[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.]
A P P E N D I X
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Material Submitted for the Hearing Record
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