Sunday, September 28, 2008

BIG news: House of Representatives passes bill to expand servicemembers' access to SCOTUS

On Saturday, 27 September, the full House of Representatives took up the Equal Justice for Our Military Act, H.R. 3174. By a two-thirds majority voice vote, the House suspended the rules to take up the legislation directly on the floor and to pass it. There was a short debate during which the bill's sponsor -- Rep. Susan Davis -- spoke in favor of it and Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, argued against it. Rep. Smith opposed the bill going directly to a vote on the House floor without a hearing or committee report and noted that in a letter dated 6 February 2006, then-DOD General Counsel William J. Haynes II opposed the legislation. Norbert Basil MacLean III, who is the principal moving force behind the legislation, retorted that Rep. Smith had an opportunity to hold such hearings himself but didn't: "In the last Congress, Rep. Smith as chairman of the Subcommittee on Courts, Internet & Intellectual Property of the Judiciary Committee outright refused to permit hearings on this subject. The previous Equal Justice for Our Military Act, HR 1364 (109th Congress) sat in his committee for 1 year and 9 months with absolutely no action."

You can find the Congressional Record's account of the debate here and here.

On the Senate side, the Senate Judiciary Committee favorably reported a bill that is identical in all but name, S. 2052. But it remains to be seen when and if the full Senate will consider the legislation.


No Man said...

All statesman (and those representatives for whom the statesman tag doesn't apply) are prone to over use of hyperbole, and, for that matter, generally their ability to speak, but this line from Rep. Smith about the impact of the Equal Justice Act will make even JO'C laugh:

I am told the particular section of the code this bill would amend has not been altered or subjected to a congressional review in a quarter of a century. And yet the bill before us proposes far-reaching and significant changes in terms of expanded appellate rights for servicemembers convicted of wrongdoing.

I doubt that anyone, ebfore this weekend, had ever described the Act as "far-reaching and significant," aside from one commenter on this blog.

Cloudesley Shovell said...

The fact that Congress, or at least the House, had time, on this particular weekend, to vote on this bill demonstrates that whatever turmoil exists in the financial markets, it is not the most important task facing the Govenment. It's about time the importance of military law was appropriately recognized.

Wait a minute . . . I didn't get a harumph outta that guy . . .

John O'Connor said...

I hope that I'm not the "one commentator on this blog" to whom No Man refers.

I actually don't think the quoted material is laughable, or at least probably wasn't one of the top ten most laugahble things said by congressmen this week. I imagine most supporters of the bill would say that the bill would be a "significant change in terms of appellate rights of servicemembers convicted of wrongdoing." I'm not sure I buy that, at least in terms of practical effect.

Dew_Process said...

Pardon my cynicism, but considering the miniscule cases SCOTUS grants cert to in the first place, with one exception, this is probably much adeu about nothing.

The benefit will be in those areas of law where there's a bona fide "split" between CAAF and some other Circuit that's not specifically military-law, related.

Norbert Basil MacLean III said...

First, since 1983 the Supreme Court’s doors have been shut to 90 percent of all cases eligible for review by the CAAF. (Military Justice Act of 1983) So under the current system, only 10 percent of cases are currently eligible for cert. by the high court – CAAF only grants review in approximately 10 percent of all cases. This bars the other 90 percent from ever seeking cert.

Second, cases which have evaded Supreme Court review due to the gatekeeper provision in the current law involve interesting constitutional issues that could potentially affect thousands of service personnel each year. Such cases include: (1) equal protection issue of a service member’s right to have his case heard before a military judge that has a fixed term of office. The Army and Coast Guard provide fixed terms of office for their military judges whereas the Air Force, Navy, and Marine Corps do not. (2) The constitutionality of the NDAA for FY 2000 increasing the amount of confinement a court-martial can award to one year; and (3) a service member that may have an extraordinary writ that has merit, but was denied relief by the CAAF, must retain civilian counsel and seek redress in a civilian federal court instead of obtaining direct review from the denial of relief in the Supreme Court with the assistance of military appointed counsel (Watada v. Head, 530 F. Supp 2d 1136 (W.D. Wa. 2007). These are just a few examples.

Last, as a matter of fundamental fairness service members should be permitted to access the nation’s highest court in the land they serve to protect and defend. The government can appeal any adverse decision to the high court by using the judge advocate certification provision. I also cannot see how Congress can reconcile giving the worst of the worst – enemy combatants – access to our high court (Military Commissions Act of 2006 - § 950g(d)) and turn around and shut out the men and women who serve in uniform fighting those enemy combatants. How does one reconcile that?

John O'Connor said...

