Congress considers allowing Supreme Court Appeals to members of U.S. Military Convicted of Crimes

by Dan Slater   September 30, 2008 Wall St. Journal blog
Under what circumstances should military members who’ve been convicted of crimes be allowed to file cert petitions with the Supreme Court? That issue — largely upstaged by the congressional vagaries on a certain bailout bill — is now going to the Senate, reports the NLJ.

Over the weekend, the House of Representatives approved, by voice vote, legislation that would open the doors of the Supreme Court to certain petitions by military service members convicted of crimes. Under current law, service members have a direct appeal to the Supreme Court only certain conditions, such as when the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty and certified cases) or granted discretionary review of a petition. But if the CAAF has denied a petition for review or a petition for a writ of extraordinary relief, the NLJ explains, Supreme Court review may be obtained only through collateral review, for example, a writ of habeas corpus.

The “Equal Justice for our Military Act” would change that, permitting service members to file high court petitions when the CAAF denies review of their case or their petitions for a writ of extraordinary relief.

“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,” said Susan Davis, D-Calif., the bill’s chief sponsor, at a recent House debate.

On the topic of Supreme Court access, Norbert Basil MacLean III, a dual American-Australian citizen and a U.S. Navy veteran who’s lobbied Congress on behalf of the legislation, recently wrote in a letter to the L.A. Times:

The cornerstone of a true democracy is due process. Currently, our active-duty troops under the [Uniform Code of Military Justice] are treated like second-class citizens when it comes to such due process. It is shameful that even enemy combatants have access to our highest court, but those serving to protect and defend us are shut out. . . It is disingenuous for us as a nation to send our uniformed citizens off to faraway countries to promote our democratic way without affording them a fundamental right of democracy . . .


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