CAAFlog » Year in Review » Top Ten Stories of 2008

From the start of 2008 to its finish, the legal aftermath of the Haditha incident continued to make news. It presents some of the most fundamental questions that a military justice system can face about the possible criminalization of acts taken during combat operations. Due to the provocative issues it presents, its high profile, and the influence that it has already had and will continue to have on the development of military jurisprudence, the legal aftermath of Haditha is the #1 military justice story of 2008.

On 19 November 2005, Iraqi insurgents detonated an IED in Haditha, killing one Marine and wounding others. (I’ve seen conflicting accounts of the number of wounded Marines, though most accounts seem to say two.) During the combat operations immediately following the explosion, 24 Iraqi noncombatants were reportedly killed.

Apparently an official report was made soon after the incident that 15 Iraqi civilians had been killed in the IED explosion and when caught in the crossfire between Marines and insurgents during a firefight after the explosion. But a subsequent military investigation cast doubts on that official explanation and in March 2006, NCIS began an investigation of the incident.

While capital charges were once considered a serious possibility, on 21 December 2006, non-capital offenses were preferred against eight Marines arising from either their actions at Haditha or their handling of the incident’s aftermath. Charges against four Marines were eventually dismissed, including those against LCpl Justin Sharratt, which were dropped by LtGen Mattis’s now-famous letter clearing him of misconduct.

As 2008 began it appeared that four Marines would be prosecuted for their actions at Haditha and/or during the incident’s aftermath.

In March of 2008, just as the court-martial of LCpl Stephen B. Tatum was scheduled to begin at Camp Pendleton, the government dismissed its charges against him.

4 June 2008 saw the first actual verdict in a Haditha case when a panel of Marine Corps officers found 1st Lt. Andrew Grayson not guilty of all charges and specs, which included two specs of making false statements during the investigation into the incident and two specs of attempting to fraudulently separate from the Marine Corps.

Meanwhile, more than three years after the incident and more than two years after charges were preferred, the remaining two cases are stalled.

In March 2008, court-martial proceedings began against SSgt Frank Wuterich. But the proceedings were quickly derailed when Judge Jeffrey Meeks quashed a subpoena that the U.S. had issued to CBS News for outtakes of an interview that SSgt Wuterich had recorded with 60 Minutes correspondent Scott Pelley. The government appealed that ruling, leading to a published NMCCA decision holding that it had jurisdiction to consider the quashing of a subpoena in an Article 62 appeal and reversing the trial judge’s quashing of the subpoena without having first conducted an in camera review of the outtakes. United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008). CAAF subsequently heard an appeal and, in its latest divided ruling expansively interpreting military appellate courts’ jurisdiction, agreed with the Navy-Marine Corps Court, though CAAF vacated NMCCA’s opinion because NMCCA had erroneously held (on its own initiative rather than in response to a government motion) that SSgt Wuterich had no standing to participate in the Article 62 appeal of a ruling in his own court-martial. United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). [DISCLAIMER: I was one of SSgt Wuterich’s appellate defense counsel in his CAAF proceedings.] But even these rulings promise only more delay. The military appellate courts didn’t definitively resolve whether the United States could actually have the CBS outtakes. Rather, they ordered the military judge to conduct further review before deciding whether the outtakes had to be turned over. And they reserved judgment on whether CBS could rely on a newsgatherer privilege to prevent the outtakes’ turnover even if they turn out to be relevant and non-duplicative of the portions of the interview that aired. So, even setting aside the possibility that the Supremes could overturn CAAF’s decision, the Wuterich case is nowhere near resolved.

Neither is the Chessani case. The final Marine charged as a result of the Haditha incident is LtCol Jeffrey R. Chessani, who was the commanding officer of 3d Battalion, 1st Marine Regiment. He was charged with violating a lawful order and two specs of dereliction of duty. On 10 June 2008, NMCCA denied a defense petition for extraordinary relief in the case, ruling that a discovery dispute wasn’t an appropriate subject for an interlocutory writ. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008). Then, a week later, Judge Steven Folsom dismissed the charges against LtCol Chessani without prejudice due to the appearance of unlawful command influence. If the government had accepted the ruling, it could have repreferred, rereferred, and actually tried the charges long before now. But instead, the Government filed an Article 62 appeal, which remains pending before NMCCA. The case was orally argued on 17 October. But as of today — 78 days after that argument and 200 days after Judge Folsom’s ruling — that appeal is still unresolved. And no matter which way NMCCA rules, the case is likely nowhere near finished. If the government wins a reversal and if that ruling isn’t overturned by a superior court, then the case can proceed on the original charges. But even if the government ultimately loses its appeal, it can still proceed with the case by bringing new charges.

