Extraordinary Writs in the Military Justice System: A Different Perspective

• Author: by Captain John J. Pavlick, Jr.
• Pages: 01

In this article, Captain Padiek rebiews the histon'eal mocess throuoh whzeh the Court of Milttarv Ao~eals has

rent Status of the court's 1;ieu.s concerning its wrtt power. Emphasis is placed on the court's granting of dief tn aid of its junsdretton, and on the assertion by the court OJ

broad swperrisory powers in the ease of McPhail 1;

Cnited States, 1 M J . 467 119761.

Captain Paaliek also mentions bnefzy the similar development of writ powers tn the hands of the uonous sewice courts of military T B C Z B ~ .

The author discusses some of the strengths and weaknesses of the position of the Court of Military Appeals i n relatton to the military chain of command, which has Its ou'n powers to grant Telief, and its own oblzgotion to up. hold the integrity of the system. Captarn Pavliek concludes thot the court has not yet developed a unified legal theow from the many eases decided by it in this area.

*The opinion% and conelu~ions expressed in this article are thaw of the author and do not necessarily represent the YEW of The Judge Advocate General's Sehaai, the Depnnmenf of the Army, or any orher garernmental agency.

**JAGC. United States Amy. Chief, Defenae Counsel Section, Office of the Staff Judge Advocate. Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, Kansas, since Oetober 1978. Graduate of the Judge Advocate Officer Bnaie Course, J.A.G. School, Charlotteswlle, Virginia, 1978 B.S.. 1970, United States Military Academy; J.D., 1978, University of Pennsylvania Law School. Member of the Bar of Pennsylvania.

I. THE UNDERLYING PROBLEM

The extraordinary writ power has been the subject of much debate and controversy outside the military community as nell as within it. This dispute has increased in the wake of a decision of the United States Court of Military Appeals, MePhail v. Cnited States,' wherein the court stated that it had broad powers in its supervisory role to issue extraordinary writs throughout the military system. Several civilian commentators have viewed this decision 8% a foundation for broad changes and future exercises of p a ~ e r . ~

Unfortunately, they, like many observers inside the military, laak only to CMA and do not take into account the interaction uith the military poaer structure within the military aociety. Essential to a complete understanding of the exercise af the writ

L1M.J.45i.24C1.A.304.52CM.R.L5(1916)

Hereinafter the United States Court of Military Appeals nil1 be referred to ~n

This v~lurne ai the liitlary Lau Reaier IS the last in rhieh the triple eifntion

bath text and nofen 89 "CMA "

form. illustrated above. will be used.

The last bound volume of the old offieid reporter. Drrisione af the Cniled Slate8 Couit ofliiilary Appeoia (C.M A , or C.S C.M A ) WBB ~olurne 21. puhlished m 1972 Starting with volume 22, the C.M.A. reporter was merged with the Court-Mart?al Repads (C.M R 1. References to ease8 in 22 and 28 C.M.A. appear in ~ o l u m e ~

46 through 50 of the C M.R., but these two "volumec" were never

published BQ such During the transition from the Cau7t.MorliaI Repoiti to the new Miitlaiy Juslwe Reporler, citations to 24 and 25 C.M.A. were oceasionnlly found, but these neser existed except as adi'anee sheets

The .Uditory Juaticr Reporter (M J.1 began publication I" 1978 a6 ~ueee~mr to

the Coz~rt-Uart*o/ Report8 and the Dectsiona of lhe LTnitrd Slales Gaud of I d i - lary Appeais It replaced sll the C M.R.and C.M.A advance sheeta. and 1 M.J. reported Court of Military Appeals decisions which a h appear in 50 C M.R Ex-cept for the overlap betreen 50 C.M.R and 1 M.J , eases reported in the Ydilory Jusliir Reporter will be cited only to that reporter in future limes of the Itittory Law Reaieu

*Willis, The L'niled Stoles Court of Militaiy Appcais-"Bani Again.'' 52 Ind. L J. 15 (1976); Note, Building 0 System a/M~lilory Jicslii~Thiovgh lhr Ali Wnls

Ail, 52 Ind L J 189 (1976).

poner is an approach ahich recognizes at all levels the con8tant tension between tu-o sources of power within the system.

This basic tension exists between, on the one haad, the scheme of statutory powers granted to the chain of command3 and CMA by the Uniform Code of Military Justice,' and, on the other, the general role of CNA as the supreme court in the military justice system. This statuto& scheme gives tremendous power over the administration of military justice to the convening authority during every phase of the court-martial procedure and initial post-trial review.s These powers, coupled nith the complete control of the ehain of command over all personnel operations of the armed forces, results in a pervasive inthence on all aspects of the military system.B

'Throughout this article, references will he made to various portions of rhe mili-tary structure. Ab used I" this article, the wrmi ''ehain of eammand" and "mil-tnry authorities" uiil denote not only the individual eommanderi hut ale0 their itaff eolleetwely Thus. diaevsaian of actions taken at any particular level of com-mand will mume that the commander and his legal staff act BQ one Admittedly this 8smmption becomes mmewhaf less credible ~n the upper levels of the military power structure, but m y dietortian should not matenally affect the dimusion.

