Thursday, July 31, 2008

S.2052 Equal Justice . . . Act: Held Over

A well placed source informs me that S.2052, the Equal Justice for United States Military Personnel Act of 2007, was held over today in the Senate Judiciary Committee. The bill, as discussed previously on CAAFlog here and here, co-sponsored by Senators Arlen Specter and Russ Feingold, will give the Supreme Court certiorari jurisdiction over CAAF cases where an appellant was denied review or denied a petition for extraordinary relief. It will likely come up for consideration after the August recess. Here is a link to the remarks of Senator Feinstein on the bill's introduction last year.


Biff (not Legrand) said...

I'm very rusty since it's been almost 15 years since I practiced at Code 45, so forgive me if my question is inane, but how big a deal is the Equal Justice Act anyway? Are there really that many cases which were denied review or petition for ex writ and which would normally merit Supreme Court review?

Put another way, what's the motivation for the Act? Is it to address a real need or rather to make a couple of senators look good to their military constituency?

No Man said...


Probably about zero that will be successful at SCOTUS in the next decade. But, it's a symbolic equality. The convening authority can petition the SCt, those labeled unlawful combatants have the right to petition the SCt, so why not those that served our country--even if only for a short period before they got cross-ways with that same country's government--win or lose.

Biff (not legrand) said...


Interesting choice of symbolic equality, don't you think? Of all the things Congress could "equalize" they pick the one least likely to make a difference.

No Man said...


No disservice to Mr. Specter (who championed this bill), but Biff sums up many pieces of presidential election year legislation very succinctly. Regardless of the election year politics, you have to applaud Mr. Specter for taking on this tiny piece of legislation to fix something that just wasn't right.

Gene Fidell said...

Biff, this really is a big deal, and should have been fixed a long time ago. (In fact, the gatekeeping provision should never have been enacted in the first place, and its a scandal that it's still there after 25 years.) How can anyone defend a situation in which GIs can be blocked from access to the Supreme Court by CAAF, while civilian federal appellants can file cert petitions as of right, as can enemy combatants convicted by military commission once their cases have been decided by the D.C. Cir.? State criminal defendants can also get to the Supreme Court even if the highest court of the state denies discretionary review. In short, everyone else in our country at least has a crack at direct Supreme Court review, but a GI whose petition is denied by CAAF has to go out and hire counsel, and then make do with the narrower collateral review available by habeas. This is a basic fairness issue and has nothing to do with senators currying favor with military voters. (I know the next post will begin, "Gene, tell us how you really feel.")

CAAFlog said...

Could that be THE Biff -- short for B.F. Goodrich, "don't retread on me" Biff? If so, greetings, my old friend.

Biff (not legrand) said...

Oh Great one, it is I, LT (formerly) B.F. Goodrich. I've finally summoned up the courage to come out from the shadows and reveal my shocking ignorance of contemporary military justice.

Sir Fidell: I understand your point, but it does seem a bit like window dressing. Just because there's an inequality doesn't mean it's a material one. Should you offer evidence of an individual who was truly disadvantaged by the current regime, I'm willing to reconsider.

Gene Fidell said...

Biff, I'm afraid you'll have to explain to me why the right to seek cert is "window dressing." What would I have to do to persuade you that the disparity is a "tru[e] disadvantage" beyond pointing out that habeas review is materially narrower than direct review? Would you feel differently if a member of your family were, God forbid, convicted at a court-martial and CAAF denied review? Still "window dressing"?

Anonymous said...

I guess that is why we are not allowed to ask members to put themselves in the place of the victim. I am a champion of opening SCOTUS to all but unrestrained b costs it seems like it may be abused for the sake of stringing out appellate review. Apres moi, le deluge.

John O'Connor said...

I had the same thought as Anonymous 07:26. Also, agree or disagree with the state of the law, I think the word "scandal" gets overused.

Norbert Basil MacLean III said...

The cornerstone of a true democracy is due process.

Full procedural due process for the members of our Armed Forces has been seriously lacking. As I wrote in “Who Hears the Troops,” which appeared the Legal Times during the week of 9 June 2008, military justice has always been meant to preserve good order and discipline. This blog has also previously discussed such. But unfortunately in recent years it has been turned into dolling out severe lifetime civil disabilities which include the following losses of civil rights: the right to vote (in certain states), the right to bear arms, veterans benefits, certain professional licenses, hinders civilian employment, could count as a strike in a civilian criminal case, etc. If the military is going to dole out such serious civil consequences at the bare minimum there should be full procedural due process protections. Most of our democratic allies to include my other home country of Australia afford their uniformed citizens full procedural due process protections as does Canada, Israel, and the U.K. I do not believe that because an American civilian chose to don a military uniform in defense of his or her country that they have thrown away the most basic principal of a democracy - due process.