So the legal aftermath of Haditha will continue to roil the military justice waters well into 2009 and probably beyond. What to make of all this will vary widely with the perspective of the individuals viewing the military justice system. Some will see the system working. Others will see the military cynically (and inefficiently) selecting sacrificial lambs to appease its critics. Still others will see the nearly opposite image of a military justice system cynically protecting its own. But such divergent views are one of the reasons why the legal aftermath of Haditha is so significant: it offers a kind of Rorschach test to assess its viewers’ attitudes toward military justice. And individual viewers’ impression of that Rorschach test may say more about their preconceived notions of the system than about what is being viewed.

Let me start by stating the obvious: the No Man thinks this should be the #1 military justice story of 2008. I certainly agree that it’s a huge story. A silver medal is hardly a badge of shame. But even following the successful prosecution of Alaa Mohammad Ali, court-martial cases brought against civilians will likely remain rare. And given that rarity, I don’t think this story rises to the level of the most significant of the year.

Having noted Navarre, M.J.’s dissent, let’s move onto substantive matters.

In 1968, Mr. Raymond G. Averette was a civilian contractor in Vietnam, where he worked for Pacific Architects and Engineers, Incorporated, and supervised a motor pool for the United States Army. See generally United States v. Averette, 40 C.M.R. 891 (A.C.M.R.), rev’d, 19 C.M.A. 363, 41 C.M.R. 363 (1970). He was charged with and, contrary to his pleas, convicted of “conspiracy to commit larceny of thirty-six thousand batteries and attempted larceny of the same and was sentenced to be confined at hard labor for one year and to pay a fine of $2,000.00, with provision for additional confinement not to exceed one year until said fine is paid. The convening authority approved the sentence.” Id. at 891. The Army Court of Military Review rejected a jurisdictional challenge to his prosecution by court-martial, upheld the findings of guilty to the two charges of which he was convicted while tinkering a bit with the supporting specifications, and upheld the year of confinement while reducing the fine to $500. CMA reversed, concluding that Article 2(10) did not provide jurisdiction to prosecute a civilian accompanying U.S. forces in the field unless Congress had declared war.

Thirty-six years later, Congress would revisit and expand Article 2(10). The John Warner National Defense Authorization Act for Fiscal Year 2007 amended Article 2(10) to authorize courts-martial of civilians accompanying the military in the field in time of “declared war or a contingency operation.” Pub. L. No. 109-364, Div. A, Title V, §552, 120 Stat. 2083, 2217 (2006) (emphasis added). Professor Geoffrey S. Corn observes that the amendment was “[r]eportedly inserted by Senator Lindsay Graham of South Carolina.” Professor Corn also observes, “How this amendment will be implemented by the armed forces, and whether it will withstand constitutional scrutiny in all respects, are two unanswered questions.” 2008 saw the first baby steps toward answers to those two key questions.

On 2 April 2008, as some media outlets acknowledged, the No Man was the first to break the news that a civilian contractor in Iraq had been charged under the expanded Article 2(10). The accused, Alaa Mohammad Ali, was a joint Canadian-Iraqi citizen charged with assault with a dangerous weapon arising from a stabbing at Contingency Outpost 4, Iraq, in February 2008.

On 22 June 2008, according to a Multi-National Corps – Iraq press release, Mr. Ali appeared at a court-martial and “pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement.”

Mr. Ali’s case raised a number of intriguing jurisdictional issues. But his sentence was less than the quantum necessary to qualify for Article 66 review, meaning he had no right to judicial appellate review absent the Judge Advocate General of the Army’s referral of the case to ACCA. Mr. Ali unsuccessfully sought a writ from ACCA and then filed a writ appeal at CAAF. Here’s a copy of his brief in support.

CAAF ultimately summarily denied the writ appeal. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It’s still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69(d) either before or after processing an Article 69 appeal. Unless he does so, the interesting jurisdictional challenges that Mr. Ali’s counsel raised in his writ appeal will lie dormant, waiting to be invoked in the next inevitable prosecution of a civilian accompanying the U.S. military in Iraq or Afghanistan.

