29 April 2009

Republican lawmakers in Congress don't support Supreme Court access for troops

With the change in party of Senator Arlen Specter from Republican to Democrat yesterday not one single Republican lawmaker is now listed as a cosponsor of either the Equal Justice for Our Military Act of 2009, HR 569 or the Equal Justice for United States Military Personnel Act of 2009, S 357. The two bills, identical except in name, would give equal access to the Supreme Court for members of the United States military once their case concludes review in the military courts. Current law only allows less than 20 percent of all court-martialed servicemembers to petition for a writ of certiorari whereas all civilian citizens who are convicted of a federal or state crime as well as "enemy combatants" (a term recently dropped by the Obama administration) and illegal aliens have an automatic right to petition the high court to review their cases.

When Republicans had control of the 109th Congress it granted detainees and enemy combatants Supreme Court access when it passed the Military Commission Act of 2006. A provision in the MCA permits a detainee or enemy whose military commission case concludes review by the U.S. Court of Appeals for the D.C. Circuit the automatic right to petition the Supreme Court to review their case. In that same Congress, Rep. Lamar Smith (R-Tx.) then-Chairman of the Subcommittee on Courts, Internet & Intellectually Property (now the Subcommittee on Courts & Competition Policy) of the House Judiciary indefinitely tabled the Equal Justice for Our Military Act, HR 1364 (109th Congress). For one year and nine months Rep. Smith refused to allow hearings on the bill or permit it to go to markup effectively killing the bill in the 109th Congress.

At the time I was a card holding Republican from San Diego County, California (I have since switched parties) and met with senior staffers in Rep. Smith's office to try to persuade Rep. Smith to permit a markup or hearing. I also met with then-Chairman of the House Armed Services Committee Rep. Duncan Hunter's (R-Ca.) senior staff including his chief of staff and counsel. All my meetings fell on deaf ears. Zero, and I mean ZERO, interest from GOP leadership in securing procedural due process protections for our troops.

In 2006 the American Bar Association issued a report and passed a unanimous resolution urging Congress to fix the law and permit service members equal access to the Supreme Court. Two Republican lawmakers -- Rep. Rodney Alexander (R-La.) and then-Republican Senator Arlen Specter -- took heed of the ABA report and cosponsored HR 3174 and S 2052 respectively. But on 27 September 2008 when Rep. John Conyers (D-Mich.) moved to suspend the House rules and pass HR 3174, Rep. Smith rose to oppose it. Rep. Smith argued that it hadn't received a hearing in the House (he chaired the very subcommittee that wouldn't give the previous bill a hearing) and cited a letter in opposition to the proposed legislation from former Department of Defense Counsel William J. Haynes II. Nevertheless, the full House passed HR 3174 by a super majority voice vote of two-thirds. When HR 3174 got to the Senate, Republican Senator Lindsey Graham (R-S.C.) placed a hold on it from the Republican cloakroom. Senator Graham would not permit the House-passed bill to be placed upon the unanimous consent calendar for a vote. The bill died in the 110th Congress.

I have actively lobbied all Republican lawmakers in the current 111th Congress to cosponsor the two bills -- HR 569 and S 357 -- and it has fell on deaf ears. Calls to senior staff aren't returned, letters sent via FedEx or by facsimile addressed to GOP lawmakers aren't responded to. Emails go unanswered. Despite broad support for the bills from many military advocacy groups and law associations, plus three former Court of Appeals for the Armed Forces chief judges (two of which are Reagan appointees), no interest from any GOP lawmaker period.

As a former card holding Republican I'm a bit shocked and saddened. The GOP of Abraham Lincoln and President Reagan's Big Tent party (which I had identified with) appears to be a relic these days. More than 20 years ago, back in the 1980s when I turned 18 and was able to register to vote, I identified with the GOP -- individual rights and individual initiative. After all the GOP was the party that put an end to slavery, gave women the right to vote, expanded our national parks, and broke-up corporate monopolies. The GOP of today is no longer that party. Lawmakers like Senator Specter and ordinary citizens like myself don't fit into the modern day GOP anymore.

So much for the GOP rhetoric of supporting the troops. The old GOP would have supported Supreme Court access for our servicemembers. I've been quoted in the media before on this, but I'll say it again: How does a present day Republican lawmaker who voted to give enemies of America access to our highest court by virtue of the passage of the MCA in 2006 reconcile denying the same high court access to our own troops?

