On 27 January 2010, the House Judiciary Committee marked up the Equal Justice For Our Military Act of 2009.  During the markup (available here), Rep. Louie Gohmert (R-Tex.)  stated: 

[H]aving been in the Army 4 years, having been very familiar with the Uniform Code of Military Justice and the justice in the military, it is—people in the military do not have the same rights under the Constitution that everybody else does, even though it is constitutional because as the Supreme Court said, you have to have a system where under certain circumstances, people follow orders. 

. . . . 

They need to have a fair but separate system in order to protect us the way they have for over 200 years. 

So I really appreciate the efforts, but it is important to know what it will do to the discipline in the military. There doesn’t need to be this additional system in order to have fairness and constitutionality under the military that we need to protect us. 

Today, opposing prosecution of the SEALs, according to this CNN report, “Gohmert said those who bring harm to Americans should not get the same judicial treatment as U.S. citizens.  ‘They get all their constitutional rights. Well, we’ve got heroes around who deserve the constitutional rights of an even better caliber. And yes, there are different levels of constitutional rights,’ he said.”  Has Rep. Gohmert’s view of the rights that should be accorded U.S. servicemembers tried by court-martial expanded?  An enemy combatant tried either in U.S. district court or by military commission would have a right to ultimately seek Supreme Court review of his conviction.  Such an enemy combatant would also have a right to appeal his conviction regardless of sentence.  Would Rep. Gohmert favor providing those protections to U.S. servicemembers tried by court-martial?

30 Responses to “Will the SEALs cases change views of the military justice system?”

  1. Anonymous says:

    The notion that military accused don’t enjoy the full measure of constitutional rights is bullcrap.

  2. Norbert Basil MacLean III says:

    If the SEALs are convicted and are sentenced to subjurisdictional sentences (i.e. less than a year confinement and no punitive discharge) they have no right to appeal to CCA or CAAF. This would clearly demonstrate a flawed appellate system in unequal procedural due process protections. Because the enemy combatant who these SEALs caught, and brought to justice, would have greater appellate rights and an absolute right to appeal if convicted without regard to the sentence imposed. And also a free pass to petition SCOTUS for review.

  3. Steve Dallas says:

    Maybe the Congressman, while supporting the Seals, was making another point, that alleged terrorists should all be sent to military commissions.

  4. Dwight Sullivan says:

    Actually, it isn’t. A civilian can’t be sentenced to more than six months of confinement by a three-member jury. A civilian can’t be convicted of a felony based on the vote of a five member jury or based on a two-thirds vote of a larger jury. A civilian can’t be convicted by a jury chosen by the same government official who chooses to prosecute him or her. A civilian can’t be tried in a court presided over by a judge whose tenure is at the pleasure of an executive branch official. None of those constitutional protections applies to a servicemember tried by court-martial. And, of course, the Fifth Amendment’s grand jury provision specifically exempts the military.

  5. Dwight Sullivan says:

    Mr. Dallas, here’s what Congressman Gohmert said yesterday: “They get all their constitutional rights. Well, we’ve got heroes around who deserve the constitutional rights of an even better caliber.” That would seem state that members of the military (or at least THESE members of the military) should enjoy even MORE constitutional rights than a civilian — since the alleged terrorists receive “all” their constitutional rights and members of the military should have “even better.” And, of course, in some ways they do — such as the right to appointed counsel regardless of indigency.

    In any event, it’s hard to square what he said with opposition of the Equal Justice for Our Military Act, since an alleged terrorist tried in either U.S. district court OR military commission can ultimately reach the Supreme Court without having to obtain discretionary review at a lower level. So contrasting the rights available to alleged terrorists with those available to U.S. servicemembers should lead one to support the Equal Justice for Our Military Act.

  6. Southern Defense Counsel says:

    What we are seeing here is really what I like to call the Clint Eastwood effect. No one is upset that the SEALs are being Court Martialed because they are SEALs. They are upset that they are being punished for hurting a bad guy. If the same SEALs had CP on their computer or molested their step daughter these same blowhards would be screaming for sentence reform and how the MilJus system protects its own with light sentences etc.

    Bottom line: this is about nothing more than the idea that the SEALs gave the public what it wants which is instant gratification and punishment of the evil doer. The rule of law in this case is an inconvenience not an ideal. This really IMO has nothing to do with MilJus reform.

  7. Some Army Guy says:

    How was the Maynulet case appealed? I thought he received no punishment.

  8. Anonymous says:

    He was an O-3 sentenced to dismissal. The CA approved.

  9. Some Army Guy says:

    Anon 1047 — Thanks. So it was dismissal and nothing else? My memory was obviously very fuzzy on this one.