The United States has remained continually at war for the last seven years. This has produced unique legal challenges to the application of criminal law in an operational setting. Curiously, though, despite seven years of war, in some respects the military justice system remains on a peacetime footing. The President has never made “the factual determination . . . that the existence of hostilities warrants a finding that a ‘time of war’ exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual.” So the next time you hear a military spokesperson or journalist say that the current maximum authorized punishment for desertion — or any of the other three UCMJ offenses for which death is an authorized punishment only in time of war — think to yourself, “Bah!”

2008 saw a smorgasbord of legal procedures for dealing with alleged criminal offenses committed in operational settings. A former U.S. servicemember was tried in U.S. district court for an alleged offense committed during combat operations, reportedly for the first time ever, resulting in an aquittal. A civilian was tried by a court-martial for the first time in more than 40 years. The Marine Corps held a court of inquiry for the first time in fifty years to examine possible war crimes committed during combat operations in Afghanistan. Military commissions sitting at Guantanamo Bay convicted two unlawful enemy combatants. Indictments were handed down against five Blackwater civilian contractors arising from a September 2007 shooting incident in Iraq while a sixth pleaded guilty to voluntary manslaughter and attempt to commit manslaughter for his role in the incident. And the regular court-martial system dealt with many, many alleged offenses committed in operational settings. Three of these varied approaches provide our number 3, 2, and 1 top-ten military justice stories of the year.

Today’s installment, the number 3 military justice story of the year, is the trial in U.S. district court and acquittal of Jose Nazario, a former Marine accused of killing two detainees in 2004 in Fallujah. Nazario was reportedly the first former U.S. servicemember brought to trial under the Military Extraterritorial Jurisdiction Act for alleged offenses committed while on active duty.

On 28 August 2008, after deliberating for less than six hours, a jury in the U.S. District Court for the Central District of California acquitted Nazario of all charges. LA Weekly has this helpful recap of the case. Nazario was charged with killing two unarmed detainees during the Battle of Fallujah. As LA Weekly reports:

At Nazario’s trial over the summer, two members of 3rd Squad [of Kilo Company, 3d Battalion, 1st Marine Regiment] testified to hearing the shots and seeing the corpses, but not to witnessing executions. The only men alleged to have seen the killings — Nelson, Weemer and Nazario — refused to testify. Nelson and Weemer were held in contempt last June and jailed until a judge finally ordered their release on July 3. The jury was left to deliberate with secondhand accounts of the killings and the detached witness statements of Nelson and Weemer. On August 28, a federal jury acquitted Nazario of all charges.

The two Marines who were jailed for contempt now face courts-martial for their alleged involvement in the incident. Sgt Jermaine Nelson’s court-martial is scheduled to start this coming Monday. He’s charged with unpremeditated murder and dereliction of duty. Sgt Ryan Weemer’s court-martial is scheduled to begin the following Monday, 12 January. He is reportedly also charged with unpremeditated murder and dereliction of duty.

Nazario’s may have been the first prosecution in U.S. district court of a former servicemember for offenses allegedly committed in a combat setting while on active duty, but it won’t be the last. Former 101st Airborne Division paratrooper Steven Dale Green faces a capital trial in the U.S. District Court for the Western District of Kentucky starting on 27 April 2009. (Hopefully the trial was scheduled with due regard to any competing quilt shows.) Green faces 16 charges arising from the alleged rape and murder of a 14-year-old Iraqi girl and the murder of her mother, father, and sister at Mahmoudiya in 2006. Green’s defense counsel, federal public defender Scott Wendelsdorf, indicated recently that he plans to rely on an insanity defense. Four soldiers were court-martialed for involvement in the incident or its aftermath. The AP reports that “[o]ne soldier charged as an accessory was sentenced to five years, while sentences for three others ranged from 90 to 110 years.” Like Nazario, Green is being tried under the Military Extraterritorial Jurisdiction Act because he was discharged before the alleged offenses came to light. On 26 August 2008, U.S. District Judge Thomas B. Russell rejected a number of challenges to the court’s jurisdiction to try Green.

