraib?  Has Rep. Burton learned nothing from that unfortunate set of events?  Analysis, FICTION!!!

Notably, a few sentences later Rep. Burton shows just how fallacious his new argument is by recycling and repacking his argument that we shouldn’t rely on the word of an alleged terrorist,

In this case the American people’s perception is that you are unfairly prosecuting three heroes based, at least in part, upon the word of an inhumane monster.  Al-Qaeda’s own handbook instructs their operatives to allege detainee abuse if detained by American forces.  In fact, al-Qaeda operatives are trained to self-inflict injuries for the sole purpose of accusing U.S. forces of abuse.  We’ve seen repeated cases of this since the conflicts in Iraq and Afghanistan began.

Two things here, first, since when should charges be influenced by the erroneous perception of the American people based on poorly sourced news coverage?  And, how is it relevant to this discussion that the Al Qaeda handbook says to do such things if military members are alleging and a military commander alleges in charges that these things happened?  If the government proves beyond a reasonable doubt through the eyewitness testimony of service members that these acts occurred, even the biggest defense hack (I won’t use names) on this blog would have a hard time arguing with a verdict against these sailors based on the al-Qaeda handbook.  Analysis, fiction.  Facts 3, Fiction 3.

Moving on,

Second, because of the intensive media coverage of this case – even if it is incomplete and factually inaccurate as you describe, this is the public’s perception of the case – the American people are outraged by the courts-martial of individuals who should be hailed as heroes.  In fact, over 30,000 Americans have signed my online petition calling for an end to this prosecution.  Perhaps even more alarming than the decline in morale this case has caused the country is the boost in morale and confidence that this case gives to Al Qaeda terrorists, who as I said, already believe America does not have the will or stomach to do what is necessary to defeat them.

Ok, “the American people” is used a little sweepingly here.  If he means the 30,000 people that signed his on-line, no consequences for signing, petition, yes, fact.  Let’s see, US pop. = 308 million, that’s about .01 %.  Show me a Gallup pole or something similar.  As for the decline in what I guess he means is national morale, how do I gauge that in these troubled times?  As for al-Qaeda’s morale . . . I don’t know how to gauge that either.  They just had a failed mission in Detroit, 10,000 Marines are arriving in Afghanistan, is this a Top 10 al-Qaeda news story for 2009-10?  I have no idea.  Since none of this is even close to a known-known, much less an known-unknown, I am calling in the Fiction flag.  Facts 3, Fiction 5.

Next, “General Cleveland, you are a distinguished soldier and former Special Forces operator yourself.”  I can’t find his bio, but lets assume he didn’t make Major General for his stunning good looks.  Fact.  Facts 4, Fiction 5. 

And the Fictions have it.  Bring out the angry commentariat.

1.    [Updated]  The Shui-Bhan v. United StatesPetition for a writ of mandamus makes my head hurt. 

But, ultimately my thoughts can be summed up by saying, getting from Taiwan to 450 E Street NW is far harder than the petitioner would make it out to be.  

The first hurdle for petitioner would be proving that Tawan is still an occupied territory.  That hurdle appears to be insurmountable as the DC Circuit’s opinion holding that very question was an unanswerable political question, Lin v. United States, was just denied certiorari to the US Supreme Court, here, see page 37.  Interestingly, the DC Circuit case  actually gave some credence to the petitioner’s claim that the status of Taiwan as a legal entity of the US is in some question. 

Hurdle two is converting that legal status into UCMJ jurisdiction.  Given that President Shui-Bhan was the elected civilian leadership of the Taiwanese military, and not appointed my the US military, I don’t see Art. 2(a)(11) UCMJ coming in handy.  As for petitioner’s other ground for jurisdiction, Art. 2(a)(12), I don’t see how you get from “leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned” to Taiwan.  If anything can be said by a court about Taiwan without violating the political question doctrine, it is that the U.S. does not control Taiwan, and certainly SecDef doesn’t.  Thus, Taiwan likely falls outside an that provision as well. In any event, my off hand recollection is that customary international law of occupation dictates the treatment of the populace can still be carried out by local courts so long as the occupier doesn’t replace them.

Third, well there’s CAAF’s writ jurisdiction . . . in aid of what now Mr. Shui-Bhan?

I still like my earlier prediction, but will add that I think the safest answer is to say no jurisdiction due to political question.  Prediction: while holding a civilian commander in chief accountable to the UCMJ is probably a very attractive proposition to some of our readers, I just don’t see it happening.  I still would like to see CAAF say more than denied. 