28 April 2009

Chief Senate GOP sponsor of the Equal Justice for United States Military Personnel Act of 2009 to switch parties

United States Senator Arlen Specter of Pennsylvania, the chief Republican cosponsor of the Equal Justice for United States Military Personnel Act of 2009, S 357, has announced today that he will switch parties. The switch will give Democrats a 59 seat majority in the Senate, which is just one seat from the 60 they need to become filibuster-proof. If Democrat Al Franken is able to hold onto the lead of votes he has in the State of Minnesota over former Senator Norm Coleman, Senate Democrats would have the 60 seat majority they need to have control of the Senate.

Long known for his supportive stance on procedural due process protections, Specter, has supported equal access to the Supreme Court for servicemembers since 2007. However, in the last Congress other GOP senators blocked measures to grant servicemembers Supreme Court access. Senator Specter worked hard, as the Ranking Member of the Senate Judiciary Committee, to overcome other Republican blocks on the legislation. In 2007, Specter first consposored the Equal Justice for United States Military Personnel Act of 2007, S 2052 (110th Congress) with Senators Dianne Feinstein (D-Calif.), Hillary Clinton (D-NY) and Russ Feingold (D-Wis.).

Specter, in a bipartian attempt with Senator Feinstein, tried in 2007 to get the measure into the National Defense Authorization Act for FY 2008 but was blocked by former GOP Senator John Warner (R-Va.). The next year, in 2008, Senator Lindsey Graham (R-S.C.), blocked S 2052 and the House-passed Equal Justice for Our Military Act of 2007, HR 3174 (110th Congress) from being placed upon the unanimous consent of the Senate for an up-or-down vote. In the fall of 2008, Senator Specter and his senior staff worked tirelessly to clear Graham's block from the Republican cloakroom. But Graham wouldn't release his block and both bills died in the last Congress.

The U.S. Department of Defense had lobbied certain GOP Senators, including Senators Warner and Graham, to block legislation to grant servicemembers equal access to the Supreme Court. These were the same GOP Senators that supported the Military Commissions Act of 2006 which gave enemy combatants Supreme Court access. The Pentagon argued, under the Bush administration, that granting servicemembers Supreme Court access would only serve to burden the Supreme Court.

With Specter now switching to the other side of the aisle as a Democrat there is a greater chance that the pending legislation will be passed in this Congress. Under the Senate rules a 60 vote majority is required for cloture. This was a problem in the last Congress with the House-passed bill and the favorably reported S 2052 Senate version. Graham was able to easily block a floor vote under the Senate rules. Last year after the House passed HR 3174 the Senate Democratic leadership hot-lined the bill. All Democratic Senators had cleared the House-passed bill to be placed upon the unanimous consent calendar of the Senate for a floor vote but Graham through the Republican cloakroom opposed it and placed a hold on the bill. I was able to out Graham on his hold but calls and emails seeking comment to his chief of staff, communications director, press secretary and legislative director were never responded to. Opponents such as Graham, or any other GOP Senators, who seek to block votes and hide under the Republican cloakroom of secrecy rules will not be able to thwart the democratic process if the Democrats have a 60 seat majority.

I applaud Senator Specter for his work over the years, as a GOP Senator, in trying in a bipartisan way to secure Supreme Court access for America's servicemembers. And I will continue to work with Senator Specter and his staff on this issue now that he is a Democrat. Every citizen or lawful resident of the United States deserves to have the automatic right to petition the U.S. Supreme Court for redress of a conviction. Why the GOP has been so resistent to the idea of giving servicemembers equal access to the Supreme Court yet granting enemies access to the high court in 2006 simply defies logic.

[Note: This author was a life-long registered Republican in San Diego County, California and finally left the GOP in 2006 to switch to the Democratic Party due in part to GOP Congressional obstructionism where good ideas were tossed for cheap political tricks.]

Sailor, rest your oar: Remembering Capt Kevin J. Barry, USCG (Ret)

Today's Washington Post ran an article about the life and passing of Captain Kevin J. Barry, U.S. Coast Guard (Retired) on 24 April 2009 entitled Retired Jurist Questioned Military Justice System.

Over the years I had the privilege of many email exchanges and telephone conversations with Captain Barry concerning the pending legislation to fix the inequity in Title 28 United States Code section 1259. It was Captain Barry's 2002 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, which provided me with a proper foundation to lobby Congress to grant servicemembers equal Supreme Court access. The 2006 American Bar Association's report and resolution urging Congress to fix 28 USC 1259 cites Captain Barry's law review article which can be found here. Captain Barry was an amazing man who will be greatly missed.

