30 May 2009

Defense Department names its witness for Congressional hearing on HR 569: Army AJAG/MLO

[UPDATED from an earlier post of 0302 hours] Yesterday late afternoon the U.S. Department of Defense named at least one witness for Friday's Congressional subcommittee hearing on HR 569. The U.S. Army's Assistant Judge Advocate General for Military Law and Operations will be testifying as a witness before the subcommittee on Courts and Competition Policy according to the DoD hearing calendar. An anonymous commenter over on CAAFlog indicates that Brigadier General Malinda Dunn is the current AJAG/MLO here. Other witnesses are listed as to-be-determined.

29 May 2009

House Judiciary Committee to hold hearing on Equal Justice for Our Military Act

[UPDATED from an earlier post on 27 May.] The Subcommittee on Courts and Competition Policy of the House Judiciary Committee made a formal announcement today that it will hold a 5 June 2009 hearing at 1000 hours, 2141 Rayburn House Office Building, on the Equal Justice for Our Military Act of 2009, HR 569. Earlier this week the Department of Defense made the date public here. The bill, if enacted, would grant servicemembers equal access to the Supreme Court of the United States should the nation's highest military court, the Court of Appeals for the Armed Forces (CAAF), either deny a petition for grant of review or relief in an extraordinary writ and writ appeal petitions. Under existing law, the ability to petition the high court is skewed in favor of the government. The hearing will be broadcasted live via the internet. Here is a link to the live webcast which will begin at 1000 hours on 5 June.

The Senate has introduced a companion bill, which is identical to the House bill, except in name, the Equal Justice for United States Military Personnel Act of 2009, S 357. In the last Congress the Senate Judiciary approved an identical bill and reported it out to the full Senate. No action has yet been taken on the Senate bill.

Rep. Hank Johnson (D-Ga.) is the chairman of the subcommittee on Courts and Competition Policy, which will hold the hearing, and Rep. Howard Coble (R-N.C.) is the ranking Republican. Johnson is also a member of the Subcommittee on Military Personnel of the House Armed Services Committee. Three Democrats on the Military Personnel subcommittee are cosponsors of HR 569, including the chairwoman, Rep. Susan Davis (D-Calif.). The chairman of HASC, Rep. Ike Skelton (D-Mo.), is also an original cosponsor of HR 569. Rep. Robert Wexler (D-Fl.), a member of the subcommittee on courts, is a cosponsor.

This is the first time in over a quarter century a Congressional committee will consider Supreme Court access for members of the U.S. Armed Forces. The last time Congress considered this issue was when it passed the Military Justice Act of 1983. Since the Supreme Court was established in 1789 servicemembers did not have the right to petition the high court to review a court-martial conviction directly. But in the early 1980s the Defense Department wanted to appeal its loses to the high court so it lobbied lawmakers to carve out certain exceptions to file a petition for writ of certiorari. 20-plus years of statistics now show that the MJA skewed the right to appeal in favor of the government, leaving the vast majority of court-martialed servicemembers in the lurch.

The bill enjoys broad support from veteran and servicemembers advocacy groups as well as law associations. The American Bar Association, Fleet Reserve Association, Jewish War Veterans of the United States of America, Military Officers Association of America, National Association of Criminal Defense Lawyers and National Institute of Military Justice are among some of the supporters for enactment of the legislation. In 2006, the ABA passed a resolution and issued a report calling on Congress to fix the law. At least three former chief judges of CAAF support the measure.

In previous Congresses similar bills have faced opposition. Under the George W. Bush administration the Dept. of Defense opposed the legislation. In 2005-06, Department of Defense General Counsel William Haynes II and Principal Deputy Daniel Dell'Orto wrote letters to lawmakers opposing similar bills on the grounds that passing the measure would only serve to burden the Supreme Court. Sources close to the White House, who wish to remain anonymous, have indicated that the Obama administration will not oppose or veto the bill. Back in 2006, the current Defense Department General Counsel Jey C. Johnson was on a board that advises the National Institute of Military Justice. NIMJ sent a letter to Congress on 30 August 2006 endorsing ABA resolution 116 and urged lawmakers to grant "servicemen and women equal access to the Supreme Court."

When Republicans held majority status in 2006, the 109th Congress granted enemy combatants the right to petition the Supreme Court to review a conviction of a military commission case after review is concluded by the D.C. Circuit as a result of the passage of the Military Commissions Act of 2006. In that same Congress, Rep. Lamar Smith (R-Tx.), who was then the chairman of the Subcommittee on Courts, Internet and Intellectual Property (which has been renamed in this Congress to Courts and Competition Policy) tabled the Equal Justice for Our Military Act, HR 1364 (109th Congress) indefinitely - - for one year and nine months Smith refused to grant a hearing or markup. In 2008, Smith also spoke out against the passage of the Equal Justice for Our Military Act of 2007, HR 3174 (110th Congress) during a House floor debate citing the Haynes letter. HR 3174 was passed by a voice vote in the last Congress but was held up in the Senate by Senator Lindsey Graham (R-S.C.) who objected to the bill being placed upon the unanimous consent calendar.