  10. Anon says:

    I think there’s an incorrect premise in this whole argument over the EJMA, that somehow one can only acheive “justice” and “fairness” if his case is subject to Supreme Court review. There is no constitutional right to an appeal at all, much less an appeal to the Supreme Court. So I don’t think the right to appeal is fairly included when there is a discussion of Constitutional rights.

  11. Anon says:

    no right to an appeal at all? Then how does one go about effectuating their right to due process?

    Perhaps there isn’t an explicit right to an appeal, but there has to be, logically, an implicit one.

  12. CPT Rob M says:

    I would agree that there is no constitutional right to an appeal. U.S. Const: Art III, Sec. 2, Cl. 2, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” That last part implies that any right to an appeal is statutory (at least w/r to the federal judicial system). Someone please correct me if there is any authority which explicitly states that an appeal is part of due process, but I think anon is right that there is no constitutional right to an appeal. (Note that is not the same issue as whether military personnel should have the same appellate rights or opportunities as civilians, whether by statute or otherwise).

  13. CPT Rob M says:

    Agree generally with both Dwight Sullivan and SDC. I think this is an example of the often tragic ignorance of some elected officials of a) what the constitution really says (the whole thing) and how it has been interpreted, b) what the rule of law requires, and c) the facts of the situation about which they are speaking.

    The last I heard about the SEAL cases, the accused were granted their sixth amendment requests to confront the witnesses against them, presumably at great expense to the government. They have also been informed of the nature and cause of the accusation and granted the assistance of counsel for their defense. I am also not aware of any violations of due process. It seems that the implication is that some nonspecific “rights” are violated by the very act of court martial, since the victim was a “terrorist” and therefore killing him is always justified, no matter what.

    Unfortunately, I believe the second of these two inconsistent statements was reflective of the prolific, oversimplified, and politically safe logic that U.S. troops = infallible, terrorists = bad. The earlier statement in opposition to MEJA may have been simple partisan politics (the D’s support it, I must oppose it) or part of the general conservative opposition to altering the military appellate system (see, e.g., United States v. Denedo, Roberts, C.J., dissenting). Most fundamentally, I’m sure that she did not even realize the inconsistency in the positions she had taken on those two occasions, since in the former she was standing up for the troops (good) and in the other she was arguing against politicians tinkering with a perfectly adequate military justice system they don’t really understand (bad).

  14. Dwight Sullivan says:

    CPT Rob M, you and Anon 1407 are exactly right. The Supreme Court has held many times that the “Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions.” Halbert v. Michigan 545 U.S. 605, 610 (2005).

  15. Anon says:

    CPT Rob M, I think you are confusing the Constitutions outlay of jurisdiction to the Supreme Court, and/or control of much of the same to Congress, with the idea that the right to due process must mean at some level the right to an appeal.

    I mean if there were no right to appeal of at least some sort in criminal trials, then how would due process violations at trials be figured out or addressed?

    You’d either to argue that the right to due process merely means, you get a trial, no matter how ate up it is, or you have to believe that the right to due process includes a right to have a trial reviewed in some matter (aka appealed) to insure that due process was observed.

    Yes, it may not be explicitly laid out, and it may even be allowably limited by Congress in the manner in which the right to an appeal is conducted.

    I think the more pertinent question is, is there any case law that says an appeal is not a part of due process and thus you do not have a right to it.

  16. Anon says:

    COL Sullivan, isn’t there a difference though, between there being NO right to appellate review, and no right to appellate review imposed on the States?

    How does Halbert in any way deal with an appellant having a right to appeal Federal Constitutional issues (or not)?

    I’d think the language would have been not “no oblication on the states” but simply “no right to an appeal period.”

  17. Dwight Sullivan says:

    Anon 1806:

    “There is, of course, no constitutional right to an appeal . . . .” Jones v. Barnes 463 U.S. 745, 751(1983).

  18. Norbert Basil MacLean III says:

    Setting aside the issue of right (or no right to appeal) how about an equal protections argument here concering the disparity in appellate rights of civilians, illegal aliens, and enemy combatants versus that of U.S. troops? Why should enemy combatants who our troops capture on the battlefield receive greater SCOTUS access than the SEAL, Marine or Solider who captures that suspected terrorist?

    Shouldn’t our troops be afforeded the same basic appellate procedures that even enemy combatants, illegal aliens and our civilians enjoy? After all, even though you shed your civilian clothes to wear the uniform at the end of the day you are still an American citizen (or legal alien).

    What I find interesting is that our allied countries (including my other home country of Australia) who serve alongside our forces have permitted their uniformed citizens access to their highest courts should their uniformed citizens be court-martialed. America appears to be the only democratic country on the face of the planet that does not afford their own uniformed citizens equal access to the highest court should that uniformed citizen (or legal alien) be court-martialed.

