r sixty nine is intended to allow members of armed forces broader access to discretionary review of courts martial decisions by the united states supreme court it's important to highlight for this hearing that there are two categories the accused service members do not currently have the right to supreme court the first are cases that the court of appeal for the armed forces decides not to review in essence refuses to hear a case the supreme court is precluded from hearing it on direct appeal knives an accused service member extraordinary relief for 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 if decisions to the supreme court granted relief thus creating what some might consider a double standard in favor of the government the bill before us r five sixty nine 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 just justifiable opponents of a five sixty nine argues that removing these limits may increase the government costs and result in a substantially larger workload but military lawyers the department of justice and the united states supreme court opponents say these additional burdens are unnecessary because the military is a comprehensive appellate process that provides great so great review than what is available in the civilian justice system some also say that permitting such opportunity for review lessens the authority of the military justice system which could ultimately threaten the discipline and order of the military proponents of eighty five sixty nine counter that service members who reach their lives protecting our freedoms and rights should also have those same freedoms and rights of bailable to them to the fullest extent possible even if it means additional cause proponents further point out that great access to the supreme court would not negatively impact the authority of the  cia or the military justice system since the supreme court already has jurisdiction to review many of the cases decided by the us today we have three witnesses to testify regarding  record please to introduce the witnesses for today's hearing panel will feature congresswoman susan davis representative davis represents california's fifty third 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 a substantial personal exposure to military life as the daughter of a medic and wife of an air force doctor appellate counsel at the air force appellate defense division and he is a colonel in the united states marine corps reserve he has served as defense counsel for the office of military commissions and he's also served as a managing attorney with the a c l u of maryland he is a co author of military justice cases and materials which is a case book published by lex lexis nexis in two thousand and seven and international law before joining green in two thousand and two he was a consultant on governance and ethics issues to the president and the world bank group statement written statements will be placed into the record and we would ask that you limit your oral argument or by minute you'll note that we have a lighting system that starts with a green light for a minute turns yellow then red at five minutes after each witness has presented his or her testimony subcommittee members will be permitted to ask questions subject to the five  american 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 a pence's under the military justice system do not have the legal right to appeal their cases to the u s supreme court ever exhausting their appeals to the united states court of appeals for the armed forces what we know  most have no recourse this issue was brought to my to the attention of my office two years ago 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 a chairwoman of the  personnel a longtime advocate for service members in a representative 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 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 activities are five fifty nine  to permit convicted service members to appeal to the supreme court in cases where there 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 appeal this remedial approach would provide service members with due process access to discretionary 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 advocate after congress this bill was passed by voice vote on the house floor and in addition the 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 americans i certainly hope that you will join me in support of this legislation to obtain equal treatment for those who fight for our country chairman johnson once again thank you very much mister and others for the opportunity to submit my remarks for the record and i look forward to working together  chairman ranking member coble members of the committee i'm grateful for the opportunity to speak with you this morning about the equal protection the equal justice for our military act at the outset i'd like to emphasize that i'm speaking strictly in my personal capacity i'm not speaking  for the air force the marine corps d o d and nothing i say should be imputed to anyone but myself for the last two years i've represented air force members appealing court martial convictions as a civilian lawyer and as a reserve lawyer in the marine corps i've represented sailors and marines appealing court martial conviction now before that i was the chief defense counsel for the office of military commissions so as the head of the office that provided defense counsel for guantanamo detainees being tried by military commissions in two thousand and six in the military commissions act congress gave every alien unlawful enemy combatant the right to seek supreme court review if they were convicted by military commission that's codified at ten u s c nine fifty but most american service members who are convicted by court martial have no right to seek supreme court review on direct appeal so it only an unlawful enemy combatant that guantanamo bay have a greater right to seek supreme court review than do the american soldiers sailors marines and airmen who guard members of the s military also have less of a right to supreme to seek supreme court review than do civilian state defendants civilian defendants and u s district courts and they also have less of a right to take supreme court review than does the prosecution in a court martial case and h r five sixty nine would largely correct these imbalances now perhaps would be helpful to the committee to have an overview of the military justice system using  as an example see how this plays out in practice worldwide in fiscal year two thousand and eight the five branches of the armed services combined