The witness list of those testifying before the Subcommittee should be made public 24 hours before the hearing and when available will be posted on this blog. HR 569 or S 357 do not address the subjurisdictional issue regarding the lack of right to appeal court-martial convictions where the punishment is less than a year confinement with no punitive discharge. Those cases would still not be eligible for Supreme Court review because under existing law they are not eligible for review by the military appellate courts. The Cox Commission II is due to take up that issue next month.

Calls and emails earlier this week to the offices of Senator Graham (R-S.C.) of the Senate Judiciary and Armed Services Committees, Reps. Coble and Smith of the House Judiciary, and to the public affairs office at Pentagon seeking comment were not returned at the time of this post. However, should any of these lawmakers or the Department of Defense make a comment about the hearing or the pending legislation an update to this post will occur.

[Note: The author of this post initially proposed the bill to Congress in early 2004 and has actively lobbied for its enactment.]

Defence, media and politics: Defence cleared of spying on its Minister

An Australian Defence Force inquiry cleared allegations that the agency spied on Defence Minister Joel Fitzgibbon (ALP - Hunter, NSW). The report dated 14 May 2009, which was released today, was written by the Defence Security Authority Intelligence and Security Group. The unclassified version of the ADF report can be found here.

On 26 March 2009, The Canberra Times published a front page article titled "How Defence officials spied on Fitzgibbon." The spy allegations included allegedly accessing Fitzgibbon's computer concerning his relationship with Chinese businesswoman Helen Liu. It has been alleged that there was a possible security implication with Fiztgibbon and Liu's relationship. But the inquiry said the allegations were "entirely without foundation" and no officials improperly accessed Fitzgibbon's computer.

There is a second ongoing inquiry into the allegations which is being conducted by Inspector General of Intelligence and Security Ian Carnell. An ADF media release of today can be found here.

28 May 2009

Australian Defence Force inquiry clears troops of civilian casualty incident

Today ACM Angus Houston, RAAF, Chief of the Defence Force, released a report clearing Australian troops of an incident involving civilians which occurred on 5 January 2009 in the Baluchi Pass area of Afghanistan according to an ADF press release located here. No evidence was found to support a finding that the ADF caused civilian casualties. The media release indicates that "evidence gathered during the inquiry found that shrapnel taken from an Afghan who claimed to have been injured by ADF forces did not match the metal used in Australian mortar shells." Whilst the Inquiry Officer did clear troops, several recommendations were made for areas of improvement, including the clarification of the terminology used to order a fire mission and a review of current and future force structures.

22 May 2009

NIMJ makes public comment on proposed rule change for military appellate court

On 15 May 2009, there was a corrected proposed rule change for the U.S. Court of Appeals for the Armed Forces published in the Federal Register. The proposed changes involve the time in which to file certain appeals and supplements as well as new procedure for electronic filings. Public comments are permitted for 30 days of the date of the corrected notice. Here is a link to the proposal. The National Institute of Military Justice has made a public comment on the proposed rule changes. NIMJ's comment is here. Two posts on the proposed changes can be found on CAAFlog here and here.

19 May 2009

NACDL supports Equal Justice for Our Military Act

Today the the National Association of Criminal Defense Lawyers (NACDL) sent letters to lawmakers on Capitol Hill indicating that the 12,000 plus member ogranization supports the Equal Justice for Our Military Act of 2009 and the Equal Justice for United States Military Personnel Act of 2009. Here are links to the letters addressed to lawmakers on the the Judiciary Committees and Armed Services Committees.

Goodonya NACDL for supporting equal access to the Supreme Court for our troops! NACDL now joins a long list of supporters calling for enactment of the pending bills.

[Note: The author of this post has been a longtime supporter of equal access to the Supreme Court for servicemembers and of the pending legislation.]

Equal gender treatment? Not so much so at the U.S. Naval Academy

During 2003 through 2007, when Vice Adm. Rodney Rempt was Superintendent of the United States Naval Academy, there was apparently a double standard in how midshipmen sex cases were dealt with - - tilting in favor of women, reports The Capital here. Documents obtained under the Freedom of Information Act by the newspaper give evidence of the unprecedented use of immunity in exchange for testimony. Male midshipmen were dismissed from the Academy for offenses such as being drunk or having consensual sex in Bancroft Hall -- the largest single dormitory in the world with 1,700 rooms for midshipmen -- whilst female midshipmen who broke identical rules were permitted to remain at the Academy and pursue their Naval careers.

