31 March 2009

UCMJ -vs- MEJA: Two different justice systems

The San Diego Union Tribune, a few hours ago, reports here that the trial of Marine Corps Sgt. Ryan Weemer continues today with the prosecutor's opening statements. Weemer is being prosecuted under the Uniform Code of Military Justice for unpremeditated murder and dereliction of duty involving a 2004 incident in Falluja, Iraq. Weemer could receive life in prison if convicted.

Last year a civilian federal jury acquitted Marine Corps Sgt. Jose Nazario in the same incident. I wrote commentary on Nazario's case which appeared in the Los Angeles Times here. Nazario was prosecuted under the Military Extraterritorial Jurisdiction Act, or MEJA, and not under the UCMJ because he was no longer in the service. The two justice systems MEJA and UCMJ have entirely different procedural due process protections. Nazario had a jury of 12 peers. Weemer's jury was handpicked by the same officer that is convening his court-martial. Unanimous verdicts in the UCMJ are only required in death sentences otherwise it's two-thirds to convict. Whereas Nazario's jury would have had to have been unanimous because it was in U.S. district court regardless of whether or not the death penalty was sought.

When the House of Representatives passed the Equal Justice for Our Military Act of 2007 in the last Congress, Rep. John Conyers, the chair of the House Judiciary Committee, noted differences in MEJA versus the UCMJ. "Adding insult to injury, while a servicemember is not able to obtain Supreme Court review if he or she loses at the court of appeals . . . a former servicemember who is tried under Military Extraterritorial Jurisdiction Act in civilian court for crimes committed while on active duty also has a full right to petition for Supreme Court review." said Conyers. The debate record and Conyers statement can be found here.

As previously indicated in the post below the House-passed bill failed in the last Congress because Senator Lindsey Graham (R-SC) would not permit it to be placed upon the unanimous consent calendar for a full vote in the Senate. Legislation has since been reintroduced in both Houses of this Congress: HR 569 and S 357.

Marine Corps Commandant seeks counsel on Don't Ask, Don't Tell

Yesterday afternoon Navy Times' Dan Lomothe and Bill McMichael posted an article here indicating that Marine Corps Commandant General James Conway is asking all of his 82 generals for their input on the Don't Ask, Don't Tell ("DADT") policy. Responses are due to General Conway by 10 April 2009. The United States adopted the DADT policy in 1993.

While America's policy has been in place for over 15 years most of its allies have rescinded discriminatory policies against their gay and lesbian citizens who serve in uniform. In 1992, Australia ended its prohibition of gays in the military. The situation on sexual-orientation discrimination appears to have greatly evolved outside the United States with Canada, Germany, Israel, Italy, Netherlands, the United Kingdom and Switzerland all permitting gays and lesbians to serve in the military. Earlier this month the Philippines ended its ban.

Last July Rep. Susan Davis (D-Calif.), the chair of the subcommittee that oversees military personnel issues in the House Armed Services Committee held a hearing on DADT. Retired Sergeant Major of the Army Brian Jones testified that "allowing homosexuality in the military would cause unnecessary sexual tension and disruptions to good order, moral, discipline and unit cohesion." Jones further said "this would erode the very qualities of military service that presently appeal to potential recruits."

But retired Army Major General Vance Coleman, an African-American who joined the Army when it was segregated testified that the treatment of gays and lesbians is similar to how blacks were treated before President Harry Truman integrated the military in 1948. "I know what it is like to be thought of as a second-class citizen, and I know what it is like to have your hard work dismissed because of what you are or what you look like," Coleman said at the hearing. Coleman also said America's security was hurt because gays and lesbians were either dismissed from service or were reluctant to join, noting that five dozen Arabic linguists had been discharged under DADT.

The Navy Times article also noted that Navy Captain John Kirby, spokesman to Chairman of the Joint Chiefs of Staff Admiral Mike Mullin, said the Chairman has previously addressed this issue and if the law changes we'll change accordingly. "If the American people want to see the policy reviewed through their elected leadership, we'll participate in that debate," said Kirby.

If you want your voice to be heard on DADT here's a link to Congress.org where you can find information on your elected representative and send an email on DADT. And if you are a gay or lesbian person serving in America's military you can contact the Servicemembers Legal Defense Network for assistance.

30 March 2009

Jewish War Veterans support Equal Justice for Our Military Act

Earlier this month the Jewish War Veterans of the USA indicated that it made the Equal Justice for Our Military Act one of its legislative priorities. On 5 March 2009, JWV National Commander Ira Novoselsky told a joint session of the Senate and House Veterans' Affairs Committees that "JWV supports legislation that will restore due process and equal treatment under the law for our service members and veterans." Mr. Novoselsky's statement can be found here.