25 April 2009

High Court hears argument on whether the creation of the Australian Military Court is unconstitutional

CANBERRA - Last Wednesday and Thursday the High Court of Australia heard oral argument in Lane v. Morrison. Brian G. Lane, an enlisted member in the Royal Australian Navy, was charged with commiting an indecent act and assaulting a superior officer. After the charges were formally listed on 25 March 2008, Lane objected to the jurisdiction of the newly created Australian Military Court, or AMC, as not a service tribunal. Thereafter, the charges were not listed until the High Court heard and decided Lane's appeal.

On 1 October 2007 the AMC was first established. The court's creation was a result of sweeping reforms to Australia's military justice system which abandoned the previous system of trial by court-martial. The AMC is judicially independent from the three branches of service chains of command and the executive. The AMC was created by Parliament pursuant to defence powers of the Australian Constitution. Military judges sitting on the AMC are appointed by the Governor General to fixed terms of ten years. There are several levels of appeal if a servicemember is convicted by the AMC. These levels or review consist of the Defence Force Discipline Appeal Tribunal, the Federal Court of Australia and the High Court as a last and final resort.

Lane objected to the jurisdiction of the AMC and the Office of Military Prosecutions as being unconstitutional pursuant to section 68 of the Australian Constitution on the grounds that it is independent from the command structure. That the AMC is exercising its own authority and is not part of a command, and it is not by command. Lane has also challenged the AMC is a federally created court of record in contravention of Chapter III, and thus in contravention of section 71 of the Constitution. Finally, Lane argues the Defence Force Discipline Act purports to confer the AMC a general criminal jurisdiction which is not subordinate and supplementary to the general criminal law and thus violated the separation of powers under Chapter III of the Constitution and is therefore beyond the powers conferred by section 51(vi) of the Constitution.

At the start of the oral argument, Chief Justice Robert S. French asked Lane's barrister, Alexander W. Street, SC, of Seven Wentworth Barristers' Chambers to commence with the second claim - the impermissible creation of the AMC. Mr. Street argued that the new military court is a court of record and as such carries two consequences. The first is an inherent power of contempt and the second is that the record is intended to be binding and conclusive for that court. The problem Mr. Street argued is that Parliament can only create a court within Chapter III of the Constitution and not outside it.

But Justice William Gummow wasn't buying Mr. Street's inherent contempt of power argument and implied that it is only a limited form of contempt. "Blind Freddie can see that this is intended to be a court at common law, forget about Chapter III," said Justice Gummow as he cut off Mr. Street in mid-sentence. Later in the argument Justice Gummow told Mr. Street "you seem to want to reopen a whole lot of cases." Mr. Street argued that the AMC is not going to enhance morale and discipline because it is outside the command structure. Additionally he argued the impact of loyalty and respect within a command that is built up by command exercising disciplinary powers are lost by the external entity of the AMC. Further Mr. Street argued that AMC offends section 71 and Chapter III of the Constitution. With that said, Justice Gummow said "what do you mean offends? You talk about violation and offence. Why do you not just talk about the text?"

Solicitor General Stephen Gageler, SC, arguing for the Commonwealth, noted that the 2006 amendment to the Defence Force Discipline Act "is that the institutions for administration of military justice have been made more independent and created circumstances which can lead to a great perception of impartiality than existed before. "

The case summary of Lane can be found here and an order dated 16 January 2009 by CJ French can be found here. Wednesday's High Court oral argument transcript can be found here and Thursday's here.

[Note: This author endorses the use of the new system of trial by the Australian Military Court and believes it to be more fair, independent and impartial than that of the previous trial by court-martial system.]

Congressional Research Service issues third report on Supreme Court access for troops

The Congressional Research Service has issued a third report entitled "Supreme Court Appellate Jurisdiction Over Military Court Cases." This new CRS report is dated 9 March 2009 and can be downloaded here. The report discusses the pending Equal Justice for Our Military Act of 2009 and the Equal Justice for United States Military Personnel Act of 2009 in the 111th Congress.

24 April 2009

ANZAC DAY: Lest we forget

AUSTRALIA & NEW ZEALAND - Today (25 April - we're a day ahead) down under we mark ANZAC day - - the word ANZAC means Australia and New Zealand Army Corps - - a national holiday honouring servicemembers who fought in Gallipoli, Turkey during the first World War.