18 May 2009

Australian military appeals tribunal rules in favour of extending deadline to file appeal

The Defence Force Discipline Appeals Tribunal, or DFDAT, ruled today in Carmichael v. Chief of Navy that in the interests of justice it could accept the filing of a very late appeal. Royal Australian Navy Lieutenant Scott Carmichael was convicted on 5 July 2007 of two counts of assault on a subordinate during an incident occurring in 2006. But did not file his appeal for more than a year with DFDAT.

Carmichael's conviction was had under the old military justice system of courts-martial and trial before a Defence Force Magistrate. Since October 2007 the Australian Military Court has been in use and troops are no longer tried by courts-martial or before a Defence Force Magistrate. Carmichael, under the previous military justice system, had 30 days immediately following his conviction to lodge an appeal. However, he did not lodge his appeal until 5 March 2009, approximately one year and seven months after the deadline to do so.

In permitting Carmichael to file a late appeal the DFDAT took into account, among other things, that he had been instructed to wait for an automatic review of his trial. But he wasn't advised of the outcome of that review for 450 days. Ultimately DFDAT, after extending Carmichael's time in which to lodge, dismissed the appeal. DFDAT's ruling can be found here.

Recommendations for Cox Commission II

Today I sent a letter with my recommendations to the Cox Commission II, for the consideration of several issues relating to the American military justice system. As discussed here, the Cox Commission II will have a hearing on 16 June 2009 at the George Washington University School of Law. My letter recommended the following:

I. Evaluate the inequity in Title 28 of the United States Code section 1259 and recommend to Congress an amendment to guarantee any servicemember whose case has been denied a petition for grant of review or extraordinary relief by the Court of Appeals for the Armed Forces the right to file a petition for certiorari to the Supreme Court.

II. Consider recommending to Congress the codification, in Title 10 of the United States Code, that a judge advocate be licensed by a state bar before any practice of law in any military court. Currently the requirement for licensing rests with each individual service and is not codified in Title 10 - - it is just based off regulation. In 2005-06, I recommended to the Armed Services Committees that the requirement be codified because there were examples of judge advocates practicing law when they had been suspended or disbarred from the practice of law.

Back in 1992, in my personal case, one of the judge advocates who participated in my UCMJ article 32 hearing had previously been suspended from his licensing jurisdiction, then reinstated, then again suspended. The Navy permitted this officer to continue practicing before courts-martial. It was also alleged that this officer issued several unauthorized "general court-martial" subpoenas to civilians during a UCMJ article 32 hearing when no subpoena power existed to compel civilians to testify or produce evidence at an article 32 hearing. This was done after his first suspension from his licensing jurisdiction. My recommendation to Congress came on the heals of other officers practicing law with suspensions or disbarement or worse yet, not having a license to practice in the first place.

In late 2005, my lead attorney Dan Silverman, at the now defunct Heller Ehrman LLP, wrote to lawmakers on my behalf urging the enactment of a statute requiring bar admission. Following that correspondence, in early April 2006, I personally met with the HASC Military Personnel Subcommittee majority counsel, Kevin Coughlin, and Rep. Duncan Hunter's chief of staff, Vicki Middleton, on the Hill. I also had some email exchanges and telephone conversations with the SASC majority counsel, Scott Stucky, (who is now a judge on CAAF) about incorporating the requirement of bar membership in Title 10. My recommendation almost made it into the NDAA for FY 2007 but senior attorneys in Office of the Secretary of Defense - Office of General Counsel (OSD-OGC) opposed it. OSD-OGC actively lobbied Senator John Warner and Rep. Duncan Hunter against it. During the conference for the NDAA the language was removed. The Pentagon's lobbying efforts had paid off.

Nearly two months after President George W. Bush signed into law the NDAA for FY 2007, the Navy Times published an article on Christmas day 2006 about Col. Michael Murphy, which can be found here. Murphy's case served as a recent example of the need to codify the requirement of bar admission; having been disbarred from the practice of law since the 1980s, Murphy was still permitted to practice in the Air Force.

I firmly believe that if judge advocates are going to be practicing criminal law in military courts where the liberty of a servicemember is at stake that the judge advocate, at bare minimum, needs to be licensed by a state's bar in order to practice law in the military. Title 10 should be amended to require this. Solely relying on service regulations to require a judge advocate be licensed by a state bar has proved ineffective.

III. Evaluate a repeal of Title 10 United States Code section 1552(f), if the Supreme Court holds, in United States v. Denedo, that military courts do not have jurisdiction, under the All Writs Act, to review errors in a court-martial that is final. I discuss my reasoning here and here. If the high court does in fact hold that military courts don't have jurisdiction under the All Writs Act to correct their own errors once a court-martial is final, I do not agree, as some have suggested to amend Title 10 to provide the military courts such jurisdiction. Rather, I believe a simple repeal of 10 USC section 1552(f) would provide the serviemember with the appropriate redress of grievance.