It is far too early to draw any conclusions about the efficacy of MEJA prosecutions to deal with offenses allegedly committed in combat zones. We’ll follow the Green case during the coming year and see whether it provides any greater clarity to viability of this legal approach.

On 2 July 1957, President Eisenhower approved Army PFC John A. Bennett’s death sentence for the rape and attempted murder of an 11-year-old Austrian girl. On 13 April 1961, PFC Bennett was executed. For 51 years after President Eisenhower acted, no President approved a military death sentence — a statutory prerequisite for the military to carry out an execution.

President Bush ended that half-century hiatus when he approved the death sentence of Army Spec 4 Ronald A. Gray in July. The Army then set a 10 December execution date. The Army planned to carry out the execution at the civilian federal death chamber at Terre Haute, Indiana, but using its own personnel. Then Gray sought a pre-habeas petition stay of execution from the United States District Court for the District of Kansas, which Senior Judge Rogers granted. Judge Rogers turned down the United States’ reconsideration request and entered a scheduling order under which Gray’s habeas petition is due on 1 April 2009.

This development is significant not only on its own terms, but also as an indication that the death penalty had not, as one commentator had argued, “effectively been abolished in the military justice system.” The launching of a habeas challenge to an approved death sentence probably also represents the greatest hope to bring consistency to the various circuits’ scopes of review that they apply when conducting collateral reviews of court-martial convictions, a problem that we discussed all the way back in the summer of 2007 here and, even earlier, here, where we noted this quotation from a brief by the Solicitor General:

As one court of appeals recently noted, since this Court’s decision in [Burns v. Wilson, 346 U.S. 137 (1953),] “[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear.” Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).

Brief for the Respondents in Opposition, New v. Gates, No. 06-691, at 12 (March 2007).

On the other hand, here’s an interesting (but no doubt heterodox) law review article in which Professor Amanda Frost of AU’s Washington College of Law argues that SCOTUS gives too much weight to resolving circuit splits when deciding which cases to grant and that it should “adjust its case selection process to de-emphasize uniformity in favor of other values.” Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1630-39 (2008).

We’ll continue to follow the habeas litigation in Gray in 2009.

Happy New Year, everyone! We’ll post #3 in the top 10 list next year — er, tomorrow.

This is a dog-bites-man story, since its significance lies in its reinforcement of long-standing trends.

In one of the highest profile courts-martial of the year, Army Staff Sergeant Alberto Martinez was completely acquitted in a capital fragging case tried at Fort Bragg. The verdict was returned on 4 December.

Martinez was the 49th known capital court-martial tried under the current military death penalty system. It is one of three acquittals. One of the other two occurred last year.

Of the 49 capital courts-martial tried under the current system, just 15 (a little more than 30%) have resulted in adjudged death sentences.

2008 also saw the 10th military death sentence complete direct appeal. In United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), the Navy-Marine Corps Court set aside one of the two premeditated murder convictions as well as the death sentence, which had been adjudged in July 1993. The reversal arose because the military judge erroneously denied a defense continuance request to allow sufficient time for a substitute expert witness to prepare to testify after a previous expert witness engaged in unethical conduct that precluded his testimony.

In a testament to the quality of the opinion, which was written by Senior Judge Wagner, the Judge Advocate General of the Navy didn’t certify the case to CAAF.

Of the ten death sentences that have completed direct appeal, Walker’s is the eighth to be reversed. Now that math is easy even for me: an 80% reversal rate. Another three military death penalty cases remain on direct appeal. For comparison purposes, a 20-year study of state death penalty systems conducted by Professor James Liebman of Columbia Law and two of his colleagues found that Wyoming’s 67% direct appeal reversal rate was the highest while the national average was a 41% direct appeal reversal rate. Unlike most state systems, however, in the military issues like IAC and discovery violations that depend on extra-record evidence are typically raised on direct appeal. In most states, such issues are raised in a separate post-conviction proceeding that starts at the trial level, where evidence supporting such claims can be more easily developed and presented. So the military justice system’s direct appeal reversal rate is probably best analogized to state direct appeal plus post-conviction reversal rates. Combining those two statistics, Wyoming again has the highest reversal rate at 78% while the national average is approximately 47%. So the military’s capital reversal rate is high compared to state death penalty systems.

