A friend o’ CAAFlog has alerted us that Rep. Kay Granger (R-Tex.) has introduced H.R. 5374, a bill obviously designed to reimburse the recently acquitted Navy SEALs for the cost of their civilian counsel, though the bill would reach beyond those three cases.

The bill would amend Article 27 by adding the following new subsection (d):

(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial.

(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case.

(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist.

(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.

The bill would apply retroactively to any applicable cases in which charges were “brought under the Uniform Code of Military Justice after September 11, 2001.”

There doesn’t appear to be any cap on attorneys’ fees under the bill.

The bill currently has 30 co-sponsors, all of them Republicans.

38 Responses to “Bill introduced to reimburse SEALs for the cost of their civilian counsel”

  1. Anonymous says:

    ridiculous, not the concept per se of reimbursing those acquitted if you are going to apply it uniformly across the board, but the concept of limiting it to those dealing with alleged beatings of alleged terrorists.

    Of course, republicans would agree with the first alleged and disagree with the second alleged.

  2. Cloudesley Shovell says:

    I believe the State of Washington has a similar provision for manslaughter/murder cases where the accused prevails on a self-defense claim. In such a case, the state pays all defense costs.

    Actually, it’s any crime of violence where self defense is used. RCW 9A.16.110.

    This federal provision, however, seems to be a pretty blatant effort to reimburse specific individuals via a law of apparent general application. It will also encourage over-charging by CAs (not that over-charging doesn’t happen already) to ensure that something sticks.

  3. Cheap Seats says:

    Oops, SO2, we are also referring for trial that 10-minute UA from 4 1/2 years ago…

  4. Anonymous says:

    Hope this Bill passes. Makes a lot of sense and may effectively “chill” overly zealous prosecutors and convening authorities.

  5. Quid pro quo says:

    Can the Government recoup cost of trial expenses from the accused and civilian defense counsel if there is a conviction?

  6. Anonymous says:

    This is the quite possibly the most ridiculous proposal I have ever seen.

  7. note says:

    Keep in mind this is not a serious policy proposal. Stuff like this exists so they can tell their base that they fought the good fight and tried to do this.

  8. Rob M says:

    What ever happened to the right to “civilian counsel at no expense to the government or miltiary counsel detailed at no expense to you, or both” [I may have gotten the wording slightly off]? It’s not like these guys were just-above-indigent defendants who had to pay for an attorney because they didn’t qualify for the public defender. They knew what they were getting into when they hired their own civilian counsel (as was their right).

    For that matter, how much out of pocket expenses did those three actually incur? Like all high-profile military defendants, they had hordes of internet supporters tripping over themselves to pay for the legal fees of “wrongfully accused, scapegoated heroes.”

    The bill would cover “fees incurred by an accused.” Not sure if it’s a drafting ambiguity or intentional use of the word “incurred” as opposed to “paid,” or the use of “fees” as opposed to “debts.” “Fees incurred” could be read to cover fees paid through fundraising by organized committees with euphemistic names like Freedom Alliance, Committee United for Liberty and America, Citizens League of Heroes, We Hate Terrorists, etc. (Which would then amount for a taxpayer subsidy of those organizations…that’s certain to go over well).

  9. Anonymous says:

    I’m not a Tea-Partier, but I love how these Representatives want to take my tax dollars to pay for this. Perhaps these 30 should just reimburse the “wrongly accused” themselves…

  10. Bridget says:

    There are many areas where military law is more generous to defendants. You need not prove you are indigent to get a MDC, unlike some circumstances with public defenders. You get a free lawyer.

    However, as civilian counsel always seeking to find a way to pay the bills, I say right on! If the these legislators want to start the custom of paying civilian defense counsel from the government trough, who am I to complain?

  11. Charles Gittins says:

    I was consulted on this and I told the staff that the legislation, if enacted, should be applied to any case where a civ counsel was retained and an acquittal or dismissal was obtained. They chose to make the political points, and in the effort, doomed the legislation to failure. I hate politics. This would be a good provision if generally applied — it would stop CAs from taking stupid cases to trial.