The commander maif crucial ~n the military judicial process IS the cmvenmg authority That official exercmes control mer referral of a ease to trial, and hns great influence mor the procedural and administratire 88pects of the eourt-martial Moreover. he 01 she takes an active role in the initial revie* of the eourt-mamd convietion and sentence. At this 1evd the absumptmn probably canformi most closely with reahfy: As B pr8eficnl matter. the eanvening authority and hi8 or her staff judge advocate seetian should be conaidered a8 one.

55 801-940 (1976) [hereinafter eited as L'.C M.J. or the Code in text,

.J I" footnotesl. Note that the lasf two digits of the United State, Code ~ecfion~correspond with the laet fuo digits af the U.C.M.J. articles. Thus. 10 U.S C. 5 866 becomer U.C.P.J. article 66, and 10 U.S.C. 5 934 becomes U.C.M.J article 134sSee Sherman, Mdzfary Justice Without Miiilary Control, 82 Yale L. J 1398,1899 n 7 (19781 See aiio West, A Hialory of Command InJlwnce on the Milttary Jvdreial Syalem. 18 U.C.L.A.

L. Rei, l(1970).

West vied his srtiele in part a i rhe basis for a book entitled They Coli It J m ft~e, sharply eriticiied by Captan Brian Price in hx revier published at 78 Mil. L. Res. 184 (1978).

While the GAO report noted that the U.C.P.J.speeifieally prohibita eammand- erb from utilizing their paver to BO influence cwrts-mwfiai, the potential to do is

A military judicial system is established by the Cniform Code: but to a large degree the power and effectiveness of this system is dependent upon the leaderehip and force of CMA. The status of CMA is often alluded to by members of Congress, the Supreme Court, and CMA itself in very broad and impresaive terms,' which suggest plenary power nithin the military system. However, as former Chief Judge Quinns had come to realize, Congress did not provide adequate statutory powers for the court to carry out these broad mandates.

The court has jurisdiction to review only a relatively small percentage of the courts-martial,g and its powers are very austerely and often ambiguously itated.'O This statutory deficiency is likewise true of the powers of the four court3 of military review and the military trial judges, who compriae the remainder of the military judicial structure." This statutory deficiency becomes even more

.f,.

, . . -. . . . .. . . ; . by. the convening aurhont)'Sei MePhail Y United States. 1 M J 457, 461-62 24 C.M.A. 304 308-09. 52 C.M R. 16, 19-20 (19%) Far itsiemeniz of members of Congress, w e 0 , 96Cong Rec 6726 11949).

BPeffy I Monart). 20 C M A 438. 443. 43 C M R 278, 284 (1971) (dlsrenrlng

0p'"lonlsunder C C M J art W b l . C M A can revieil only cases rhxh haie been re-iiered by a court afmilitar) revleu under art 661hl. That article a11011 revie* ofa eourf-martial only ~n eaieb "ai trial by court-martial m which the nentenee. 8%

approved. affects a erneral or flag officer 01 extends to death, dismrrsal of a cam- mmioned officer. cadet or midnhmman. dishonorable or bad conduct di8ehar.e. Or Canflnemenr for 0"e year or more."

>OSer L o U C M J. srti 6i(O and 13

"See. e 9 , U C M J art 66 Do the eourtr of military reiier hare powers ~eps-rate from those af the branch judge adrocate general? See Cambeef Bender. 43C M.R 899 IC G C.M R. 1971). See sho McHardy, Mifitniy Contrnipf Laii and Procedure. 6S MI] L Rev 131 (1972), far discussion of the limited contempt power of the military judge

19191 EXTRAORDINARY WRITS

glaring when one considers that the prime reason for a supreme military court comprised of civilians was to offset and control the power of the military authorities. Additionally, even where the UCMJ provides general rights and procedures, the implementing regulations which flesh out these rights are promulgated by the President and the very military authorities that the court is sup-posed ta control.

These statutory deficiencies create power vacuums where either side may claim powers. This presents a special problem for CMA in that it often has very little in the way of explicit authority for moving into an area and asserting authority. Also as a practical matter its decisions are not always based on statutes but often involve interpretations of constitutional doctrines and it8 own interpretations of Code provisions

CMA's initial assertions of poner met with strong and rather bitter resistance from the military establishment and culminated in the so-called Powell Report,'% prepared by ~enior

Army generals. This report criticized the court's actions and called for limitations on its powers, and for reversal of many of the court's decisions. Following this report, which resulted in no Congressional response, the con-flict became lowkeyed, although as late as 1971 the philosophy of the...