11 June 2009

House Judiciary subcommittee considers Supreme Court access for servicemembers

[Updated from earlier post.] Today Rep. Hank Johnson (D-Ga.), chairman of the House Judiciary's Subcommittee on Courts and Competition Policy held a hearing on the Equal Justice for Our Military Act of 2009, HR 569. The bill would grant all servicemembers who are eligible to petition the Court of Appeals for the Armed Forces the right to petition the Supreme Court to review a court-martial conviction. Currently over 80 percent of all convicted court-martial servicemembers are precluded from ever filing a petition for direct review with the Supreme Court.

Rep. Susan A. Davis (D-Calif.) who is the chief sponsor of the bill and chairs the House Armed Services subcommittee on military personnel testified. Rep. Davis' opening statement can be found here. Retired Army Major General John Altenburg, Jr., a former Deputy Army Judge Advocate General testified in opposition of the bill. MG Altenburg's opening statement is here. Dwight Sullivan, a civilian appellate defense counsel for the Air Force and a colonel in the U.S. Marine Corps Reserve, testified in his personal capacity in support of the bill. Mr. Sullivan's opening statement is here.

The Air Force-Army-Marine Corps-Navy Times publications have run articles in each of their online newspapers. The Navy Times article can be found here. But the military publications articles are factually inaccurate concerning cost estimates on high court appeals should HR 569 be passed. Mr. Sullivan, referring to the Air Force Times article (which is identical to the Navy Times article), points this out on CAAFlog in a comment he made today at 1301 here. "The Air Force Times gets a key fact horribly wrong. The article says that estimates of the cost of the bill range from $30,000 to $1 million PER CASE. The $30,000 estimate was the cost of the bill to the entire U.S. goverment for a year, not per case. It's simply preposterous to suggest that the cost to the U.S. goverment of litigating a Supreme Court case is $1 million. In fact, the entire monetary cost to the U.S. goverment for one cert petition is around $1,000," said Mr. Sullivan.

During the hearing MG Altenburg conceded that if HR 569 was passed it would not hinder nor threaten good order and discipline in the military like some have suggested. The Obama administration did not make the Department of Defense's witness, Army Brigadier General Malinda Dunn, available for the hearing. BG Dunn was expected to testify in opposition of the bill. Both Chairman Johnson and Ranking Member Howard Coble (R-S.C.) expressed concern that the administration hadn't provided anyone to testify and explain why DoD opposes the bill. However, sources in the Obama administration have informed me that after the Office of Management and Budget and the Department of Justice looked at the issue the administration is now taking a different position than that of the Bush administration. The Obama administration is not going to oppose equal access to the Supreme Court for members of America's military. In past Congresses the Bush administration had opposed similar bills with then-DoD General Counsel William Haynes, II and then-Principal Deputy Daniel Dell'Orto leading the charge in opposition.

Rep. Davis has issued a press release which can be found here. At some point in the very near future the webcast of today's hearing will become available on the House Judiciary's website. When it becomes available this post will be updated. The Courts subcommittee should issue its report on the hearing before Congress' summer recess.

CAAFlog also provides hearing highlights here.

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