    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                      EQUAL JUSTICE FOR OUR MILITARY ACT
                                    OF 2009

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           SUBCOMMITTEE ON COURTS AND
                               COMPETITION POLICY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                    H.R. 569

                                   __________

                                 JUNE 11, 2009

                                   __________

                               Serial No. 111-79

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

           Perry Apelbaum, Majority Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

                 Subcommittee on Courts and Competition Policy

               HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman

    JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
    RICK BOUCHER, Virginia               JASON CHAFFETZ, Utah
    ROBERT WEXLER, Florida               BOB GOODLATTE, Virginia
    CHARLES A. GONZALEZ, Texas           F. JAMES SENSENBRENNER, Jr.,
    SHEILA JACKSON LEE, Texas            Wisconsin
    MELVIN L. WATT, North Carolina       DARRELL ISSA, California
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    MIKE QUIGLEY, Illinois

                        Christal Sheppard, Chief Counsel

                        Blaine Merritt, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 JUNE 11, 2009

                                                                       Page

                                    THE BILL

    H.R. 569, the ``Equal Justice for Our Military Act of 2009''.....     3

                               OPENING STATEMENTS

    The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
      Congress from the State of Georgia, and Chairman, Subcommittee
      on Courts and Competition Policy...............................     1
    The Honorable Howard Coble, a Representative in Congress from the
      State of North Carolina, and Ranking Member, Subcommittee on
      Courts and Competition Policy..................................     5

                                   WITNESSES

    The Honorable Susan A. Davis, a Representative in Congress from
      the State of California
      Oral Testimony.................................................     7
      Prepared Statement.............................................     9
    Mr. Dwight H. Sullivan, Attorney, Washington, DC
      Oral Testimony.................................................    12
      Prepared Statement.............................................    14
    Major General (Ret.) John D. Altenburg, Jr., Attorney,
      Washington, DC
      Oral Testimony.................................................    20
      Prepared Statement.............................................    22

                                    APPENDIX

    Material Submitted for the Hearing Record........................    35

                      EQUAL JUSTICE FOR OUR MILITARY ACT
                                    OF 2009

                                  ----------

                            THURSDAY, JUNE 11, 2009

                  House of Representatives,
                     Subcommittee on Courts and
                                     Competition Policy
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 10:03 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Henry
    C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee)
    presiding.
        Present: Representatives Johnson, Conyers, Gonzalez,
    Jackson Lee, and Coble.
        Staff present: Eric Garduno, Majority Counsel; Rosalind
    Jackson, Majority Professional Staff Member; and David Whitney,
    Minority Counsel.
        Mr. Johnson. The Subcommittee on Courts and Competition
    Policy will now come to order.
        Without objection, the Chair will be authorized to declare
    a recess of the hearing.
        And I will now yield so much time to myself as I may
    consume.
        Good morning and welcome to the Subcommittee's hearing on
    H.R. 569, the ``Equal Justice for Our Military Act of 2009.''
        H.R. 569 is intended to allow all members of the Armed
    Forces broader access to discretionary review of courts-martial
    decisions by the United States Supreme Court.
        It is important to highlight for this hearing that there
    are two categories of cases where accused service members do
    not currently have the right to seek Supreme Court review.
        The first are cases that the court of appeals for the Armed
    Forces, CAAF, decides not to review. In essence, if the CAAF
    refuses to hear a case, the Supreme Court is precluded from
    hearing it on direct appeal.
        According to the Defense Department statistics,
    approximately 84 percent of all cases appealed to the CAAF are
    denied review and, thus, are denied the opportunity to seek
    further direct appellate review by the Supreme Court.
        The second category of cases are those that involve
    petitions for extraordinary relief or interlocutory appeals in
    which the CAAF denies relief.
        In other words, if the CAAF denies an accused service
    member extraordinary relief or an interlocutory appeal, that
    decision cannot be reviewed by the Supreme Court.
        This is particularly troubling because in these cases, the
    government has the right to appeal CAAF decisions to the
    Supreme Court if they are granted relief, thus creating what
    some might consider a double standard in favor of the
    government.
        The bill before us, H.R. 569, would permit direct Supreme
    Court review in both these types of cases.
        The central question before this Committee today is whether
    the current limits on judicial review are justifiable.
        Opponents of H.R. 569 argue that removing these limits may
    increase the government's costs and result in a substantial
    workload for military lawyers, the Department of Justice, and
    the United States Supreme Court.
        Opponents say these additional burdens are unnecessary
    because the military offers a comprehensive appellate process
    that provides greater review than what is available in the
    civilian justice system.
        Some also say that permitting such opportunity for review
    lessens the authority of the CAAF and the military justice
    system, which could ultimately threaten the discipline and
    order of the military.
        Proponents of H.R. 569 counter that service members who
    risk their lives protecting our freedoms and rights should also
    have those same freedoms and rights available to them to the
    fullest extent possible, even if it means additional costs.
        Proponents further point out that greater access to the
    Supreme Court will not negatively impact the authority of the
    CAAF or the military justice system, since the Supreme Court
    already has jurisdiction to review many of the cases decided by
    the CAAF.
        Today, we have three witnesses to testify regarding H.R.
    569. When we originally scheduled this hearing, we had a total
    of five witnesses; but due to scheduling conflicts, the ABA
    president and his designee were not able to attend and the
    Administration has decided not to send a witness.
        While I was initially disappointed that the Administration
    was not able to send a witness, I take it as a sign that the
    Obama administration is taking a hard look at the legislation
    and will ultimately take a different position regarding the
    legislation than the previous Administration.
        I now recognize my colleague, Howard Coble, the
    distinguished Ranking Member of the Subcommittee on Courts and
    Competition Policy for his opening remarks.
        [The bill, H.R. 569, follows:]