I could only hope that SCOTUS would take a case on whether it violates equal protection for some services not to voluntarily provide fixed terms of office for military judges. Given that SCOTUS held in Weiss that there was no due process violation in having no fixed term of office, I would love for the court to consider whether the Air Force can unilaterally force the other services to do what is not required by due process, sort of a race to the top (or bottom depending on how one views it). The only result I could conceive is one that, in the course of affirming, provided the Supreme Court's assessment of the proper manner for analyzing such consitutional challenges, which seems likely to be more deferential than that employed by CAAF (sort of a Weiss redux, or maybe Solorio).

I'm curious as to why the increase of SpCM maximum punishments would be unconstitutional. That's an honest question, as I don't see the issue right off (unless it is a question of retroactivity -- in which I see the issue but am underwhelmed by it).

John O'Connor said...

Oops. "Air Force" should read "Army and Coast Guard"

Anonymous said...

I wouldn't mind SCOTUS to intervene in Watada and put a District Court judge back in his place.

Norbert Basil MacLean III said...

With respect to the protection of trial and appellate review of service members by military judges with fixed terms of office, I was just referring to the equal protection issue of Army-Coast Guard versus non-fixed terms of office by Air Force-Marine Corps-Navy who serve at the pleasure of the individual service judge advocate general.

In today’s Armed Forces, I think this issue has merit especially because of the nature of more joint operations and commands. Soldiers and Marines can serve together in joint operations or have an assignment to a joint command; a Guardsman may serve with the Navy in operations and/or training. Yet depending upon the command and the service there may be a difference, should a member be suspected of violating the UCMJ, in being tried with the protection of a military judge with a fixed term of office versus trial by a military judge who serves at the pleasure of the Air Force or Navy Judge Advocate General. For example, (and its been many years since I’ve been in) but the Coast Guard used to train Navy personnel for SAR (I’ve been told that still happens today) – especially with respect to Seahawk SH-60 SAR missions. Thus having personnel from different services working together in joint operations, commands and/or training underscores the difference in protection (or lack thereof) with respect to personnel being subject to disciplinary action under the UCMJ and being tried before a military judge with a fixed term of office versus none. The trend of the modern military has been moving toward more joint operations and in doing so equal protection issues such as this will arise. Yet the equal protection issue has thus far evaded Supreme Court review because CAAF has not granted discretionary review of this issue. (United States v. Belkowitz, 65 MJ 329 (CAAF 2007))

As far as the increase in the time that a special court-martial may award, it's an issue of due process under the Fifth Amendment according to an article in the Army Lawyer. (Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial, Marcus N. Fulton, Army Lawyer, Jun 2003). CAAF refuses to grant review upon this issue which precludes Supreme Court review. (United States v. Sanford, 64 MJ 249 (CAAF 2007))

The Equal Justice for Our Military Act, HR 3174, (or the identical companion bill S 2052) would at least open the Supreme Court's doors to these cases. And then it's up to SCOTUS to decided whether to grant cert. or not. But to just shut the door on these service members is wrong. They should have the opportunity just as any civilian, former military member tried under MEJA, illegal alien, and even enemy combatant to at least petition the high court to review their convictions whether CAAF grants or denies review or relief.

Anonymous said...

If this law passes, would it foreclose collateral attacks to court-martial convictions in federal courts?

Gene Fidell said...

Anon 0733, the answer is no: collateral review remains available, although the hurdles to success on collateral review are daunting.

Anonymous said...

gene, thanks for the answer. Would those who support the law still do so if it definitively foreclosed access to further collateral attacks? I'm not sure the law could do that but let's just assume it could.

Would you be willing to trade a collateral attack in the other federal courts (with its daunting hurdles for success) for a sure shot at the Supremes (with virtually no chance of a cert grant)? Seems like a tough choice to me.

Dew_Process said...

Anon: "I suspect that few judges commit 14 reversible errors in a single trial." Have you read the Record in Watada? And speaking of Watada, the MJ there didn't have a clue that he was creating a former jeopardy issue when he forced the gov't into agreeing to a mistrial. The "application" of Article 44(b) can be tricky, because its easy to apply it in an unconstitutional manner, as being violative of the Constitutional right against double jeopardy. The USDJ got it right.

Norbert: "(3) a service member that may have an extraordinary writ that has merit, but was denied relief by the CAAF, must retain civilian counsel and seek redress in a civilian federal court instead of obtaining direct review from the denial of relief in the Supreme Court with the assistance of military appointed counsel."

If the writ isn't "extraordinary" enough for the CAAF to hear it, as a matter of pure judicial discretion, why would SCOTUS ever give it the time of day?

But, you do raise an interesting issue - now that AD JAGs have the limited right to appear in civilian courts on Legal Assistance Matters, why can't a military DC, seek relief? There's no legal prohibition, provided you are admitted in the appropriate jurisdiction, it is only a "policy" that's wormed its way into regulations as a result of the various TJAG's being irked at federal habes being filed by military counsel during Vietnam.

But, your point is well taken as there is obviously an element of "equal protection" denial.