    CG

  12. Anonymous says:

    stupid is in the eye of the beholder . . .

  13. Mike "No Man" Navarre says:

    Bridget–
    Glad I read to the end, I couldn’t agree more. Who knows maybe with each case that get a political play eventually it will be expanded to cover every acquitted accused as Charlie Gittens apparently lobbied for. Just think CG, wait this out another 10 years and you’ll be a de facto government contractor. Maybe since what’s sauce for the goose is sauce for the gander, we could lobby to amend it to include Gitmo detainees acquitted or released without charges, yeah that’s the ticket.

  14. Bridget says:

    I especially like that it is retroactive. Wonder if getting charges dropped after a 32 counts?

  15. Cheap Seats says:

    So, if I read this correctly, SILT or back to NJP would still result in payment of the private counsel…nice! So a private counsel can advise the accused to refuse NJP, then negotiate it back, and get paid for the hassle.

  16. John Harwood says:

    This is insane. I was behind these guys all the way. However, they chose to be represented by civilians. They were entitled to MDC, and likely would have been assigned to senior, experienced TDC. They chose civilians instead. They should live with the choice – and it’s costs.

  17. Ary Dias says:

    Only if they should pay the fee instead of the taxpayers.

  18. DC Steve says:

    I understand that this is just political posturing, but what a slap in the face of military defense counsel everywhere. The bill’s proponents basically just called them second rate.

    Also, is anyone else concerned that an attorney cannot gennerally charge fees based on the result of a trial…but some members of the Government would allow payment only if there is a certain trial result?

    If, Congress in their infinite wisdom, believes that military counsel are not sufficient in certain catagories of cases, and that accuseds are not getting adaquate representation, then they should pay for civilian counsel regardless of the verdict (and stop detailing military lawyers).

    Sounds like we need to amend to the UCMJ to prevent UCI – Unreasonable Congressional Influence.

  19. Anonymous says:

    What overzealous prosecutors? Last time I checked, they do not have discretion to refer, withdraw or dismiss. And what overzealous convening authorities. I have never had a CA who had the time or inclination to be overzealous in a case. They are simply trying to accomplish the military mission.

  20. John O'Connor says:

    I agree with John Harwood.

  21. Gene Fidell says:

    This episode will be wonderful teaching material for law school Military Justice courses. I’m thinking of dedicating an hour to the SEALs cases this Fall.

  22. Thomas F. Hurley says:

    FWIW, I am not in favor of this legislation (if you hire someone…you pay’em), but it does bring up some age-old questions: (1) do civilians provide better representation than detailed military defense counsel? (2) if that is not always true, then when is it ever true? (3) should we even have detailed military defense counsel?

    My experience as a military defense counsel is that, on average, civilian defense counsel do about as well as military defense counsel. Sometimes better…sometimes worse, but about the same.

    I guess the final question for all of us as citizens and interested participants in the process is would subsidizing counsel of choice help or hurt the overall process. I don’t know on that one.

  23. W says:

    Take a look at court-martial numbers lately – the trend is distinctly downward. Overzealous? Please. It will just be used to drive costs up exponentially in order to gain greater leverage over CAs, who must pay for every court out of an operating budget. The good order and discipline underpinning of military justice is dying a slow death as a result. SPCMs that cost $50k? Good military character witnesses that must produced from the front lines of Iraq or Afghanistan? Honestly, the only good thing I can see in this is that it might have the effect of exposing what some kids pay civilian counsel iot receive the same level of representation they could’ve had for free.

  24. Socrates says:

    This merely means that many ridiculous proposals have heretofore escaped your attention.

  25. Bridget says:

    I am amused by this. Isn’t there something deliciously ironic about 30 of the more “conservative” (a word that has lost all meaning) Congress members submitting a bill to pay criminal defense lawyers? Really, this is downright funny.

  26. Phil Stackhouse says:

    Hey – that’s a great idea….not.