                                   __________
        Mr. Coble. Thank you, Mr. Chairman. And I move to strike
    the last word.
        Today's hearing, folks, will focus on H.R. 569, a bill that
    proposes amendments to the Federal judicial code and the
    uniform code of military justice, properly known as UCMJ.
        The purpose of these proposed amendments is to grant the
    Supreme Court greater discretionary jurisdiction to review
    appeals from service members who have been court-martialed and
    sentenced to a bad conduct or dishonorable discharge, dismissal
    or confinement to 1 year or more.
        I commend the sponsor of H.R. 569, Representative Susan
    Davis, our colleague, for her commitment to improving the
    circumstances and conditions of those who volunteer their
    service and, in some cases, their lives in the defense of our
    Nation.
        This is the third Congress that Representative Davis has
    introduced legislation on this topic.
        In the past, we have elicited views from the affected
    agencies, departments and the judiciary branch to evaluate the
    legislation before us.
        If there is no objection, Mr. Chairman, I would like to ask
    that letters from the Department of Defense and the Supreme
    Court be made a part of the official record, regarding the
    issue at hand.
        Mr. Johnson. Without objection.
        Mr. Coble. That said, it is regrettable, and you just
    touched on it, Mr. Chairman, that while today's hearing marks
    the first real legislative review of this legislation, the
    Administration has refused to send a witness to testify, and I
    think this is a mistake.
        And it appears to me that the Administration has chosen to
    go AWOL on this matter today. This marks the second time in 90
    days that the Administration has been missing in action before
    this Subcommittee, in a hearing where Members are reviewing
    proposals that relate directly to our service members.
        I am sure General Altenburg and Colonel Sullivan, who have
    arranged their schedule three times so they could be with us,
    can probably tell us the range of penalties the UCMJ prescribes
    for failure to report for duty, if you will pardon my inserting
    a little humor in this. But unfortunately, the civilian
    employees of the Office of Management and Budget and the
    Department of Justice are not subject to the UCMJ's
    disciplinary provisions.
        Mr. Chairman, in closing, I want to note that we need to
    insist that the Administration does, in fact, take seriously
    its obligation to respond to our requests for information.
        This is particularly true when matters before this
    Subcommittee and the full Committee, for that matter, directly
    impact the rights of service members, their resources and
    requirements of our armed services, and the administration of
    our judicial system.
        I look forward to learning more about the intricacies of
    the matter from the witnesses who are here today and hope for
    the Administration to come back to us in the near future with
    any further thoughts that they may have on the subject before
    us.
        This concludes my opening remarks, Mr. Chairman, and I
    yield back.
        Mr. Johnson. Thank you, Mr. Ranking Member, for your
    statement.
        And without objection, other Members' opening statements
    will be included in the record.
        I am now pleased to introduce the witnesses for today's
    hearing. Our first panel will feature Congresswoman Susan
    Davis. Representative Davis represents California's 53rd
    congressional district, which encompasses large portions of San
    Diego.
        Representative Davis has a deep understanding of military
    affairs, as she serves with me and others on the Armed Services
    Committee, where she Chairs the Subcommittee on Military
    Personnel.
        She has also had substantial personal exposure to military
    life as the daughter of a World War II medic and wife of an Air
    Force doctor.
        Welcome, Representative Davis.
        Mrs. Davis. Thank you.
        Mr. Johnson. And I really appreciate your evenhandedness in
    dealing with all of the issues that come before our
    Subcommittee, and you are a great leader.
        Now, our second panel will begin with Colonel Dwight H.
    Sullivan. Colonel Sullivan is a civilian senior appellate
    defense counsel at the Air Force Appellate Defense Division and
    he is a Colonel in the United States Marine Corps Reserve.
        He has served as the Chief Defense Counsel for the Office
    of Military Commissions and he has also served as a Managing
    Attorney with the ACLU of Maryland.
        He is a co-author of ``Military Justice: Cases and
    Materials,'' which is a case book published by LexisNexis in
    2007, and he is co-editor of ``Evolving Military Justice,''
    which is an anthology published by the Naval Institute Press
    back in 2002.
        Welcome, sir.
        Second will be Major General John D. Altenburg, Jr., who is
    now retired from the United States Army and is a principal with
    the Washington, D.C. office of Greenberg Traurig, an
    international law firm.
        Before joining Greenberg Traurig in 2002, he was a
    consultant on governance and ethics issues to the President and
    the World Bank Group.
        General Altenburg has served as the Appointing Authority
    for Military Commissions. General Altenburg also concluded a
    28-year Army career in 2001 as the Deputy Judge Advocate
    General of the Army.
        Welcome, General.
        Thank you all for your willingness to participate in
    today's hearing.
        Without objection, your statements, your written statements
    will be placed into the record, and we would ask that you limit
    your oral arguments or your oral remarks to 5 minutes.
        You will note that we have a lighting system that starts
    with a green light and at 4 minutes, it turns yellow, then red
    at 5 minutes.
        After each witness has presented his or her testimony,
    Subcommittee Members will be permitted to ask questions,
    subject to the 5-minute rule.
        Representative Davis, would you please proceed?

