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

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page): Oral argument audio

United States v. Atchak, No. 16-0054/AF (CAAFlog case page): Oral argument audio

7 Responses to “CAAF argument audio: Gay & Atchak”

  1. "Not this Nonsense" says:

    The argument in Gay got interesting once Gov counsel started to argue:
    Judge Ryan: (Time hack 13:38) “Counsel, before you start so that I don’t have to interrupt you, here’s my question.  Is it really the Air Force’s position that it can decide to get rid of its prisons, put military members in civilian confinement facilities, and if the civilian confinement facilities don’t segregate them, or can’t segregate them from foreign nationals, that they can be put in solitary confinement under the conditions this person was, and that’s just fine?” 14:16
    G: “Your Honor, given the framework that has been given to us by Congress, that would be the United States’ position.  And, contrary to Appellant’s argument to this Court, United States v. McPherson and United States v. Wilson did not stand for that proposition that putting a person in solitary confinement for purposes of avoiding Article 12 issues [is] inappropriate.” 14:42
    G: 15:00 “And I would argue that whether or not the Air Force Court abused their discretion in not finding a violation of Article 55 or the Eighth Amendment violation was not granted by this Court in terms of addressing that issue.” 15:10
    Ryan: 15:11 “I’m not even talking about Article 55.  I’m not talking about the Eighth Amendment.  I’m talking about the fact that it’s just plain error, right?  To set up a situation, right?  That there’s legal error.  I mean, it is erroneous to put someone in conditions of confinement that they’ve done nothing to deserve solely because you’ve shut down your brigs and have not properly worked out something with the civilian confinement authorities so that they know how to do that.”15:39
    G: “Judge Ryan, if those conditions amounted to a violation of Article 55 or the Eighth Amendment, then yes.” 15:44
    Ryan: 15:45 “But what I’m saying is why do they have to? 
    G: 15:47 “Because that’s the legal framework that’s given to the services and to the military in terms of analyzing whether post-trial confinement conditions are inappropriate. 15:55
    Ryan: 15:55 “But I’m asking you a different question, right?  Which is, is it really the Air Force’s position that it’s totally fine for someone who has done nothing other than to do something for which they can be put in confinement to have to be in solitary for 23 hours a day for, apparently, in your view, whatever period of their sentence is for, solely because they’re in a civilian confinement facility?  Let’s say he had a 20 year sentence, and this confinement facility can only mingle him with foreign nationals, so in order to avoid that, they have to put him in solitary confinement, based on your argument, that would be just fine and the CCA could do nothing to correct it because it’s not an Article 55 violation?”16:40
    G: “Your Honor, my argument is that it has to be analyzed under the rubric of Article 55 and the Eighth Amendment.  And the service court, given the particular case, they can look at the particular facts and circumstances and determine whether an Article 55 or Eighth Amendment violation occurred.  And, if an Article 55 or Eighth Amendment violation occurred, then yes, the service court can grant relief pursuant to Article 66(c).” 16:59
    Ryan: 17:00  “But, you’re saying that it’s not a violation of Article 55 to put someone in solitary confinement, period.” 17:08
    G: 17:09 “The Air Force Court said.  And, the government did not contest that finding.  This Court did not grant review of that issue.”
    Ryan: 17:15  “They said that nonetheless it was error for him to be placed in solitary confinement for the reasons that he was, which is for your convenience.”17:23
    Judge Cox: 18:32 “Why did Congress give the Boards of Review this plenary power?  You have any idea where the genesis of this was?”
    G: 18:40 “I think the genesis of this power is because, at least during that time, there was a view that the service courts needed to have this power for a couple of reasons.  One is that they had to be able to exercise supervision over courts-martial.”18:54
    Cox: 18:59 “Are you arguing that’s not valid today?”
    G: 19:03 “What I’m saying is that . . . it can’t be looked at in a vacuum[.]  And, as this Court held in United States v. Nerad, it isn’t unfettered, and it has to be subject to some legal standard, as opposed to equitable principles.” 19:51.
    Judge Ryan: 19:52 “But, what I’m suggesting to you is [that] if the CCA looks at what has happened, and says they were placed in [] solitary confinement for no good reason other than to keep them from being comingled, that’s not just equity, right?  They’re saying that was an error for that to happen.  It was an error for the Air Force to allow that to happen, and therefore we don’t think this is an appropriate sentence.  How is that just granting equity?  What happens when they’re giving sentence relief for unreasonable post-trial appellate delay, I mean, what standard is that?” 20:23
    G: 20:36 “That’s the distinction, I’m glad you bring that up, and that’s where we get into United States v. Tardif.  What you’ve got here, is, what Appellant cited to is the second part of Article 59(a), whether or not the error materially prejudices a substantial right, but there’s an earlier part – whether or not there’s error[.]”20:53
    Ryan: 20:53  “Can I understand that you think there’s not error at all to put people in solitary confinement when they’ve done nothing under the prison’s regulations that would warrant it?  I don’t understand how you can’t see that that is error.” 21:08
    G: 21:09 “ The reason why is that this Court in United States v. Fagan says that Article 55 and the Eighth Amendment are the framework for how you have to look at this.” 21:16
    Ryan: 21:39 “The issue in Fagan was not this nonsense.  It was a straight-up cruel and unusual punishment issue.”  21:46

  2. "Not this Nonsense" says:

    Ryan: 23:36 “The language of Article 66(c) is really very clear, counsel.  And, based on the things the Air Force is certifying to this Court, and the positions and the actions that they appear to be supporting, I’m glad of that fact, really.” 23:51

  3. Christian Deichert says:

    The proposed change to Article 12 can’t come soon enough.  I’m surprised that CAAF hasn’t just concluded that the legislative intent was to prevent troops being confined with POWs and wasn’t concerned with pretrial confinees bumping into the odd Honduran in the county lockup.

  4. The Silver Fox says:

    Who knew CAAFlog had a stenographer on its staff?  

  5. Passing By says:

    You probably didn’t know that because they are kept in solitary for 23 hours a day for more efficient transcription.  Tough?  Sure.  But “under the rubric of Article 55 and the Eighth Amendment” it’s okay.
    Transcription is nice, but audio really captures the moment so nicely.

  6. Captain, Road Prison 36 says:

    The government’s argument for why it has to hold a prisoner in isolation if they complain about being held with foreign nationals amounts to the Captain’s speech in Cool Hand Luke:

    “What we’ve got here is… failure to communicate.  Some men you just can’t reach.  So you get what we had here last week, which is the way he wants it… well, he gets it.  I don’t like it any more than you men.”

  7. President Comacho says:

    How some of these pathetic excuses of human beings could decide that solitary confinement is ok just to save some money is despicable and then to dump it on the JAs to try to argue it is perfectly ok is grotesque. We need to just moves this all over to the AUSAs
    Correct if I’m wrong but solitary confinement is considered cruel and unusual in most western / advanced countries and is only permissible in cases of serious safety issues. Let’s let some of these AF geniuses stay in solitary. They will break in two days