Now under the current system which was created by Congress in 1950 - the UCMJ - in order to convict a service member you only need 2/3 of members for a conviction. Those members are hand picked by the same officer that has convened ones court-martial and the panel of members is smaller than that of a civilian criminal jury. Some of the various services and their courts of criminal appeal do not have fixed terms for its judges (when I was court-martialed in 1992 none of the services or their courts of military review had terms for their judges - today the Army and Coast Guard provide fixed terms for its judges while the Air Force, Navy and Marine Corps do not.) To date any constitutional challenges, under the equal protections clause, have effectively evaded review by the Supreme Court because CAAF has denied direct review of these types of cases thereby sealing off the high court under 28 USC 1259(3) for convicted service members seeking to challenge it. United States v. Belkowitz, 65 M.J. 329 (CAAF 2007)

The Equal Justice for U.S. Military Personnel Act of 2007, S.2052 would correct the inequity. I first proposed the language of the statute to Members of Congress back in 2002 when I was shut out of Supreme Court review after CAAF had denied relief in an ex-writ. 28 USC 1259(4). To my chagrin I learned that over the years thousands of servicemen and women were completely sealed off to the Supreme Court - as if the Supreme Court didn’t exist in the country they were serving to protect and defend. (Had I served in the military in my other home country of Australia instead of the United States and faced a similar situation, I would have been allowed to access the High Court of Australia at the end of the day.) Recent examples of the inequity in 28 USC 1259(4) can be demonstrated in United States v. Lopez de Victoria, 66 MJ 67 (CAAF 2008) (Gov’t could have sought cert. because service member was granted relief - the Gov’t initially was seeking cert but then later withdrew) and United States v. Michael, 66 MJ 78 (CAAF 2008) (Service member was denied relief by CAAF and thus shut out of Supreme Court review by section 1259(4)) In both these case the service member had initially prevailed before a military judge and the Gov’t appealed to CCA and won. CAAF’s gatekeeping function of the Supreme Court can easily be demonstrated in these two cases.

One of my former military appellate defense counsels, who also participates on this blog, wrote an article back in 2003 on the constitutionality of increased confinement in special courts-martial cases: “Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial”, Army Law, June 2003 (Marcus N. Fulton). But the constitutional issue has evaded Supreme Court scrutiny because CAAF, as gatekeeper, has denied review of the issue as demonstrated by United States v. Sanfard, 64 MJ 249 (CAAF 2007).

There are heaps of other examples with respect to the inequity going back from the enactment of the Military Justice Act of 1983, which fist gave limited access to the Supreme Court of court-martial cases (but skewed that access in favor of the Gov’t) when it created 28 USC 1259, to the present date. Hundreds of service members a year are precluded from petitioning their high court in the country they serve to protect and defend. Significant constitutional issues that affect thousands of service members each year successfully evade Supreme Court scrutiny because of the CAAF gatekeeper provision. Yet enemies, to include detainees and combatants, of the United States have access to our Supreme Court (Cf section 950g(d) Military Commission Act of 2006 and 28 USC 1259(3) and (4).) That is shameful. It’s hypocritical of us, as a nation, to send our uniformed citizens into harms way to promote democracy all over the world and then at the end of the day to not afford that same democracy - procedural due process - to those who are protecting and defending us and promoting our democratic way of life.

biff (not legrand) said...

Norbert, In a way, you prove the point of my 12:12 post on Friday. Why isn't Congress looking to fix some of the inequities you mention, rather than this one, which despite all the handwringing, doesn't seem to affect many folks?

Also, if you honestly expect that the Supremes are going to fix some of these things by way of certiorari, then I think you're ignoring the fact that they rarely take military cases, that their docket is getting smaller each year, and that they generally pay great deference to Congress and the Executive when it comes to military affairs.

Mr. Fidell: what I meant by window-dressing was that it seemed to be an effort to make something look nice without actually having much substantive effect. And yes, I would feel differently if one of my loved ones were in the scenario you depict. But so might you feel differently about extended appeals and collateral review if one of your loved ones were victimized and the matter were still being litigated decades later. Principles are hard to adhere to in times of great emotional torment. Perhaps that's why we disqualify judges and attorneys who have a personal stake in the litigation.

Let me be clear: I'm not opposed to the change, but I just hate to see so much energy expended on a relatively narrow matter when there are dozens of huge issues for this Congress to address.

biff (not legrand) said...

This almost feels like the old days out in front of Appellate Defense, cross-pollinating in full view of the government hacks across the way. And I miss that.

CAAFlog said...

Biff, it's good to have you back, man. :-)

This evening marks my last night with ready computer access for a week, so I'll try to post something later tonight following up on the thoughts that have been offered in this debate.

But here's one quick thought: the Supremes had cert jurisdiction over both Lopez de Victoria and Michael no matter which side won or lost either. CAAF granted petitions for review in both cases. United States v. Lopez de Victoria, 65 M.J. 415 (C.A.A.F. 2007) (order); United States v. Michael, 65 M.J. 416 (C.A.A.F. 2007) (order). So both cases would have qualified for Supreme Court review under 28 U.S.C. § 1259(3) no matter what the outcome at CAAF.