JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Saturday, October 22, 2005
SEPARATION OF POWERS IN MILITARY JUSTICE
It’s been too long since I’ve posted!
Here’s the deal. I was trying to get some organizations interested in filing an Amicus brief in the case of U.S. v. Lane. That case is scheduled for oral argument at CAAF November 1. I was even planning on flying out to hear the argument, but a prof rescheduled a class at the last minute. Too bad!
As some of you know, the intermediate appellate courts in the court-martial system are called Courts of Criminal Appeal, or CCA’s. Each Service has their own (but the Navy-Marine Corps C.C.A. is combined). The Judges are active or reserve military, but under UCMJ Art. 66 (10 U.S.C. 866 ) civilians can be appointed.
One of the Reservists on the Air Force C.C.A. is none other than Col. Lindsey Graham - you probably know him for his “day job,” as a United States Senator and member of the Senate Armed Services Committee. By all appearances, Senator Graham is a good guy and proud patriot- but should he be able to sit on an appellate panel?
Lane was convicted on a drug charge, “dead to rights,” but when his case came up for mandatory review at the AFCCA, it was assigned to a panel that included Senator - Colonel Graham. Lane asked him to recuse himself, but the three judge panel denied in a per curiam opinion (my copy). C.A.A.F. has granted review on the issue of whether Senator-Colonel-Judge Graham’s participation violates the separation of powers doctrine.
Here’s the lawyer nerd part: The Constitution says that no member of congress can hold “office under the united states” while s/he is in office (the “Incompatibility Clause”). Senator Graham holds office in two ways - as a commissioned OFFICER in the reserves, and as an appellate military judge. As to the commission - this has come up before. Some citizens sued back in the Vietnam War because several congress members held reserve commissions. The Federal District Court (D.C.) and the D.C. Circuit held for the plaintiffs, but the Supreme Court reversed on standing grounds - plaintiffs did not have standing as citizens or taxpayers. (Schlesinger v. Reservists Comm.). So really, no answer from the Supreme Court on the merits - but how would anyone have standing? This may be the first and only chance to litigate the issue.
As to “appellate military judge:” the Constitution also requires that “officers of the United States” be appointed by the President or the Head of a Department. C.A.A.F. and the Supreme Court have both held that appellate military judges are “officers” under the Appointments clause (so the Coast Guard JAG cannot appoint civilians as appellate judges on the Coast Guard CCA- it has to be the President or the Secretary of a cabinet department).
That should settle it, right? An officer is an officer is an officer? Not quite - one further qualification. In the Schlesinger case, the solicitor general argued that the “Incompatibility Clause” was merely a limitation on who could be in Congress; and Congress is the only judge of the qualifications of its members. DOJ’s Office of Legal Counsel cited this argument in an opinion, suggesting that the Incompatibility Clause is a “political question.”
Most people I’ve talked to have a general sense that there’s something improper about this. Senator Graham not only makes the laws, but he votes on whether his fellow judges will be promoted (see Article 66(g) - appellate judges cannot prepare fitness reports or other “documents” used to determine whether other judges should be promoted). But how can C.A.A.F. decide this case without implying that all the reservists in Congress are violating the constitution? We’ll see how it comes out…
Here are the briefs of Lane and the Government.
The A.C.L.U. of the National Capital Area and the National Institute of Military Justice filed a joint amici brief. At the risk of comprimising any anonymity, check out footnote 10 (page 18 in the brief, page 23 of the pdf file)!!
Here’s the deal. I was trying to get some organizations interested in filing an Amicus brief in the case of U.S. v. Lane. That case is scheduled for oral argument at CAAF November 1. I was even planning on flying out to hear the argument, but a prof rescheduled a class at the last minute. Too bad!
As some of you know, the intermediate appellate courts in the court-martial system are called Courts of Criminal Appeal, or CCA’s. Each Service has their own (but the Navy-Marine Corps C.C.A. is combined). The Judges are active or reserve military, but under UCMJ Art. 66 (10 U.S.C. 866 ) civilians can be appointed.
One of the Reservists on the Air Force C.C.A. is none other than Col. Lindsey Graham - you probably know him for his “day job,” as a United States Senator and member of the Senate Armed Services Committee. By all appearances, Senator Graham is a good guy and proud patriot- but should he be able to sit on an appellate panel?
Lane was convicted on a drug charge, “dead to rights,” but when his case came up for mandatory review at the AFCCA, it was assigned to a panel that included Senator - Colonel Graham. Lane asked him to recuse himself, but the three judge panel denied in a per curiam opinion (my copy). C.A.A.F. has granted review on the issue of whether Senator-Colonel-Judge Graham’s participation violates the separation of powers doctrine.
Here’s the lawyer nerd part: The Constitution says that no member of congress can hold “office under the united states” while s/he is in office (the “Incompatibility Clause”). Senator Graham holds office in two ways - as a commissioned OFFICER in the reserves, and as an appellate military judge. As to the commission - this has come up before. Some citizens sued back in the Vietnam War because several congress members held reserve commissions. The Federal District Court (D.C.) and the D.C. Circuit held for the plaintiffs, but the Supreme Court reversed on standing grounds - plaintiffs did not have standing as citizens or taxpayers. (Schlesinger v. Reservists Comm.). So really, no answer from the Supreme Court on the merits - but how would anyone have standing? This may be the first and only chance to litigate the issue.
As to “appellate military judge:” the Constitution also requires that “officers of the United States” be appointed by the President or the Head of a Department. C.A.A.F. and the Supreme Court have both held that appellate military judges are “officers” under the Appointments clause (so the Coast Guard JAG cannot appoint civilians as appellate judges on the Coast Guard CCA- it has to be the President or the Secretary of a cabinet department).
That should settle it, right? An officer is an officer is an officer? Not quite - one further qualification. In the Schlesinger case, the solicitor general argued that the “Incompatibility Clause” was merely a limitation on who could be in Congress; and Congress is the only judge of the qualifications of its members. DOJ’s Office of Legal Counsel cited this argument in an opinion, suggesting that the Incompatibility Clause is a “political question.”
Most people I’ve talked to have a general sense that there’s something improper about this. Senator Graham not only makes the laws, but he votes on whether his fellow judges will be promoted (see Article 66(g) - appellate judges cannot prepare fitness reports or other “documents” used to determine whether other judges should be promoted). But how can C.A.A.F. decide this case without implying that all the reservists in Congress are violating the constitution? We’ll see how it comes out…
Here are the briefs of Lane and the Government.
The A.C.L.U. of the National Capital Area and the National Institute of Military Justice filed a joint amici brief. At the risk of comprimising any anonymity, check out footnote 10 (page 18 in the brief, page 23 of the pdf file)!!
