16 July 2009

Senate continues debate next week on defense budget with dodgy provision to grant enemies greater military court access over that of U.S. soldiers

Just a half hour before midnight this evening, in our nation's capital, the Senate recessed debate on the fiscal year 2010 defense budget until Monday, 20 July at 1300 hours. If the Senate gets it's way, American servicemembers would have inferior access to the nation's top military court than that of enemies in which U.S. troops capture on the battlefield. Civilians, detainees, enemies and illegal aliens would all have a superior right to procedural due process protections over individuals who serve in the U.S. armed forces.

Thus far there has not been any floor amendments to address the inequity that a provision in Senate's version of the National Defense Authorization Act for Fiscal Year 2010, S 1390 would create by granting detainees and enemies greater access to the nation's top military court, the Court of Appeals for the Armed Forces ("CAAF"), over that of America's own U.S. troops. The bill permits automatic review by the CAAF of enemy convictions by military commission whereas U.S. troops convicted by courts-martial must first petition CAAF for discretionary review. Earlier this week I discussed the provision here in greater detail.

On Monday, the full Senate began debate on S 1390. But the Senate's debate has been largely upstaged by the Judiciary's hearings on the confirmation of Judge Sonia Sotomayor to the Supreme Court. No Senator has introduced legislation or made a floor amendment to correct the inequity that the passage of S 1390 would cause for our U.S. soldiers in procedural due process protections on military appellate court access.

In all fairness to Senators Dianne Feinstein (D-Calif.), Russ Feinsgold (D-Wis.) and Arlen Specter (D-Pa.), who have in the past fought for equal right for servicemembers, they have been busy with the Sotomayor hearings. Each of these Senators sit on the Judiciary Committee. In the past, these three Senators have introduced legislation to grant servicemembers equal access to the Supreme Court, the Equal Justice for United States Military Personnel Act of 2009, S. 357. But S. 357 won't correct the inequity that S. 1390 would create in access to the nation's highest military court, the CAAF.

Calls and emails earlier this week to the offices of Senators Lindsey Graham (R-S.C.), Carl Levin (D-Mich.), and John McCain (R-Az.) seeking comment have thus far not been returned.

Some veterans groups have emailed me indicating that if the bill manages to pass the Senate, that those veterans organizations will lobby lawmakers when the NDAA goes to conference calling for equal procedural due process protections for our own troops to be added to either the House or Senate versions of the NDAA. The House version, H.R. 2647, is absent the provision that would grant detainees and enemies greater military appellate court access.

Separately, President Barack Obama has threatened to veto any defense budget that contains continued funding for additional F-22 "Raptors." S. 1390 contains a provision to fund the F-22 beyond the 187 jet fighters Congress has already funded. During the Senate Armed Services Committee's markup both Senators Levin and McCain voted to strip F-22 funding in the NDAA, which failed. Both Levin and McCain have since introduced a floor amendment to strip the F-22 funding. However, that amendment has not yet come up for vote because it's largely been stalled by other amendments - - none of which concern securing procedural due process protections for our troops.

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