One thing that I have noticed living home in Australia is that on ANZAC day every veteran wears their military medals no matter what they are doing on that day. You see medal wearing veterans in the grocery store, walking down the street, at a coffee shop, the local pub, at sporting events - they are all over the place. At ANZAC celebrations and in ordinary places across the nation of Australia you will see youth stopping veterans to ask them about their service. Traditionally on ANZAC day a veteran wears his or her medals on the left side whilst an immediate family member of a deceased veteran will where their deceased relative's medals on the right side.

Back in my other home of the United States there is no such large practice of veterans or family members wearing their medals with the exception of ceremonies or parades. In 2006 former Secretary of Veterans Affairs James Nicholson issued a press release urging all U.S. veterans to wear their medals on Veterans Day, Memorial Day and Fourth of July. Nicholson's press release can be found here.

The former VA secetary told American Forces Press Service that he was struck to see all the veterans and surving family members wearing their medals on a 2005 visit to Sydney during ANZAC ceremonies. As an American-Australian I have to agree with Nicholson's observations that seeing a veteran with their medals on those special days brings it home to all. It focuses public pride and gives veterans a chance to share their personal histories of service with fellow mates, citizens and with today's youth.

So this Memorial Day, Fourth of July and Veteran's Day dust off your medals, don them with pride, share your stories with today's youth and raise your glass high to toast, honour and remember a fallen shipmate, soldier, Marine, airman or guardsman. Information on America's Veterans Pride Initiative can be found here.

21 April 2009

Independent military justice commission to hold hearings

The National Institute of Military Justice, or NIMJ, has announced that the Cox Commission II will hold a public hearing on 16 June 2009 at the George Washington School of Law in Washington, D.C. A notice of hearing can be found here. The commission, named after its chair former Court of Appeals for the Armed Forces chief judge Walter T. Cox III, is to examine the current operation of the American military justice system and to consider whether the Uniform Code of Military Justice is meeting the needs of the military services to provide an efficient and fair way to insure good order and discipline. It is sponsored and funded by NIMJ and the American Bar Association's Criminal Justice Section.

Cox who is also a senior judge on the CAAF and currently Of Counsel to Nelson, Mullins, Riley & Scarborough LLP will chair the independent commission on a pro bono basis. There are eight other members which include the Honorable Mary Cheh, a D.C. Coucil member and law professor at the George Washington School of Law, former Navy Judge Advocate General Rear Adm. Donald J. Guter, retired Army Maj. Gen. William Nash, retired Army Col. Joyce Peters, Prof. Stephen Saltzburg of the George Washington University School of Law, retired Air Force Col. Scott Silliman who currently serves as a professor at Duke University School of Law, and the Honorable William W. Wilkins who is a retired National Guard Colonel and a former chief judge of the U.S. Court of Appeals for the Fourth Circuit.

This will be the second review by the independent commission. A review was conducted on the 50th anniversary of the creation of the UCMJ. The first review was not received well by the Pentagon or lawmakers. For the most part it was ignored. In 2001, the first Cox Commission did make recommendations for, among other things, updating the sex crimes statute in the UCMJ. Several years after the commissions recommendation was made it reluctantly caught lawmakers attention. Initially the Pentagon opposed. However, its Joint Service Committee on Military Justice, or JSC, eventually made several proposals to Congress. Lawmakers adopted some of the Pentagon's proposals and enacted a new UCMJ article 120. Some military judges have ruled the new article 120 to be unconstitutional yet an intermediate service appellate court, Navy-Marine Corps Court of Criminal Appeals, recently ruled the new article 120 constitutional. I discuss that issue below.

Congress has not had a thorough review of the military justice system in over a quarter century. Over the years there have been a growing number of complaints about the fairness, impartiality and effectiveness of the American military justice system. While most of America's allies have updated their military justice systems including Australia, Canada, Israel and the United Kingdom lawmakers in America have had a hands-off approach to military justice. Many countries also have parliamentary review systems and officially sanctioned committees with proper funding that report back to parliaments on military justice matters. America's military justice lags far behind most of its allies and it's operating a 20th century military justice system in the 21st century.

The Cox Commission is not a congressionally sanctioned commission nor does it possess the authority to compel attendance through subpoenas. Nevertheless it is good that NIMJ and the ABA are supporting such an independent commission at a time when Congress has clearly failed the American public and the men and women of our Armed Forces. Among the topics the commission will consider is the appellate review of courts-martial, crimes and punishment, the roll of the convening auhtority, possible restructure of the appellate system by the abolishment of the individual Article I service Courts of Criminal Appeals and elevating CAAF to Article III status, military commissions, and human rights issues. A more complete list of the topics the Cox Commission II will review can be found here.

