Friday, June 12, 2009

H.R. 569 hearing highlights

Yesterday's hearing on H.R. 569, the Equal Justice for Our Military Act, was what civics books teach us the legislative process should be like. We were in the House Judiciary Committee's hearing room, a majestic forum with a soaring ceiling, an enormous depiction of an eagle dominating one wall, and an imposing dais separating the subcommittee's members and counsel from the witnesses. But despite the very formal surroundings and the different roles of the various participants, the hearing had the feel of a small group of lawyers reasoning together in search of a just result. The experience called to mind Isaiah 1:18.

During his opening remarks, Chairman Hank Johnson (D-Ga.) noted that no witness for the Administration would appear at the hearing, though a DOD witness had been scheduled to testify before the hearing date was rescheduled. Chairman Johnson observed, "[W]hile I was initially disappointed that the Administration was not able to send a witness, I take it as a sign that the Obama Administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the previous Administration." (DOD had opposed an identical bill during the last Congress.)

During his opening remarks, Ranking Member Howard Coble (R-N.C.) followed up on Chairman Johnson's comments about the absence of any witness to provide the Administration's views: "[I]t's regrettable . . . that while today's hearing marks the first real legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake." He then added, in a humorous manner, that "it appears to me that the Administration has chosen to go AWOL on this matter today." Then, not so humorously, Rep. Coble added, "This marks the second time in 90 days that the Administration has been missing in action before this subcommittee, in a hearing where members are reviewing proposals that relate directly to our servicemembers." (I assume that the previous occasion he was referring to was a hearing on H.R. 1478, the Carmelo Rodriguez Military Medical Accountability Act of 2009.) Resuming his jocular tone, he continued that General Altenburg and I "can probably tell us the range of penalties the UCMJ prescribes for failure to report for duty, if you'll pardon my inserting a little humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are not subject to the UCMJ's disciplinary provisions." Then again becoming serious, he concluded, "[W]e need to insist that the Administration does, in fact, take seriously its obligation to respond to our requests for information. This is particularly true when matters before this subcommittee and the full committee, for that matter, directly impact the rights of servicemembers, their resources and requirements of our armed services, and the administration of our judicial system."

One of the key issues at the hearing was what the bill was likely to cost. Responding to a question from Chairman Johnson, I expressed the view that under the bill, there wouldn't be a large increase in the number of cert petitions filed by counsel as opposed to those filed pro se. I noted that even if the number of cert petitions filed by counsel doubled under the bill, the increased printing costs would likely be only around $15,000. General Altenburg expressed concern that Congress should scrutinize how the bill would affect the various services' JAG Corps, which are already "stretched quite a bit based on the contingencies that we address around the world, both combat and otherwise."

Responding to another question from the Chairman, General Altenburg and I agreed that, in General Altenburg's words, "a collateral attack is not a substitute for a direct petition to the Supreme Court." But, General Altenburg added, the percentage of cert petitions that actually result in a grant on direct appeal is extremely small.

In response to a question from Ranking Member Coble, General Altenburg emphasized that he didn't think the bill's passage would harm good order and discipline: "I dissociate myself with anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority or lower discipline or harm the military. I don't believe any of those things. . . . It would in no way harm the military. My sole concern is the lawyer resource issue. That's my sole concern, and the fact that we don't really know what it's going to take and how many people are going to take advantage of this."

An interesting exchange between Ranking Member Coble and General Altenburg followed. Rep. Coble asked General Altenburg to respond to what Rep. Coble characterized as the "powerful equitable argument" that "it is inappropriate to deprive members of the U.S. military of the same right to Supreme Court access that their civilian counterparts and even alien unlawful enemy combatants enjoy." General Altenburg, who previously served as the Appointing Authority for the Military Commissions system, responded that it was necessary to provide Supreme Court review of commission cases because the commission system "wasn't done very well in terms of the way it was conceived" and the commission system remains "immature." Supreme Court review in the regular military justice system, on the other hand, was less important becuase "our appellate system in the military is very well developed and has matured over the years."

Ranking Member Coble ended his questions by asking General Altenburg what suggestions he would offer to make a system like that proposed by H.R. 569 work. General Altenburg replied by emphasizing that Congress should "make sure that the services have the resources to do this." He added, "If that issue was addressed, if we were able to discern rather than guess, but to discern this is what the likely costs are in terms of resources, and the Congress were to approve those resources, I don't have an objection. I think it would work."

Chairman Johnson then recognized Rep. Charlie Gonzalez (D-Tex.). Rep. Gonzalez emphasized that under current law, the two parties to a court-martial have disparate access to the Supreme Court. The United States can open the door to the Supreme Court through a certificate of review filed by a Judge Advocate General at CAAF. But in a non-capital case, the accused generally must convince CAAF to exercise its discretionary review authority for the case to become eligible for Supreme Court review. Rep. Gonzalez observed that one of the two parties has "an inferior right . . . as far as seeking Supreme Court review." He continued, "[W}hen it's all said and done, what is available to one party is not available to the other, and I think that's what causes us the discomfort and . . . that's what this act would balance and bring a more just result to the whole process."