    TESTIMONY OF THE HONORABLE SUSAN A. DAVIS, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Mrs. Davis. Thank you very much. Thank you, Chairman
    Johnson, Ranking Member Coble, and Members of the Committee. I
    certainly do want to thank you for taking the time to hold this
    hearing, as well as giving me the opportunity to testify and
    submit my remarks for the record.
        When American men and women decide to serve their Nation in
    the Armed Forces, they make many sacrifices, from lost time
    with families to injury to irreplaceable loss of life.
        Most Americans, however, are not aware that active duty
    service members also sacrifice one of the fundamental legal
    rights that all civilian Americans enjoy.
        Under current law, members of the military who are
    convicted of offenses under the military justice system do not
    have the legal right to appeal their cases to the U.S. Supreme
    Court.
        After exhausting their appeals to the United States Court
    of Appeals for the Armed Forces, what we know as CAAF, most
    have no recourse.
        This issue was brought to the attention of my office years
    ago by a then constituent of mine, a former service member who
    had concerns about the military justice system.
        He has since become a tireless champion for this issue and
    other military justice reform issues on behalf of the service
    members and veterans that fall under the jurisdiction of those
    courts.
        As the Chairwoman of the Subcommittee on Military
    Personnel, a long-time advocate for service members, and a
    representative of San Diego, one of the largest military
    communities in the Nation, I feel an obligation to fight to
    ensure that the members of our military are treated fairly.
        It is unjust to deny members of our Armed Forces access to
    our system of justice as they fight to preserve this very
    system.
        The Equal Justice for Our Military Act, H.R. 569, amends
    U.S. Code to permit convicted service members to appeal to the
    Supreme Court in cases where their petitions for review by the
    Court of Appeals for the Armed Forces have been denied, as well
    as in situations where the military court has denied an
    extraordinary writ or writ appeal.
        This remedial approach would provide service members with
    due process, access to discretionary Supreme Court review
    similar to that which is permitted the government.
        This legislation has been endorsed by the American Bar
    Association, the Military Officers Association of America, and
    many other military and legal advocates.
        Last Congress, this bill was passed by voice vote on the
    House floor and, in addition, the Senate Judiciary Committee
    unanimously approved companion legislation introduced by
    Senator Dianne Feinstein.
        I believe it is fundamentally unjust to deny to those who
    serve in uniform on behalf of our country one of the basic
    rights afforded to all other Americans. They deserve better.
        I certainly hope that you will join me in support of this
    legislation to attain equal treatment for those who fight for
    our country.
        Chairman Johnson, once again, thank you very much, Mr.
    Coble and others, for the opportunity to submit my remarks for
    the record, and I look forward to working together on this
    issue.
        Thank you.
        [The prepared statement of Ms. Davis follows:]

              Prepared Statement of the Honorable Susan A. Davis,
           a Representative in Congress from the State of California

                                   __________
        Mr. Johnson. Thank you, Madam Chair, and we thank you for
    your appearance today.
        And I will now call forward the second panel.
        Colonel Sullivan, are you ready to proceed, sir?
        Colonel Sullivan. Yes, sir.
        Mr. Johnson. Please.

       TESTIMONY OF DWIGHT H. SULLIVAN, ATTORNEY, WASHINGTON, DC

        Colonel Sullivan. Mr. Chairman, Ranking Member Coble,
    Members of the Committee, I am grateful for the opportunity to
    speak with you this morning about the Equal Justice for Our
    Military Act.
        At the outset, I would like to emphasize that I am speaking
    strictly in my personal capacity. I am not speaking for the Air
    Force, the Marine Corps, DOD, and nothing I say should be
    imputed to anyone but myself.
        For the last 2 years, I have represented Air Force members
    appealing court-martial convictions as a civilian lawyer. And
    as a reserve lawyer in the Marine Corps, I have represented
    sailors and Marines appealing court-martial convictions.
        Now, before that, I was the chief defense counsel for the
    Office of Military Commissions. So I was the head of the office
    that provided defense counsel for Guantanamo detainees being
    tried by military commissions.
        In 2006, in the Military Commissions Act, Congress gave
    every alien, unlawful, enemy combatants the right to seek
    Supreme Court review if they are convicted by a military
    commission, and that is codified at 10 USC 950g.
        But most American service members who are convicted by
    court-martial have no right to seek Supreme Court review on
    direct appeal.
        So alien, unlawful, enemy combatants at Guantanamo Bay have
    a greater right to seek Supreme Court review than do the
    American soldiers, sailors, Marines and airmen who guard them.
        Members of the U.S. military also have less of a right to
    seek Supreme Court review than do civilian state defendants,
    civilian defendants in U.S. district courts, and they also have
    less of a right to seek Supreme Court review than does the
    prosecution in a court-martial case. And H.R. 569 would largely
    correct these imbalances.
        Now, perhaps it would be helpful to the Committee to have
    an overview of the military justice system, using fiscal year
    2008 as an example, to see how this plays out in practice.
        Worldwide, in fiscal year 2008, the five branches of the
    armed services, combined, tried about 3,000 courts-martial, a
    little bit more than 1,000 general courts-martial, which is the
    felony forum, a little bit less than 2,000 special courts-
    martial, for a combined total of 3,008 court-martial cases
    worldwide.
        Now, of those, a little bit more than 2,000 resulted in a
    conviction and a sentence that authorized the case to go on
    appeal under 10 USC 866.
        And what happens is after the same officer who convenes the
    court approves the results, the case goes on appeal to one of
    the four Courts of Criminal Appeals, which are intermediate
    appellate courts that sit in the Washington, D.C. area, most of
    which are comprised of senior uniformed military lawyers.
        And again, about 2,000 cases went on appeal to those four
    courts in fiscal year 2008.
        Now, once the case is done at that level, the service
    member can petition the Court of Appeals for the Armed Forces,
    or what we call CAAF, for further review.
        Now, CAAF consists of five civilian judges--by statute,
    they must be civilians--appointed by the President, confirmed
    by the Senate, for 15-year terms.
        It is an Article I court, but it functions much like one of
    the geographic courts of appeals reviewing criminal
    convictions, but with one crucial difference, and, that is, if
    you are convicted in U.S. district court, you have a right of
    appeal to one of the courts of appeals.
        If you are convicted by a court-martial and your case goes
    on appeal to the Court of Criminal Appeals, you have to file a
    petition and ask CAAF to exercise discretionary review.
        Now, there are two categories of cases that CAAF must hear.
    If there is an approved death sentence in a case, CAAF has to
    hear that case. Congress has said so.
        And then, also, the Judge Advocate General of the service,
    the top uniformed lawyer in each of the military services, can
    require CAAF to review a case.
        And so in practice, that provides the prosecution with a
    guaranteed right of appeal to CAAF, because if the prosecution
    loses at the intermediate appellate court, the Judge Advocate
    General can require CAAF to review that case.
        Once the case goes through CAAF's door and review is
    granted, it qualifies for Supreme Court review. So again, the
    prosecution has an automatic avenue to the Supreme Court,
    because the Judge Advocate General can certify the case to
    CAAF, which then results in Supreme Court review.
        So turning, again, to fiscal year 2008, there were a total
    of 134 cases that CAAF reviewed either because they granted a
    petition, part of their discretionary docket, or because one of
    the Judge Advocates General directed that they review that
    case, 134 cases.
        Now, of those 134 cases, ultimately, 20 went on to
    qualify--20 went on to file cert petitions. So most of these
    cases do not result in cert petitions, even after the door to
    the Supreme Court has been opened.
        There were another 715 cases where CAAF denied review and,
    as best as I can tell, those 715 service members whose
    petitions were denied are the only Americans convicted in a
    criminal court who did not have the right to seek Supreme Court
    review, and they didn't have that right because they were
    members of the U.S. military.
        And again, H.R. 569 would largely correct that imbalance
    and provide U.S. service members with a similar right to seek
    access to the Supreme Court.
        Thank you.
        [The prepared statement of Colonel Sullivan follows:]

