These current statistics may also be misleading as an indicator of future appellate activity in the form of writ petitions/appeals if it is presumed that the number of writ petitions/appeals currently denied would remain relatively the same. In fact, this new potential avenue for Supreme Court review may "spawn" a host of USCAAF writ petitions/appeals (regardless of merit), if only to acquire the necessary "dismissal or denial" necessary for requesting Supreme Court review. Appellants, with nothing further to lose, might file mutiple USCAAF writ petitions/appeals in the hope of eventually obtaining Supreme Court review. Additionally, many of these extraordinary writs are interlocutory in nature and brought during the trial of an active court-martial. Because adding an additional level of appeal during an active court-martial will necessitate an addtional period of delay, the potential exists for introducing truly excessive delay into the resolution of cases tried by courts-martial. The potential impact on the military justice system, military appellate counsel and resources, the Department of Defense Office of General Counsel, the Office of the Solicitor General and the Supreme Court may prove far more extensive than currently envisioned. For extraordinary writs brought by petitioners who have an adjudged court-martial sentence, extending avenues for the appellate review of cases lengthens the time before the case may be considered "final" and the sentence fully executed; administrative discharges may be delayed and appellants on appellate leave will continute to enjoy the military benefits afforded service members in that status. The legislation does not provide clear safeguards precluding these possiblities.
It is also important to note that no service member with a meritorious legal issue is denied USCAAF or Supreme Court review of that issue. USCAAF denies most extraordinary writ petitions because they do not raise issues that are truly extaordinary, but merely allege errors that can be addressed in the ordinary court of appellate review. Indeed, most such issues are later raised in the course of the ordinary appellate review, and appellants do have an opportunity to petition the Supreme Court for review of assignments of error in which USCAAF denies relief. To the extent that the legislation purports to rectify an "inequity" in that the Government has the right to appeal USCAAF's extraordinary writ decisions while individual appellants do not, it should be noted that only 16 cases in the last five years have granted relief to an appellant or remanded a case, and in no such case has the Government obtained Supreme Court review of such a decision. There is no demonstratable inequity that needs to be rectified enacting this legislation.
Congress has established a comprehensive appellate review process for the UCMJ judicial system and administration of military justice. Since 1983, the UCMJ has provided for the possiblity of additional review by the Supreme Court upon petition for a writ of certiorari. Enclosed is a more detailed discussion of the legislative intent behind that limited right to review.
