Published by The Lawfare Institute
in Cooperation With
We thus are asked to adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief -- expedited access to certain documents -- that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial.Thus, CAAF concluded, it lacks jurisdiction to review the allegations that the Manning trial judge's rulings violated the First Amendment. The problem, as Chief Judge Baker and Senior Judge Cox both pointed out in separate dissents, is that such an understanding completely misses the point of the All Writs Act--and the crux of the Supreme Court's concerns in Goldsmith. As Chief Judge Baker wrote,
Goldsmith concerned an administrative matter that was completely unreviewable by this Court. In contrast, the writ before this Court appeals a specific ruling of a specific Rule for Courts-Martial in a specific and ongoing court-martial. The issue does not address the application of the Freedom of Information Act, a clear collateral matter entrusted to other courts, but a military judge’s application of R.C.M. 806 to a specific court-martial. Appellate review of military judges’ rulings in courts-martial is at the core of this Court’s jurisdiction. That is what we do.Put another way, insofar as the All Writs Act empowers "courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdiction," it allows appellate courts to protect their appellate jurisdiction by issuing extraordinary writs to lower courts to correct legal errors that would otherwise be unreviewable. As Chief Judge Baker concluded, "Congress did not intend for military judges to operate without review when applying the Rules for Courts-Martial or the Military Rules of Evidence. Neither did Congress intend that review to come in the form of collateral appeal to Article III courts in the context of ongoing courts-martial. That would not provide for a uniform application of the law between services and between courts-martial. It would also be unworkable." In addition, it's also hard to square the majority's reliance upon Goldsmith with the Supreme Court's subsequent clarification of that decision in Denedo v. United States, in which it upheld the power of the military courts to use the All Writs Act to fashion extraordinary post-conviction relief--again, something beyond what the UCMJ expressly allows. As Justice Kennedy there explained, the All Writs Act allows military courts to perfect or otherwise supplement the appellate jurisdiction that they otherwise may exercise at different times:
Because respondent's request for coram nobis is simply a further “step in [his] criminal” appeal, the [intermediate military court's] jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review. As even the Government concedes, the textual authority under the UCMJ to “‘revie[w] court-martial cases'” provided the [military court] with jurisdiction to hear an appeal of respondent's judgment of conviction. That jurisdiction is sufficient to permit the [military court] to entertain respondent's petition for coram nobis.To be sure, in Denedo, the All Writs Act was invoked after the military court's appellate jurisdiction had been exercised. But it's abundantly clear from other cases that the timing is irrelevant; so long as the appellate court is issuing the writ to protect its appellate jurisdiction, the source of jurisdiction is the appellate court's power to hear the appeal--not the All Writs Act. That explains Goldsmith, for there was no other statutory basis for CAAF's jurisdiction to issue the relief there at issue. And that also explains why CAAF erred here. Undoubtedly, CAAF has appellate jurisdiction over the trial rulings of a military judge during a court-martial proceeding. And for claims--such as the First Amendment public access claim at issue here--that can't meaningfully be vindicated on post-conviction appeal, that jurisdiction can only be exercised through an application for an extraordinary writ under the All Writs Act. Notwithstanding this analysis, the majority in CCR relied heavily on the fact that the defendant himself was not raising a First Amendment claim ("We are not foreclosing the accused from testing the scope of public access, but he has not done so here.")--suggesting that the petitioners are mere interlopers with no real interest in these proceedings. But that contention is irrelevant for two separate yet equally important reasons: First, the First Amendment rights identified by the Supreme Court in the Richmond Newspapers line of cases belong to the media and the press, quite in addition to (if not in lieu of) the defendant. As Chief Justice Burger put it 33 years ago, "In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees." Second, and the majority's protestations to the contrary notwithstanding, the majority's reasoning would apply with equal force to a defendant's request for such extraordinary relief--since it turns on stilted interpretation of the very same statute on which a defendant would base a similar claim. [Chief Judge Baker makes this point quite effectively in his dissent.] As with the CMCR's denial of a similar claim arising out of the 9/11 military commission proceedings, these decisions may simply reflect hostility to the First Amendment claims on the merits. But whereas the jurisdictional issue was only raised by Judge Silliman's concurrence in the CMCR, it is the entire basis for CAAF's holding here--and, as the above analysis suggests, it does not withstand even modest scrutiny. Unfortunately, and unlike the CMCR decision (which may still be challenged in the D.C. Circuit), it's not clear that the Supreme Court has jurisdiction to review yesterday's CAAF ruling. After all, as relevant here, 28 U.S.C. 1259 only authorizes such review in "Cases . . . in which the Court of Appeals for the Armed Forces granted relief." It's not a frivolous argument that the Court nevertheless has jurisdiction to correct an unduly narrow interpretation by CAAF of its jurisdiction, but it's certainly an uphill one. Instead, the battleground may shift to the district court--which may yet reach the very serious First Amendment issues presented in these cases on their merits, but which will, in the process, only further undermine the independent authority and integrity of the military justice system as a self-contained unit.