15 July 2009

Sotomayor hearings continue while full Senate set to pass bill giving enemies greater court access over that of U.S. troops

[UPDATED from earlier post.]

While the Senate Judiciary Committee continues its hearings today on the President's nominee for the Supreme Court, Judge Sonia Sotomayor, the full Senate is considering granting enemies greater access to the nation's top military court, the Court of Appeals for the Armed Forces ("CAAF"), and also to the U.S. Supreme Court over that of America's own soldiers. But thus far no Senator on the Judiciary has asked a single question of the nominee concerning the inequity that would be caused by granting enemies greater access to our nation's courts over that of our own troops.

Imagine this: An American GI captures an enemy on the battlefield to bring him to justice. Later that enemy accuses the GI of torture or some form of mistreatment. The enemy is later convicted by military commission and would have an automatic right to review in CAAF and a right to petition the Supreme Court for review. Conversely, the soldier is sent to court-martial, and if convicted, would only have the right to file a petition to ask CAAF for discretionary review - no automatic right to review. If CAAF doesn't grant review - - it refuses to grant review in more than 80 percent of cases - - the soldier then has no right to petition the Supreme Court. Yet the enemy that the soldier captured has free passes to both CAAF and the Supreme Court.

On Monday the full Senate started to consider the National Defense Authorization Act for Fiscal Year 2010, S 1390 while on the same day the Judiciary started its confirmation hearing for Judge Sotomayor. If the Senate's version of the NDAA is passed and enacted into law it would grant detainees and enemy combatants greater access to the CAAF than that of an American servicemember who is convicted by court-martial. Yes, that's right, an enemy of America would have greater access to the nation's highest military court -- CAAF -- (not to mention greater access to the Supreme Court) than that of an American GI who had been convicted by court-martial. The House's version of the NDAA, HR 2647, does not contain this provision.

Last week CAAFlog's Dwight Sullivan posted an article here concerning the Senate's version of the NDAA. Mr. Sullivan noted that tucked away in the bill is an amendment to the Military Commissions Act ("MCA") of 2006. This provision provides CAAF with exclusive appellate jurisdiction to review convictions by military commissions. Under the current system, convictions by military commission are first reviewed by the Court of Military Commisson Review ("CMCR"), then by the U.S. Court of Appeals for the District of Columbia Circuit and finally discretionary review by the Supreme Court. The proposed new system abolishes the CMCR and takes away the D.C. Circuit's jurisdiction to review miltiary commissions, replacing it with that of CAAF.

The legislation allows an enemy who was convicted by military commission to have the right to review in CAAF for legal errors, factual sufficiency and sentence appropriateness by requiring the convening authority to refer the case to CAAF absent a waiver by the defendant of appellate review. (S. 1390 at Title X, Subtitle D, Chapter 47A, Subsection VI, Section 950f)

Yesterday The Huffington Post reported here that the military chief prosecutor, Navy Captain John Murphy, in Guantanamo Bay, is ready to proceed with 66 of more than 200 cases against detainees held at the Guantanamo Bay dentention facility. If any of the 200 plus are convicted, and S. 1390 becomes law, all of those convicted detainees would have automatic right to review by our top military court and discretionary review in the Supreme Court. What is that going to do to CAAF's docket? What impact would it have on shortchanging discretionary review of our own troops? Would less servicemembers be granted discretionary review by our nation's top military court because Congress granted detainees and enemies right to direct review? There are no studies on these serious questions.

Currently, America's own troops who are convicted by court-martial under the Uniform Code of Military Justice ("UCMJ") must petition CAAF for discretionary review unless their case involves the death penalty or if the services top lawyer, known as the Judge Advocate General, certifies the case to CAAF. (10 U.S.C. 866) The review of 22 years plus of statistics show that CAAF only grants discretionary review in less than 20 percent of petitions for grant of review filed by convicted U.S. servicemembers. A civilian defendant or illegal aliens also has a much better chance of getting a criminal conviction reviewed upon the merits in the most conservative U.S. Court of Appeals for the Fourth Circuit than does a servicemember in CAAF according to statistics from the Congressional Researh Service.