2009 will likely see much more trial-level capital litigation, with a capital court-martial of retired Master Sergeant Timothy B. Hennis slated for trial at Fort Bragg and retrials or resentencing possible in four of the capital cases that have been reversed on appeal.

Tomorrow’s #4 military justice story of 2008 provides the man-bites-dog counterpoint to today’s dog-bites-man story.

[DISCLAIMER: I was one of LCpl Walker’s appellate defense counsel.]

As explained by Major Howard H. Hoege III’s interesting but hideously flawed Army Lawyer article arguing that the new Article 120 is unconstitutional, the new Article 120 traces its roots to a congressional statute requiring DOD to report back to Congress with proposals to modernize the military’s sexual assault laws. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 571, 118 Stat. 1811, 1920-21 (2004). DOD responded by “strongly recommend[ing] no change to either the UCMJ or the MCM, arguing that case law had developed the UCMJ and the MCM to a point where any form of sexual assault could be prosecuted under the UCMJ.” Major Howard H. Hoege III, “Overshift” The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, Army Law., May 2007, at 2, 3 n.16. But DOD also dutifully presented Congress with six options and recommended Option 5 if Congress were to change the existing statutory scheme. Id. “Congress ultimately drafted the new Article 120, basing substantial portions of the new statute — including the new statute’s burden-shifting scheme — on Option 5 of the DOD report.” Id. at 3.

Even before the new article went into force, Major Hoege argued that it was unconstitutional. But his argument was based on a fairly egregious misunderstanding of the law. He topped off many minor errors in his article with this whopper: “While Mathews v. Eldridge was a civil case, the Supreme Court has also used its three factors to examine procedural due process challenges in criminal cases.” Id. at 13 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) and adding the parenthetical: “applying Mathews v. Eldridge in a criminal case”). Which led to this double whopper (or double royale for you Pulp Fiction fans): “The sum of the analysis of treating the accused’s initial burden as an interlocutory matter leaves little doubt that applying the Mathews v. Eldridge factors calls for a procedural due process challenge to the new Article 120’s double burden-shift.” Id. at 15. Of course, Hamdi was NOT a criminal case. On the contrary, the Supreme Court noted that the case was all about whether a U.S. citizen could “be detained outside the criminal process.” Hamdi v. Rumsfeld, 542 U.S. 507, 524 (2004). No court would be tempted to apply Mathews v. Eldridge in a criminal context since 1992, when the Supremes held that “the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process.” Medina v. California, 505 U.S. 437, 443 (1992). And certainly no court would be tempted to apply Mathews in a military justice context since 1994, when the Supremes expressly rejected Mathews and Medina as the proper due process test in a military justice case and instead adopted a standard even more deferential than Medina‘s. So Major Hoege’s argument clearly doesn’t survive even cursory scrutiny.

Notwithstanding arguments that it is unconstitutional, the new Article 120 duly took effect on 1 October 2007. And, in due course, servicemembers allegedly violated it. Which brings us to the court-martial of Petty Officer Fairley, whose alleged offenses led Judge Raymond E. Beal II (what is it about new Article 120 critics and Roman numerals?) to hold that it is unconstitutional, though on grounds far different than those advanced by Major Hoege. We posted his ruling here. He concluded: “Congress has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove a critical fact in dispute, is to increase further the likelihood of an erroneous conviction.” And that, concluded Judge Beal, violates the Supremes’ holding in Mullaney v. Wilbur, 421 U.S. 684 (1975), requiring the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

Following Judge Beal’s ruling, the trial counsel borrowed a page from the appellate government playbook and moved for reconsideration. This led to a second ruling in the case, again holding the new Article 120 unconstitutional. We posted that ruling here.

The Government filed an Article 62 appeal in a different case that resulted in the same conclusion and that case (Crotchett) was orally argued en banc at the Navy-Marine Corps Court on 3 December, as we discussed here.

I honestly haven’t studied the new Article 120 sufficiently closely to have an opinion as to whether it is or isn’t constitutional. But obviously Judge Beal has studied it and carefully concluded that it isn’t. Judge Beal deserves respect both for calling it like he sees it and for having the humility to decline to rewrite the statute in an attempt to fix the purported constitutional defect himself, as I’ve heard second-hand that some other military judges have tried to do. As Judge Beal wrote in his opinion denying reconsideration, “this court is not free to disregard any portion of the statute — to do so would be to embark upon judicial legislation.”

