Latorre redux

I posted the other day about Latorre v. FCI Elkton.

A colleague who’s thoughts I value very highly had some things to say.

  • Unfortunately LaTorrehandled his matter pro se and didn’t do it well, and so, got the “canned” decision that circulated some years back out of the federal judicial center.
  • Just as unfortunate, it is fundamentally flawed.  First, the plain statutory language does not justify the cramped review it affords. Second, Burns is more-or-less irrelevant in that it was a pre-UCMJ case, where there was at that time, no “civilian” court review of military convictions. Finally, the “bad law” that comes out of the Tenth Circuit, is primarily rubber-stamping the decisions of a senior judge, who personally handles all of the DB cases, and totally ignores the shift in SCOTUS jurisprudence brought on by INS v. St. Cyr, and Boudemiene – in that if there is a GTMO detainee or someone being deported and held by the Executive Branch, that person is entitled to a full-blown habeas process.
  • If there’s no basis to deny habeas consideration to GTMO detainees, then why should not a member of the US military incarcerated via a court-martial, get the same consideration.  This last point fits with my added reference to a lack of direct access to the Supreme Court when CAAF denies a peition.