    Back when the Military Justice Act of 1983 was being considered Eugene Fidell pointed out that

    “[T]hat some of our sister common law countries, people with whom we share important legal and cultural traditions, have tended to permit their highest courts to review courts-martial appeals directly, The House of Lords, which is the highest court of England, has such a procedure, the Supreme Court of Canada has such a procedure, and the High Court, which is the highest court in Australia, has such a procedure.”

    See Hearing Before Subcommittee on Manpower and Personnel of the Committee of the Armed Forces United States Senate on S.2521 (97th Congress) (9, 16 September 1982) at p. 199).

  19. John O'Connor says:

    Those classes of defenants are not similarly situated, so equal protection is DOA. You could list a multitude of cases that recognize the government’s heightened need for obedience, discipline, expedition, etc., in the military context, and the broad discretion given to congressional choices about what the military justice sysem needs. Cases like Weiss, Levy, Middendorf, even Solorio. And that’s without even getting to the argument that all are treated equally because they all get an appeal if they are tried in federal district court.

    Don’t confuse policy druthers with constitutional requirements.

  20. Anonymous says:

    well then if there is no right to an appeal then one wonders how you can say there is a right to due process, because how else to effectuate the right to due process other than through the appellate process.

    It may be precedent, but IMO it’s incorrect precedent and makes no sense.

  21. Dwight Sullivan says:

    Anon 2009,

    The Constitution contemplates one means of guaranteeing the Fifth Amendment’s due process right as against the federal government — habeas. And, of course, Congress (like all the states) has chosen to create appellate courts.

  22. Anonymous says:

    problem is, habeus is being restricted to all beejebus.

    Still, that would qualify as a right to an appeal…of sorts.

  23. Norbert Basil MacLean III says:


    What about equal protection regarding the Government’s right to appeal to SCOTUS where relief was granted versus the servicemember being precluded if relief is not granted? (28 USC 1259(4))

    For example take the Denedo case: Had just one CAAF judge in the majority decided the other way against Denedo (3 – 2 siding with Judge Ryan’s dissent) no SCOTUS jurisdiction would have existed to enable Denedo to take his case to SCOTUS. Each party to the litigation should have equal protection to appeal to SCOTUS whether they win or lose or whether relief is granted or not granted.

    Simply level the playing field for all parties – both the Government and defendant.

  24. John O'Connor says:

    Equal protection between an accused and the sovereign? Not similarly situated. No dice.

  25. CPT Rob M says:

    It seems that I got the gender of Rep. Gohmert wrong in my first post; please replace “she” with “he” where appropriate.

  26. Socrates says:

    There is no RIGHT to appeal. However, IF an appeal system is established, then it must conform to the requirements of equal protection and due process. Not that anybody has suggested it, but just because there is no RIGHT to appeal does not mean “anything goes.”

  27. Balkan Ghost says:


    Your conclusion about rights in the military would have more force if you acknowledged the other side of the coin. To wit, military defendants enjoy:

    – free counsel, experts, appellate counsel regardless of indigency
    – a unanimous verdict is required to convene CM (any lower level commander can toss the case)
    – confrontational, discovery-focused grand jury
    – very few mandatory minimums in the military
    – military is in many places where the prospect of witness production is enough to thwart CMs (Iraq, Afg)
    – evidence that you’re good at your job is admissible on the merits as a defense (good soldier)
    – factfinders come from the same insular profession
    – more opportunities for clemency
    – broader reaching appellate review

    With these in mind, I reached a very different conclusion than you did.

  28. Dwight Sullivan says:

    Mr./Ms. Ghost, you seem to be arguing that the military justice system is better than the civilian system. I wasn’t addressing the issue of whether one system was better or worse than the other. I was addressing the assertion that “[t]he notion that military accused don’t enjoy the full measure of constitutional rights is bullcrap.” As I demonstrated, it isn’t bull (or any other kind) of crap. There are many constitutional rights that don’t apply at court-martial. While there are certainly aspects of the system that are superior to those of civilian criminal justice systems (as I have argued many times, including on this blog–and as I noted in this thread above regarding free counsel regardless of indigency), that doesn’t refute the reality that, in fact, a court-martial accused doesn’t enjoy the full measure of constitutional rights.

  29. Balkan Ghost says:

    Admittedly, having factfinders from the same insular society cuts both ways. I suspect, based on Australian Professor McCormack’s studies of 17 international instances of domestic trials of high profile wartime cases, that military factfinders are more likely to circle the wagons.

  30. Balkan Ghost says:

    Sorry, my last was a follow-up, not a response to your response.

    Based on Art I Cl 8 Sec 14, as well as CAAF determination of Constitutional rights (as I understand it in Justice Gierke’s article), these advantages comprise some of the Constitutional rights of servicemembers, which are admittedly different than most folks.