THE CASE FOR TERMINATION OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES.

• Author: Fidell, Eugene R.

Diamonds may be forever, (1) but--except for the Supreme Court (2)--federal courts can come and go. And go they do, even though courthouse architecture and choice of construction materials typically strive to signal permanence. (3) Where circumstances (or politics) call for it, federal courts have been terminated.

The death blow may come quickly or only after decades. For example, in 1802, Congress abolished judgeships it had controversially created the year before, after President Adams's failed bid for re-election. (4) As new states entered the Union (typically but not invariably after a short period as territories), their Article IV (territorial) courts were superseded by state and Article III federal courts. (5) The Court of Private Land Claims, established in 1891, had a limited purpose and ended in 1904. (6) The Choctaw and Chickasaw Citizenship Court lasted a mere seven months between 1902 and 1903, deciding only a single case. (7) The Commerce Court of the United States was created in 1910 and abolished in 1913. (8) The United States Court for China (9) and the consular courts in that country ended with the expiration of American extraterritorial rights in 1943. (10) The World War II-era Emergency Court of Appeals somehow made it to 1962, (11) the District Court for the Canal Zone expired in 1982, (12) as did the Temporary Emergency Court of Appeals in 1993, (13) the Regional Rail Reorganization Special Court in 1997, (14) and the Special Division of the D.C. Circuit for the appointment of independent counsels in 1999. (15) The non-statutory United States Court for Berlin (a holdover from the post-World War II occupation) was shut down in 1991, (16) and the Midway Islands Court is no more. (17) When a non-Article III court is abolished, its judgeships terminate automatically. (18)

When Congress enacted the Uniform Code of Military Justice (UCMJ) in 1950, one of its principal achievements was the creation for the first time in American history of a civilian court to hear appeals from courts-martial. (19) It was a sound idea, especially given the flawed history of the administration of justice in the armed forces during World War II. Since 1951, when the Court of Military Appeals (CMA) (20)--known since 1994 as the United States Court of Appeals for the Armed Forces (CAAF) (21)--came into being, this Article I court (22) has weathered a variety of storms, starting with resistance from the Judge Advocates General (who sought to control access to it) (23) and including a Defense Department trial balloon calling for the transfer of its functions to the United States Court of Appeals for the Fourth Circuit during the Carter Administration. (24) The court has been almost entirely free of scandal. (25) Its judges have included former Supreme Court law clerks (26) and its work product typically meets contemporary standards of judicial scholarship and rigor. Only recently, the court was the subject of favorable comment in Ortiz v. United States, (27) which held that, notwithstanding its location in the Defense Department "for administrative purposes only," (28) it was sufficiently judicial to permit Congress to authorize the Supreme Court to review its decisions by writ of certiorari. (29)

One would think that after nearly three-quarters of a century, such a court would merit a permanent place in the pantheon of the federal judiciary. This Article suggests that, on the contrary, CAAF has become a costly anachronism. The time has come to terminate it and transfer its jurisdiction, with some important changes, (30) to the United States Court of Appeals for the District of Columbia Circuit.

In Part I, the Article outlines the reasons Congress created CMA and considers whether they were compelling or even arguable in 1950. Part II surveys how intervening developments cast doubt on the contemporary viability of the rationale for a specialized appellate court for courts-martial. Part III asks whether the cost of maintaining CAAF is defensible given the court's meager caseload. Finally, Part IV explains why the D.C. Circuit should succeed, with some modifications, to the appellate jurisdiction exercised by CAAF.

1. SHOULD CONGRESS HAVE CREATED A SPECIALIZED COURT OF MILITARY APPEALS?

   When it enacted the UCMJ, Congress had a variety of related goals. Among these were to establish a uniform disciplinary system for all of the armed forces, overseen by a civilian court, the jurisdiction of which would be confined to the appellate review of courts-martial. Independent of the armed forces, that court would put flesh on the bare bones of the statute. Most notably, it would be a "bulwark" (31) against the command influence that had tarnished the administration of military justice during World War II.

   Was that final, central goal sound in principle--and was it achieved?

