More on the H.R. 569 markup
The transcript of the Equal Justice for Our Military markup is now available here. The consideration of H.R. 569 runs from pages 12 to 29 of the transcript. The voice vote appears on pages 75-76.
Here’s a recap with some editorial commentary. [Disclosure: I testified in favor of the bill at the subcommittee hearing.]
Rep. Hank Johnson (D-Ga.), the chairman of the subcommittee that considered the bill, began with a description of the legislation and an equity argument for passing the legislation, emphasizing the disparity in the government’s and a servicemember’s ability to bring a case within the Supreme Court’s cert jurisdiction. While noting that cases that would become eligible for Supreme Court review under the bill would very rarely receive a cert grant, he argued that the same is true for other cases already within the Supreme Court’s cert jurisdiction. Rep. Johnson also noted that the Cox Commission report had endorsed the bill, as had the ABA and other public interest groups.
Rep. Lamar Smith (R-Tex.), the committee’s Ranking Member, then spoke against the bill. (Rep. Smith spoke on the House floor in 2008 against that year’s version of H.R. 569, noting then-DOD General Counsel William J. Haynes II’s opposition to the bill.) At the markup, Ranking Member Smith first attacked the bill’s origin, arguing that “this bill was introduced because a single individual was unhappy with the way he had been treated by the military justice system.” He then criticized the Obama Administration for not sending a witness to the subcommittee’s hearing on the bill. He argued that this should “be construed as meaning the administration as the least has serious concerns about the legislation.” He noted that the Defense Department opposed similar legislation in the previous Congress. He expressed concern about DOD’s obligation to provide counsel to prepare the cert petitions that would be authorized by the bill, suggesting that if the bill “made clear that the military’s obligation to provide defense counsel ended at the appellate stage so that convicted service members who wanted to seek Supreme Court review had to secure their own counsel, the burdens might be eased.” He also expressed concern for the increased workload that the Supreme Court and DOJ would experience if the bill were enacted. He then dropped the H-bomb: “The Supreme Court and our military justice system do not need to [expend] scarce resources on expanded appellate rights for convicted service members like Major Hasan, who in the future might well seek to take advantage of H.R. 569.”
Of course, Major Hasan is likely to qualify for Supreme Court review without any help from H.R. 569. If he is ultimately sentenced to death and that sentence is affirmed by ACCA, then the case will fall within CAAF’s automatic jurisdiction, resulting in cert jurisdiction as well. If Major Hasan is sentenced to life or LWOP and ACCA affirms that outcome, the case would fall within CAAF’s practice of granting and summarily affirming in long-term confinement cases if it doesn’t grant review of an issue. And, of course, if ACCA reverses, then the Judge Advocate General of the Army can certify the case to CAAF, which would bring it within the Supremes’ cert jurisdiction. So MAJ Hasan is an unlikely poster child for opposing this bill. [Yes, I know MAJ Hasan is presumed not guilty. If he's ultimately acquitted, then he won't need H.R. 569.]
Ranking Member Smith concluded his remarks by observing: “I hope this is the end of the bill until we at least get some indication of support from the administration or from the Department of Defense or from the Justice Department, none of which has been forthcoming to date.”
Rep. Johnson then addressed Ranking Member Smith’s arguments, noting that the CBO had estimated that the bill would cost only $1 million per year. [In reality, as I've previously discussed, the bill would almost certainly actually cost far less.]
Rep. Howard Coble (R-N.C.), the Ranking Member of the subcommittee that considered the bill, spoke next. As he did at the hearing, Rep. Coble criticized the Obama Administration for not taking a position on the bill. He also argued that “H.R. 569 still neglects to provide safeguards to prevent abuse.” In concluding his remarks in opposition, Rep. Coble argued that “[a]t a minimum I think the administration and Congress should provide appropriate resources to ensure that the military justice system is not detrimentally impacted and to ensure, Mr. Chairman, that appellants do not abuse this new appellate jurisdiction.” I honestly don’t know what sort of potential “abuse” Rep. Coble is concerned about.
Rep. Tom Rooney (R-Fla.) spoke next. Rep. Rooney, who served on active duty as an Army judge advocate, characterized the bill as an insult to the military justice system. He argued that the bill creates “an inference that we [clearly meaning Army JAG Corps members] have done something wrong. I take serious offense to it, and I urge people to vote no on this bill.” He also faulted the bill’s title for “impl[ying] an assumption of error or possible wrongdoing or even malfeasance by not only the JAG Corps, but the Department of Defense and the Army or any of the branches.”
He then proceeded to attack Norbert Basil MacLean III, though not by name, arguing that the bill was brought at the behest of “one gentleman who is now an Australian citizen who pled guilty in his court martial for writing bad checks and then sometime thereafter changed his mind.”
Rep. Rooney touted his military justice expertise, noting that he used to teach military law at West Point. Yet, incongruously, he offered an inaccurate description of the military appellate system. He stated, “Every court martial is automatically-automatically- reviewed by an appeals court from that individual branch.” I wish that were the case. But, as we know, about 20% of all GCM and SPCM convictions are never reviewed by any appeals court because they result in a subjurisdictional sentence. He continued, “Then if the CAAF determines . . . that there is a serious issue of constitutionality a writ of cert will be issued to the Supreme Court.” Uhm, not even close.
