SASC wants to sic DOD IG on DON's appellate delay problem

Here's some fascinating language from the Senate Armed Services Committee's report on the National Defense Authorization Act for Fiscal Year 2010, S. 1390:

Inspector General review of post-trial processes for court-martial record preparation and appellate review within the Department of the Navy

The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape "could not withstand the test for legal and factual sufficiency." This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.

The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.

The committee directs the Inspector General of the Department of Defense, in consultation with the Secretary of the Navy, to review the systems, policies, and procedures currently in use to ensure timely and legally sufficient post-trial reviews of courts-martial within the Department of the Navy. The review shall discuss and summarize the history of problems experienced by the Navy and Marine Corps since 1990 in ensuring appropriate appellate review of general and special courts-martial and curative measures.

The principal focus of the review shall be to determine whether the resources dedicated to post-trial processes, the information and tracking systems in use, the applicable procedures and policies, and the monitoring and supervision of actions of participants in the military justice system aimed at ensuring compliance with the procedural requirements of law are adequate to accomplish the requirements for due process of law under the Uniform Code of Military Justice and applicable case law. This review should be provided to the Secretary of the Navy no later than January 1, 2010.

The committee further directs the Secretary of the Navy, in consultation with the Chief of Naval Operations and the Commandant of the Marine Corps, no later than March 1, 2010, to submit to the Committees on Armed Services of the Senate and the House of Representatives a written report on the findings and recommendations of the Department of Defense Inspector General and actions taken or planned to address these findings and recommendations. The Secretary shall include in the report his assessment of the adequacy of (1) the Department of the Navy's processes and resources dedicated to affording legally sufficient post-trial review of all Navy and Marine Corps cases, (2) the systems in place to track courts-martial cases, and (3) means to ensure accountability and compliance with the requirements of the Uniform Code of Military Justice and applicable case law.

S. Rep. No. 111-35 at 131-33 (2009).

Today's House hearing on H.R. 569

The House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing today on H.R. 569, the Equal Justice for Our Military Act. The witnesses were the bill's sponsor, Rep. Susan Davis (D-Cal. 53), Major General John D. Altenburg, Jr., USA (Ret.), and me. The hearing lasted about an hour and featured statements and questions by Chairman Hank Johnson (D-Ga. 4), Ranking Member (and former Coast Guardsman) Howard Coble (R-N.C. 6), and Rep. (and former Air National Guardsman) Charlie Gonzalez (D-Tex. 20). I found the hearing to be an extremely thoughtful (and, I hope, valuable) exchange of ideas.

I'll try to post some additional thoughts about the hearing tonight. But for the moment, I want to provide links to the three witnesses' written testimony, which doesn't appear to be available yet through the House Judiciary Committee's web site. Here is Congresswoman Davis's written testimony. Here is General Altenburg's testimony. And here's mine.

Tomorrow's House hearing on H.R. 569

The witness list for tomorrow's hearing on the Equal Justice for Our Military Act has shrunk. Here's the new lineup according to the House Judiciary Committee's web site:

Panel I

Hon. Susan Davis
U.S. House of Representatives
53rd District, CA

Panel II

Dwight H. Sullivan
Attorney
Washington, DC

Major General (Ret.) John D. Altenburg, Jr.
Attorney
Washington, DC

There's a link to watch via webcast here.

HR 569 - Equal Justice for Our Military Hearing Witness List

The witness list is now available for the hearing on HR 569 the "Equal Justice for Our Military Act of 2009" in the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy, see here. The list has many familiar names (I included links to their bios, but they don't work yet):

Brigadier General Malinda E. Dunn United States Army Assistant Judge Advocate General for Military Law and Operations Washington, DC
H. Thomas Wells, Jr. President American Bar Association, Washington, DC
Major General (Ret.) John D. Altenburg, Jr. Attorney, Washington, DC
Dwight H. Sullivan Attorney, Washington, DC

The hearing is currently scheduled for Thursday, 11 Jun 09 at 1000.

Hearing on H.R. 569 pushed back

The hearing on H.R. 569 originally scheduled for tomorrow has been pushed back to next Thursday.

DOD witness identified for Supreme Court cert jurisdiction hearing

DOD's hearing calendar now indicates that DOD's witness at Friday's House hearing on the Equal Justice for Our Military Act will be "Army-AJAG/MLO," which I assume stands for Army Assistant Judge Advocate General for Military Law and Operations. Does anyone know who that is?

h/t NBM3

House Judiciary Committee confirms 5 June hearing on H.R. 569, the Equal Justice For Our Military Act of 2009

The House Judiciary Committee's announcement that its Subcommittee on Courts and Competition Policy will hold a hearing at 1000 on Friday, 5 June on H.R. 569, the Equal Justice for Our Military Act, is available here. The hearing will be held in Room 2141 of the Rayburn House Office Building.

The hearing will be webcast here.

h/t NBM3

DOD web site indicates House Judiciary subcommittee will hold hearing on military justice certiorari bill next Friday

Norbert MacLean is reporting on his blog that a DOD website has revealed that a House judiciary subcommittee will hold a hearing on the Equal Justice for Our Military Act, H.R. 569, next Friday, 5 June. The bill would expand court-martial convicts' access to the Supreme Court.

DOD's witness at the hearing is listed as "TBD." During the Bush Administration, DOD opposed a similar bill. It will be interesting to see whether DOD under President Obama takes a different view of the legislation. Interestingly, as reflected by this report, DOD General Counsel Jeh Johnson is a former member of the National Institute of Military Justice's board of advisors. [DISCLAIMER: so am I.] Mr. MacLean's blog post indicates that NIMJ supports the bill.

