Back in August we noted the allegation of murder against Coast Guard Seaman Tucker, and a news report stated that Tucker was placed into pretrial confinement pending a court-martial for murder, involuntary manslaughter, aggravated assault, maiming, obstructing justice, making a false statement, and failure to obey an order or regulation.
Tucker challenged that confinement, petitioning the Coast Guard CCA for a writ of habeas corpus. The CCA denied the writ in an order available here. In it, the CCA observed that:
There is probable cause to believe Petitioner committed an offense. The real issue here is whether it is foreseeable that Petitioner will not appear at future proceedings or will engage in serious criminal misconduct; and whether less severe forms of restraint are inadequate.
We note that the memoranda of the Commanding Officer and IRO contain a number of conclusory statements and leaps of logic that do little to explain why, given the individual circumstances of this case, it is foreseeable that Petitioner will not appear at future proceedings or will commit further serious misconduct and that lesser forms of restraint would be inadequate.
In re Tucker, No. 003-19, slip op. at 2 (C.G. Ct. Crim. App. Oct 18, 2019). Nevertheless, the CCA refused to further consider the merits of the petition because the case has not been referred and:
it is “well established that one who believes he is wronged by a decision directing his confinement prior to trial, must pursue the remedy provided by Article 138, [UCMJ], prior to seeking the intervention of this Court pursuant to [the All Writs Act].”
Slip op. at 3 (quoting Catlow v. Cooksey, 44 C.M.R. 160, 162 (C.M.A. 1971)). Article 138 provides service members with a formal complaint resolution process. Military justice matters are generally not the proper subject for such a complaint, but the CCA held that the fact that the case has not yet been referred “does not preclude Petitioner from seeking redress” under Article 138. Slip op. at 3 n.1.
The CCA’s decision in Tucker is interesting because it seems to be the first time that any court relied on Catlow (and insisted on exhaustion of the Article 138 remedy) since the decision in Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), that required a neutral and detached magistrate review the decision to place an accused into pretrial confinement. That requirement is implemented in R.C.M. 305, which establishes a comprehensive review process. There is, I think, a good argument that the R.C.M. 305 process (including reconsideration by the neutral officer under R.C.M. 305(i)(2)(E), and post-referral review by a military judge under R.C.M. 305(j)) removes the question from Article 138 entirely.
Nevertheless, the CCA’s decision likely has a short lifespan, because Congress gave military judges the ability to consider matters pre-referral when it created Article 30a in the Military Justice Act of 2016, and it expanded the list of matters that may be considered to include pretrial confinement in § 531 of the National Defense Authorization Act for Fiscal Year 2020. Accordingly, once the President implements the expanded Article 30a power, an accused’s pre-referral challenge to pretrial confinement will definitely be a judicial matter and the proper subject of a habeas petition.