   On the latter question, the answer must be no, since unlawful command influence has continued to plague the military justice system. This is not to say that every claim of unlawful command influence has succeeded, but it is a fact that the fairly simple prohibitions of the Code and the implementing provision of the Manual for Courts-Martial have continued to generate substantial issues despite decades of judicial decisions and recurring job training for both commanders and judge advocates. (32)

   On the former question, I have come to believe that the goal was unwise because it gave (or was understood to give) the new court a charter to advance a specific substantive goal. The resulting friction with the armed forces was therefore inevitable. Not to overstate the point, but a court is not supposed to "have a horse in the race." Conceiving of CMA as a bulwark arguably gave it one, as if the Tax Court were enjoined to increase collections and the Court of Federal Claims were expected to protect the fisc. It would have been enough--indeed, better--for Congress simply to have enacted the statutory protections it thought were needed, whether those long found in Article 37 of the UCMJ (33) or the criminal prohibition now found in Article 131f (34) or both, and rely on the military criminal investigative organizations and the adversary system to ensure compliance. However laudable the impulse, making the new court a policeman undermined its status as an impartial and essentially passive decider. This unfortunate effect was only amplified by situating it in the Defense Department where, for administrative purposes, it remains.

   The point is not to be harsh on the Congress that enacted the UCMJ, or on President Truman, who signed it into law. The Code was undoubtedly a major reform, and the creation of a civilian appellate court was arguably its crown jewel. To have used an Article III generalist appellate court for an institutional experiment with many unknowns (not least of which was the likely caseload) (35) might have been a legislative bridge too far. The question is whether that judgment should be revisited with the benefit of nearly three-quarters of a century of experience.

2. INTERVENING DEVELOPMENTS HAVE ERODED THE RATIONALE FOR A SPECIALIZED COURT

   However strong the case for a specialized appellate court was in 1950, it has significantly eroded from several perspectives, despite the Supreme Court's respectful treatment of it in Ortiz. These include the filling in of whatever doctrinal gaps there were when the UCMJ took effect; the assimilation of military law to civilian law generally; the rarity of appeals that demand familiarity with military arcana; the emergence of new concerns, such as the rights of victims; the persistence of unlawful command influence and the congressional response to that persistence; structural changes; the role of evolving international standards; and the collapse of the military justice system caseload.

   First, though, a word about Ortiz. It is an unfortunate fact that judges and justices at times may write too broadly or get carried away. Examples include Justice Black's dismissive treatment in United States ex rel. Toth v. Quarles (36) and description of courts-martial as a "rough form of justice" in Reid v. Covert; (37) Justice Douglas's failure in O'Callahan v. Parker (38) to take account of the Military Justice Act of 1968; (39) Chief Justice Roberts' grumpy partial dissent in United States v. Denedo; (40) and Justice Alito's history-rooted dissent in Ortiz itself. (41) A related phenomenon is that sometimes a decision can come to stand for a broader proposition than it should. Thus, many within the military justice community have read Solorio v. United States (42) as the last word on whether courts-martial should have jurisdiction over non-service-connected offenses, when all it stands for is that the trial of non-service-connected offenses by court-martial does not offend the Constitution. So it is with the majority decision in Ortiz, which is read in some quarters as having affixed an overall seal of approval to the military justice system (43) and, more precisely, CAAF. But the issue before the Supreme Court was a narrow one: Is CAAF sufficiently judicial that Congress may constitutionally confer direct appellate jurisdiction to review its decisions on the Supreme Court? The point that was decided is an important one, but the Court's answer should not be taken as a reason not to subject the UCMJ's appellate architecture, including the continuation of CAAF, to legislative scrutiny.

   Now let us consider what has changed since 1950 that is pertinent to the purposes that led Congress to enact the UCMJ and whether, in light of those changes, CAAF should be terminated. (44)

   1. Gap-Filling

      CMA's task of filling in gaps left by the new UCMJ, while never literally complete (any more than the Article III courts will ever answer the last open issue under title 18), (45) has been fulfilled. The work of interpretation will go on, if for no other reason than Congress will inevitably continue to amend the Code. But if (as I have...