JAG CENTRALArchives
Back to Main Page
The 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)!!
Monday, October 17, 2005
WORLD MJ WATCH: BRITAIN
In Britain, an RAF officer faces court-martial for refusing to return to Iraq, the first such case since the war in Iraq began (article from The Guardian):
An RAF officer faces a court martial for refusing to serve in Iraq on the grounds that the invasion of the country was illegal, defence officials said yesterday.
Flight Lieutenant Malcolm Kendall-Smith, a medical officer based at Kinross, in Scotland, faces four counts of disobeying a lawful command under the 1955 Air Force Act.
He is the first British officer to face charges on these grounds and his prosecution is likely to add to growing unease among the military about the war in Iraq. He may face a jail sentence, though senior military officers, concerned about the effect of Iraq on the morale of British armed forces personnel, will not relish the prospect of a martyr and another focus of opposition to the war and invasion of Iraq.
The 37-year-old lieutenant, who was decorated for service in Afghanistan and Iraq, believes the invasion was illegal, defence sources said.
A key part of his case, according to reports yesterday, will be that under RAF law an officer is justified in refusing to obey commands if they are illegal. The Queen's commission requires armed forces officers to act according to "the rules and discipline of war". Defence sources suggested the officer also had a conscientious objection to the war.
Some reservists have refused to serve in Iraq, but this is the first time that a full-time officer has objected.
NATIONAL NEWSPAPERS - 17 OCT 05
Former Iraqi Dictator Saddam Hussein, Facing Trial Wednesday (CNN)
From the Washington Post, this update on the upcoming Hussein tribunal entitled, Victims' Relatives Await Hussein Trial:
A source close to the special Iraqi tribunal that will hear the case has said that although the trial will start this week, it will likely be delayed after a day or two of hearing motions and resolving technical issues that surround the historic and yet untested legal proceedings. It is not clear when the court would reconvene.That bothers Human Rights Watch, the organization that sees fit to defend some of planet Earth's least defensible humans:
The source, who spoke on condition of anonymity, described the start of proceedings this week as "the beginning of an ongoing process." But the source added, "I don't think this will be a process dragged out by technicalities."
Hussein will be tried by a five-judge panel under a mixture of international law and Iraqi criminal law. If convicted, he could face the same fate as the 143 men from Dujail.
In a report released Sunday, Human Rights Watch raised questions about whether the Iraqi Special Tribunal, the court set up to hear cases against former officials in Hussein's government, could be fair and impartial. Among the U.S.-based monitoring group's concerns are the application of the death penalty without any possibility of clemency and the requirement that a sentence be carried out within 30 days after a final appeal is heard and concluded.
The Dujail trial "will be commencing in a political context of considerable instability and uncertainty," the group's report said. "In such a context, it is essential that the trials be fair and be seen to be fair so that accusations that the trials amount to 'victors' justice' do not gain credence."