[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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