Of course, the system as a whole benefits from Judge Beal throwing a flag on the new Article 120 since this will result in military appellate courts definitively resolving these challenges more quickly than would have occurred if they were addressed only in the normal course of review after servicemembers were convicted under the new statute. That would have led to a number of convictions that could be endangered by a pro-defense ruling on appeal. The number of potentially affected cases will be far smaller because the case expeditiously went to NMCCA on an Article 62 appeal — and will, in all likelihood, continue on to CAAF regardless of which side prevails at NMCCA.

So even though we don’t yet know whether his ruling will ultimately stand or fall, Judge Beal’s invalidation of the new Article 120 ranks as one of the top-10 military justice stories of 2008.

On 28 January 2008, the President signed into law Public Law No. 110-181, one provision of which authorized three-star status for the Judge Advocates General of the Army, Navy, and Air Force. In that legislation’s wake, some legal maneuvering arose over what had to happen before the Judge Advocates General pinned on their third star, as we discussed here and here. Finally, on 11 December 2008, the last of DOD’s two-star Judge Advocates General — Major General Black — was promoted to lieutenant general.

Congress’s insistence that the Judge Advocates General have three-star status had nothing to do with military justice. Rather, as discussed in this column by Professor Vic Hansen, the change arose to correct a perceived imbalance between the authority of the Judge Advocates General and civilian politically appointees on issues such as detention policy, military commission rules, limits on interrogations, and Geneva Convention applicability. But there was no tension between the Judge Advocates General and civilian political appointees regarding military justice because that system is largely within the purview of the former.

Nevertheless, the elevation of the Judge Advocates General to three-star status will no doubt produce some collateral consequences for military justice. Presumably the Judge Advocates General will now win some small battles over resources and personnel that they might have lost when they sported only two stars on their collars. This is likely to arise not because they can big foot someone as a three star whom they couldn’t as a two star, but rather because they will have greater access to information and decision makers as a consequence of being invited to three-star-minimum meetings and receiving other forms of enhanced bureaucratic entrée.

We’ll look for signs of increased Judge Advocate General influence in 2009.

Military appellate courts have rarely encountered a potential exercise of authority that they thought was beyond their jurisdictional limits. Following a quiet period in the wake CAAF’s SCOTUS-administered wing clipping in Clinton v. Goldsmith, CAAF has expansively interpreted its own jurisdiction in a series of divided decisions starting with Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (a case where I think Judge Crawford’s dissent was right on the money), and continuing on with cases including United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), and United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). The CCAs have also gotten into the jurisdiction grabbing business in cases like United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App.), motion to withdraw petition granted, 67 M.J. 43 (C.A.A.F. 2008). Even when dealing with petitions for extraordinary relief concerning military commissions — which CAAF clearly has no jurisdiction to grant — CAAF has rejected the petitions on bases other than dismissing them for lack of jurisdiction. See Ali v. United States, 66 M.J. 474 (C.A.A.F. 2008); al Qosi v. Altenburg, 60 M.J. 461 (C.A.A.F. 2005) — though in both of those cases, CAAF did note the possibility that it had no jurisdiction.

This body of case law — which appears to go in just one direction: expansive interpretation of jurisdiction — is all the more remarkable because CAAF occasionally gives lip service to the proposition that as an Article I court, its jurisdiction is to be narrowly determined based on a strict construction of its jurisdiction-granting statutes. See Loving, 62 M.J. at 239, 244. That’s not to suggest that every divided opinion in which a majority found jurisdiction is wrong. I agree, for example, with CAAF’s Loving opinion. But the odds are that when a court’s jurisdiction is supposed to be narrowly interpreted and a series of divided opinions applies the court’s jurisdiction expansively, the dissent is right at least some of the time.

Which brings us to Denedo, which SCOTUS granted cert to review on 25 November. Denedo v. United States, 77 U.S.L.W. 3106 (2008). A kid may get away with snatching one or two pre-dinner cookies from the cookie jar. But when the kid appears to be launching a sustained campaign of pre-dinner cookie snatching, a parent is probably going to put an end to the practice. And so, CAAF’s opinion in the writ of error coram nobis case of Denedo v. United States may represent one-too-many cookies. Only three times has the Solicitor General ever asked the Supreme Court to review a CAAF/CMA opinion: United States v. Scheffer, Clinton v. Goldsmith, and United States v. Denedo. All three times, the Supremes agreed to hear the case. And in the first two instances, the Solicitor General prevailed. United States v. Scheffer, 523 U.S. 303 (1998); Clinton v. Goldsmith, 526 U.S. 529 (1999).

