[Congressional Record Volume 157, Number 149 (Thursday, October 6, 2011)]
[Senate]
[Page S6334]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S. 1664. A bill 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; to the 
Committee on the Judiciary.

  Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the 
Equal Justice for Our Military Act of 2011. The act would eliminate 
inequities in current law by allowing court-martialed servicemembers 
who face dismissal, discharge or confinement for a year or more to seek 
review by the United States Supreme Court.
  In our civilian courts today, all persons convicted of a crime, if 
they lose on appeal, have a right to petition the U.S. Supreme Court 
for discretionary review. Even enemy combatants have the right to 
direct appellate review in the Supreme Court.
  In contrast, however, our men and women in uniform do not share this 
same right. Our military personnel have a limited right to appeal to 
the U.S. Supreme Court. They can appeal to the U.S. Supreme Court only 
if the U.S. Court of Appeals for the Armed Forces, CAAF, actually 
conducts a review of their case or grants a petition for extraordinary 
relief. In other words, if the CAAF refuses to take their case, or 
denies their extraordinary relief petition, the servicemember has no 
right to further review in the Supreme Court.
  For fiscal years 2008 through 2010, the CAAF denied a total of 2230 
petitions for review. The CAAF also averages about 20 denials of 
extraordinary relief petitions every year. Taken together, this means 
that there are more than 750 court-martial decisions per year in which 
servicemembers are denied the opportunity to seek certiorari from the 
Supreme Court.
  In addition to this disparity between our civilian and military court 
systems, there is another disparity within the military court system 
itself. The government may 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 servicemembers do not 
have the same rights to petition the Supreme Court that the military 
prosecutors on the other side of the aisle have.
  The bill I am introducing today is a simple one, which would correct 
these inequities. It would allow servicemembers whose appeals are 
denied review by the U.S. Court of Appeals for the Armed Forces, or who 
were denied extraordinary relief, the opportunity to seek review of 
those decisions by writ of certiorari to the U.S. Supreme Court.
  While this legislation would provide a fairer legal process for 
servicemembers, it would not unduly burden the military or the Supreme 
Court. As noted in the 2010 House Judiciary Committee Report on the 
legislation, the expanded Supreme Court review of court-martial 
decisions authorized by the legislation would result in only about 80-
120 additional petitions for certiorari each year. Additionally, the 
Congressional Budget Office has estimated that the increased workload 
for Department of Defense attorneys and Supreme Court clerks would cost 
less than $1 million each year.
  Every day, our U.S. service personnel place their lives on the line 
in defense of American rights. It is unacceptable for us to continue to 
routinely deprive our men and women in uniform of one of those rights--
the ability to petition their Nation's highest court for direct relief. 
It is a right given to common criminals in our civilian courts, to the 
Government, and even to some of the terrorists who we hope to prosecute 
as war criminals.
  It is long past time we give them the same rights as the American 
citizens they fight, and sometimes die, to protect. I urge my 
colleagues to support this important legislation to give equal justice 
to our U.S. servicemembers.
  Mr. President, I ask unanimous consent that 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. 1664

       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 2011''.

     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 Amendments.--
       (1) Title 10.--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.''.
       (2) Time for application for writ of certiorari.--Section 
     2101(g) of title 28, United States Code, is amended to read 
     as follows:
       ``(g) The time for application for a writ of certiorari to 
     review a decision of the United States Court of Appeals for 
     the Armed Forces, or the decision of a Court of Criminal 
     Appeals that the United States Court of Appeals for the Armed 
     Forces refuses to grant a petition to review, shall be as 
     prescribed by rules of the Supreme Court.''.

     SEC. 3. EFFECTIVE DATE.

       (a) In General.--Subject to subsection (b), the amendments 
     made by this Act shall take effect upon the expiration of the 
     180-day period beginning on the date of the enactment of this 
     Act and shall apply to any petition granted or denied by the 
     United States Court of Appeals for the Armed Forces on or 
     after that effective date.
       (b) Authority to Prescribe Rules.--The authority of the 
     Supreme Court to prescribe rules to carry out section 2101(g) 
     of title 28, United States Code, as amended by section 
     2(b)(2) of this Act, shall take effect on the date of the 
     enactment of this Act.
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