We pay a lot of attention on this blog to the Guantánamo military commissions and the principal structural defect in those tribunals as currently constituted, to wit, their power to try wholly “domestic” offenses (which a three-judge panel of the D.C. Circuit rejected in al Bahlul, but which the government is currently trying to resuscitate through a pending petition for rehearing en banc). We tend to pay far less attention to the other side of contemporary US military justice — the court-martial system — perhaps because we assume that, unlike the Guantánamo commissions, the structure and substantive scope of such criminal prosecutions of servicemembers is well-settled.

I’ve already blogged at some length about why the latter assumption is unfounded, especially vis-a-vis private military contractors. But as illustrated by a decision handed down last week by the Court of Appeals for the Armed Forces (CAAF) (hat tips to CAAFlog and Global Military Justice Reform), the structure of the court-martial system also remains a matter of significant controversy in one crucial respect: the unavailability of meaningful appellate review in many — if not most — cases. In the post that follows, I aim to explain both what the problem is, and why it should matter even to those of us with no connection to the military. 

I. The Evolution of Courts-Martial

As I’ve written elsewhere,

Eighteenth- and nineteenth-century American military justice bore very little resemblance to the courts-martial of today: courts-martial were far more administrative than judicial (indeed, the title of military “judge” was not created by Congress until 1968); there was no appellate review (and judicial review through a collateral challenge was only available to attack the military’s assertion of jurisdiction); and the inconsistent (and, at times, Spartan) procedures were subsequently decried by Justice Black as providing little more than a “rough form of justice.”

Congress took a big step forward in 1950, when it codified the Uniform Code of Military Justice (UCMJ). Among many other reforms, the UCMJ achieved uniformity (hence the name) of substantive and procedural rules across the services, and created a judicial structure for courts-martial — including standing “Boards of Review” (which are the present-day Courts of Criminal Appeals, or “CCAs”) to entertain appeals, and the civilian Article I Court of Military Appeals (today the CAAF) to oversee the entire military justice system.

And in 1983, Congress for the first time gave the Supreme Court direct appellate jurisdiction over the CAAF — turning on its head the Supreme Court’s long-held view that, because of the lack of such supervisory power, it “played no role in [military law’s] development.” Thus, at a superficial level, the appellate structure has increasingly come to resemble what would be true in many state courts — with the accused having the right to pursue appeals to an intermediate appellate court, a military court of last resort, and, ultimately, the Supreme Court of the United States.

II. The Gap in the CCAs’ Appellate Jurisdiction

For a host of complicated reasons, though, each conferral of appellate jurisdiction came with qualifications that would be foreign to civilian state or federal courts. Pursuant to Article 66, appeals are available as of right in all cases “in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more.” At least initially, the UCMJ did not otherwise allow appeals from courts-martial.

In 1956, Congress revised this structure through Article 69, which also gives the CCAs the power to hear appeals in cases not otherwise appealable under Article 66 that are “certified” to the CCA by The Judge Advocate General (TJAG) of the respective service branch. Article 69, all agree, was intended to expand the CCAs’ ability to review relatively “minor” courts-martial, and to further “achiev[e] certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces.”

But as six noted scholars pointed out two years ago in a post on Balkinization, a TJAG’s review in certification cases “is conducted without judges, appellate counsel, full briefing or oral argument.” And this review, as Judge Baker has explained, has not produced the result that Congress intended. Instead, “TJAGs do not as a matter of practice refer cases to the CCA … . That means that a majority of cases arising under the UCMJ are sub-jurisdictional. That also means that a majority of courts-martial are not subject to appellate judicial review.”

Because of TJAGs’ reluctance to certify “minor” cases to the CCAs, the CCAs, with the CAAF’s blessing, had long interpreted the All Writs Act to nevertheless empower them to review via mandamus final decisions by courts-martial that could have been, but were not, certified under Article 69. As is so often the case in the civilian courts, these decisions used mandamus as a way to leap over a statutory gap in appellate jurisdiction (a practice the military has sometimes — correctly — embraced, and sometimes — incorrectly — eschewed, as I documented in this paper).

In its decision last Wednesday in United States v. Arness, however, the CAAF rejected this reading of Article 69 and the All Writs Act (and, in the process, overruled two of its prior decisions). As Judge Stucky wrote for the court, “As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it. As this Court’s jurisdiction is predicated on the jurisdiction of the CCA, we are without jurisdiction to hear the writ-appeal.”

