Bill Moves To Allow Supreme Court Review of Courts-Martial Decisions

The House Judiciary Committee has approved a bill that would expand the jurisdiction of the Supreme Court, allowing it to review petitions filed by military service members challenging courts-martial decisions.

Under current law, a service member is barred from petitioning the high court if the U.S. Court of Appeals for the Armed Forces (CAAF) has refused to review his or her court-martial appeal or has denied a writ for extraordinary relief.  The only exception is when someone is sentenced to death. In contrast, the government has the right to petition the justices in any case referred to the CAAF.

Committee members, by voice vote last week, sent the full House the Equal Justice for Our Military Act of 2009, sponsored by Rep. Susan Davis (D-Calif.). The bill is supported by the American Bar Association, the National Association of Criminal Defense Lawyers, the District of Columbia Bar Association, the Fleet Reserve Association, the Jewish War Veterans Association, the Military Officers Association of America, and the National Institute for Military Justice.

The House passed a similar measure late in the last session after foregoing the usual committee review. Time ran out for consideration by the Senate. The measure was opposed by the Bush Administration’s Department of Defense which argued that it would be costly, and would burden the Supreme Court.

The Congressional Budget Office had estimated that the increased workload of government attorneys and court clerks would cost about $1 million annually.

The ABA strongly challenged that estimate in a December letter to House Judiciary Chairman John Conyers (D-Mich.). “The estimate is erroneously predicated on an assumption that several hundred cases will be filed, when in fact, past patterns predict that the number of petitions will be minimal,” wrote Thomas Susman, director of government affairs.

Susman also told the committee, “There is no justification for a system that permits the government access to the Supreme Court on any issue certified by a Judge Advocate General while completely denying access in all non-capital cases to service members who cannot persuade CAAF to grant discretionary review.”

In the last 10 years, petitions filed with CAAF have averaged between 800-900 annually, according to the court’s annual reports. The court has granted review on average to about 144 per year.

The Obama Administration has not yet taken a position on the bill, something that clearly irritated some Republican members on the committee during last week’s meeting.

“After more than a month of notice and planning, the administration refused to cooperate with the subcommittee and declined to either produce a witness or submit written testimony for the committee to consider in evaluating the bill,” said Rep. Lamar Smith (R-Tex.), adding this might mean the administration has “serious concerns” about this bill.

Smith also argued that the bill’s benefits would be “negligible” because few if any petitions would be granted.

“Well, tell that to a service member who feels she was denied her day in court because the CAAF chose not to hear her case,” countered Rep. Henry Johnson (D-Ga.). “Besides, if the low number of cases the Supreme Court takes is a legitimate reason for denying service members access, then why should anyone be granted the right to appeal to the Supreme Court?”

Davis has once again teamed up with Sen. Dianne Feinstein (D-Calif.) who is chief sponsor of a companion bill in her chamber. Supporters are hopeful that the House will vote on the bill at the end of this month or in early March.

Comments

[Sidney Gendin]

I was under the impression that Obama is Commander-in-Chief of the military. Thus the buck stops with him. Every example of a military injustice is an example of Obama injustice. Nothing prevents him from intervening in military courts-martial.