On paper America seems to have a good review system in place for its military justice system. It has a Code Committee on Military Justice which meets once a year at the CAAF courthouse and is comprised of all service judge advocate generals, the current judges of the CAAF and a few Secretary of Defense appointed members of the public. It also has the Pentagon run JSC. But in practicality the Code Committee really does not do much other than issue a report on statistics to Congressional committees of the armed services.

Most counsel and senior staffers on the armed services committees aren't even aware that such a code committee exists or that a report is issued annually. I've attended a few Code Committees over the years and was very disappointed at what I saw. The yearly meeting typically lasts between 20 to 30 minutes. At one meeting, a single judge of CAAF questioned why the fact the judges were even serving on the the Code Committee in the first place. The public audience was just about five or six people (including me) and no one from the audience is permitted to make a public comment to the committee.

On the other hand the JSC meetings are held in secret at undisclosed locations and typically not open to the public. In 2006 when I attended a meeting on Capitol Hill with the Republican counsel and chief of staff to then-Chairman Duncan Hunter (R-CA) of the House Armed Services Committee both did not know what a Code Committee report was nor had ever seen one. However, they did know what the JSC was because it had submitted a report with recommendations to amend UCMJ article 120 to lawmakers.

The independent Cox Commission II will fill a huge void in the lack of Congressional oversight on America's military justice system. After it conducts its review a report will be submitted to Congress, the Dept. of Defense and to the President with findings and recommendations. But whether or not Congress and the new President will implement any of the recommendations of the Cox Commission is another story. Historically the U.S. Department of Defense has vehemently opposed any changes to the UCMJ. But when the Dept. of Defense does recommend a change to lawmakers, the few scant and rare changes almost always inure to the benefit of the government leaving the servicemember in the cold.

For example, the Military Justice Act of 1983, which gave limited Supreme Court access of court-martial cases, was enacted at the behest of the Pentagon because it wanted to appeal its loses. 20 plus years of statistics show that there is an inequity in the law which overwhelmingly favors the government to seek review of its loses to the high court while leaving the servicemember who loses at CAAF in the lurch. In 2006, the ABA passed a resolution urging Congress to fix the inequity but to date bills in both Houses have been procedurally blocked by just a few GOP lawmakers cloaked in secrecy. (One of those Senators - - Lindsey Graham (R-SC) - - has been outed from his GOP cloakroom as using parliamentary procedure to thwart the democratic process on the House-passed Equal Justice for Our Military Act of 2007 in the 110th Congress. In a 2007 New York Times article, it was noted that the Senate cloakroom is one of the most secretive backroom weapons in Congress. Often the Pentagon lobbies a particular Senator to use the secretive cloakroom to place holds on legislation it dislikes.) Another example is the recent proposals the Pentagon's JSC presented to Congress on the new UCMJ article 120. After Congress enacted the new article 120 some legal scholars say a provision the Pentagon proposed, and that Congress adopted, unconstitutionally shifts the burden to the defendant rather than the government.

An associate deputy general counsel at the Pentagon was quoted last November in a New York Times article criticizing those who want reforms. "It's the same old people with the same propositions," said Robert E. Reed, who is the Pentagon's military justice guru. With that type of attitude coming from top Pentagon attorneys it is unlikely that the Cox Commission will be received with open arms at the Dept of Defense. It is also likely the Pentagon will lobby against any proposals the Cox Commission makes to lawmakers or the executive branch. But as we say down-under here in Australia: "Good on ya" NIMJ, ABA and Cox Commission II for doing the right thing and conducting a much needed review of the UCMJ where Congress has thus far miserably failed.

Here is a link to the Cox Commission's webpage on the NIMJ website.

17 April 2009

Federal appeals court tosses out Congressman Murtha case

On Tuesday the U.S. Court of Appeals for the District of Columbia made its ruling in Wuterich v. Murtha. The ruling can be found here. Marine Corps Staff Sergeant Frank Wuterich had sued Congressman John Murtha (D-Pa.) alleging libel, invasion of privacy and republication of defamatory statements of third parties arising from alleged statements Murtha made concerning Wuterich's role in a 2005 incident in Haditha, Iraq. Separately, Wuterich is awaiting trial by court-martial on nine counts of alleged manslaughter.

