23 July 2009

Senate pulls a Britney Spears: "Oops! . . . [they] did it again" in passing bill to grant enemies more Supreme Court access over that of U.S. troops

The U.S. Senate adjourned at 11:10 this evening after passing its version of the National Defense Authorization Act, S. 1390. There are many good provisions for servicemembers contained in the Senate's verison of the NDAA, such as military voting reforms. I have previously discussed this as well as other provisions which will benefit servicemembers here and here.

But "oops . . . [they] did it again" and left out a provision to grant U.S. troops full procedural due process protections in accessing the nation's highest court. There is an inequity in American law which prevents members of the U.S. armed forces from having equal access to the Supreme Court. Congress has known about the problem since 2004. This is the second time the U.S. Senate has done such - thus pulling a Britney Spears.

Under existing law court-martialed servicemembers sentenced to a year or more confinement or a puntive discharge must first convince the nation's top military court, the Court of Appeals for the Armed Forces or CAAF, to review their case before becoming eligible to petition the Supreme Court for a writ of certiorari. But the CAAF only grants discretionary review in less than 20 percent of cases. The other 80 plus percent of servicemember do not have any right to file any petition in the Supreme Court.

The first occasion to grant enemies superior high court access was when the Senate (as well as the House) passed passed the Military Commissions Act of 2006 and created 10 United States Code section 950g(d). And today marks the second time the Senate has granted greater procedural due process protections to enemies and detainees in accessing the Supreme Court over that of U.S. soldiers. (Compare S. 1390 at Title X, Subtitle D, Chapter 47A, Subsection VI, Sections 950c and 950f with 28 United States Code section 1259)

HR 2647, which is the House's version of the NDAA, does not have a provision to grant enemies automatic access to the CAAF like the Senate's does. Nor does it have a provision to grant U.S. troops equal access to the Supreme Court. Both HR 2647 and S. 1390 now head to conference where both Senators and Representatives will confer to finalize the NDAA.

Civilians convicted of state and federal offenses, illegal aliens and enemy combatants all have a right to petition the Supreme Court to review their criminal convictions. The Congressional Research Service has issued several reports to Members of Congress indicating that under current law the CAAF acts as gatekeeper to the Supreme Court unlike any other court in America. The most recent CRS report can be found here.

In 2006 the American Bar Association issued a report and passed a unanimous resolution urging Congress to fix the law. The ABA report can be found here.

Servicemembers convicted by court-martial and sentenced to less than a year confinement and no punitive discharge -- known as a "subjurisdictional sentence" -- do not have a right to appeal to any military appellate court let alone the Supreme Court. (10 United States Code section 866(b)(1)) But enemies and detainees convicted by military commission regardless of the type of sentence imposed have a free pass to automatic review by the nation's top military court, CAAF, and the right to petition the Supreme Court should S. 1390 become law.

There is legislation pending to grant servicemembers equal access to the Supreme Court in both the House and Senate. The Equal Justice for our Military Act of 2009, HR 569 is pending in the House and the Equal Justice for United States Military Personnel Act of 2009, S. 357 is pending in the Senate. In the last Congress an identical bill, Equal Justice for Our Military Act of 2007, HR 3174 (110th Congress), was passed in the House but died in the Senate.

Last month the Subcommittee on Courts and Competition Policy of the House Judiciary Committee held a hearing on HR 569. That subcommittee is expected to markup the bill in the near future.

How long must servicemembers wait until they receive full procedural due process protections in accessing the Supreme Court? I'm going to quote Senator Carl Levin, the present chairman of the Senate Armed Services Committee, when he was debating the NDAA earlier this week concerning a budget cut on the F-22: "If not now, then when?" Members of the Senate, if you do not grant troops equal access to the Supreme Court now, then when?

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