                    Prepared Statement of Dwight H. Sullivan

                                   __________

        Mr. Johnson. Thank you, Colonel Sullivan.
        General Altenburg, are you ready, sir?
        General Altenburg. I am, sir.
        Mr. Johnson. Please proceed.

       TESTIMONY OF MAJOR GENERAL (RET.) JOHN D. ALTENBURG, JR.,
                        ATTORNEY, WASHINGTON, DC

        General Altenburg. Chairman Johnson, Ranking Member Coble,
    and distinguished Members of the Subcommittee on Courts and
    Competition Policy, I thank you for the opportunity to discuss
    the proposed Equal Justice for Our Military Act of 2009.
        I request that my written statement be made a part of the
    record of this hearing. I would also like to provide a context
    for the Committee's review and discussion when considering the
    proposed legislation.
        I served as an enlisted soldier in the 1960's for several
    years and then subsequently, after I attended law school, I
    came back and served as an officer for 28 years, and I think
    that gives me not a unique perspective, but certainly a little
    different perspective on these matters.
        For purposes of this discussion, I am going to assume that
    I am an accused soldier and then an accused civilian, and I am
    going to compare and contrast my appellate rights as a military
    service member both before the 1983 amendments and after, and
    then compare them, also, to my appellate rights as a civilian.
        In the military, if the sentence includes either a punitive
    discharge or confinement exceeding a year, then my military
    case is appealed automatically to the intermediate appellate
    court, both before and after the 1983 amendments to the UCMJ.
        If I am a civilian, there is no automatic appeal, unless it
    is a capital case, and I must exercise my right to appeal to
    the intermediate appellate court. There is no automatic appeal.
        In the military, all costs of an appeal to the intermediate
    appellate court are borne by the government, both before and
    after the 1983 amendments.
        Unless I am indigent, I must pay all those costs, like
    filing fees and court costs, associated with an appeal to the
    civilian intermediate appellate court.
        In the military, I am provided an appellate counsel through
    all levels of appeal at no expense to me, both before and after
    the 1983 amendments.
        In the civilian sector, I must retain my own attorney to
    appeal to the civilian intermediate appellate court, again,
    unless I am able to establish that I am indigent.
        Both before and after 1983, I may retain, in addition to my
    military appellate counsel, a civilian appellate counsel at my
    own expense.
        In the civilian sector, I may retain, at my own expense, a
    civilian appellate counsel for the civilian appellate court,
    unless I have been appointed a counsel based on my being
    indigent.
        In the military, the intermediate appellate court, both
    before and after 1983, conducts not only a legal review, but,
    also, a factual review of the entire record of trial and has
    the authority to make factual findings in addition to reviewing
    the record for legal sufficiency.
        In fact, the convening authority in the military system who
    reviews the case after my trial court has convicted me must
    disapprove any finding, any guilty filing, unless he or she is
    convinced beyond a reasonable doubt that I am guilty.
        There are three different entities that must be convinced
    beyond a reasonable doubt of each element of the offense to
    convict and to uphold my conviction.
        The trial court must be convinced beyond a reasonable
    doubt, the convening authority must be convinced beyond a
    reasonable doubt upon the review, and the intermediate
    appellate courts must be convinced beyond a reasonable doubt
    upon review.
        There is no corollary in the civilian sector. The civilian
    appellate court is almost always limited to finding legal
    errors only in my record of trial. There is no factual review.
        I may choose to appeal the decision of the intermediate
    appellate military court by petition to the highest military
    court, as we have said earlier, the CAAF, both before and after
    1983.
        I may choose to appeal the decision of the intermediate
    appellate court in the civilian sector by petition to the next
    higher appellate court.
        My appeal in the military to the highest military appellate
    court is free. My military appellate counsel is provided for
    me. I may also retain civilian appellate counsel at my own
    expense. This is true both before and after the 1983
    amendments.
        In the civilian sector, I must pay all expense and I must
    pay my appellate attorney to appeal to the next higher
    appellate court, unless I am indigent.
        If the petition to the highest military appellate court is
    denied, then I may bring a collateral attack in Federal
    district court both before and after 1983.
        The collateral attack may proceed through Federal
    district--through Federal intermediate appellate court and then
    to the Supreme Court of the United States.
        If the petition to the next higher civilian appellate court
    is denied in the civilian sector, then I may petition the
    Supreme Court of the United States, as Mr. Sullivan has
    indicated.
        In the military, after 1983, if my petition to the highest
    military appellate court is granted, but the appeal itself was
    denied, then I may petition directly to the Supreme Court of
    the United States.
        To review the differences today, in the military, there is
    an automatic appeal of all cases by either an SJA or the Judge
    Advocate General and, if more than a year confinement, then by
    the court of criminal appeals.
        In the civilian, there is only an automatic review in
    capital cases.
        In the military, counsel is provided. In the civilian, they
    are not provided, unless indigent.
        In the military, all costs are paid by the government. In
    civilian, the costs are paid by the appellant.
        In the military, there is an appellate court factual
    review. In a civilian court, there is no factual review.
        This concludes my comments.
        [The prepared statement of General Altenburg follows:]

           Prepared Statement of Major General John D. Altenburg, Jr.