JWV now joins a list of other veterans organizations and military advocacy groups supporting the pending legislation. The Fleet Reserve Association, Military Officers Association of America, National Institute of Military Justice and at least three former chief judges of the Court of Appeals of the Armed Forces have previously indicated their support of the measure.

Within the first month of the 111th Congress two bills were introduced to grant servicemembers equal access to the Supreme Court: HR 569, the Equal Justice for Our Military Act of 2009 and S 357 the Equal Justice for United States Military Personnel Act of 2009. An identical bill to HR 569 was passed by the House of Representatives in the last Congress but held up by Senator Lindsey Graham (R-SC). Senator Graham, without comment, refused to consent to the previous House-passed bill (HR 3174 - 110th Congress) being placed upon the unanimous consent calendar of the Senate for a floor vote. Calls and emails to Senator Graham's press secretary, Wess Hickman, for comment weren't returned.

[Note: The author of this post has long lobbied Congress on behalf of the pending legislation.]

U.S. Justice Dep't won't process presidential pardon applications of non-resident U.S. citizens and former permanent residents

The U.S. Department of Justice has a "well established policy" to not process presidential pardon applications from non-residents of the United States according to Pardon Attorney Ronald L. Rodgers. On 18 March 2009, Mr. Rodgers wrote to me here in Australia informing me of the policy. I have since sent a Freedom of Information Act request for a copy of the policy. (If it's true that DOJ has a new FOIA policy as reported here, then maybe within this year I'd be able to post the "well established policy" of non-processing of pardon applications for public viewing.) It appears this policy applies to both former lawful residents of the United States who are not citizens as well as to actual American citizens living abroad.

In 2008 roughly 37,000 non-U.S. citizens were serving in the U.S. Armed Forces according to U.S. Congressional statistics. (See American Forces Press Service news article here.) If you are a lawful resident and convicted of a crime under the Uniform Code of Military Justice not only may you be subjected to deportation, but if deported and you apply for a presidential pardon your application won't be processed. Conversely, if you are an American citizen and you've been convicted by a court-martial you may want to apply for a pardon before you move abroad otherwise it also won't be processed.

29 March 2009

Ex-servicemembers deserve redress: Congress should repeal Title 10 United States Code § 1552(f)

By Norbert Basil MacLean III
Equal Justice for Troops blog

Last week the Supreme Court heard argument in United States v. Denedo. The nation's highest military court, the Court of Appeals for the Armed Forces ("CAAF"), in a 3-2 decision had remanded Denedo's case to a lower military court for fact finding. Denedo, a lawful permanent resident, had claimed ineffective assistance of counsel after his attorney failed to properly advise him that he may be deported if he pled guilty at a court-martial. In 2006, eight years after Denedo's court-martial, out of the blue, the government sought to deport Denedo solely based upon the 1998 court-martial conviction. In 1998, Denedo didn't know that his attorney was an alcoholic. The CAAF majority found that the military courts had jurisdiction under the All Writs Act. The government appealed to the high court, and certiorari was granted. The government argues that because Denedo's case is final under the Uniform Code of Military Justice ("UCMJ") the military courts don't have jurisdiction to correct an alleged fundamental error - ineffective assistance of counsel. The government also noted that Denedo has no other remedy in law other than maybe a Presidential pardon.

On 20 March 2009, I wrote commentary which appeared in the Los Angeles Daily Journal entitled "Case Highlights Need for Action on Service Members' Court Access." My commentary calls on Congress to act in light of Denedo. I find the no remedy part very distasteful.

The fact that no court in a 21st century America, including the military courts, wouldn't have jurisdiction to redress a grievance is disturbing. Send troops off to fight wars, protect and defend America but shut them out of all courts was a study trend in the Bush administration. The First Amendment guarantees a right to redress. Reading the oral argument transcript of Denedo, apparently two justices -- Justices Breyer and Ginsburg -- also seemed to find the no remedy situation an awful result. But Justice Scalia noted that error coram nobis (a common law writ used to correct fundamental errors not known during the original trial) wasn't available to a military servicemember for 200 years - implying that because it's always been that way makes it okay. No, it's not okay! Was denying woman the right to vote okay for 144 years? No! Was segregation of African-Americans for approximately 180 plus years okay? No! So keeping our servicemembers or ex-servicemembers from redress of grievances is also plainly not okay - and it's unconstitutional. Had that line of thinking -- it's okay because it's always been that way -- prevailed in 1920 women wouldn't have had the right to vote. Likewise the Civil Rights Act of 1964 wouldn't have been enacted. I shudder to think of what kind of America, in the 21st century, would have resulted from that line of thinking.

