29 March 2009

Ex-servicemembers deserve redress: Congress should repeal Title 10 United States Code § 1552(f)

By Norbert Basil MacLean III
Equal Justice for Troops blog

Last week the Supreme Court heard argument in United States v. Denedo. The nation's highest military court, the Court of Appeals for the Armed Forces ("CAAF"), in a 3-2 decision had remanded Denedo's case to a lower military court for fact finding. Denedo, a lawful permanent resident, had claimed ineffective assistance of counsel after his attorney failed to properly advise him that he may be deported if he pled guilty at a court-martial. In 2006, eight years after Denedo's court-martial, out of the blue, the government sought to deport Denedo solely based upon the 1998 court-martial conviction. In 1998, Denedo didn't know that his attorney was an alcoholic. The CAAF majority found that the military courts had jurisdiction under the All Writs Act. The government appealed to the high court, and certiorari was granted. The government argues that because Denedo's case is final under the Uniform Code of Military Justice ("UCMJ") the military courts don't have jurisdiction to correct an alleged fundamental error - ineffective assistance of counsel. The government also noted that Denedo has no other remedy in law other than maybe a Presidential pardon.

On 20 March 2009, I wrote commentary which appeared in the Los Angeles Daily Journal entitled "Case Highlights Need for Action on Service Members' Court Access." My commentary calls on Congress to act in light of Denedo. I find the no remedy part very distasteful.

The fact that no court in a 21st century America, including the military courts, wouldn't have jurisdiction to redress a grievance is disturbing. Send troops off to fight wars, protect and defend America but shut them out of all courts was a study trend in the Bush administration. The First Amendment guarantees a right to redress. Reading the oral argument transcript of Denedo, apparently two justices -- Justices Breyer and Ginsburg -- also seemed to find the no remedy situation an awful result. But Justice Scalia noted that error coram nobis (a common law writ used to correct fundamental errors not known during the original trial) wasn't available to a military servicemember for 200 years - implying that because it's always been that way makes it okay. No, it's not okay! Was denying woman the right to vote okay for 144 years? No! Was segregation of African-Americans for approximately 180 plus years okay? No! So keeping our servicemembers or ex-servicemembers from redress of grievances is also plainly not okay - and it's unconstitutional. Had that line of thinking -- it's okay because it's always been that way -- prevailed in 1920 women wouldn't have had the right to vote. Likewise the Civil Rights Act of 1964 wouldn't have been enacted. I shudder to think of what kind of America, in the 21st century, would have resulted from that line of thinking.

A cornerstone of democracy is due process. But it appears that Congress has failed to provide a remedy for situations like Denedo's - that is where new evidence or a change in circumstance has occurred but wasn't known during the trial. And was discovered after the court-martial was final and after the six-year statute of limitations to file under the Little Tucker Act, Tucker Act or Declaratory Judgment Act in the federal courts. Denedo is no longer in custody so he cannot invoke habeas corpus. He truly has no remedy in law which the government now admits.

It wasn't always this way. In the 1940s Congress was fed up with petitions to correct military or naval records of court-martial convictions via private relief bills. As such, when Congress passed the Legislative Reorganization Act of 1946, section 131 of the Act, banned four types of private bills which included a correction of a military or naval record. (See also House Rule XII, Clause 4) However, in the same Act, Congress provided for individual Board of Correction of Military (or Naval) Records ("BCMR") to correct the military or naval record. Essentially closing one door for redress of grievance but opening a window for another at the same time. In 1984 Congress shut that window when it took the BCMR's jurisdiction away to take corrective action on a court-martial by passing the Military Justice Act of 1983 and creating Title 10 United States Code ("U.S.C.") § 1552(f). Had Congress not done this Denedo would have had an avenue to redress the grievance he now complains.

Military justice is meant to keep good order and discipline. But in the 21st century a court-martial conviction carries a lifetime of civil disabilities (loss of right to vote - in certain States, bear arms, hold public office, employment opportunities, entrance into college and trade schools, etc.) The post 9/11 modern day trend shows that the individual States are increasingly treating a court-martial conviction as that right out of U.S. district court without regard to the offense. For example, a servicemember charged for an unauthorized absence, dereliction of duty or under UCMJ article 134, and convicted by general court-martial is treated the same as someone convicted by a U.S. district court by a unanimous jury of 12 peers. (Jurors in a court-martial known as members can be as few as five and you only need two-thirds vore to convict except in death sentences.) Whereas a civilian who does not show up to work or who may have cursed the boss is not charged, and convicted, for a crime. A court-martial conviction is no longer isolated or confined to the military setting. Not that there was any requirements in the past to confine such to the military. Surely there were instances in the past but the modern day trend seems to have increased. Denedo's case also exemplifies that. Convicted in 1998 the government didn't move to deport him until 2006 - - certainly one could argue a change is evidenced in how a court-martial conviction is now perceived. For the most part, past trends took the nature of the offense into account and the type of court-martial before drastic civil disabilities and stigma attached. That no longer appears to be the case. As such basic procedural due process protections need to be put into place to protect uniform citizens and ex-servicemembers.

Some argue "if you don't like it, don't join" the military. However, that argument is fatally flawed because even though the draft has not been instituted since the Vietnam War era, it's still on the books. Who is to say if and when a draft would be instituted in the future. If that happens, drafted citizens aren't volunteering but are drafted - they have no choice in the matter. “Our citizens in uniform,” the late Chief Justice Earl Warren said, are "not stripped of basic rights simply because they have doffed their civilian clothes.” The right to redress grievance is one of the most basic rights guaranteed by our Constitution under the First Amendment.

The House and Senate Armed Services Committees are presently working on the National Defense Authorization Act ("NDAA") for FY 2010. As a matter of a right to redress, and to secure procedural due process for servicemembers presently serving who will one day become an "ex-servicemember," Congress should repeal 10 U.S.C. § 1552(f) in the NDAA. Give the BCMRs back their jurisdiction to redress ex-servicemembers' grievances. If the BCMRs were premitted to correct wrongs in unjust courts-martial convictions from 1946 through 1984 there is absolutely no reasons why they cannot correct wrongs in the 21st century. Alternatively amend the UCMJ to grant military courts jurisdiction to correct their own errors even if a court-martial is final.

As Memorial Day and Fourth of July approaches barbecues, fireworks, parades, waving American flags, and colors of red, white and blue are on the horizon. In those two holidays we commemorate those who have died in service for our country and the Independence of our nation. Celebrate our independence and honor a fallen servicemember by writing your Member of Congress and demand a repeal to 10 U.S.C. § 1552(f). Our present day servicemembers, who will one day be ex-servicemembers, deserve it. Here's a link to Congress.org where you can find information on your elected representatives and send an email.

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