Tuesday, June 16, 2009

Gene Fidell's analysis of H.R. 569

Here's a link to Gene Fidell's testimony for the House Judiciary Committee's Subcommittee on Courts and Competition Policy on H.R. 569, the Equal Justice for Our Military Act.


Anonymous said...

I really hope the "Press Your Luck" reference was unintentional. All I kept thinking while reading was "Come on Big Bucks, No Whammies".

Anonymous said...

Did anyone testify against this legislation? If we are going to maintain the the traditional military justice system (i.e. Commander centered) this legislation should be opposed. If it passes then C-M's should move a lot more towards being more like the Federal civilian system.

Anonymous said...

I agree with Mr Fidell's recommendation about renaming the bill. But I propose it be renamed the "Barry Everett Military Justice Act of 2009" in honor of both Captain Kevin J. Barry and Chief Judge Robinson O. Everett.

After Capt Barry passed away I had already suggested to lawmakers renaming the bill in honor of him during an upcoming markup on HR 569. Both Capt Barry and Judge Everett were always open to discussing the issue of Supreme Court access for our troops and had openly supported the legislation. In fact Judge Everett spoke up about the issue at a code committee meeting one year and that is reported here. When I initially started my lobby efforts on the bill I would often cite Capt Barry's law review article, A Face-Lift (and Much More) for an Aging Beauty: The Cox Commission Recommendations to Rejuvenate the Uniform Code of Military Justice 2002 L. Rev. M.S.U-D.C.L. 57, found here.

To Anon 2105:

Yes, retired Army Major General John D. Altenburg, Jr. testified in opposition of the bill. MG Altenburg's testimony can be found here.

Why exactly should it be opposed?

Other common law countries who have (or had) the court-martial system have permitted their uniformed citizens access to their nation's highest courts. In fact, back in Sept 1982, Mr. Fidell testified before Congress "that some our sister common law countries, people with whom we share important legal and cultural traditions, have tended to permit their highest courts to review courts-martial appeals directly, The House of Lords, which is the highest court of England, has such procedure, the Supreme Court of Canada has such procedure, and the High Court, which is the highest court of Australia, has such procedure." Mr. Fidell's 1982 testimony can be found here.

I'm a dual American-Australian. I'd really like the opponents of HR 569 to explain this to me: How do you reconcile giving somone like Aussie David Hicks who trained with the Taliban and was convicted by military commission greater access to the Supreme Court of the United States over America's own uniformed citizens? (Cf. 10 U.S.C. 950g(d), 28 U.S.C. 1259(3)-(4)) Hicks was turned over to the custody of U.S. special forces soldiers to be brought to justice. What I cannot reconcile is that a captured (or turned over) non-U.S. citizen-al Qaeda-affiliated-trained-Taliban-convicted-enemy-combatant has greater access to our highest court by operation of 10 U.S.C. 950g(d) than the actual soldier who captured him (or took custody of him) in order to bring him to justice. Please reconcile this for me.

And I'm not looking for a simple retort of "you're in the [U.S.] Army now."

Lancaster said...

simple Norbert its stupid and was and is supported by ignorant shameful zealots who has never worn the uniform or have never bled for this great country.

Anonymous said...

How does allowing supreme court review in any way tied to whether or not the MJ system is "command centered?"

lancaster said...

the military wants no one to look over their shoulders, they want to be allowed to dispense their brandn of justice however they see fit. Justice roberts agrees with them in his denedo opinion.

Rough justice remember Denedo?, the people who wear the uniform dont deserve anything else. Justice Roberts for all his accompishments came accross as the run of the mill IGNORAMUS and it is the very view that leads to the stereotype of the mil justice system.

Really, the fact that the supreme court has not been fully open to service members who protect the very freedom afforded everyone else whom they protect is a disgrace and that there are folks willing to say it should'nt is truly beyond logic.

Anonymous said...


Numerous lawmakers that supported the MCA of 2006, which provided enemy combatants with a direct avenue to gain access to the Supreme Court (10 U.S.C. 950g(d), include veterans - - some of whom are decorated and have seen combat.

Senator Lindsey Graham is a colonel in the U.S. Air Force Reserves. According to a press release on the Senator's website he was "one of the primary authors." That press release can be found here. Interestingly, in the last Congress Senator Graham placed a hold on the House-passed Equal Justice for Our Military Act of 2007, HR 3174 (11oth Congress) being placed upon the Senate's unanimous consent calendar. I have personal knoweldge of this fact because I was back in the States lobbying for the bills passage. A very senior counsel on the Senate Judiciary Committee had informed me that the block was coming from Graham. Both I and the bill's supporters worked very hard to remove the Graham block to no avail.

Also then-Chairman of HASC Duncan L. Hunter (R-Calif.) who was a decorated (including the Bronze Star) combat Army Ranger and was in the Vietnam war supported the MCA of 2006 but opposed each Equal Justice for Our Military Act bills (HR 1364 - 109th Congress, HR 3174 - 110th Congress). In 2006 and 2007, after I had numerous meetings on the Hill with Hunter's counsel and chief of staff, he wrote to me and stated "I feel that the current appellate system that exists within the armed services is sufficient to ensure that service member's rights are protected . . . I do not feel that any changes to the appeals process are warranted."

To find out which lawmakers voted "Yea" for the MCA of 2006 go here for the Senate side and here for the House side.

Reasonable minds can debate this issue and also agree to disagree. But servicemembers deserve more than just simplistic retort when opposing this bill. Not one single lawmaker (or their staff) who supported the MCA of 2006 and opposed the Equal Justice bills has been able to reconcile the concept of providing enemey combatants with greater access rights to SCOTUS versus providing the same right to direct review for our servicemembers.

Anon 2226:

I would say that it is not related to being "command central." Anon 2105 makes a generalized statement and doesn't explain how passage of HR 569 would disrupt the military. In fact, if memory serves me correctly, retired MG Altenburg, when testifying last week, dismissed the assertion that granting our servicemembers SCOTUS access would hinder good order and discipline or somehow be disruptive to the miltiary services.

john lancaster said...

The whole thing is simply a disgrace power continues to dim people's judgement, common sense is being replaced by the"in charge" syndrome

john lancaster said...

Honestly, guys am not sure what there is to debate about this issue, its a no-brainer.

Anonymous said...


Thanks for the link to MG Altenburg, I believe a link a was posted before but when I tried it then it wasn't working yet.

I respect your indepth knowledge and commitment to this issue. I generally support the position stated by MG Altenburg and the "you're in the army now" sentiment (a quote from someone no less than CJ Roberts). The free appellate defense factor (as discussed in other posts) and finality of courts is another reason. The UCMJ already provides three layers of review like the federal system (with an automatic first review compared to the small percentage of civillian cases that are heard by a circuit court).

The difference between a service member and the detainees is that those military commissions are on pretty shaky ground as it is and they don't have all the protections of the UCMJ or the UCMJ appeals process.

With that said, I do realize that I'm just part of the peanut gallary and your knowledge of the details is much greater than mine.