I'm having deja vu from 2006 when Congress passed the MCA. The 109th Congress saw fit to grant enemy combatants Supreme Court access once their military commission cases concluded review in the D.C. Circuit. (10 U.S.C. 950g(d)) In that same Congress, Texas Republican Lamar Smith (R-TX) indefinitely tabled the first Equal Justice for Our Military Act, HR 1364 (109th Congress) when he was chairman of the formerly named Subcommittee on Courts, Internet and Intellectual Property (renamed the Subcommittee on Courts and Competition Policy) of the House Judiciary.

What the Senate's version of the NDAA does is it grants enemies greater procedural due process protections by providing automatic access to the nation's highest military court -- CAAF -- (not discretionary review in CAAF but an automatic right to have the case reviewed) and also provides access to petition the Supreme Court for discretionary review. It still leaves the majority of our own American troops who are convicted by courts-martial in the lurch.

U.S. servicemembers and certain civilian contractors convicted by courts-martial who are sentenced to less than one year confinement and no punitive discharge do not have any right to appeal to either the CAAF nor the Supreme Court. Further, those American GIs who are convicted and sentenced to a year or more confinement or a punitive discharge or dismissal must first petition CAAF for discretionary review unless they were sentenced to death or the service JAG certified the case and only then would have the right to petition the Supreme Court if CAAF first granted discretionary review. An American soldier must jump through so many hoops to obtain appellate court review of a court-martial yet under this NDAA an enemy has a free pass for review.

Over the last eight years Congress as a whole has paid much attention to the rights of detainees. enemy combatants and even illegal aliens. (Some Members of Congress have tried to do right by our troops: this includes Reps. Susan Davis (D-Calif), Ike Skelton (D-Mo.), Hank Johnson (D-Ga.), Senators Dianne Feinstein (D-Calif), Russ Feingold (D-Wis.) and Arlen Specter (D-Pa.) as evidenced by their work on HR 569 and S. 357.)

Some lawmakers and judges still posses the 18th-century-colonialism-mentality to treat our troops like second-class citizens. This 18th century thinking is exhibited by the recent statement by Chief Justice Roberts when he dissented in the case of United States v. Denedo. The majority opinion, in Denedo, found that the military courts had jurisdiction to correct there own errors. But the Chief Justice thought otherwise.

The Chief Justice's dissent observed, in a very simplistic manner, that a servicemember was "in the Army now" (the servicemember had actually served in the Navy) and as such the court need not address a petition for post-conviction relief. "You're in the Army now is a sufficient answer to such concerns," opined CJ Roberts. The Chief Justice seemingly took the position that American servicemembers under the UCMJ have very limited nature of relief to redress unconstitutional wrongs committed after a court-martial was final no matter how egregious the constitutional error may be. (CJ Roberts dissent in United States v. Denedo.)

This old and outdated way of thinking, as displayed by the Chief Justice, should mature to the 21st century to exhibit the way democracies are supposed to operate. Modern day applications of democracy, in which due process is a cornerstone, would see fit to afford our uniformed citizens full procedural due process protections; not treat them as second-class citizens. Should Sotomayor be confirmed, it is highly doubtful that she will hold such outdated 18th-century views about court access for our servicemembers as apparently does the Chief Justice.

Remember it's our troops that risk their lives to protect and defend our democratic way of life. Why then shortchange them of due process? And why grant enemies greater procedural due process than that of our very own troops who are on the battlefield bringing those enemies to justice? Congress should amend either the House or Senate versions of the NDAA to provide full appellate rights for our servicemembers before they see fit to grant enemies full and unfettered access to our courts.

Finally, where are Senators John McCain and Lindsey Graham in all this? Certainly, not looking out for the procedural due process of our own troops. Graham sits on both the Senate Armed Services and the Judiciary Committees; McCain is the GOP Ranking Member on the Armed Services Committee.

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