And with that, the hearing ended, followed by cordial exchanges between the witnesses and the subcommittee's members and staff.

We probably all feel cynical about our system of government at times. This hearing was a cure for such cynicism. Regardless of whether H.R. 569 or some amended version of the bill ultimately becomes law, the bill's sponsor and a congressional subcommittee devoted a substantial amount of time before during and after the hearing to try to promote justice in a prudent manner. They devoted this time to make sure that our nation's servicemembers are treated fairly. The hearing didn't attract crowds; the expansive seating area was almost empty. But these Members of Congress and their staff members weren't there to showboat; they were there to see whether the law could be improved. Chief Justice Marshall famously wrote that the United States has "a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). It was uplifting to see honorable men and women at work drafting those laws.


John O'Connor said...

The idea that an accused has an "inferior" right to open the door to Supreme Court review is a little trickier than Rep Gonzalez suggests. It is true that the JAG can guarantee a right to file a cert petition (more or less) by certifying a case to CAAF. That is sometimes (though not usually) done at the request of the accused. But the larger point is that when the JAG certifies, he or she is opening up Supreme Court review for the CASE, not for the Government, as the JAG does not know who will win at the CAAF, and whomever loses (accused or Government) had had the door to a cert petition opened for him, her, or it.

The different ways that CAAF gets cases (petition vs. certification) has never mioved the needle much for me on this bill. In either case, some person or body must be convinced the case should be heard by CAAF. I also suspect that in cases involving potentially cert worthy issues, there is a small likelihood that the case won't get to CAAF (and I would bet that skittish JAGs are more likely to refuse certification of a cert worthy case than the CAAF is likely to deny a petition for review.

Again, that doesn't mean that thinking this bill is wothwhile on a symobolic basis is crazy, but I just don't really buy the "inferiority" argument as adding much to the equation.

Dwight Sullivan said...

JO'C, I've crunched the numbers and here's what they show. Over the last five years, the four Judge Advocates General have certified 23 cases to CAAF. In 22 of those 23 cases, the government lost at the CCA level and was the appellant at CAAF. The one exception is Neal. In that case, interestingly, BOTH the government and the defense requested certification -- the government no doubt acting on the highly rational theory that it is best to have CAAF render a quick decision concerning the new Article 120's constitutionality, whatever that decision may be.

Obviously different people will suggest different implications arising from these numbers, but it's probably helpful for everyone to have these stats.

John O'Connor said...

The point isn't really who sought certification from the JAG. The point is that the JAG opens the door for cert for whomever loses a case certified to CAAF, just as the CAAF opens the door to cert for whomever loses a case for which CAAF has granted review. In both cases (presumably with CAAF and certainly with the JAG) the door is opened for a cert petition without knowing who will be the losing party on the merits at CAAF. That is the larger point that makes it not so simple to say that JAG certification (usually where the Government lost below) does not open the door for cert only for the Government.

If we're going to Moneyball this, I suggest that the door has been oopened for cert, through all pocesses, for the accused a lot more often than for the Government over the last five years.

John O'Connor said...

And before you say it, I assume the door has been closed to cert a lot more often for accuseds than for the Government over the last five yars.

An interesting, but ultimately worthless, uestion is whether the door is opened more often for cert, as a percentage, for the government when it loses at the CCA or for the accused when he or she loses at the CCA. I assume the percentage is probably higher for the Government (though 4 cases a year isn't very many). The stat is ultimately worthless because the Government is generally only before the CCA on issues it won below, meaning that its argument is at least colorable enough to convince a military judge. The accused, by contrast, is up on issues he or she lost. So, on baklance (and every case is different), you would expect the Government to have stronger arguments at the CCA if for no other reason than one person has already looed at them and said the Government was right. So looking at a percentage for cert "door opening" would be skewed by cases where the accused had no colorable issues whatsoever, such as submissions "on the merits."

Dwight Sullivan said...

If there's an issue that the United States really cares about that it loses at the CCA level, it can give itself quite an insurance policy through JAG certification. That insurance policy is that it will either win at CAAF or have the opportunity to seek Supreme Court review.

In a non-capital case, if there's an issue that the defense really cares about, it has no means to open the door to EITHER CAAF or SCOTUS. A law that opens the door to SCOTUS where CAAF denies review thus makes the system less inequitable -- though true equality would be provided by giving the defense an equal opportunity to open the door to CAAF as well. (Longtime CAAFlog readers know that I would solve this problem by eliminating the CCAs and having all appeals as of right be heard by CAAF -- which would mirror the federal civilian criminal system.)