Monday, August 26, 2013
Stephen Vladeck (American University) has posted Military Courts and the All Writs Act to SSRN.
When it comes to the role of the federal courts in the federal system, few statutes play as significant a role — or are as routinely misunderstood — as the All Writs Act. It is the All Writs Act that rounds Article III’s sharp jurisdictional edges by investing courts of such limited subject-matter jurisdiction with a species of common-law authority; as Justice Stevens has explained, “The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress, and the statute provides these courts with the procedural tools — the various historic common-law writs — necessary for them to exercise their limited jurisdiction.”
Although the All Writs Act applies on its terms to “all courts established by Act of Congress,” two recent opinions in high-profile military justice cases have rejected the power of military courts to issue relief that is routinely available from civilian courts under the All Writs Act. In the Bradley Manning court-martial proceedings, for example, the highest court in the military justice system — the Court of Appeals for the Armed Forces (CAAF) — held that it lacked the authority under the All Writs Act to issue extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny. Similar reasoning was also offered by one of the judges of the Court of Military Commission Review (CMCR), in explaining why the CMCR lacked jurisdiction to provide analogous relief in the context of the military commission trial of the 9/11 defendants.
It is easy enough to identify the analytical errors common to these two opinions, but in addition to doing so, this short essay argues that there is more behind such analysis than a mere misreading of precedent. Ultimately, both CAAF’s decision in the Manning case and Judge Silliman’s concurrence in the CMCR’s 9/11 proceedings have at their core a misplaced and outdated understanding of both the military justice system’s exceptionalism and its relationship to the civilian courts. As I conclude, the understanding common to these two opinions has the ironic — and surely unintended — effect of weakening arguments for a separate system of military justice insofar as such crabbed understandings of the All Writs Act only bolster the need for increased Article III oversight of the military justice system through actions for collateral review.