04 July 2010

Happy 234th B-Day America! (Still a work in progress)

Whilst it's the 5th of July at home here in Sydney, it's the 4th of July in my other home country of the United States of America. Thus it's Independence Day. America turns 234 today.

I'm a regular reader of the OB Rag Blog (as I'm a former resident of the San Diego seaboard community of Ocean Beach). Today I was reminiscing of paddling out on my surf board near the OB pier to watch 4th of July fireworks and then getting back in quickly to the beach to partake in the annual marshmallow fight. In response to a post today entitled "Thoughts About the Fourth" I wrote the following:
Happy Independence Day from down under. As I read the above post from my home in Sydney (Australia) I cannot help but think of a serious inequity in law since the birth of the United States.

The brave young American men and women who serve in military uniform around the globe do not enjoy equal access to the Supreme Court of the United States (”SCOTUS”) should they be convicted by courts-martial. The phrase “Equal Justice Under the Law” engraved into SCOTUS’ building does not apply to our military personnel.

Most citizens are unaware that since 1789 – the year SCOTUS was established – a little known inequity in federal law which prevents many court-martialed servicemembers from ever accessing the high court. To those uniform citizens the Supreme Court simply does not exist. But believe it or not, illegal aliens and enemy combatants enjoy SCOTUS access. I cannot reconcile how enemies and illegal aliens can freely petition our highest court in the land while the young men and women who serve our country risking their lives to protect and defend us are shut out.

The Supreme Court may review only those cases out of the Court of Appeals in which one of the following circumstances applies: (1) The defendant could receive the death penalty. (2) The case was certified to the Court of Appeals by the judge advocate general for review. (3) The appeals court granted the accused’s petition for review. (4) Or the appeals court otherwise granted relief to the accused.

The above looks like a robust review – but it’s not. The death penalty is not on the table in most cases. The judge advocate general does not certify many cases for review—and when he does, this almost always benefits the government, not the servicemember. The Court of Appeals only rarely otherwise grants relief. Most of the time, a convicted servicemember can hope to reach the high court only if he can first show good cause to persuade the Court of Appeals to grant his petition for review. The Court of Appeals declines to hear about 90 percent of cases, so about 90 percent of court-martialed servicemembers are completely sealed off from the Supreme Court. For those servicemembers, the high court simply does not exist.

Conversely, if that servicemember does manage to get his case before the Court of Appeals and then prevails, the government is permitted to appeal the decision to the Supreme Court. And therein lies the inequity.

In 2004 when I lived in OB (I moved to Sydney in 2007 – I’m both an American and Australian) I brought the inequity to the attention of Rep. Susan Davis and Senator Dianne Feinstein. Both have introduced legislation to correct the inequity. In the current (111th) Congress, the Equal Justice for Our Military Act of 2009, H.R. 569 and the Equal Justice for United States Personnel Military Personnel Act of 2009, S. 357 have been introduced.

The legislation has broad support of (1) Fleet Reserve Association; (2) Military Officers Association of America; (3) National Institute of Military Justice; (4) Jewish War Veterans of the United States; (5) American Bar Association; (6) National Association of Criminal Defense Lawyers; (7) ACLU and many others. Three former chief judges of the top military court – Court of Appeals for the Armed Forces (formerly known as the Court of Military Appeals) support the legislation. Two of those judges were Reagan appointees.

Our sister common law countries – including my other home country of Australia – afford their military personnel equal access to their highest courts.

In the last Congress (110th) a similar bill, Equal Justice for Our Military Act of 2007 H.R. 3174, was passed by 2/3 voice vote in the House but was held up in the Senate because the Bush administration opposed it. In this Congress (111th Congress) H.R. 569 received a hearing in Committee and was favorably reported out to the House. (You can read the Congressional hearing transcript here: http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg11150222/pdf/CHRG-111hhrg11150222.pdf ) H.R. 569 still awaits action with less than 6 months left in this Congress.

I agree with NYT’s Frank Rich that America is a work in progress. Part of that progress is recognizing injustices and inequities; and then fixing them – making them right. While we sit on the beach this 4th of July, eat hot dogs and hamburgers, drink beer (not on the beach anymore), watch fireworks and have marshmallow fights remember that not every American citizen has the same rights you have. Those American military servicemembers serving in remote places around the world to protect and defend you are treated like second class citizens when it comes to accessing our nation’s highest court.

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