Judge Baker penned a lengthy concurrence that concluded:

The consequence is that a majority of cases are not subject to appellate review by the CCAs. This cannot be what Congress intended when it created a military justice system subject to appellate review. This also means a majority of appellate cases are not subject to civilian oversight. This cannot be what Congress intended when it created a system of military justice subject to civilian judicial oversight. But Article 69, UCMJ, is not clear, and this is the result.

Therefore, I would invite the President and the Congress to consider Article 69, UCMJ, anew and in clear and plain language determine where and when courts-martial should be subject to direct judicial review. Without such clarity, the government will argue for and apply the narrowest possible jurisdiction, a view with which this Court has shown a recent propensity to agree.

Although I disagree with Judge Baker that Article 69 has to be read, together with the All Writs Act, the way the majority reads it, it’s impossible to dispute his larger point — that it’s long-past time for Congress to restore the original intent of Article 69, and to make most, if not all, convictions by courts-martial appealable to the CCAs. If intermediate state appellate courts and federal circuit courts have devised processes to avoid being flooded with appeals in such cases, why should the CCAs be any different?

III. The Gap in the Supreme Court’s Appellate Jurisdiction

To make matters worse, even in cases in which the CCAs do have the power to entertain appeals from courts-martial, the statutory structure creates another gap to meaningful appellate review from there. Start with the CAAF: Under Article 67, it has mandatory appellate jurisdiction in (1) all capital cases; and (2) all cases certified to the CAAF by TJAG. Otherwise, its jurisdiction is discretionary.

The problem emerges in cases in which the CAAF denies discretionary review. Under Article 67a(a), the Supreme Court “may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.” And 28 USC § 1259 is even more explicit, limiting the Court’s jurisdiction to capital cases, cases certified to the CAAF by TJAG, cases in which the CAAF grants discretionary review, and other cases “in which the Court of Appeals for the Armed Forces granted relief.”

Moreover, unlike the constraint on the CCAs’ appellate jurisdiction (which is limited to relatively minor offenses), the gap here applies to all non-capital, non-TJAG-certified cases. Given that the CAAF resolves through published opinions fewer cases each year than even the Supreme Court (and that’s saying something), the result is that nearly all court-martial convictions are not, in fact, subject to meaningful Supreme Court appellate review.

IV. Why This Matters

To be sure, folks may think neither of these gaps is that big of a deal. After all, (1) the gap in the CCAs’ appellate jurisdiction extends only to minor offenses; and (2) in all other cases, a servicemember has the opportunity to at least seek discretionary review from the civilian, non-Article III CAAF — even if its denial of the servicemember’s petition divests the Article III Supreme Court of similar supervisory authority.

Folks might also think that, in sufficiently exceptional cases, there remains the backstop of habeas petitions — and of asking Article III district courts to review the validity of a military conviction. But habeas for military convictions is increasingly elusive, if not illusory. Ever since Burns v. Wilson, courts have reviewed only whether the military court gave “full and fair consideration” to the accused’s constitutional claims. And “full and fair consideration” has been interpreted rather deferentially. As the Tenth Circuit (which, thanks to Fort Leavenworth, hears more than its fair share of such cases) recently explained, “[w]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.” If that’s the standard, then habeas isn’t going to be a meaningful backstop in any case other than ones in which the military court’s error was both clear on the record and egregious.

As for the view that the absence of appellate review of relatively minor offenses isn’t something to lose sleep over, we’ve long-since abandoned that mentality in civilian criminal courts, and for good reason. Not only is 11 months’ confinement and a reprimand a fairly serious offense for a servicemember, but given the breadth of contemporary military criminal law (which encompasses most civilian offenses in addition to conventional military charges), courts-martial are routinely interpreting statutes and constitutional provisions of far broader applicability even in these relatively “minor” cases — rulings that, in the vast majority of cases, are immune from appellate review.

Finally, consider the contrast with the Guantánamo military commissions, where many — myself included — pushed for years to improve the structure of appellate review, largely culminating in the (greatly improved) procedures provided by the Military Commissions Act of 2009. And look what a difference the D.C. Circuit has made in these cases… Although there’s every reason to demand full, plenary appellate review in that context, the juxtaposition of such full-bodied appellate review for alleged war criminals as contrasted with the stilted review available to our own servicemembers should strike everyone as unsettling — not because we’re providing so much more process to accused enemy belligerents, but because we’re providing so little process to our own men and women in (and, increasingly, outside of) uniform.