One problem on fixed terms has consistently been that there generally is a "preservation" problem. It's a simple fix, challenge the MJ for cause on that ground. Do the same at the CCA level.

Anon-2 "Would you be willing to trade a collateral attack in the other federal courts (with its daunting hurdles for success) for a sure shot at the Supremes (with virtually no chance of a cert grant)? Seems like a tough choice to me."

Give me a shot in federal court any time, versus a "right" to seek cert from SCOTUS. Then you've got a Court of Appeals plus a shot at cert . . .

Gene Fidell said...

Why make me choose, 0733? Federal and state civilian defendants don't have to. The 1984 Act legislative history is perfectly clear that the availability of S. Ct. review does not foreclose collateral attack. I believe Everett, C.J. said as much, and I think Sen. Kennedy did as well.

Gene Fidell said...

Make that "1983 Act."

whitneyxyz said...

I commend Rep. Davis and the supporters of this bill in their advocacy for service members in working to correct the ongoing injustice that limits service members ability to appeal their cases to SCOTUS after they have exhausted their appellate rights through the military courts.

I'd like to ask the blog what thoughts you may have about a scenario where a service member receives a general court-martial conviction and receives a sub-jurisdictional sentence (no confinement and no punitive discharge) foreclosing a right to direct appellate review -- and inarguably there is little expectation of an extra-judicial discretionary act by the Judge Advocate General pursuant to Article 69.

In other words, the case is final after the commander takes action on the case...the same commander who referred the case to a general court-martial and selected the juror members whose verdict did not have to be unanimous.

I don't know how often this troubling scenario plays out, but for sake of discussion, how could this not be a far more greater injustice than a service member that at least is entitled to a direct appellate review of their case. I would argue that having no review of a general court-martial conviction outside the chain of command or the specific service is not much different than appealing an administrative letter of reprimand or non-judicial punishment?

How suspect would you be of UCI if there was a case where in the Article 32 investigation, the investigating officer recommended an Article 15, but the commander referred the charges to a general court-martial!!? Charges relating to alleged disrespect and dereliction of duty--equals felony conviction??

Is the rationale that a service member who is not confined or is not punitively discharged as a result of the court-martial does not face significant civil disabilities with a felony conviction. They may be unable to vote in some states, they lose the right to bear arms, they lose the right to hold certain professional licenses, they lose veterans benefits, and, of course, they carry the stigma of a court-martial as Norbert accurately reflects in his Article "Who Hears the Troops?"

Assuming that perhaps the service member that receives no direct appellate review could file a extraordinary writ with the service appellate court or the CAAF, ...if it is denied would that essentially give them the ability to appeal to the SCOTUS if this bill is made law?

Thank you greatly for your responses.

Anonymous said...

The Supreme Court just said today that it is fine with them to kill a service member for the same crime (child rape) that it is unconstitutional to kill a civvie for.

That pretty much says it all. Getting to appeal to the supremes, when they hate the military, will not do any good.

Norbert Basil MacLean III said...

Anon 1314: I respectfully disagree. I think you are only looking at the current composition of SCOTUS. The Roberts court may not be interested in hearing military cases or as you put it “hate the military.” (Which I don’t think is the case.) But who knows what a future chief justice will do (or for that matter the makeup of a future high court) in terms of granting military cert. petitions involving constitutional issues. (I'm looking at 25 to 50 years from now and beyond.)

Since the high court was first established in 1789 service members have not had the right to direct review in SCOTUS. (Yet Congess chose fit to grant enemy combatants the right to direct review in SCOTUS when it passed the Military Commission Act of 2006 - § 950g(d)) Service members were just limited to collateral attacks of courts-martial in SCOTUS. At the Government’s urging in the early 1980s, Congress enacted the Military Justice Act of 1983. The Gov’t wanted to appeal its own loses to SCOTUS. That Act only gave very limited access by way of direct review to SCOTUS for service members. And statistics since show the law is skewed in favor of the Government.

My point is this: If the Equal Justice for Our Military Act of 2007, that just passed the House, is passed in the Senate and enacted it will at least open the door to the Supreme Court by way of a right to petition for direct review in those cases that are either denied review or relief in the CAAF. Who knows what the Supreme Court is going to look like in 25 to 50 years and beyond. But a future SCOTUS may review more military cases especially if it's doors were actually open to review them.

Norbert Basil MacLean III said...


The Equal Justice for Our Military Act, HR 3174, has been sidelined in the Senate until after the upcoming November election. There is a chance it will be on the agenda, if as expected, a lame duck Senate session is convened during the week of 17 Nov.

