[Congressional Record Volume 153, Number 137 (Monday, September 17, 2007)]
[Senate]
[Pages S11588-S11589]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Specter, and Mr. Feingold):
  S. 2052. A bill to allow for certiorari review of certain cases 
denied relief or review by the United States Court of Appeals for the 
Armed Forces; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, today I am pleased to join with 
Senators Specter and Feingold in introducing the Equal Justice for U.S. 
Service Members Act. The act would eliminate an inequity in current law 
by allowing all court-martialed U.S. service-members who face 
dismissal, discharge or confinement for a year or more to petition the 
U.S. Supreme Court for discretionary review through a writ of 
certiorari.
  The bill is a simple one, and would do the following: It would allow 
a writ of certiorari to be filed in any case in which the U.S. Court of 
Appeals for the Armed Forces has denied review; and it would allow a 
writ of certiorari to be filed in any case in which the U.S. Court of 
Appeals for the Armed Forces has denied a petition for extraordinary 
relief.
  All persons convicted of a crime in U.S. civilian courts today, 
including illegal aliens, and regardless of the crime they may have 
committed, have an absolute right to petition the U.S. Supreme Court 
for discretionary review if they lose in the court of appeals. By 
contrast, however, our men and women in uniform do not share this same 
right as their civilian counterparts. Our military personnel can apply 
to our highest court on direct appeal for a writ of certiorari only if 
the U.S. Court of Appeals for the Armed Forces actually conducts a 
review of their case, or grants a petition for extraordinary relief. 
That happens only about 10 percent of the time.
  In other words, the other 90 percent of the time, our U.S. 
servicemembers are precluded from ever seeking or obtaining direct 
review from the highest court of the country that they fight and die 
for.
  A disparity not only exists between our civilian and military court 
systems. A similar disparity exists even within our military court 
system itself. The Government routinely has

[[Page S11589]]

the opportunity to petition the Supreme Court for review of adverse 
court-martial rulings in any case where the charges are severe enough 
to make a punitive discharge possible. But our military personnel do 
not share these same rights to petition the Supreme Court as their 
opponents, even on the other side of the same case.
  That is wrong, and this inequity was recently noted by the American 
Bar Association. At its annual meeting in August 2006, the ABA House of 
Delegates passed a resolution calling on Congress to fix this long-
standing ``disparity in our laws governing procedural due process.''
  That is perhaps reason enough to fix this problem, but I also must 
note that this existing disparity has only become more acute now that 
Congress has enacted the Military Commission Act. Section 950g(d) of 
that law, which Congress passed last September, gives the Supreme Court 
the ability to review by writ of certiorari any final judgment issued 
by the U.S. Court of Appeals for the D.C. Circuit, in an appeal filed 
by terrorists and war criminals who get convicted by U.S. military 
commissions.
  So the worst of the worst at Guantanamo will have a right to petition 
our Supreme Court to hear their case. Yet unless we act, those same 
Supreme Court doors will continue to be closed to almost all of our 
U.S. service personnel who would seek direct review in their own 
highest Court. Even service-members who apprehended those same 
terrorists, or served in judgment on their military commissions, or who 
guard them at Guantanamo, will continue to be treated as second-class 
citizens, deprived of the opportunity to seek Supreme Court review if 
they ever need it themselves.
  Our U.S. service personnel regularly place their lives on the line in 
defense of American rights. It is simply unacceptable for us to 
continue to routinely deprive our men and women in uniform of one of 
those basic rights, the ability to petition their Nation's highest 
court for direct relief, that is given to all convicted persons in our 
civilian courts, that is given to their prosecutorial adversaries in 
our military courts, and that we have now given even to the terrorists 
we expect to prosecute as war criminals in our upcoming military 
commission process.
  It is time to give equal justice to our U.S. servicemembers. That is 
what this act does.
  I urge my colleagues to support this legislation.
  I ask unanimous consent the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2052

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Equal Justice for United 
     States Military Personnel Act of 2007''.

     SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
                   THE ARMED FORCES.

       (a) In General.--Section 1259 of title 28, United States 
     Code, is amended--
       (1) in paragraph (3), by inserting ``or denied'' after 
     ``granted''; and
       (2) in paragraph (4), by inserting ``or denied'' after 
     ``granted''.
       (b) Technical and Conforming Amendment.--Section 867a(a) of 
     title 10, United States Code, is amended by striking ``The 
     Supreme Court may not review by a writ of certiorari under 
     this section any action of the Court of Appeals for the Armed 
     Forces in refusing to grant a petition for review.''.
                                 ______