VI. Consider recommending to Congress that both trial and appellate military judges be appointed to fix terms of office and that it be codified in Title 10 of the United States Code. Currently, only the U.S. Army and Coast Guard grant their military judges fixed terms of office. I believe there are equal protections issues involved which have thus far evaded Supreme Court scrutiny due to the inequity in 28 USC section 1259(3).

V. I agree with Dwight Sullivan on CAAFlog that the individual service Article I Courts of Criminal Appeals should be abolished and that CAAF should sit in panels of three. However, I believe taking this a step further and elevating CAAF to Article III status - - the U.S. Court of Appeals for the Armed Forces Circuit - - with judges having lifetime appointments. The current judges of CAAF could be automatically elevated to Article III status much as when the appellate division of the U.S. Court of Claims and the Court of Customs and Patent Appeals were merged creating the Federal Circuit in 1982. Further, that review in the new Circuit be made as a matter of right and not as discretionary - - similar to that of the geographical Circuit Courts of Appeal. My position on this issue can be found on various strings of comments contained on CAAFlog found here and here (some of my comments are under "NBM3").

VI. I recommend that all special and general court-martial convictions with subjurisdictional sentences (i.e. confinement of less than a year and no punitive discharge or dismissal) be eligible for military court appellate review.

VII. I recommend a review of the modern day trend, which seems to increase the use, of Correctional Custody Units as a form of non-judicial punishment for enlisted servicemembers in the ranks of E-1 through E-3 to ensure abuses are not occurring and that a system is in place to effectively report alleged abuses without fear of reprisals.

17 May 2009

Australia's Defence White Paper: Looking out for the troops

Earlier this month Australia released it's Defence White Paper which can be found here. I've finally had an opportunity to peruse it. Chapter 14 of the White Paper entitled "People in Defence," starting at page 113, indicates an array of new strategies and programs concerning Australian Defence Force personnel. The report recognizes the need for more Naval personnel and the government will provide funding for 700 additional personnel. Also a new Submarine Sustainability program will be implemented over the next five years to improve support for deployed submariners. The Royal Australian Air Force will face modest growth with flexible employment practices. However, the report lacks specifics in this area.

An improvement in remuneration for all non-commissioned officers through a new pay structure system will occur. Rates of pay for trainees undertaking longer training periods will be increased with a new allowance. The development of a better housing and accommodation system is on the horizon to reduce the number of anomalies occurring in the present housing and accommodation assistance program.

The ADF will soon implement the recommendations of the independent Review of Mental Health Care in the ADF and Transition through Discharge conducted by Professor David Dunt of the University of Melbourne. Information on the independent review, including the government's response, can be found here. The government claims in the White Paper that it is committed to the best mental health support of its ADF personnel. Given that an independent review of ADF mental health was conducted and a response issued, top brass seem to be taking the issue seriously and making necessary improvements.

Defence recognizes that it needs to address issues of retention. As such, it acknowledges that it must offer better remuneration and address issues such as frequent posting moves, housing, spousal employment, children's education and family support.

A dedicated web page on Defence's website concerning the White Paper can be found here.

16 May 2009

Defence: Life insurance deemed inadequate, private cover is less than a night out drinking beer with your mates

The Australian Associated Press reports here that Minister for Defence Science and Personnel, Warren Snowden (ALP -Lingiari, NT), claims that a letter sent to diggers could have been worded a bit better. Defence sent a letter to troops which recommended taking out additional life insurance because the present compensation is not adequate. The letter states that "additional accident insurance costs for basic cover is less than a night out on the town for a few beers with your mates each month." Presently, the spouse of a digger killed in the line of duty receives $118,000 (AUD) and either a war widow's pension or a lump sum of $508,000 (AUD).

Veterans Affairs Minister Alan Griffin (ALP - Bruce, VIC) has announced that a review of current military compensation system is going to start in July and should be complete by March 2010. Minister Griffin's press release can be found here. Additional information can be found on the Dept. of Veterans Affairs website here.

Goodonya Minister Griffin for reviewing the current system to ensure our diggers will be compensated in a just and equitable way in, hopefully, the near future.

15 May 2009

Bias alleged in Naval Reserve Senior and Master Chiefs Promotion Board; Advancements on hold

Today the Navy Times reports here that the Chief of Naval Personnel, Vice Admiral Mark Ferguson, has ordered a hold on promotions of Senior and Master Chiefs in the U.S. Naval Reserve. The hold is due to allegations of bias in that one of the promotions board panels may have "not been conducted in a fair and impartial manner." If bias is found the results of the panel in question may be tossed out and a new panel could be convened to reconsider promotions. The hold is expected to be lifted on or before 30 June 2009 and affects approximately 2,570 board eligible reserve chiefs and senior chiefs.