Senior Circuit Judge Harry T. Edwards writing for a unanimous panel of three judges reversed a lower court ruling which denied the government's request to certify that Murtha was acting in his scope of employment pending discovery. The federal appeals court also directed the district court to dismiss the case because the government enjoys sovereign immunity. At the onset of the litigation Murtha invoked the Westfall Act arguing that the United States should be substituted as the defendant in the case and to dismiss the case for lack of subject matter jurisdiction because the government had not waived its sovereign immunity.

04 April 2009

National Parliamentary Debate Ass'n passes resolution calling on Government to enact Equal Justice for Our Military Act

The National Parliamentary Debate Ass'n, the largest intercollegiate debate association in the United States, passed a resolution stating that the federal government should enact the Equal Justice for Our Military Act. The resolution was originally submitted by Libby Simas of the University of California - Berkeley. Simas is a coach at Cal Parli.

[Note: The author of this post has been a longtime advocate for the pending federal legislation.]

02 April 2009

Navy-Marine Corps Court holds new Uniform Code of Military Justice article 120 constitutional

CAAFlog reports here that the Navy-Marine Corps Court of Criminal Appeals, sitting as a full court (otherwise known as "en banc"), unanimously held the new Uniform Code of Military Justice article 120 -- a sex crimes statute -- is constitutional in the case of United States v. Neal. Several military judges had ruled the new article 120 unconstitutional on the grounds that the affirmative defense of consent shifted the burden to the defendant to disprove an element of the crime.

On 1 October 2007 the new article 120 took effect after Congress enacted it in the National Defense Authorization Act for fiscal year 2006. The statute deals with sexual assaults. The new article 120 had originally been opposed by the Department of Defense. However, eventually the Department of Defense, through it's Joint Service Committee on Military Justice ("JSC"), made several recommendations to Congress. Congress adopted the recommendation that some say is unconstitutional. The issue made CAAFlog's top ten military justice stories of 2008 coming in at number six. Here's a link to CAAFlog's article.

Several senior Congressional staffers on both sides of the aisle, speaking on the condition of anonymity, indicate that lawmakers and senior staff of the House and Senate Armed Services Committees are closely monitoring the issue. The appellate court's ruling is only binding on the Navy and Marine Corps service. If however, the nation's highest military court, Court of Appeals for the Armed Forces, agrees to take up the case, or the issue in another case, a determination would be binding on all military services absent a review by the Supreme Court. A final determination by the military's highest court or the Supreme Court could bring lawmakers back to the drawing board should the new article be ruled unconstitutional.

01 April 2009

Reprinted Los Angeles Daily Journal article: Case Highlights Need for Action on Service Members' Court Access

Today the Los Angeles Daily Journal gave its written permission for Equal Justice for Troops blog to reprint and post the article entitled "Case Highlights Need for Action on Service Members' Court Access." The article appeared on page 6 of both the Los Angeles and San Francisco Daily Journals on 20 March 2009. Here is a link to the posted reprint.

No April fools here: Justice Dep't protects the rights of military voters in New York special election

Military and overseas voters have been provided additional time for the receipt of their ballots in yesterday's special election for New York's 20th Congressional seat. The election is still too close to call with GOP James Tedisco and Democrat Scott Murphy in a dead heat. The U.S. Department of Justice had announced last week, in a press release, that it had reached an agreement in a previously filed lawsuit to provide until 13 April 2009 for the receipt of ballots by military and overseas voters for yesterday's election.

"Our uniformed service members and other overseas citizens deserve the opportunity to participate in elections of our nation's leaders." said Loretta King, Acting Assistant Attorney General for the Civil Rights Division. "I am pleased that New York's officials have agreed to the measures that will afford immediate relief to ensure that the state's voters overseas, many of whom are members of our armed forces and their families serving our country around the world will have a reasonable chance to vote in this special election," said King.

The counties in the 20th Congressional district did not mail requested absentee ballots to New York's military and oversees voters until 12 March 2009. There were more than 1,300 overseas voters entitled to receive absentee ballots for yesterday's election., including 471 military voters presently stationed overseas. The seat became vacant in January when Senator Hillary Clinton resigned to become Secretary of State. New York Governor David Patterson appointed Rep. Kirsten Gillibrand, who held the 20th district seat, to the United States Senate in order to fill the vacancy of Clinton's seat. That move left the 20th Congressional seat open. It now looks like the absentee military ballots will determine the outcome of the election.