Here’s the scoop on what occurred. After HR 3174 was passed by voice vote in the House on Saturday evening (27 Sep), it was reported to the Senate on Monday (29 Sep). That same day, the Majority leadership hotlined the bill for action. By Wednesday morning (1 Oct) all Democratic Senators had cleared HR 3174 for it to be placed on the unanimous consent calendar for a floor vote in the Senate. (For cloture it would have required a 60 vote majority on the floor. Which I believe would have been easy to obtain.) There were hold ups in the Republican Minority who are unidentified (due to rules of the Senate which provides secrecy for a Senator who objects to an item being placed upon the unanimous consent calendar).

I commend Sen. Specter, the chief GOP cosponsor of the identical Senate bill, S.2052, and his staff for their attempts to clear up the holds on HR 3174 with the Republican Cloakroom. But unfortunately the attempts to clear up the GOP hold(s) were fruitless.

Whitneyxyz: I agree that subjurisdictional court-martial sentences should be able to be appealed. This is especially so since the Military Justice Act of 1983, which took away the Correction Boards authority to correct a court-martial by adding 10 USC § 1552(f). Prior to the amendment a service member could at least seek redress by the Correction Boards and then review in the Court of Federal Claims. Today of course, that cannot happen. The convicted service member who received a subjurisdictional sentence is left bereft without any remedy whatsoever.

In 2004, when Rep. John McHugh was chairman of the Subcommittee on Total Force (since renamed Military Personnel) of the House Armed Services Committee I brought this to his attention. This was done by letters and also actual meeting on Capitol Hill. On one occasions in April 2006, a senior retired former judge advocate accompanied me to the Hill and we met with the HASC chief GOP counsel in then-Chairman Duncan Hunter’s office. Rep. Hunter’s chief of staff was present. But it fell on deaf hears. The HASC and Military Personnel subcommittee has jurisdiction of this issue, not the Judiciary Committees that have been considering HR 3174 and S.2052.

Early on the parliamentarian had indicated that the underlying issue which would be fixed by HR 3174 and S.2052 would have to be referred to Judiciary whereas the subjurisdictional fix to the Armed Services Committee. I also discussed the subjurisdictional Issue during that time period with very senior staffers in Sen. Warner’s office. Again, this particular issue fell on deaf ears on the Senate side as well.

In my other home country of Australia we have periodic review of our military justice system and reports are furnished to the Parliament. Those review panels are comprised of retired senior officers (Air Marshals, Generals, Admirals) of the Australian Defence Force as well as senior civilian judges. They then report back to Parliament with findings and recommendations.

The fact that the American Congress hasn’t had any substantive hearings on the UCMJ, in 25 years, since the Military Justice Act of 1983, evidences that it’s not really a high priority for Congress. I find this rather disturbing because there should be checks and balances performed by the legislative branch which under the Constitution is charged with creating laws and regulations for the militia and naval forces. I’m not saying micro-manage the Pentagon or the UCMJ – but a review every decade or so with necessary changes made insures that our troops are protected if subjected to the UCMJ. This oversight appears to be nonexistent in America.

whitneyxyz said...

Norbert: thank you very much for your response. I just don't understand why the disinterest for such apparent injustices. I accept that there can be an argument on both sides of the issue....but how can you justify a felony conviction without any right to an appellate review.

I wanted to share a few comments from an assessment I received from a former senior official with the DoD Inspector General that pretty much sums up the "high degree of protections" that Rep Smith told the House that the UCMJ provides....

"As a former senior official assigned to the DoDIG, it is extremely troubling that this case went to a court-martial proceeding in the first place—a very strong appearance of a vindictive prosecution."

"Based on court records, I contend the military judge aided Army prosecutors in your conviction by personally redacting electronic messages that incriminated Army officials before giving it to the defense counsel—tipping the scale of justice to the government. Your RCM 1105 response points to ignored creditable evidence in order to obtain a premeditated conviction by Army officials at many level. If your conviction stands, it will mark you for life without any just appellate review outside the Army structure—potentially suffering many collateral “civil disabilities” because of an unjust process."

"Any non-lawyer (which includes me) clearly can interpret the facts in your case and conclude that the evidence presented points to egregious acts of reprisal, falsifying records, perjury, misuse of authority, harassment and vindictiveness."

"I contend that Army officials at Fort Sam Houston were given at least four red flags of warning and purposely failed to stop the repeated unwarranted abuses or harassments, which were occurring against you. Nonetheless, I contend that Army officials had a mandate to “win at any means necessary” by unleashing a reckless disregard for justice towards you."

"The number of Army officials to include field grade and general officers at Fort Sam Houston involved in your case does not speak well of the U.S. Army and how they treat their soldiers for doing the right thing; that is to report fraud, waste and abuse—a travesty of justice in more ways than one. "

With respect to Rep. Smith-(Texas-R) representing Fort Sam Houston, his assertion that .."the UCMJ and the military justice system provide a high degree of protection for the accused. In many cases, these protections extend well beyond those provided by the civil justice system", shows that he suffers from delusional optimism.

Thank you.