Monday, November 20, 2017

Department of Serendipity

From the time Congress first extended the certiorari jurisdiction of the Supreme Court to reach decisions of the then-U.S. Court of Military Appeals, certiorari has been limited by statute to cases in which that court granted discretionary review. This excludes the lion's share of courts-martial and is a limitation not imposed on state, civilian federal, and military commission cases.

The following, discovered serendipitously, appears on page 34 of Senate Report No. 98-53, April 5, 1983, which accompanied the Military Justice Act of 1983:
In the federal civilian system, of course, any criminal conviction is ultimately subject to Supreme Court review via a petition for a writ of certiorari. Where appropriate the Committee wishes to achieve parity with the civilian system to the maximum extent practicable, but recognizes that the unique nature of the military justice system dictates that the Court of Military Appeals should remain the principle interpreter of the UCMJ and at least at the outset, restricting direct access to the Supreme Court to cases the Court of Military Appeals has agreed to hear is necessary as a practical matter. [Emphasis added.]
The notion that it was somehow impracticable (aside from politically) for military accuseds to have the same access to the Nation's highest court as other criminal defendants was ludicrous at the time and it remains ludicrous. But even if that were not the case, might we not agree that after 34 years we are no longer at "the outset" and that the time has come to set this right?


CAAF nominee approved by SASC

The Senate Armed Services Committee last week approved the nomination of Prof. Gregory E. Maggs to be a judge of the U.S. Court of Appeals for the Armed Forces. The nomination now moves to the full Senate.

Sunday, November 19, 2017

Who should investigate this Cypriot case?

The Attorney General of Cyprus will be investigating allegations that a National Guard commanding officer assaulted one of his soldiers. A military investigative report will be turned over to civilian authorities. Details here.

Senator Gillibrand reintroduces reform measure

Sen. Kirsten Gillibrand
Senator Kirsten Gillibrand has again introduced her bill to shift the disposition power from commanders to lawyers outside the chain of command, according to this report. Excerpt:
"We're not seeing the system get better," New York Senator Kirsten Gillibrand (D-NY) said.

This is the fifth time New York Senator Kirsten Gillibrand has introduced her bill called the Military Justice Improvement Act.

She said she hasn't been given a vote on the bill in nearly two and a half years.

"It is something that people think is debatable, it is something that people think is unanimous and a lot of people don't want to take on the generals. When the generals say no they want to leave it the way it is and I think that is the wrong instinct," Gillibrand added.

Saturday, November 18, 2017

Lieber writing prize

Via OpinioJuris:

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Submissions, including a letter or message of nomination, must be received by 10 January 2018. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria. The Prize Committee will acknowledge receipt of the submission by e‑mail.