"No. 24-0126/OT. In re Paul Raymond Theriault, Petitioner. Notice is given that a request for reexamination of Petitioner's case was filed on March 26, 2024, and placed on the docket this 4th day of April, 2024. Petitioner has not presented any basis to believe that he was ever charged with any offense under the Uniform Code of Military Justice. On consideration thereof, it is ordered that said request is dismissed for lack of jurisdiction, and no further filings will be accepted or docketed by the Court in this matter."
2 Comments
In Re BM:
"The procedural posture in which we confront this certified question is unusual and perhaps unprecedented. Although the Judge Advocate General certified the question, the Government asks this Court to answer the question in the negative and to affirm the NMCCA’s decision. The Government does not seek any relief from this Court based on this certified question.... " Read the opinion here. As the Court acknowledges, the ban on advisory opinions only applies to Article III federal courts, but it has adopted it "as a prudential matter." Many state high courts issue advisory opinions. International tribunals also do this. Another Article I court has noted that its ban on advisory opinions is self-imposed. Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). So: Is this self-imposition a good thing? "Article I courts, like courts created under Article III of the Constitution, derive their authority and their limitations from the Constitution. One such limitation, necessary for the protection of democratic liberty, is that bodies exercising the judicial power be confined to dealing with real disputes in concrete factual settings. This protects the people against the danger that unelected judges will engage in broad public policy making, contrary to our notions of popular government. Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)." Matter of Dep't of Def. Cable Television Franchise Agreements, 35 Fed. Cl. 114, 115–16 (1996). Is CAAF issuing advisory opinions a threat to democracy? The stage is now set for an appeal to the D.C. Circuit--at least, once an opinion is issued by the DJ.
The issue is whether Judge Gregory Katsas's work in DOJ during the War on Terror disqualified him from ruling on a military commission appeal.
United States v. Richard, 83 M.J. ___ (CGCCA) |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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