  27. Anon says:

    Having presided over hundreds of courts-martial, and having observed many civilian as well as military counsel, I believe it is impossible to generalize about the quality of the representation. I have seen good and poor from both. The two best counsel ever to appear before me were military — one a defense counsel and the other a prosecutor, but I also had several exceptional civilians. They had obviously spent a lot of time preparing their cases, they knew the facts and the law, and were effective advocates for their clients. And most importantly, I believe the clients got more than their moneys worth, although I don’t know for a fact what the civilians were paid.

  28. Balkan Ghost says:

    The foreign headlines will say: “Just a few years after Abu Ghraib, U.S. grants special treatment for soldiers charged with detainee abuse.”

  29. Anonymous says:

    “Special Treatment” for acquittals or dismissals only. No reimbursement if there are findings of guilt. This is a fantastic bill. I truly hope it passes.

  30. Anonymous says:

    My experience is that 90% of the time, you’d be just as well off or better going with military defense counsel, particularly in guilty pleas (why would you pay a civilian counsel for a guilty plea except in very rare cases?).

    There are certain counsel who are in certain areas where it is a no brainer to go with civilian counsel because of pure experience, talent, reputation, and track record of good results which you might only get the talent with the military counsel but not often the rest.

    There are other civilian counsel I’ve seen where a trained monkey (who can sign English of course) would do better for an accused.

    The vast majority of the time, if I were personally in trouble, I’d go with military counsel, particularly if I could IMC a few folks.

  31. Anonymous says:

    That kinda sounds to me like you are saying your odds are the same roughly whether you pay for civilian counsel or not.

  32. Anonymous says:

    Yes, too bad this wasn’t around for OJ

  33. fred says:

    W/ some exeption Civ DC pumps up an accused w/ unrealistic expectations to get the client, collects the pay check and bills the client for the work done.by TDS, and then gets a deal that would have been available 5 months and 10K earlier. Mr. CG and some others are exceptions to this but on the whole they are no different than the payday lenders and car dealers that prey on junior enlisted.

  34. Cap'n Crunch says:

    This is not going to discourage anything. If it were me drafting it, I would apply it across the board to any case where all charges are dismissed or a NG finding is made (but not to cases where the CA, through post-trial action, dismisses the charges). And then I would make 25% of the civilian attorney fees to be deducted from the CA’s pay and allowances and another 25% from the SJA. THAT is a real deterence.

  35. Balkan Ghost says:

    Great post, W.

  36. Phil Stackhouse says:

    I’m not sure what’s more funny – the fact that someone spent time drafting this legislation or the tools making general swipes at civilian counsel.

    Imagine the situations the the amendment creates – co-accused A and B hire CDC 1 and 2, respectively. Both are acquitted. CDC 1 charged $30,000 and CDC 2 charged $40,000. Both are getting paid their respective fees? I wonder if it would lead to some sort of price fixing. In fact, why not charge a $1,000,000 flat for each case. All you need to do is win one!

    As far as the pathetic sniping – you can’t make general accusations about civilian attorneys or any attorney for that manner. I know guys that have practiced for 30 years I wouldn’t let carry my briefcase – and I know others that have been out of law school for a year that were fabulous.

    Each accused should do research on and ask questions of any counsel they are going to retain and they should be comfortable asking their DC questions as well. An accused needs to be comfortable with their counsel and the representation they receive.

  37. Scott says:

    Well said Mr. Stackhouse. As a JA I have learned a great deal (good and bad) from working with civilian counsel.

    I also agree this is ridiculous. I was upset enough at the notion that Navy SEALs are infallible and should for some reason be protected from prosecution soley because of their specialty. Where was the Congressional uproar when young Army soldiers were scape-goated for Abu Ghraib or when Marines were on trial for Haditha or Hamdaniya? And now we are going to reimburse them for attorney’s fees? I am at a loss…

  38. ksf says:

    The concept of reimbursing for attorney’s fees is similar to the statute providing for reimbursment of victorious appeals for attorneys representing Veterans at the Court of Appeals for Veterans Claims…….except that Veterans are not entitled to free military counsel to represent them before that Court.

    As a CDC I like the legislation. However, it should apply across the Board, particularly on false rape charges.