​ In light of the responses to the recent Task and Purpose article, I thought a look at court-martial numbers and experience in the Air Force might be appropriate. The data comes from the annual reports available on the CAAF website and on the Joint Service Committee on Military Justice’s website and my review of official biographies.

Friends of CAAFlog Prof. Rachel VanLandingham, Prof. Joshua Kastenberg, and Don Christensen weigh in here: https://taskandpurpose.com/news/william-cooley-air-force-sexual-assault

Their main criticism is that the regular rotation from job to job prevents the development of expertise in criminal litigation.

Update: A response from Gregory Speirs here.

Editor's note:
There can be no doubt--these people are experts. Prof. Dunlap should explain his repeated use of scare quotes around that word, which is a departure from norms of academic civility. 

The AFCCA affirmed the findings and sentence of Airman First Class Jenna E. Shouey, finding no error materially prejudicial.  

Shouey opinion here

Counsel for SGT Bergdahl filed this reply today in his ACCA coram nobis case:

The AFCCA affirmed the findings and sentence of Second Lieutenant D'Andre M. Johnson, finding no error materially prejudicial to his substantial rights.

Johnson opinion here.

​The NMCCA  affirmed the findings and sentence of Lance Corporal Jonathan Quezada, finding  no material prejudice to his case. 
 ​
Quezada opinion here.

My thoughts:

Practically: Not so important. There are very few retiree cases.

Symbolically: Hugely important. Larrabee shows that the talismanic invocation of "good order and discipline," absent a rational underpinning, is insufficient to decide the limits of military jurisdiction--even if Congress is the institution invoking it. The judiciary's response: "Please!"

We will be sure to watch the inevitable appeal and keep readers updated on its status.

Analysis forthcoming.

Yesterday, November 19, 2020, Professors Joshua Kastenberg and Rachel Vanlandingham filed a brief with ACCA in support of Bergdahl. 

On Monday, the D.C. Circuit conducted a nearly hour long oral argument in the case of Kareem v. Haspel, a case that asks whether an American citizen has the right to know whether they are being targeted for assassination, when the government claims that fact is secret.

​Judge Patricia Millett expressed a great deal of concern that the Justice Department's argument would effectively mean that the government could assassination anyone, anywhere in the world, at its discretion. Judge Karen Henderson, by contrast, was skeptical of Kareem's claims, calling his fear of being the target of a drone strike a "spectacular delusion of some sort of grandeur." The outcome of the case is likely therefore to come down to Judge Sri Srinavasan, who served as Deputy Solicitor General early in the Obama Administration.

CAAFlog continues to expand. Today we are pleased to announce four new editors.

• Elizabeth Berecin, formerly a research fellow, has now passed the bar exam and will be Managing Editor.  Elizabeth was instrumental in re-booting CAAFlog 2.0, and will be entering the Army JAG Corps early next year.
• LTC Dan Maurer, assistant professor of law at the United States Military Academy, has joined as a Military Justice Editor. Dan is one of the deepest thinkers about military justice today, with a book forthcoming from Oxford University Press. 
• Jeffrey Coyle, associate at Wachtell, Lipton, Rosen & Katz, has joined as the Article III Editor. Jeff is a former surface warfare officer in the Navy, and clerked at both the Ninth Circuit and SDNY. He will draw on this experience to comment on military justice cases in federal court (often on habeas). 
• William Black, an attorney at the Pension Benefit Guarantee Corporation, has joined as the Criminal Investigations Editor. Bill spent his pre-law school life as a military police officer and investigator in the Air Force, and will bring the unique experience of an investigator-turned-lawyer to CAAFlog. 

The NMCCA affirmed the findings and sentence of Electrician's Mate Fireman Recruit Kondali A. Kangha, finding no prejudicial error.

Kangha opinion here.

The AFCCA set aside Airman Basic Robert J. Hernandez's findings of guilt and sentence, remanding his case to the convening authority for a rehearing or a dismissal. ​

Hernandez opinion here

On Monday, November 16, 2020, SSGT Willenbring filed a petition for extraordinary relief with CAAF. Note, this appeal comes almost nineteen years after ACCA's opinion.  

​"No. 21-0056/AR. Charles G. Willenbring, Appellant v. Secretary of the Army, Ryan D. Mitchell, et al., United States Army, Appellee and United States, Real Party in Interest. CCA 20200430. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date."

​"No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:
 
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
 
No briefs will be filed under Rule 25."

ACCA set aside the sentence of Staff Sergeant David C. Tate, instructing that the convening authority may direct a rehearing under R.C.M. 1103(f)(2). ​

Tate opinion here.

"Petitioner offers no explanation for waiting to request the military judge’s application materials until the day the CAAF affirmed this court’s judgment, nearly two years after the military judge’s appointment with the EOIR was announced. Had petitioner exercised reasonable diligence prior to this court’s and/or the CAAF’s opinions, he could have discovered and raised the information concerning the military judge during the ordinary course of appeal."