2.    I can assure all of our readers that under the FTC’s new Guides Concerning the Use of Endorsements and Testimonials in Advertising, CAAFlog in disseminating positive statements about a product or service acts solely independently and does not get free stuff from any company or act on behalf of any advertiser.  Though we wish we had to make an endorsement disclosure (because that would mean our blogging had somehow resulted in us getting free stuff), alas you can still trust our objectivity–OK, JO”C, you can at least trust our lack of corporate bias.

The No Man has offered praise for NMCCA’s revamped web site.  Maybe I’m being curmudgeonly, but I am more frustrated than impressed.  Here’s what NMCCA’s web site tells us about the opinions posted on it:

NMCCA Decisions (Court Opinions)

This section includes final published and unpublished opinions. Published opinions are binding precedent upon this court. Opinions that are unpublished but authored may be cited as persuasive authority. Per Curium opinions (which are neither binding nor persuasive precedent) will not be posted to this Web site unless the U.S. Court of Appeals for the Armed Forces grants a petition for review of that case.

First, note that NMCCA misspells “per curiam.”  Not a good sign.  (“Per curiam” means “by the court”; “per curium” would mean “by the silvery metallic synthetic radioactive transuranic element.”)  Second NMCCA thinks its own per curiam opinions are “not persuasive precedent”?  What does that mean?  NMCCA’s per curiam opinions — like per curiam opinions of any court whose opinions are not controlling under stare decisis principles — are persuasive to the extent that they are well reasoned.  The utility of the distinction between authored unpublished opinions and per curiam opinions mystifies me.

Finally, as I have repeatedly noted, NMCCA is alone among the five military appellate courts in not making ALL of its opinions available on the Internet.  NMCCA is also out of step with Article III appellate courts, which are required by statute to make ALL of their opinions — published and unpublished (including per curiam opinions) — available on the ‘net.  See E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913-15. 

President Obama has indicated great concern with public access to government information.  In his 21 January 2009 Memorandum to Heads of Executive Agencies and Departments about FOIA, he wrote:

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

Perhaps President Obama would be open to revising the MCM to require all of the CCAs to make all their opinions available on the Internet.  In fact, I think I’ll write up such a proposal and submit it to the JSC.

What follows is the beginning of an extended response to an Op-Ed on page A15 of Wednesday, May 6th’s Wall Street Journal, authored by Senators John McCain and Lindsey Graham. Online edition available here. And here it is for your reading pleasure . . . or not.

Senators John McCain and Lindsey Graham wrote an Op-Ed published in the May 6, 2009 Wall Street Journal titled, “How to Handle the Guantanamo Detainees.” While I fully realize that Senators Graham and McCain may never read a response from a young, former Navy judge advocate who writes part-time for a military justice blog, I pen this response because of my utmost respect for Senator McCain and his views on the prisoner of war debate. As an initial matter, I would say that I agree with the Senators’ desire to “move on” from the now decried opinions of various administration lawyers. Those legal opinions should not now become the focus of prosecutions, they should become a part of history.

I don’t have much time tonight, but I wanted to add a short addendum to last night’s rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it’s apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let’s also do a bit of comparison shopping. In 2002 — the most recent year for which I could quickly find statistics (have I mentioned I’m under the gun tonight?) — the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit’s 2002 docket would be — 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here’s something that every 4th Circuit case decided in 2002 had in common — they all raised issues. There’s no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I’ll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT’s cover.

But wait, there’s more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn’t have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President’s exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF’s workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it’s very rare to see a factual insufficiency claim raised that isn’t accompanied by a legal sufficiency claim, so that’s unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF’s size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn’t appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate — such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk’s office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs’ cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF’s size later (which, again, strikes me as a low-probability contingency) shouldn’t lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn’t have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF’s staffing. So it isn’t necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs’ elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today’s Washington Post. They extol the virtues of the F-22, which “is, unquestionably, the most capable fighter in our military inventory.” They suggest that having more is better, but forthrightly indicate that we can’t afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can’t afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times — when we are painfully sacrificing our military’s teeth — how can we justify the expense of maintaining five appellate courts that cling to the tip of the military’s tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs’ operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions — just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system — in which CAAF would no longer itself hear cases in two stages — would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let’s say I’m wrong. Let’s say we really do need a two-layer appellate system. Then can’t we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs’ operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn’t buy one F-22 — even if we added together all of the savings over 10 years. But I’ll bet it would be enough to save some other valuable military program that contributes to DOD’s war fighting capabilities.

If we are willing to sacrifice 60 of the “most capable fighter[s] in our military inventory” because they cost too much, it’s time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.