                                   __________

        Mr. Johnson. Thank you, General Altenburg.
        And I will now begin questioning, granting myself so much
    time as I may consume.
        I want to ask you both. There currently is no effective
    date indicated in the text of the bill or language discussing
    how pending cases may be dealt with.
        Assuming the bill is passed, how do you think pending cases
    should be handled?
        Colonel Sullivan. You raise a very good point, Mr.
    Chairman, because if this bill was passed, there would actually
    need to be a change to the Supreme Court rules to provide the
    time within which the cert petition would be filed.
        So there would need to be some opportunity after the date
    of enactment to provide the Supreme Court with that
    opportunity.
        When Congress passed the Military Justice Act of 1983, it
    made the bill take effect on the first day 8 months from the
    date of enactment. And so it seems that it would probably be
    wise to have a similar standoff period built into the bill, Mr.
    Chairman.
        Mr. Johnson. Thank you.
        General Altenburg. I agree, Mr. Chairman.
        Mr. Johnson. Okay, that was easy. All right.
        Now, there are conflicting opinions and uncertainty in the
    written testimony concerning how much H.R. 569 is going to
    cost.
        Can each of you provide your best guess as to whether
    additional costs will be substantial and whether you think they
    are worth the greater access to Supreme Court review provided
    by H.R. 569?
        Colonel Sullivan. The cost of filing a cert petition
    consists mainly of printing costs. It costs about $1,000 to
    print a cert petition.
        So the main cost of this bill will be 1,000 times however
    many additional cert petitions are filed by counsel. And I say
    by counsel, because the--right now--I mentioned that there were
    20 cert petitions filed in the last term by military members.
        Twelve of them were written by military appellate defense
    counsel, two of them were written by civilian counsel hired by
    the service member, and the other six were filed pro se.
        And why these cases get filed pro se is--a member of the
    Supreme Court bar may not file a frivolous cert petition. The
    Supreme Court has been emphatic about that, in cases like
    Austin v. United States.
        So what happens in some cases is the client says, ``I want
    to go to the Supreme Court.'' The defense counsel says, ``I
    can't petition your case, because there is no non-frivolous
    issue.'' And then in that instance, the counsel helps the
    client file a pro se petition.
        Those the government doesn't pay anything for, because they
    are just typed out at the U.S. Disciplinary Barracks or
    wherever the member is.
        So if the number of Supreme Court petitions doubles under
    this bill, if the number of petitions prepared by military
    counsel doubled, it would be an additional expenditure of about
    $15,000, which seems to be a drop in the bucket.
        And certainly, the principle of equal access, I would say,
    is worth far more than that.
        General Altenburg. I would defer to Mr. Sullivan's
    experience and knowledge about the appellate system, as I don't
    have the direct experience in appellate work that he does.
        And I have talked to people in the military, and I think I
    have seen a document about a month ago that talked about over
    $1 million to do this, and I can't say personally as to what I
    think it would cost.
        I do think that there would be more than double the number
    of petitions. There are, by Mr. Sullivan's own account, 715
    were denied and to think that only 20 of them or 30 of them
    would want to petition the Supreme Court, I think, is seriously
    underestimating what would happen with this legislation.
        More significant, I think, than the filing costs and the
    cost to have appeals or to petition the Supreme Court is the
    fact that it would take additional manpower resources. And I
    think that is one of the reasons that the Congress might
    consider going a little bit slow on this legislation and at
    least having some type of analysis and empirical study of what
    the costs would be to implement this legislation.
        Each major or captain in the JAG corps of one of the
    services that would have to be provided to make sure that this
    is a meaningful benefit or advantage to the individual military
    member.
        It is going to be one who is not going to be advising a
    combat brigade in the Balkans or on a peacemaking operation or
    in Afghanistan or somewhere else in the world.
        And I have personal knowledge that the legal resources of
    all the services are stretched quite a bit based on the
    contingencies that we address around the world, both combat and
    otherwise.
        And so I think that that is something that must be looked
    at hard, is what resources is it going to require from the
    military in terms of their respective JAG corps to make this
    work.
        And there will be people on both the defense side to advise
    all the petitioners and then the government is going to have to
    provide counsel, also.
        I don't know what it would cost, but I believe that the
    Congress should look at that very carefully.
        Mr. Johnson. So basically, what I have heard is that
    somewhere between $30,000 and perhaps as high as $1 million.
        Colonel Sullivan, General Altenburg indicates in his
    written testimony that because service members are allowed to
    attempt a collateral attack in Federal courts, they, in effect,
    already have an equal opportunity to the Supreme Court review.
        Do you agree with this statement and can you describe the
    difficulty in mounting a collateral attack of a court-martial
    in the Federal courts?
        Colonel Sullivan. Yes, Mr. Chairman. Collateral review is
    not a substitute for certiorari on direct appeal, and this is
    true for two reasons.
        First, there is an extremely narrow scope of review on
    collateral review. So, for example, in the 10th Circuit, where
    the United States Disciplinary Barracks is located and, hence,
    the circuit that handles most collateral attacks, if an issue
    has been fully and fairly considered by the military courts,
    the 10th Circuit won't revisit it.
        If the issue wasn't raised before the military courts, then
    the issue is considered waived and the court won't revisit it.
        So the scope of review functions as a catch-22.
    Essentially, it weeds out almost every single claim a service
    member can make, because either it was raised in the military
    courts and then the Article III court won't revisit it or it
    isn't raised in the military courts and then it is considered
    waived.
        The other reason why collateral review is not an adequate
    substitute is because of the familiar issue of preclusion or
    limitation rules in retroactivity regarding Teague v. Lane.
