Saturday, May 17, 2014

Military justice by the numbers

The annual report of the Code Committee on Military Justice always makes interesting reading. The latest one is no exception. Here's a statistic of interest: during the year-long September 2012 Term of Court, the U.S. Court of Appeals for the Armed Forces granted 103 petitions for review and denied 635 (p. 17). That makes a grant rate of just under 14%. Since the U.S. Supreme Court can grant certiorari in petition cases only if CAAF has granted review, this means that roughly 86% of the cases on the largest part of its docket are ineligible for review by the Supreme Court. The only path open to the accuseds in those cases is to seek collateral review in the federal district courts or the U.S. Court of Federal Claims, where the scope of review is narrower and free military appellate defense counsel cannot represent them.

In contrast, all federal civilian criminal defendants, all state criminal defendants, and all military commissions accuseds have the right to seek Supreme Court review without having to persuade the next lower court that there is "good cause."

Why doesn't Congress correct this indefensible disparity?


  1. Allow me to add a rhetorical question. If the appearance of justice is equally as important as the actual administration of justice, then why aren't the combined TJAGs not insisting that Congress remedy this discriminatory anomaly?

    Let me also point out a salient fact about CAAF reviews:

    ". . .the Court reviewed and acted on 3528 petitions for grant of review during fiscal year 1984, reflecting an increase in such review actions of 26 percent over fiscal year 1983. The Court granted further review in 433 of these cases, or 12 percent of the cases considered." The Annual Report of the Code Committee on Military Justice, at 3 (1984).

    Thirty years ago, the Court granted review in over 4 times the number of cases as in FY 2013. Statistical comparisons aside, in real numbers, the "search for justice" for those convicted by a court-martial with an approved sentence qualifying the case for potential CAAF review, becomes an even steeper climb for the affected servicemember. And unlike the Government which can literally "force" a case on the Court via a TJAG certification, the door of justice is slammed shut if CAAF denies review - even if it is a statistical improbability that SCOTUS would grant certiorari, it is this loss of that "chance" that is so inequitable.

    As pointed out, prisoners [after 12 years, they are not "detainees"] at GTMO have a right to seek SCOTUS review - an option denied our own servicemembers.

  2. With this kind of justice and differential treatment applied to the prosecution of ordinary criminal law offences committed by members of the Forces, how can one refer to the existing overall system as "the military justice system"? It is clear that it is only one of numerous aspects of a system which generates injustices (involvement of the chain of command in prosecutions, mere status test as military nexus requirement, summary trials, trials by military Commissions, etc. ). Would it not be more accurate and reflective of a given and unchallengeable reality to refer to the system as the "military injustice system" ?


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