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.

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.

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.

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

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.

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

Don’t confuse policy druthers with constitutional requirements.

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).

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

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.”

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.

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).

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

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.