Rep. Rooney observed that the “Supreme Court has said time and time again that the military is a separate society.” He then read an excerpt from Goldman v. Weinberger, 475 U.S. 503 (1986), about the great deference that the Supreme Court must give “to the professional judgment of the military authorities concerning the relative importance of a particular military interest.” The Goldman opinion seems like something of an odd vehicle for opposing the bill considering that in 1987, Congress passed a bill to reverse the very Air Force reg that the Supremes upheld in Goldman. Pub. L. No. 100-180 (codified at 10 U.S.C. § 774).
Returning to the task of flogging NBM3, Rep. Rooney argued that CAAF’s judges “take these cases and they run them up to the Supreme Court on a case-by-case basis . . . that filters out the cases which may . . . crowd the docket of the Supreme Court to where it is truly important constitutional questions get there. And that does not include writing bad checks.” As one of the counsel in Weiss, I’m a bit amused by that statement, considering that systemic (though ultimately unsuccessful) challenge to the military justice system arose from a special court-martial conviction for shoplifting a $9 racquetball glove.
Rep. Louie Gohmert (R-Tex.) was the final member of the committee to speak about the bill. He began by noting that servicemembers don’t have the same rights as civilians and discussed the necessity of instant obedience to orders. Rep. Gohmert then argued, “Some people say those in Guantanamo Bay need to have the same rights as everybody else, an American citizen in order for that to be constitutional. If the military doesn’t have the same rights, they should not have the same rights.” This seems an odd argument, considering that a Guantanamo Bay detainee tried by a military commission or in U.S. district court would ultimately have a right to seek cert from the Supremes if convicted at the trial level and unsuccessful on appeal while a servicemember has the right to seek cert only if CAAF grants review. So U.S. servicemembers’ access to the Supreme Court is not only less than that of defendants in state or federal criminal proceedings, but actually less than that of alien unlawful enemy combatants.
After voting in favor of a resolution to impeach U.S. District Judge Thomas Porteous, Jr., the committee by voice vote favorably reported H.R. 569 as amended by the subcommittee to the full House.
Great post.
Quick question: Would service members still be entitled to full Tricare and other military benifits while pending appeal to SCOTUS?
If so, this would encourage people to appeal (just to keep the gravy train running, and not because of the merits of their case). Is all this extra healthcare costs be factored into the cost by CBO?
Now, when, once every two decades, a service member gets in front of the SC (usually the CG for some reason), and then also substantially wins their case, I have no problem reinstating benifits. Nor would I have a problem giving benifits retroactively, if only that was possible. Thoughts?
Steve,
The short answer is yes. And I agree with your point. When I testified last year at the subcommittee hearing on the bill, my written statement included the following: “The principal cost that this bill would create is some rise in expenditures due to prolonged appellate leave while convicted servicemembers seek certiorari or while the United States waits to see whether those servicemembers will exercise their right to seek certiorari.” Appellate leave is an active duty but no-pay status.
Thanks.
But your answer means that there is a significant incentive for appellants to continue the appeal process, just to keep benifits, regardless of the merits of their case.
What military appellant would not appeal to the SC?
I wonder how much Congressional support would fall away if that was widely known. Doesn’t sound like “equal” justice when convicts get free healthcare and other benifits just for extending their appeal.
But we have data that strongly suggest that isn’t the case. The great majority of those servicemembers who are eligible to file cert petitions under the current system don’t. The siren’s song of continued access to military medicate coverage hasn’t motivated behavior in the current system.
Many of the servicemembers I represent are eager to get their DD-214s — some because they view getting a new ID card every three months as a worthless hassle. In fact, I frequently receive complaints about the lethargic pace with which AFPC gets around to actually executing discharges for those on appellate leave whose appeals are complete. (NAMALA is far more efficient.) While we might think access to military medical coverage SHOULD influence behavior, my experience is that it rarely does. Similarly, while we might think that ending military medical coverage SHOULD influence the military to quickly discharge those servicemembers whose appeals are complete, at least in the Air Force it doesn’t seem to.
Interesting. I hope your anecdotal evidence is right if this thing passes.
I hope this bill passes. I like the idea of criminals’ hopes getting crushed at four different levels!!!
Its amazing people believe service members want to remain in legal purgatory and extend apellate leave.
Thats a jok right? I want to continue to held hostage by a system that screw me fro 15 years right?
Yes, after I have educated myself and earned almost three times as much as I would earned in the military?
Steve, conduct a poll on people on appellate leave see how many want to prolong the proverbial shaft.
most dudes dont care about medical coverage, they dont offer us the bst coverage anyway, once they dont u are on apellate leave you instantly get treated different.
Personally, once on appellate leave I realized there wa more dignity afforded the military inmate than the appellant on appellate leave by members of the military. Hell as an inmate you can demand to speak to the commanding officer and he or she would respond fortwith all you have to is be put in isolation. On appellate an e6 can give you the run arround it takes forever to get in contact with appellate counsel most of the time.Trust me no one cares about free healthcare when it comes to getting the hell out.
Yeah, what the previous dude said. The coverage we get after we get convicted of offenses, while not working for the taxpayer, just before we are booted to the curb is almost not worth what we pay for it. I’m realy pulling for Govt run health care then the care we get on appellate leave will be better by comparison.
All I ever wanted was my DD instead of any free benefits, because well, they treat you not as good as they would treat other servicemembers who are on AD and have not been convicted of crimes. It just seems so unfair.
Article from Legal Times blog by Marcia Coyle: http://legaltimes.typepad.com/blt/2010/02/bill-moves-to-allow-supreme-court-review-of-courtsmartial-decisions.html