Senator Feingold introduces bill to abolish federal death penalty -- including the military's

While we already know the bill's fate, Senator Russell Feingold (D-Wis.) has introduced the Federal Death Penalty Abolition Act of 2009 (S. 650), which would abolish all federal death penalties, including the military's. The bill's text is here.

Five new co-sponsors for H.R. 569, the Equal Justice for Our Military Act of 2009

Yesterday, five more co-sponsors were added for H.R. 569, the Equal Justice for Our Military Act of 2009, bringing the total number of co-sponsors to 18. The new co-sponsors are Bob Brady (D-Pa); Eric Massa (D-N.Y.); Solomon Ortiz (D-Tex.); Joe Sestak (D-Pa.); and Ellen Tausher (D-Cal.). The bill would allow servicemembers whose petitions to CAAF are denied to seek certiorari from the Supreme Court -- just as, apparently, every civilian convicted of a criminal offense is able to do (with the exception, of course, of civilians convicted pursuant to Article 2(a)(10) of the UCMJ).

Representatives Skelton and Davis request hearing on H.R. 569

Here's a letter from HASC Committee Chair Ike Skelton and Representative Susan Davis asking the chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property to hold a hearing on H.R. 569, the Equal Justice for United States Military Personnel Act of 2009. h/t nbm3

Here's a link to Thomas's web page for the bill. The bill's text is available here.

Text of Senate Bill 357, the Equal Justice for United States Military Personnel Act of 2009, now available

The text of Sen. Dianne Feinstein's Equal Justice for United States Military Personnel Act of 2009 is now available here.

Senator Feinstein introduces bill to expand cert jurisdiction to cases in which CAAF denies review

Senator Diane Feinstein (D-Cal.), has introduced Senate Bill 357, which would expand the Supreme Courts' cert jurisdiction to reach cases in which CAAF has denied review. The bill's text isn't yet available. The bill is co-sponsored by Senators Feinfold (D-Wis.) and Specter (R-Penn.). Senator Feinstein issued this press release about the bill h./t nbm3

This is companion legislation to House Bill 569, which we previously discussed here, here, here, and here.

The Equal Justice for Our Military Act of 2009 picks up another co-sponsor [corrected]

Yesterday Barney Frank became the 13th co-sponsor of H.R. 569, the Equal Justice for Our Military Act of 2009.

Four additional co-sponsors sign onto Equal Justice for Our Military Act of 2009

Four more members of the House of Representatives have signed on as co-sponsors of H.R. 569, the Equal Justice for Our Military Act of 2009, bringing the total number of co-sponsors to 12. h/t nbm3

Text of Equal Justice for Our Military Act of 2009 now available

Here's a link to the text of Rep. Susan Davis's Equal Justice for Our Military Act of 2009, H.R. 569. The bill has been referred to the House Judiciary Committee.

Bill introduced to expand SCOTUS jurisdiction over military justice cases

House Bill 569 of the 111th Congress, sponsored by Representative Susan Davis (D-Cal.), would "amend titles 28 and 10, United States Code, to allow for certiorari review of certain cases denied relief or review by the United States Court of Appeals for the Armed Forces." Unfortunately the bill's text isn't yet available. Once the GPO catches up with the onslaught of early bills, it should appear here. h/t nbm3

The bill has been referred to the House Judiciary Committee. It has eight co-sponsors, including HASC Chairman Ike Skelton (D-Mo.).

During the last Congress, the full House of Representatives, by a two-thirds majority, suspended the rules to take up directly on the House floor Rep. Davis's Equal Justice for Our Military Act, which would have expanded the Supremes' cert jurisdiction to include Article 66 appeals where CAAF denies review and extraordinary relief rulings in which CAAF doesn't grant relief. The bill was passed by the full House on 27 September 2008. On the Senate side, the Judiciary Committee favorably reported an identical-in-all-but-name bill, but the bill died without full Senate action when Congress adjourned sine die.

As we noted here, during the last Congress then-DOD General Counsel William J. Haynes II opposed the legislation by a letter dated 6 February 2006. It will be interesting to see what position incoming DOD General Counsel Jeh Johnson takes on this year's version of the legislation.

NYT article on military appellate system

Here's a link to a New York Times article on efforts to legislatively expand SCOTUS jurisdiction to military justice cases where CAAF denies a petition for grant of review.

One of the most interesting portions of the article is the juxtaposition of former CAAF Chief Judge Cox speaking about the potential for military justice reform -- and a second Cox Commission -- with Bob Reed (the Pentagon's military justice honcho) offering a rather dismissive opinion of would-be military justice reformers:

Mr. Cox and other supporters hope Congress will consider other modifications to the system, like changing the appeals process, examining whether lawyers in the system are adequately trained and studying whether military judges should have more continuity in their jurisdiction. He hopes to convene a second commission that would look at some of those issues in the next few months.

For his part, Mr. Reed said many of the criticisms of the military justice systems themselves were dated.

"It's the same old people with the same old arguments and the same propositions," he said. "If they do have some new ideas that they think could be beneficial, I hope they forward them to the department."

Military justice cert reform bill introduced

Yesterday Representative Susan Davis (D-Cal.) introduced the "Equal Justice for Our Military" bill, H.R. 3174. Here's a link to her press release. Unfortunately, the bill itself is not yet available from Thomas, but a list of co-sponsors is. Significantly, one of the four co-sponsors is House Armed Services Committee Chairman Ike Skelton.

Here's a link to an article about the bill in today's San Diego Union-Tribune.