tried about three thousand courts martial a little bit more than a thousand general court martial which is the felony form a little bit less than two thousand special courts martial for a combined total of three thousand eight court martial cases worldwide now of those a little bit more than two thousand resulted a conviction and a sentence that authorized the case to go on appeal under ten u s c eight sixty six and what happens is after the same officer who convenes the court approves of the results the case goes on appeal to one of the four courts of criminal appeal which are intermediate appellate court to sit in the washington d c area most of which are comprised of senior uniformed military lawyers and again about two thousand cases went on appeal to those to those four courts in fiscal year two thousand and eight 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 caps for further review cap consist of five civilian judges by statute they must be civilian appointed by the president confirmed by the senate for fifteen year terms in article one court but it functions much like one of the geographic courts of appeals reviewing criminal conviction it but with one crucial difference and that is if you're convicted in u s district court you have a right of appeal to one of the courts of appeal if you're convicted by a court martial and your case goes on appeal to the court of criminal  congress and then also the judge advocate general of the service that the top uniformed boy or any should each of the military services can require to review a case and so in practice that provides the the prosecution with a guaranteed right of appeal to the prosecution loses at the intermediate appellate court the judge advocate general can require caffe to review that case once the case goes through 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 which then results in supreme court review so turning again to the fiscal year two thousand and eight there were a total  of one hundred thirty four cases that calf review either because they granted a petition part of their discretionary docket or because one of the judge advocate general directed that they would do that one hundred  thirty four cases now of those hundred thirty four cases ultimately twenty went on to qualify twenty went on to file certification so most of these cases do not result in cert petition even after the door to the supreme court has been opened there were another seven hundred fifteen cases were cast denied review and as best as i can tell those seven hundred fifteen service members whose petitions were denied are the only americans convicted in a criminal court who did not have the right to supreme court review and they didn't have that right because they were members of the u s military and again h r five sixty nine would largely correct that imbalance and provide u s service members with a similar right to seek access 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 with considering the proposed legislation i served as an enlisted soldier in the one nine hundred sixty s for several years and then subsequently after i attended last go i came back and served as an officer for twenty eight years and i think that gives me not a unique perspective but certainly a little different perspective on these matters for purposes of discussion i'm going to assume that i'm an accused soldier and then an accused civilian i'm going to compare and contrast my appellate rights as a military service member both before the nine hundred eighty three amendments and after and then compare them also to my pal right as a civilian in the military it's a sentencing  it's 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 eighty three m and a less i'm 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 provided an appellate counsel through all of those of appeal at no expense to me both before and after the eighty three amendments in the civilian sector i must retain my own attorney to appeal to the civilian or to meet appellate court again unless i am able to establish that i am indigent both before and after eighty three i may retain in addition to my military appellate counsel a civilian appellate counsel at my own hundred eighty three 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 a case after my trial court 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 pulled 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 court must be convinced beyond a reasonable doubt there is no corollary in the civilian sector the civilian appellate court is almost always limited to finding legal arizona 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've said earlier that both before and after nine hundred eighty three 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 my own expense this is true both before and after the eighty three amendments in the civilian sector i must pay all expenses 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 tack in federal district court both before and after nine hundred eighty three the collateral to proceed through federal district to federal intermediate appellate court and then 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 one hundred eighty three of my petition to the highest military appellate court is granted but the appeal itself is denied that i may petition directly the supreme court or the united states to review the differences today in the military there is an automatic appeal of all cases by either and or the judge advocate general and more than a year confinement and by the  questioning i want to ask you both currently is no effective date indicated in the text of the bill language discussing how pending cases may be dealt you raise a very good point mr chairman because the if this bill was passed there were actually need to be a change to the supreme court rules to provide the time within which the titian would be filed would require a change to rule thirteen supreme court rules so there would need to be um opportunity after the date of an act meant to provide the supreme court with that opportunity when congress passed the military justice act of one thousand nine hundred three it made the bill however many additional cert petitions are filed by counsel and i say by counsel because right now i mention that there are twenty sir petitions filed in the last term by military members twelve of them were written by military appellate fence 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 supreme member of the supreme court bar may not file a frivolous or supreme court been emphatic about that in cases like austin versus