18 May 2009

Recommendations for Cox Commission II

Today I sent a letter with my recommendations to the Cox Commission II, for the consideration of several issues relating to the American military justice system. As discussed here, the Cox Commission II will have a hearing on 16 June 2009 at the George Washington University School of Law. My letter recommended the following:

I. Evaluate the inequity in Title 28 of the United States Code section 1259 and recommend to Congress an amendment to guarantee any servicemember whose case has been denied a petition for grant of review or extraordinary relief by the Court of Appeals for the Armed Forces the right to file a petition for certiorari to the Supreme Court.

II. Consider recommending to Congress the codification, in Title 10 of the United States Code, that a judge advocate be licensed by a state bar before any practice of law in any military court. Currently the requirement for licensing rests with each individual service and is not codified in Title 10 - - it is just based off regulation. In 2005-06, I recommended to the Armed Services Committees that the requirement be codified because there were examples of judge advocates practicing law when they had been suspended or disbarred from the practice of law.

Back in 1992, in my personal case, one of the judge advocates who participated in my UCMJ article 32 hearing had previously been suspended from his licensing jurisdiction, then reinstated, then again suspended. The Navy permitted this officer to continue practicing before courts-martial. It was also alleged that this officer issued several unauthorized "general court-martial" subpoenas to civilians during a UCMJ article 32 hearing when no subpoena power existed to compel civilians to testify or produce evidence at an article 32 hearing. This was done after his first suspension from his licensing jurisdiction. My recommendation to Congress came on the heals of other officers practicing law with suspensions or disbarement or worse yet, not having a license to practice in the first place.

In late 2005, my lead attorney Dan Silverman, at the now defunct Heller Ehrman LLP, wrote to lawmakers on my behalf urging the enactment of a statute requiring bar admission. Following that correspondence, in early April 2006, I personally met with the HASC Military Personnel Subcommittee majority counsel, Kevin Coughlin, and Rep. Duncan Hunter's chief of staff, Vicki Middleton, on the Hill. I also had some email exchanges and telephone conversations with the SASC majority counsel, Scott Stucky, (who is now a judge on CAAF) about incorporating the requirement of bar membership in Title 10. My recommendation almost made it into the NDAA for FY 2007 but senior attorneys in Office of the Secretary of Defense - Office of General Counsel (OSD-OGC) opposed it. OSD-OGC actively lobbied Senator John Warner and Rep. Duncan Hunter against it. During the conference for the NDAA the language was removed. The Pentagon's lobbying efforts had paid off.

Nearly two months after President George W. Bush signed into law the NDAA for FY 2007, the Navy Times published an article on Christmas day 2006 about Col. Michael Murphy, which can be found here. Murphy's case served as a recent example of the need to codify the requirement of bar admission; having been disbarred from the practice of law since the 1980s, Murphy was still permitted to practice in the Air Force.

I firmly believe that if judge advocates are going to be practicing criminal law in military courts where the liberty of a servicemember is at stake that the judge advocate, at bare minimum, needs to be licensed by a state's bar in order to practice law in the military. Title 10 should be amended to require this. Solely relying on service regulations to require a judge advocate be licensed by a state bar has proved ineffective.

III. Evaluate a repeal of Title 10 United States Code section 1552(f), if the Supreme Court holds, in United States v. Denedo, that military courts do not have jurisdiction, under the All Writs Act, to review errors in a court-martial that is final. I discuss my reasoning here and here. If the high court does in fact hold that military courts don't have jurisdiction under the All Writs Act to correct their own errors once a court-martial is final, I do not agree, as some have suggested to amend Title 10 to provide the military courts such jurisdiction. Rather, I believe a simple repeal of 10 USC section 1552(f) would provide the serviemember with the appropriate redress of grievance.

VI. Consider recommending to Congress that both trial and appellate military judges be appointed to fix terms of office and that it be codified in Title 10 of the United States Code. Currently, only the U.S. Army and Coast Guard grant their military judges fixed terms of office. I believe there are equal protections issues involved which have thus far evaded Supreme Court scrutiny due to the inequity in 28 USC section 1259(3).

V. I agree with Dwight Sullivan on CAAFlog that the individual service Article I Courts of Criminal Appeals should be abolished and that CAAF should sit in panels of three. However, I believe taking this a step further and elevating CAAF to Article III status - - the U.S. Court of Appeals for the Armed Forces Circuit - - with judges having lifetime appointments. The current judges of CAAF could be automatically elevated to Article III status much as when the appellate division of the U.S. Court of Claims and the Court of Customs and Patent Appeals were merged creating the Federal Circuit in 1982. Further, that review in the new Circuit be made as a matter of right and not as discretionary - - similar to that of the geographical Circuit Courts of Appeal. My position on this issue can be found on various strings of comments contained on CAAFlog found here and here (some of my comments are under "NBM3").

VI. I recommend that all special and general court-martial convictions with subjurisdictional sentences (i.e. confinement of less than a year and no punitive discharge or dismissal) be eligible for military court appellate review.

VII. I recommend a review of the modern day trend, which seems to increase the use, of Correctional Custody Units as a form of non-judicial punishment for enlisted servicemembers in the ranks of E-1 through E-3 to ensure abuses are not occurring and that a system is in place to effectively report alleged abuses without fear of reprisals.

No comments:

Post a Comment