Denedo is significant on many levels. First, it carries the potential to not only nullify CAAF’s most recent jurisdictional cookie jar raid, but also to change CAAF’s attitude about the practice of cookie jar raiding. It’s interesting that CAAF’s latest divided opinion expansively interpreting military appellate courts’ jurisdiction, United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008), was released the week before the Supremes granted cert in Denedo. If the Supremes’ decision in the case were to emphasize the jurisdictional limits on Article I courts and the imperative to narrowly construe their jurisdiction-granting statutes, might CAAF take another look at cases like Wuterich and Lopez de Victoria? (Of course, Lopez de Victoria‘s demise would eliminate CAAF’s jurisdiction to look at a case like Wuterich.) An interesting case that may provide an early indicator of a Denedo effect is United States v. Rodriguez, No. 07-0900/MC. In that case, which was orally argued on 23 September, the second issue is “WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT’S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007).” Rodriguez is one of only two cases orally argued in September that has yet to be decided. Will CAAF wait for the Supremes’ decision in Denedo before deciding Rodriguez? Will the mere granting of cert in Denedo lead to a more conservative construction of the court’s jurisdiction in Rodriguez? Of course, we might never know the answer to that question. CAAF might have concluded well before the Supremes granted cert in Denedo that it didn’t have jurisdiction to consider Rodriguez. But the very fact that Rodriguez is pending on CAAF’s docket points to the ongoing importance of the fundamental jurisdictional questions that the Supremes will consider in Denedo.

Denedo is also significant in that it’s just the third case in which the SG has sought cert to review a CAAF decision and it’s the first plenary cert grant issued to review a CAAF decision in a decade. Oh, and it displaced the Golden CAAF from the Kabul Klipper’s stateroom, resulting in its relocation to the Washington Navy Yard’s Appellate Center of Excellence.

Obviously the Supremes’ ultimate decision in the case will be one of our top-10 military justice stories of 2009. We look forward to following the case’s progress in the new year.

Military justice is a fairly insular system. Consider, for example, how rare it is to see civilian law reviews run articles about military justice. If it weren’t for JO’C, there would hardly be any at all. Congress rarely pays much attention to the system. The last congressional hearings dealing with military justice of which I’m aware occurred in 1983. For years, the only real player for military justice development purposes was the Joint Services Committee. But that committee’s work is largely reactive — responding to appellate opinions that are adverse to the prosecution and adopting pro-prosecution fixes. Nothing better exemplifies this trend than the so-called Wiesen fix and its fallacious supporting drafters’ analysis, which we’ve discussed here.

Insularity is undesirable. The system can only benefit if its policymakers hear a variety of perspectives. And the organization that has engaged in the most sustained campaign to provide an outside perspective has been the National Institute of Military Justice. The most notable product of that effort was the 2001 NIMJ-sponsored Cox Commission report. I urge you to take the time to read or reread the report — which, regardless of whether you agree with its recommendations, is an impressive analytical achievement. And that report led to a rare non-DOD-requested UCMJ amendment: Article 25a, which general requires that capital courts-martial have at least 12 members. So it was exciting to read in the New York Times last month that Judge Cox “hopes to convene a second commission” to continue examining the military justice system “in the next few months.”

For the past few years, NIMJ’s work has been bolstered by a full-time staff to augment its volunteer officers’, directors’, and advisors’ work. That staff was initially limited to one full-time executive director. But over this past year, the full-time staff has expanded to three: an executive director, an assistant director, and a program coordinator. This expansion of its staff provides NIMJ with more resources to analyze and seek to improve the military justice system. Having such an outside think tank dedicated to studying the system will almost certainly promote salutary reforms that DOD wouldn’t achieve had it reamined the only real player in the military justice development process.

