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.]

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