CAAFlog » Year in Review

For a retired member of the armed forces, court-martial jurisdiction is like Hotel California:

You can check out any time you like,
But you can never leave!

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), 10 U.S.C. § 802(a)(4), the Uniform Code of Military Justice applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

Prohibitions against things like contempt towards the President and other officials (Article 88), using marijuana (Article 112a), intentionally writing a bad check (Article 123a), and service discrediting conduct (Article 134) continue to apply to these servicemembers during their retirement. Jurisdiction is worldwide and – ever since the Supreme Court’s decision in  Solorio v. United States, 483 U.S. 435, 439-441 (1987) – applies to conduct that is otherwise totally unrelated to military service.

But the exercise (and even the acknowledgement) of such jurisdiction was rare. That changed in 2017 with events that put court-martial jurisdiction over retirees in the headlines and make it our #1 Military Justice Story of 2017.

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In 2012 we wondered if petitions for certiorari in military cases were an endangered species. At that point a decade had passed since the last grant of a petition filed by a servicemember, and that was just a summary remand (535 U.S. 1014). Two decades have passed since the Supreme Court last conducted a plenary review of a case brought by a servicemember. See Edmond v. United States, 520 U.S. 651 (1997) (holding that Sec. of Trans. may appoint civilians to the Coast Guard CCA). The Solicitor General, however, has a better track record, getting certiorari more recently in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

The number of petitions increased after 2012, but a successful petition for certiorari in a military case is a rarity. So much so that we idolize it with a little statue we call the Golden CAAF. Here it is in the hand of Marcus Fulton circa 2008, before it was awarded to the Navy-Marine Corps Appellate Government Division for their role in the grant in Denedo:

In 2017 we awarded the Golden CAAF II for a tripartite grant in Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States, to University of Texas School of Law professor Stephen Vladeck, who is lead counsel. He introduced it to UT mascot Bevo, and forwarded a picture:

The Supreme Court’s grant of certiorari is our #2 Military Justice Story of 2017.

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Less than two months ago the Supreme Court reiterated that:

The terms waiver and forfeiture – though often used interchangeably by jurists and litigants – are not synonymous. Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.

Hamer v. Neighborhood Hous. Servs., __ U.S. __, 199 L.Ed.2d 249, 254 n.1 (Nov. 8, 2017) (quoting United States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938)) (marks omitted).

It’s a timely reminder.

Over and over again in 2017, military courts and lawyers said that the mere failure to make an argument or objection – whether due to inattentiveness, ignorance, or otherwise – waived the issue, and the year ended with CAAF granting review in multiple cases challenging that conclusion.

That makes waiver mania the #3 Military Justice Story of 2017.

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The #4 Military Justice Story of 2017 is CAAF’s decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

Sergeant (E-5) Mitchell was charged with various offenses at a general court-martial, and the prosecution wanted to use evidence obtained from his cell phone in its case. But there was a wrinkle; the cell phone was searched using access granted by Mitchell after he requested an attorney.

Mitchell’s defense counsel moved to suppress, asserting that the Fifth Amendment right to counsel was violated when investigators  pressed Mitchell to decrypt his phone after he requested an attorney, and the military judge agreed. The prosecution appealed. The Army CCA affirmed the military judge’s ruling in a short opinion, and the prosecution continued its appeal to CAAF with a certification by the Judge Advocate General of the Army.

The case attracted attention from the Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia, all of whom supported Mitchell as amicus curiae. CAAF agreed. Holding that continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, and applying the military specific Mil. R. Evid. 305(c)(2), CAAF affirmed the suppression ruling.

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Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.

The Powell Report at 12.

This goal hasn’t stopped a rotating cast of senior officials, policymakers, and special interest groups from doing everything they can to push the military justice system in their preferred direction. But in 2017, the military justice system pushed back. That makes influence our #5 Military Justice Story of 2017.

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On November 1, 2017, Marine Corps Brigadier General John Baker was confined to his quarters (a room in a trailer) at U.S. Naval Station Guantanamo Bay. Air Force Military Judge Colonel Vance Spath ordered the confinement after finding General Baker in contempt (for conduct that clearly did not meet the applicable definition of contempt).

Two days later, at about 11:30 a.m. eastern on November 3, 2017, Army Military Judge Colonel Jeffery Nance sentenced Sergeant Bowe Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge – but no confinement – for Bergdahl’s desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

The facts as we know them suggest that General Baker was still confined at the time Bergdahl’s no-confinement sentence was announced. The convening authority sua sponte deferred Baker’s remaining confinement a few hours later, shortly before 1 p.m. eastern.

The incongruity – if not outright absurdity – of General Baker’s confinement and Sergeant Bergdahl’s liberty is the #6 Military Justice Story of 2017.

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The Fourth Amendment protects people and their property from unreasonable searches and seizures, and demands that warrants be supported by probable cause. It’s not a particularly heavy burden on the Government, as “probable cause deals with probabilities,” and so “requires more than bare suspicion, but something less than a preponderance of the evidence.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007).

But CAAF found that Government agents lacked even that when they seized the accused’s property in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), and the accused himself in United States v. Darnall, 76 M.J. 326 (C.A.A.F. Jun. 28, 2017) (CAAFlog case page), making probable cause the #7 Military Justice Story of 2017.