        The Supreme Court case in Teague v. Lane said that a new
    rule will not be applied retroactively on collateral review.
        So even if a service member was able to escape from that
    catch-22, they still would not have the ability to get a court
    to recognize a new rule in a collateral attack, whereas that
    can happen on direct appeal.
        So it is not an adequate substitute, Mr. Chairman.
        Mr. Johnson. Thank you.
        General Altenburg, why shouldn't cases that qualify for
    collateral attack in Federal courts be raised directly with the
    Supreme Court?
        Isn't taking a case through the Federal court system, after
    it has been through the military justice system, a waste of
    judicial resources?
        General Altenburg. I might say the same thing about all the
    petitions that might be filed at the Supreme Court, Mr.
    Chairman.
        But I agree with Mr. Sullivan that a collateral attack is
    not a substitute for a direct petition to the Supreme Court.
        My concern is the balance between the resources that would
    be required, which are unknown and, as I suggested, may be
    analyzed more carefully, against the likelihood of a petition
    being granted.
        And it is my sense that this legislation, first of all,
    assumes inequality, and both my written statement and my oral
    comments point out the fact that if there is inequality in the
    appellate systems, the military has the advantage, but for this
    one aspect.
        And when you consider the number of petitions that are
    granted by the Supreme Court, less than 2 percent, less than 1
    percent, it simply is a--it is a hollow advantage.
        It is a--it looks like it is an advantage, but in reality,
    it wouldn't be and it would--and I think, arguably, it would
    mislead a lot of people into thinking they have got something
    that they don't really have, when you look at the statistics
    for a Supreme Court granting certiorari.
        Mr. Johnson. Thank you, General.
        I will ask all of you--or both of you. Some have taken note
    that the court of appeals for the Armed Forces is an Article I
    court.
        Why is this fact important for our discussion today?
        Either one of you, or both, may respond.
        Colonel Sullivan. Mr. Chairman, in practice, right now, I
    don't believe that CAAF's status as an Article I court plays
    into the legislation, and here is why.
        As we know, most Article I courts can't hold a statute
    unconstitutional. So if CAAF were like other Article I courts
    in that respect, that would present a greater need for Supreme
    Court review.
        But CAAF, in a case called United States v. Matthews,
    actually held the old military death penalty system
    unconstitutional and said it did have the power to declare a
    statute unconstitutional.
        So unless that changes, I think that CAAF's status as an
    Article I court--it has not really--it hasn't greatly limited
    its powers, Mr. Chairman.
        Mr. Johnson. Some might argue that the Court of Appeals for
    the Armed Forces was supposed to serve essentially as the
    supreme court for the military legal system and, as such, the
    due process rights of service members is accounted for.
        How do you respond to this, Colonel Sullivan?
        Colonel Sullivan. Well, Mr. Chairman, I am a member of the
    Maryland bar and, of course, in Maryland, the Maryland Court of
    Appeals is the supreme court of Maryland, and, yet, its
    decisions can still be reviewed by the Supreme Court when it
    deals with a Federal question or a matter of Federal
    constitutional law.
        So one would expect that even if the Supreme Court's review
    was broadened over military justice cases, that CAAF would
    remain the primary body to construe the Uniform Code of
    Military Justice, to construe the Manual for Courts-Martial,
    which provides the regulations that govern the military justice
    system.
        But for constitutional questions that are sort of above the
    UCMJ, it is appropriate for the Supreme Court to be the Supreme
    Court in the same way that it is appropriate for the Supreme
    Court to step in sometimes and speak to the Maryland Court of
    Appeals when it disagrees with what the Maryland Court of
    Appeals--with how the Maryland Court of Appeals construes the
    Constitution.
        Mr. Johnson. General Altenburg, would your reservations
    about the costs that H.R. 569 would impose on military justice
    resources be lessened if we gave service members the right to
    appeal to the Supreme Court, as provided in H.R. 569, but
    require them to pay for their own court costs associated with
    such an appeal?
        General Altenburg. Well, that would address the financial
    resource aspect. If we were still going to do what the military
    does and no civilian counterpart does, and, that is, provide
    the counsel, I am, quite frankly, more concerned about the
    lawyers, the JAG officers that need to represent both the
    accused and the government in an appellate process.
        To me, that is the real cost that the Congress might
    address itself to, again, because of the constrained manpower
    resources of all the military services.
        But to directly answer your question, yes, that would take
    care of the court filing costs and purely monetary resource
    issues.
        Mr. Johnson. All right. Thank you, General.
        Anything you would like to add, Mr. Sullivan?
        Colonel Sullivan. I think there is one important point.
    Actually, there are a couple important points in dealing with
    the cost issue.
        One, if you--again, looking at what happened with the 20
    cert petitions filed last year, as well as the 18 cert
    petitions filed by service members this year, in every single
    case, the Solicitor General waived the United States' right to
    reply. So they filed literally a one-page piece of paper in
    response.
        Now, last year, there were two cases where the Supreme
    Court called for a response. They said to the Solicitor
    General, ``No, we want your views.'' There has been one this
    year.
        But in reality, there is no great burden on the government.
    They read the cert petition and prepare a one-page sheet of
    paper.
        And then in reality, again, the only cert petitions that
    will be filed by counsel are those with a non-frivolous issue,
    which will be a very small subset of the number of cases that
    are now authorized er this legislation, authorized to go to the
    Supreme Court.
        So really what is going to happen is there is going to be a
    very small number--increase in the number of cert petitions
    prepared by military defense counsel, probably a greater
    increase in the number of pro se, in forma pauperis cert
    petitions filed mainly by service members who are confined,
    more one-page responses from the Solicitor General and then
    some miniscule increase in the Supreme Court's overall docket.
