[Congressional Record Volume 154, Number 155 (Saturday, September 27, 2008)]
[House]
[Pages H10263-H10264]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               EQUAL JUSTICE FOR OUR MILITARY ACT OF 2007

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3174) to amend titles 28 and 10, United States Code, to 
allow for certiorari review of certain cases denied relief or review by 
the United States Court of Appeals for the Armed Forces.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3174

       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 Our 
     Military 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.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. I yield myself such time as I may consume.
  Mr. Speaker, the Equal Justice for Our Military Act amends the 
Federal judicial code to allow members of the United States Armed 
Services to petition for review by the United States Supreme Court in 
certain cases when they have been denied relief by the Court of Appeals 
for the Armed Forces.
  Many Americans would be shocked to learn that soldiers serving their 
country in uniform are blocked from equal access to the Supreme Court.
  But the truth is that current law provides virtually no avenue 
through which active service members who have been convicted by court-
martial of certain serious offenses, or who face discharge or 
dismissal, to ask our Nation's highest court to review their case.
  Currently, the Supreme Court can only hear cases where the U.S. Court 
of Appeals for the Armed Forces, the highest court of the military 
justice system, has either conducted a review of a court-martial, or 
has granted a service-member's petition for extraordinary relief.
  What this means is that when the court of appeals denies review, 
which it does nearly 90 percent of the time, the Supreme Court is 
barred from reconsidering the case at the request of the servicemember.
  Adding insult to injury, while a servicemember is not able to obtain 
Supreme Court review if he or she loses at the court of appeals, if the 
court of appeals rules against the government, the Government can seek 
review in the Supreme Court.
  And a former servicemember who is tried under the Military 
Extraterritorial Jurisdiction Act in civilian court for crimes 
committed while on active duty also has full right to petition for 
Supreme Court review.
  The Equal Justice for Our Military Act corrects this unfair one-
sidedness by allowing an active servicemember to file a writ of 
certiorari to the Supreme Court in any case where the Court of Appeals 
for the Armed Forces has denied review of a court-marital conviction or 
has denied a petition for extraordinary relief.
  I would like to commend the author of this bill, our colleague Susan 
Davis of California, for her leadership in working to correct this 
ongoing injustice, so that our active servicemembers have the same 
fundamental protection that Americans take for granted.
  I urge my colleagues to support this legislation.
  Mr. Speaker, I yield such time as she may consume to the gentlewoman 
from California (Mrs. Davis).
  Mrs. DAVIS of California. Mr. Speaker, I rise today on behalf of our 
troops by urging passage of H.R. 3174, the Equal Justice For Our 
Military Act, a bill giving our servicemembers equal access to the 
United States Supreme Court.
  We all know when American men and women decide to serve their Nation 
in the Armed Forces, they make many sacrifices, from lost time with 
their families to irreplaceable loss of lives. Servicemembers also 
sacrifice one of the fundamental legal rights that all civilian members 
enjoy.
  Members of the military 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 through the United 
States Court of Appeals for the Armed Forces, they have no recourse. In 
fact, the playing field is weighted in favor of the military, granting 
the automatic right of Supreme Court review to the Department of 
Defense when a servicemember wins a case. But servicemembers are denied 
the same right in nearly every case the government wins against them.
  It is unjust to deny the members of our Armed Forces access to our 
system of justice as they fight for our freedom around the world. They 
deserve better.
  As the chairwoman of the Subcommittee on Military Personnel, a long 
time advocate for servicemembers and a Representative from 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.
  I introduced, along with Armed Services Chairman Ike Skelton, H.R. 
3174 to correct this inequity. This bill has been endorsed by the 
American Bar Association, the Military Officers Association of America, 
and many other legal and military advocates. In addition, the 
Congressional Budget Office has stated that this bill does not affect 
direct spending.
  It is fundamentally unjust, Mr. Speaker, to deny those who serve on 
behalf of our country one of the basic rights afforded to all other 
Americans. I hope that all of my colleagues will stand with me in 
strong support of this legislation to attain equal treatment for those 
who fight for us.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, the vast majority of servicemembers serve with 
distinction and honor, and are never subjected to disciplinary action 
under the Uniform Code of Military Justice. But when disciplinary 
action is necessary, the UCMJ and the military justice system provide a 
high degree of protection for the accused. In many cases, these 
protections extend well beyond those provided by the civil justice 
system.

[[Page H10264]]

  But from time to time, policymakers ought to review and contemplate 
proposals for change. I am told the particular section of the code this 
bill would amend has not been altered or subjected to a congressional 
review in a quarter of a century. And yet the bill before us proposes 
far-reaching and significant changes in terms of expanded appellate 
rights for servicemembers convicted of wrongdoing.
  I would support consideration of this measure in the regular order. 
But the regular order requires a review and consideration of the 
relative merits of the legislation by subcommittee and committee 
members with subject matter expertise; a hearing with witnesses who can 
present expert testimony and offer guidance as to the necessity, effect 
and scope of any proposals in the bill; a markup or markups after 
notice to the public and the stakeholders most likely to be impacted by 
changes; and a committee report that is written and made available to 
the public and future Congresses that explains the intent and rationale 
of the proposed changes.
  Regrettably, the committee and House leadership have decided to 
short-circuit the process and dispense with every single one of these 
steps. This is despite the fact that the bill was introduced by its 
sponsors and referred to the Courts Subcommittee, with no action, more 
than a year ago.
  The regular order did not fare any better in the other body where the 
committee of jurisdiction took up the measure just 2 weeks ago and 
reported it without a hearing, a report, or any other substantial 
process or record.
  Because of the haste with which this proposal is being considered, 
one might infer there are no questions that ought to be addressed or 
there are questions that might expose this bill as bad policy if 
Congress wasn't rushing to judgment.
  The truth is when a similar measure was introduced last Congress, the 
general counsel of the Department of Defense raised major questions 
about the wisdom and necessity of that bill, as well as its likely 
impact on the department.
  In a letter dated February 6, 2006, General Counsel William J. 
Haynes, II, wrote that the Department of Defense ``opposes the proposed 
legislation.''
  He noted the department's view that ``there is demonstrable inequity 
that needs to be rectified''; that ``opening this additional avenue of 
Supreme Court appeal will require legal reviews and briefs from 
numerous counsel on the military departments' Government and Defense 
Appellate Divisions, the Department of Defense Office of General 
Counsel, as well as within the Office of the Solicitor General and the 
Supreme Court,'' and that the legislation provides no ``clear 
safeguards'' to preclude the possible abuse by petitioners of this new 
avenue for appellate review.

                              {time}  1845

  I am particularly concerned by this last point as well as the fact 
that the bill is written to permit an appellant to repeal the case to 
the Supreme Court even when the Court of Appeals for the Armed Forces 
has declined to review it on the merits, let alone to issue a final 
decision.
  Unfortunately, by refusing to permit the subcommittee and committee 
members to study the issues and properly discharge their 
responsibilities, the House leadership is forcing Members to make 
assumptions without any evidence. Just as a court should not convict 
someone of an offense without due process and evidence beyond a 
reasonable doubt, Members of Congress should not be placed in the 
position of changing long-standing policies without some formal process 
and actual consideration of the evidence for and against the proposal.
  The Democratic leadership increasingly has resorted to extraordinary 
tactics to move legislation. In so doing, they do a disservice to the 
Members of the House and of the people we represent.
  In closing, Mr. Speaker, the unasked questions and lack of process 
compel me for the time being to oppose this legislation.
  I yield back the balance of my time.
  Mr. CONYERS. I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and pass the bill, H.R. 3174.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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