The growth of NIMJ’s staff ranks as one of the top-10 military justice developments of the year because it has such great potential to lead to changes in the system. But, as we recently noted, this story has a certain poignancy because NIMJ’s work may be threatened by the Bernie Madoff scam. One of NIMJ’s funders, the JEHT Foundation, will shut down at the end of January due to its funders’ losses to Madoff. This will apparently cost NIMJ $340,000 in grants over the next two years. Can NIMJ sustain its staffing level in light of these losses? If not, how will NIMJ’s programs be affected? We’ll continue to follow NIMJ’s work next year to answer these questions.

[DISCLAIMER: I am a former NIMJ advisor and director, though I haven’t served in that capacity for many years due to my full-time military and governmental employment for the past six years.]

This is the first in an end-of-year series of posts looking back at 2008 and setting out what I think are the ten most significant military justice stories of the year.

On 21 July 2008, the Judge Advocate General of the Army issued a memorandum establishing military justice additional skills identifiers (ASI). A copy is available here. The memo offered words dear to any military justice wonk: “Military justice is our Corps’ statutory mission.” The military justice ASIs are designed to encourage Army judge advocates “to set goals to achieve greater skill in litigation and expertise in military justice.” It establishes four mil jus ASIs: Basic Military Justice Practitioner, Senior Military Justice Practitioner, Expert Military Justice Practitioner, and Master Military Justice Practitioner. This produces a career progression that “encourage[s] counsel to seek out litigation-related assignments to deepen their level of military justice training and experience.”

ASIs won’t be rigid assignment requirements, but they will be considered by PPTO (the Army’s equivalent of monitors or detailers) when filling billets.

As the Super Muppet of Appellate Advocacy discussed here, the program is similar but not identical to the Navy JAG Corps’ Military Justice Litigation Career Track program, which then-RADM MacDonald established in 2007 in this instruction.

In my experience, military attorneys generally do an excellent job in run-of-the-mill cases. As I’ve observed before, for many civilian defendants, Gideon v. Wainwright is a false promise. Appointed counsel are generally provided only to the indigent. But in Maryland, the indigence cut-off was well below the poverty line. The working poor often earned too much to qualify for a public defender but not enough to hire a lawyer. As a result, when waiting for my cases to be called in Maryland circuit and district courts, I would often see unrepresented defendants tried, convicted, and sentenced. That just doesn’t happen in the military, where everyone has a right to a free counsel.

But while the military justice system does an excellent job with run-of-the-mill cases, I’ve noticed over my roughly 21 years in the military justice system that it tends to do a poor job in the big cases. Consider, for example, that in 2 of the 10 military death penalty cases that have completed direct appeal under the current system, the death sentence was set aside because apparently no one in the courtroom knew — or could figure out — the proper instruction for voting on the sentence in a capital cases. Or that another 3 of those 10 death sentences were reversed at least in part on IAC grounds. In all, 8 of the 10 have been reversed; the military justice system is batting the Mendoza line in capital cases on appeal.

The Army’s military justice ASI program and its Navy predecessor appear to recognize the system’s difficulty with the big cases and take reasonable steps designed to shore up that weak spot. These programs also appear to recognize the danger of a military justice brain drain as operational law is increasingly perceived as the career enhancing, sexy specialty for military lawyers. Hence then-Major General Black’s reminder that “[m]ilitary justice is our Corps’ statutory mission” — not, mind you, one of its statutory missions.

It will take years to determine whether these programs are actually successful. But merely recognizing the problem and seeking to fix it makes this one of the ten most significant military justice developments of 2008.

One of the developments in contention for a spot on the top-10 military justice stories of 2008 list is NIMJ’s hiring of two full-time employees. Establishing a sustainable think tank outside of DOD to analyze the military justice system would be an enormous development — and a highly salutary one in my book. Such a development wouldn’t displace DOD’s role in the military justice policy arena, but it would complement it.

But I fear that the Bernie Madoff (as in “Bernie made off with our money”) scam may endanger that outside think tank’s sustainability.

The insanely informative Capital Defense Weekly reported yesterday that the JEHT Foundation will be closing in January due to granters’ losses resulting from Madoff’s alleged crimes. JEHT reportedly won’t rescind grants already made, but also won’t honor multi-year grants. Guess who one of those multi-year grant recipients was. As Daily Kos reports, one of them was the National Institute of Military Justice, which was awarded a three-year grant of $510,000 in 2007.

That raises two questions: (1) Did NIMJ just lose $170,000? (2) If so, will NIMJ be able to continue to execute its important mission?