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?

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