A cornerstone of democracy is due process. But it appears that Congress has failed to provide a remedy for situations like Denedo's - that is where new evidence or a change in circumstance has occurred but wasn't known during the trial. And was discovered after the court-martial was final and after the six-year statute of limitations to file under the Little Tucker Act, Tucker Act or Declaratory Judgment Act in the federal courts. Denedo is no longer in custody so he cannot invoke habeas corpus. He truly has no remedy in law which the government now admits.

It wasn't always this way. In the 1940s Congress was fed up with petitions to correct military or naval records of court-martial convictions via private relief bills. As such, when Congress passed the Legislative Reorganization Act of 1946, section 131 of the Act, banned four types of private bills which included a correction of a military or naval record. (See also House Rule XII, Clause 4) However, in the same Act, Congress provided for individual Board of Correction of Military (or Naval) Records ("BCMR") to correct the military or naval record. Essentially closing one door for redress of grievance but opening a window for another at the same time. In 1984 Congress shut that window when it took the BCMR's jurisdiction away to take corrective action on a court-martial by passing the Military Justice Act of 1983 and creating Title 10 United States Code ("U.S.C.") § 1552(f). Had Congress not done this Denedo would have had an avenue to redress the grievance he now complains.

Military justice is meant to keep good order and discipline. But in the 21st century a court-martial conviction carries a lifetime of civil disabilities (loss of right to vote - in certain States, bear arms, hold public office, employment opportunities, entrance into college and trade schools, etc.) The post 9/11 modern day trend shows that the individual States are increasingly treating a court-martial conviction as that right out of U.S. district court without regard to the offense. For example, a servicemember charged for an unauthorized absence, dereliction of duty or under UCMJ article 134, and convicted by general court-martial is treated the same as someone convicted by a U.S. district court by a unanimous jury of 12 peers. (Jurors in a court-martial known as members can be as few as five and you only need two-thirds vore to convict except in death sentences.) Whereas a civilian who does not show up to work or who may have cursed the boss is not charged, and convicted, for a crime. A court-martial conviction is no longer isolated or confined to the military setting. Not that there was any requirements in the past to confine such to the military. Surely there were instances in the past but the modern day trend seems to have increased. Denedo's case also exemplifies that. Convicted in 1998 the government didn't move to deport him until 2006 - - certainly one could argue a change is evidenced in how a court-martial conviction is now perceived. For the most part, past trends took the nature of the offense into account and the type of court-martial before drastic civil disabilities and stigma attached. That no longer appears to be the case. As such basic procedural due process protections need to be put into place to protect uniform citizens and ex-servicemembers.

Some argue "if you don't like it, don't join" the military. However, that argument is fatally flawed because even though the draft has not been instituted since the Vietnam War era, it's still on the books. Who is to say if and when a draft would be instituted in the future. If that happens, drafted citizens aren't volunteering but are drafted - they have no choice in the matter. “Our citizens in uniform,” the late Chief Justice Earl Warren said, are "not stripped of basic rights simply because they have doffed their civilian clothes.” The right to redress grievance is one of the most basic rights guaranteed by our Constitution under the First Amendment.

The House and Senate Armed Services Committees are presently working on the National Defense Authorization Act ("NDAA") for FY 2010. As a matter of a right to redress, and to secure procedural due process for servicemembers presently serving who will one day become an "ex-servicemember," Congress should repeal 10 U.S.C. § 1552(f) in the NDAA. Give the BCMRs back their jurisdiction to redress ex-servicemembers' grievances. If the BCMRs were premitted to correct wrongs in unjust courts-martial convictions from 1946 through 1984 there is absolutely no reasons why they cannot correct wrongs in the 21st century. Alternatively amend the UCMJ to grant military courts jurisdiction to correct their own errors even if a court-martial is final.

As Memorial Day and Fourth of July approaches barbecues, fireworks, parades, waving American flags, and colors of red, white and blue are on the horizon. In those two holidays we commemorate those who have died in service for our country and the Independence of our nation. Celebrate our independence and honor a fallen servicemember by writing your Member of Congress and demand a repeal to 10 U.S.C. § 1552(f). Our present day servicemembers, who will one day be ex-servicemembers, deserve it. Here's a link to Congress.org where you can find information on your elected representatives and send an email.