06 October 2011

U.S. Senate and House introduce legislation to give Supreme Court access to troops


For those of us born in the late 1960s or early 1970s you might recall the television commercial of the wise Mr Owl with the boy asking asking him "How many licks does it take to get to the Tootsie Roll center of a Tootsie Pop?" I pose this question: How many Congresses will it take before lawmakers grant servicemembers equal access to the United States Supreme Court?

Today legislation was introduced in the U.S. Senate and House of Representatives to fix a longstanding inequity in American law, 28 U.S. Code section 1259, that would permit court-martialied servicemembers to petition the U.S. Supreme Court if the nations highest military court denies review of their case or denied relief in extraordinary writ cases.

The two bills were introduced this afternoon in both houses by Senator Dianne Feinstein (D-Calif) and Rep. Susan Davis (D-Calif.).

Under existing law, the Court of Appeals for the Armed Forces ("CAAF") acts as the gatekeeper in all military appeals to the Supreme Court. Unless CAAF grants review of a petition for review or grants relief in an extraordinary writ case the Supreme Court is barred from reviewing the case of a court-martialed servicemember.

Mr Owl: How many Congresses will it take to grant members of the U.S. Armed Forces access to the U.S. Supreme Court?

The Equal Justice for Our Military Act of 2011, HR 3133 and S1664 is the fourth attempt since 2005 by lawmakers to correct the inequity in 28 USC 1259 by introducing legislation. Rep. Davis' introductory remarks on the House floor can be found here and Senator Feinstein's introductory remarks in the Senate can be found here.

In April 2004, during the 108th Congress, Rep Davis and then-Congressman John McHugh (R-NY) (now Secretary of the U.S. Army) sent this bipartisan letter to Department of Defense General Counsel William Haynes II inquiring about an inequity in 28 USC 1259 which I raised. Mr Haynes responded to the lawmakers by opposing any change arguing that there would be an increased burden on the Supreme Court should the law be changed.

In 2005, a similar bill, like the ones introduced today, was introduced in the 109th Congress, HR 1364, but was held up in Texas Republican Rep. Lamar Smith's subcommittee in the House Judiciary Committee in 2005-06. Rep. Smith refused to permit any hearings on the matter when he chaired a subcommittee having jurisdiction of the issue.

September 2008 saw the 110th Congress, the full House of Representative pass similar legislation in, HR 3174, despite these objections raised by Rep. Smith on the House floor during debate. In the waning days of the 110th Congress the Senate did not have sufficient time to act.. During that same Congress the Senate Judiciary Committee had favorably reported, S2052, which was a similar measure introduced in the Senate by Senator Feinstein and then-Senators Hilary Clinton, Russ Feingold and Arlen Specter.

The last Congress, the 111th, the House Judiciary Committee - then under Democrat control favorably reported, HR 569, an identically worded bill to the full House. This was done, again with objections from Rep. Smith.

Strong GOP opposition to American GI's accessing nation's highest court

Much of the opposition from the GOP stemmed from the George W. Bush administration when William J. Haynes II (pictured to the left) was the General Counsel for the Department of Defense. Unfortunately today's GOP lawmakers continue to regurgitate Haynes' positions without looking at the facts, statistics and military law expert testimony.

I was very disappointed last year when a former Army judge advocate general now turned GOP Congressman, Tom Rooney from Florida, completely failed to see the issue, ignored facts, statistics and instead chose to verbally bash me at a Congressional subcommittee hearing in where he accused me of renouncing my American citizenship - which I have never done. Rooney should have checked the facts before he started touting off. The GOP spin amazes me.

This issue of equal access should be bi-partisan. Servicemembers who serve our great nation deserve procedural due process - just like every civilian, illegal alien and even terrorists who are tried by military commissions. To deny Supreme Court access to those who serve to protect and defend us is illogical when applying democtratic principles. All of our allies permit their servicemembers equal access to their highest courts in military justice cases. My other home country of Australia has permitted its court-martial servicemembers access to the High Court - which is the equivelant of the Supreme Court.

It is doubtful with the Republican controlled House that HR 3133 or S.1664 will be passed in this 112th Congress. Republicans in general have strongly opposed equal access to the Supreme Court for our troops. The GOP is of the opinion that troops have a sufficient appeals process and that nothing should be changed.

Fleeing the Republican Party

When I was in my youth I was a Republican and was registered as such in San Diego County, California. During the George W. Bush years I left the party and re-registered as a Democrat. In 2007 I moved to Sydney, Australia where I have continued to vote in elections in the United States via absentee ballot.

Former GOP Senator Arlen Specter of Pensylvania left the Republican Party and he was an original cosponsor of S2052 in the 110th Congress when he chaired the powerful Senate Judiciary Committee. Former NY Congressman John McHugh, also seems to have exited the GOP when he quit Congress and accepted the position of Secretary of U.S. Army in the Obama administration. McHugh unofficially supported the change in the law. Moderate Republicans very much seemed to support the change. But in recent times the far convervative right has hijacked the Grand Old Party and ran most of the moderates out.

What I cannot understand is the caustic environment by the new GOP on this issue of equal access to the Supreme Court - former presidents Ronald Reagan and Abraham Lincoln must be spinning in their graves at the likes of Rep Lamar Smith of Texas and Rep. Tom Rooney of Florida. I have called on Reps. Rooney and Smith to have a re-think about the issue but that is doubtful given their chosen ignorance of facts, statistics, ignoring expert testimony as well as the latest Cox Commission Report and to automatically oppose anything the other side - Democrats - introduce.

To read Rep. Davis' press release go here.

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