        The Supreme Court receives more than 8,000 cert petitions a
    year. If this legislation quadrupled the number of military
    cert petitions that were filed, which doesn't seem realistic,
    but even if it did, that would result in less than a 1 percent
    increase in the Supreme Court's burden.
        Mr. Johnson. It would be about, what, 150 or so cases a
    year?
        Colonel Sullivan. Well, sir, the average, I crunched the
    numbers and the average number of cert petitions filed since
    the Military Justice Act of 1983 was passed is 22.
        Even if it quadrupled, and I don't think there is any
    chance it would be that great an increase, that would be an
    increase of 88, it is not going to be that great a burden.
        Mr. Johnson. All right. Well, I thank you both for
    responding to my questions.
        I will now recognize our Ranking Member, my good friend,
    Mr. Coble, for as much time as he may consume.
        Mr. Coble. Thank you, Mr. Chairman.
        And, gentlemen, as the Chairman has already noted, we
    appreciate your appearing with us today.
        Colonel, given the existing protections in the military
    justice system and the extensive appellate process already in
    place, how do you respond to those who may harbor the belief
    that the civilian justice system is inherently superior to that
    already provided to our men and women in uniform?
        Colonel Sullivan. Sir, I love the military justice system.
    I was on active duty for 13 years. I have practiced most of my
    life in the military justice system.
        It is a wonderful system. And so nothing I say should be
    taken as in any way denigrating the system.
        Mr. Coble. And I didn't take it that way.
        Colonel Sullivan. Oh, yes, sir, and I wasn't suggesting
    that.
        Mr. Coble. Yes.
        Colonel Sullivan. Right. But I do want to preface my
    remarks by saying having greater Supreme Court review is not
    saying that we distrust the military justice system and we need
    the Supreme Court to ride herd on them. I mean, that is not the
    point at all.
        The point is looking at the rights of the individual
    litigant in the system and to say should an individual litigant
    have less rights because they have done the extremely honorable
    thing of taking an oath to protect and defend the Constitution
    and join the United States military, and I think the answer to
    that question is no.
        And we also have to remember--I am counsel in a cert
    petition that is pending at the Supreme Court right now that
    was filed on behalf of a Marine who hasn't even been tried yet.
    He is presumptively innocent, and the government appealed an
    issue in his case.
        Well, he is--because the Court of Appeals chose to grant
    review in his case, he could file a cert petition at the
    Supreme Court.
        But he shouldn't have had that right barred, cut off, if
    CAAF had exercised its discretion not to grant review.
        The fact that he is a United States Marine who was being
    tried for actions that he took in combat, he shouldn't have a
    less right to Supreme Court access than would a civilian being
    tried for something they did on the streets of the United
    States.
        Mr. Coble. Thank you, Colonel.
        General Altenburg, even if you are correct, General, that
    the legislation offers the illusion of expanded authority to
    contest courts-martial convictions and that few service members
    will actually benefit in any meaningful way from its enactment,
    what, General, is the real harm that you can think of that
    would result if the Congress enacts this measure?
        General Altenburg. Thank you, sir. Well, first of all, in
    direct response to that, I should point out that I dissociate
    myself with anyone who has stated that to give this right to
    soldiers, to military people would, in some way, undermine
    discipline or undermine authority or lower discipline or harm
    the military.
        I don't believe any of those things--and I don't agree with
    anybody that has said that, and I don't know if it has been
    somebody as high as the secretary of the chief of staff or it
    is just been somebody in the appellate branch.
        But I don't agree with any of that. It would in no way harm
    the military. My sole concern is the lawyer resource issue.
    That is my sole concern, and the fact that we don't really know
    what it is going to take and how many people are going to take
    advantage of this.
        And I would say this. If there is a study that we are
    confident is accurate, and it says we are going to need X
    amount of resources in each service in order to support this
    legislation and to make this meaningful to the military member,
    and the Congress authorizes that kind of support, whether it is
    five judge advocates in a service or 20 judge advocates in a
    service, whatever it might be that would allow them to conduct
    their other missions, then my only concern about this
    legislation is the fact that it is hollow.
        I would have no objection, other than the fact that I think
    it may be a false hope.
        Mr. Coble. And it is the unknown, I guess, General, that
    bothers you.
        General Altenburg. Yes, sir.
        Mr. Coble. General, let me ask you this. The colonel stated
    that, in his statement, that it is inappropriate to deprive
    members of the U.S. military of the same right to Supreme Court
    access that their civilian counterparts and even alien,
    unlawful, enemy combatants enjoy.
        Now, General, that is a powerfully equitable argument. How
    do you respond to that assertion?
        General Altenburg. Well, sir, I think, on its face, it has
    great attraction. But if you analyze the facts, as I tried to
    do in my oral statement in talking about what really happens in
    our systems and how much protection there is, I would say a
    couple of things.
        One, with regard to unlawful combatants, a commission
    process that wasn't done very well in terms of the way it was
    conceived and created early in this century, in 2001 and 2002,
    completely immature, needing development. And so the fact that
    these people have direct appeal to the Supreme Court, I think,
    is--it makes it sound worse for soldiers, but the fact is, I
    think, one of the reasons that the Supreme Court doesn't
    defer--it doesn't defer to anyone.
        But the fact is our appellate system in the military is
    very well developed and has matured over the years.
        Two major, major sets of amendments by this Congress in
    1968 and 1983 enhanced that, along with the development of case
    law, especially in the last 50 years and especially since 1982
    or 1983.
        And it has made it a unique appellate system and a unique
    appellate process in terms of the protections afforded the
    military members.
        And I think that when you take into consideration all the
    reviews, all the reviews done for free, all the advantages that