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“Wrongdoing must be conscious to be criminal,” reiterated the Supreme Court in Elonis v. United States, 135 S. Ct. 2001, 2009 (2015), and military lawers took note. CAAF grappled with the mental state – the mens rea – required to violate the UCMJ in three cases in 2016.

But in 2017 the court addressed it again, issuing a decision that is likely to be a significant and lasting precedent on the issue. That makes mens rea the #8 Military Justice Story of 2017.

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“Traditionally,” wrote Justice Black in 1957, “military justice has been a rough form of justice.” But clemency always played a big role. For centuries – dating at least to the Articles of War established in 1806 – American military commanders had the final say over whether any court-martial sentence would actually be executed.

But that power was significantly curtailed in 2014, when Congress amended Article 60 in the wake of the Wilkerson court-martial. Other clemency powers, however, remain within the UCMJ. They include a Presidential clemency power in Article 71(a), and Secretarial clemency powers in Articles 71(b) and 74. The Article 74 Secretarial clemency power is particularly significant because it may be delegated to commanding officers (and in some services it is delegated all the way to the general court-martial convening authority). The President also has the independent, constitutionally-based power to grant reprieves and pardons.

Two significant acts of clemency in military justice cases make commutations and clemency the #9 Military Justice Story of 2017: The commutation of the death sentence for Private Loving, and the commutation of Private Manning’s 35-year sentence for espionage.

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The #10 Military Justice Story of 2017 is CAAF’s decision in United States v. Commisso, 76 M.J. 315 (C.A.A.F. Jun. 26, 2017) (CAAFlog case page).

Army Sergeant First Class (E-7) Commisso was a somewhat unsympathetic appellant. In 2013 he became romantically – or, perhaps, unromantically – involved with a Marine Private First Class (E-2) he met while undergoing physical therapy. His case had many of the hallmarks of a modern politicized military sexual assault prosecution: rank disparity, a he-said/she-said allegation, and even distribution of revealing photos of the alleged victim.

Before the case was tried in 2014, the allegations were repeatedly briefed during monthly meetings of a local Sexual Assault Review Board (SARB). CAAF described the purpose of the SARB as “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process,” and the court observed that the “briefings contained only the putative victim’s version of the alleged criminal acts.” 76 M.J. at 319. Three SARB participants were selected to be part of the ten-member general court-martial panel that heard Commisso’s case, and they remained on the panel when it convicted Commisso of numerous offenses and sentenced him to confinement for one year, reduction to E-1, and a bad-conduct discharge.

That those three members were selected for, and remained part of, the panel after such one-sided exposure to the allegations was troubling in its own right, but there was something worse. The three members (two Colonels and a Lieutenant Colonel) concealed their involvement in the SARB and their prior knowledge of the case until after the trial was over.

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Later this week we will continue an annual tradition for the tenth year, counting down the Top Ten Military Justice Stories of 2017. But before we do that, let’s revisit last year’s list.

#10 was Ten Years of CAAFlog. September 22, 2016, was CAAFlog’s tenth birthday.

#9 was the Undead Article 10. CAAF’s unanimous decision in United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page), reanimated the speedy trial right codified in Article 10. But the Article hasn’t shown any real signs of life since, as no appellant (to my knowledge) received relief under Article 10 since Cooley (the speedy trial issue in Mangahas is based on the Due Process clause of the Fifth Amendment).

#8 was the Sterling case and the Bergdahl case. These two notable cases shared a spot on our list. The Sterling case – where the contentious relationship between a Marine lance corporal (E-3) and her superiors resulted in a claim of religious freedom as justification for disobeying an order – ended when the Supreme Court denied certiorari on June 5, 2017. The Bergdahl case also ended this year when Sergeant Bergdahl elected trial by military judge alone, pleaded guilty without the benefit of a plea agreement, and received a sentence that includes a dishonorable discharge but no confinement.

#7 was the Thompson caseMarine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox produced an explosive 2016 feature article. In 2017 the Major pleaded guilty at a general court-martial (his second) in exchange for a chance at military retirement.

#6 was Article 6b. The nascent victims-rights provision earned a spot on our Top Ten list because of developments over the year, but the provision also had a busy 2017. You can read all of our Article 6b coverage here.

#5 was Deadlines. Missed deadlines, in particular. Two Air Force cases captured our attention, with defense deadlines missed in LaBella and a certification rejected as untimely in Williams.

#4 was Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.

#3 was United States v. Hills. CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), was followed by two significant trailers in 2017: United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), and United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page).

#2 was Military Death Row. While the military gallows have been quiet since 1961, there were notable developments in four military capital cases in 2016.

#1 was the Military Justice Act of 2016. The most significant changes to the UCMJ since the Military Justice Act of 1983 won’t take effect for another year, are still changing, and can’t really be studied without the now-overdue implementing regulations, but they were still the biggest military justice story of the year.

We’ll start the countdown to the #1 military justice story of 2017 later this week.

Later this month, for the tenth year in a row, we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in the comments or by email to Zack@CAAFlog.com

Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The last person executed as the result of a court-martial was Army Private First Class John A. Bennett’s, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956).

Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

The military gallows have been quiet since then, but the military’s death row experienced a flurry of activity in 2016 with notable developments in four capital cases.

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Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

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