    a military accused has, that there is an assumption, I think,
    that the CAAF is going to take any issue that is really
    significant, in the same way that the Supreme Court is charged
    not with doing justice in every case, but deciding which cases,
    where there is a split among the circuits, needed to be
    reviewed for the jurist prudence of this country. And I think
    that we look to the CAAF to do the same thing, to look at the
    differences among the service courts of appeal and to take
    those significant cases and to take those cases where there
    really is an important issue to review, and all those cases are
    going to be able to petition the Supreme Court.
        There was one other thing I wanted to say about the numbers
    of cases, because, again, on its face, it sounds really unfair
    that any accused doesn't get to petition the Supreme Court
    unless he or she is one of those that has been accepted for
    review by the CAAF.
        But the big, bad prosecutors get to appeal any case they
    want to. All they have to do is have TJAG certify it. True
    enough.
        But the numbers of cases that the Judge Advocate General
    has certified is miniscule. It is not like they certify every
    case where the government loses on appeal at the circuit
    court--I mean, at the criminal court of appeals in the service.
        There is like 12 in the last 5 years among all five
    services have been certified by TJAG. Dwight will, I am sure,
    correct me with what the accurate numbers are, but the numbers
    are--whether it is 12 or whether it is 30, it is miniscule when
    you take it over the fiscal years and you show that there are
    five services--they just don't do it that often.
        And another example of just how sound this system is is
    that not only can the TJAGs, if they choose to, certify a case
    on behalf of an accused, that is not hollow.
        They have done it on at least two occasions, where they
    felt, for the advantage of the accused and because of the
    circumstances and the nature of the case, we are going to
    certify this case so that the accused gets heard at the CAAF,
    and they have certified cases on behalf of the accused person.
        Mr. Coble. Thank you, General.
        General Altenburg. Yes, sir.
        Mr. Coble. Mr. Chairman, I see my time has expired. Could I
    have one final question?
        Mr. Johnson. Certainly, Mr. Coble. Take as much time as----
        Mr. Coble. Thank you. Just one question.
        General, let me put a hypothetical to you. Let's assume
    that the Congress does determine to enact something along the
    lines of H.R. 569.
        Do you have any ideas for how it might be modified to
    mitigate some of the harms that concern you?
        General Altenburg. Oh, yes, sir, just to make sure that the
    services have the resources to do this.
        If that issue was addressed, if we were able to discern
    rather than guess, but to discern this is what the likely costs
    are in terms of resources, and the Congress were to approve
    those resources, I don't have an objection. I think it would
    work.
        Mr. Coble. Thank you both for your appearance today.
        Mr. Chairman, I yield back.
        Mr. Johnson. Thank you, Mr. Coble.
        Next, we will have questions from our esteemed colleague
    from the great state of Texas, Congressman Gonzalez.
        Mr. Gonzalez. Thank you very much, Mr. Chairman.
        This topic will not get as a thorough debate and discussion
    than we are having today, and so I want to start with that.
        It is not going to get any better for any of the other
    Members of Congress, and it is going to be up to us and this
    Subcommittee to go to the full Committee and then the full
    Committee to go to all Members.
        And I really appreciate, General, what you said. And that
    was, should we be so inclined to pass this piece of
    legislation, it is not the end of military culture. It is not
    the end of military readiness or effectiveness, because there
    will be those that will advance that argument, I can assure
    you.
        So I really appreciate your testimony.
        We are not doing anything really new here, in a way. It is
    substantial, don't get me wrong. But what I am saying is, there
    is already Supreme Court review.
        The problem, as Mr. Sullivan has pointed out, and as our
    colleague, Congresswoman Davis, is that it is not balanced;
    that there is an inferior right between the parties. And that
    is going to be fundamentally objectionable to many of us.
        I understand that there is going to be additional costs and
    the resources are going to be required, and that will be our
    obligation and our duty, and that is to meet the increased
    costs and demands as a result of what we do on the floor of
    Congress.
        That is a given. Now, hopefully, we will rise to that
    particular responsibility.
        But, General, let me ask you, do you agree that there is an
    inferior right between the two parties as far as seeking
    Supreme Court review?
        General Altenburg. I think that technically, on the face of
    it, there appears to be an inferior right, yes.
        I think in reality, it doesn't play out that way. But I
    agree that, certainly, on the face of it, it looks like there
    is an issue there.
        Mr. Gonzalez. And I understand what you have said. What is
    provided the service member throughout the process, I am not
    going to say it is incredible, I think it is deserving, and it
    is appropriate given the circumstances.
        But when it is all said and done, what is available to one
    party is not available to the other, and I think that is what
    causes us the discomfort, and I think that is what was the
    inspiration and the motive for Congresswoman Davis to get so
    involved.
        Mr. Sullivan, obviously, that is your whole point, the
    inferior right, and that is what this act would balance and
    bring a more just result to the whole process.
        Colonel Sullivan. Yes, sir.
        Mr. Gonzalez. Do any of you have anything further to add?
        Colonel Sullivan. No, sir.
        General Altenburg. I don't either, sir.
        Mr. Gonzalez. Thank you very much.
        Mr. Johnson. There being no further questions, I would like
    to thank all the witnesses for their testimony today.
        And without objection, Members will have 5 legislative days
    to submit any additional written questions, which we will
    forward to the witnesses and ask that you answer as promptly as
    you can.
        And those responses, as well as the questions, will be made
    a part of the record.
        Without objection, the record will remain open for 5
    legislative days for the submission of any other additional
    materials.
        And with that, this hearing on the Subcommittee on Courts
    and Competition Policy is adjourned.
        [Whereupon, at 10:58 a.m., the Subcommittee was adjourned.]

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