united states so what happens in some cases is the client that i want to go to the supreme court to the defense counsel said i can't titian your case because there's no non frivolous issue and then in that the number of petitions prepared by military council doubled it would be an additional expenditure of about fifteen thousand dollars which would be a drop in the bucket and certainly the principle of equal access i would say is worth far more than  account of seventy seven hundred fifteen were denied and to think that only twenty of them or thirty 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 might consider going a little bit slow on this legislation and at least having some type of 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 to the individual military member is go one who's not going to be advising a combat brigade in or on a peace making 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's something that must be looked at hard as what resources are going to require from the military in terms of their respective to to make this work and  people on both the defense side to advise all the petitioners and then the government 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 so basically  do you agree with this statement and can you describe in mounting a collateral attack of a court martial in the federal court yes mr chairman collateral review is not a substitute for surgery on direct appeal and this is true for two reasons first there's an extremely narrow scope of review on collateral review so for example in the in the tenth circuit where the united states disciplinary court mr chairman and i but i'll i agree with mr sullivan that collateral tack is not a substitute for direct petition court my concern is the balance between the resources that would be united matthews actually held the old military death penalty system unconstitutional and that it did have the power to declare a statute unconstitutional so unless that changes i think that caps status as an article one court 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 so one would expect that even if the supreme court's  review was broadened over military justice cases that cap 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 it's appropriate for the supreme court to be the supreme court in the same way that it's appropriate for the supreme court to if we were going to still going to do what the military does and no civilian counterpart does and that is provide the counsel i'm quite frankly more concerned about the lawyers the jag officer i need to represent both the accused and the the only sir petitions that will be filed by counsel are those with the non frivolous issue which will be a very small subset of the number of cases that are nails authorized that would be under this legislation authorized to go to the supreme court so really what's going to happen is there's going to be a very small number increase in the number of petitions prepared by military defense counsel probably a greater increase in the number of informal pauperis petitions filed mainly by in the the average i crunched the numbers and the average number of petitions filed since military justice activity three was passed in two thousand and two even if it quadrupled i don't think there's any chance it would be that great an increase  but i do want to preface my remarks by saying having greater having greater supreme court review is not saying that we should trust the military justice system and we need the supreme court to ride herd on them that's not the point at all the point is looking at the rights of the individual litigant in the system 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 hat right barred cut off if kept had exercised its discretion not to the fact that he's a united states marine who was being tried for actions that he took in combat he shouldn't have a lesser right to supreme court access th soldiers to military people would in some way undermine discipline or undermine a board 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  confident is accurate and it says we're 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's  advocates in a service or twenty whatever it might be that would allow them to conduct their other missions then my my my only concern about this legislation is a fact that is how i would have no objection other than the fact that i think it may be  assertion i think on his face it has a great attraction but if you if you analyze the facts as i tried to do our all statement and talking about what really happens in our systems and how much protection there is say a couple of things one with regard to on lawful 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 two thousand and one and two thousand and two completely  to mature needing development and so the fact that these people have direct appeal to the supreme court i think it makes it sound worse for soldiers but the fact is i think one of the reasons that the supreme court doesn't refer doesn't refer to anyone but the fact is our appellate system in the military is very well developed and is mature and over the years two major all the advantages that a military has that there's an assumption i think that the calf is going to take any issue that's 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 need to be reviewed for the jurisprudence of this country and i think that we look to the calf to do the same thing to look at the differences among the service courts of appeal and to take those significant 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  face it sounds really unfair that any accused doesn't get to petition the supreme court unless he or she is one of those has been accepted for review by the calf but the big bad prosecutors get to appeal any case they appeals and the service is like twelve in the last five years among all five services have been certified by vital i'm sure correcting with what you've got great numbers are but what the numbers are you know whether it's twelve or whether it's thirty it's miniscule when you take it out of an accused that's not hollow they've done that 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're going to certify this at the cafe and they have certified cases on behalf of this topic will not get a thorough debate and discussion that we're having today and so i want to start with that it's not going to get any better for any of the other members of congress and it's going to be up to us in this subcommittee to go the full committee then the full committee to go to all members and i really appreciate general what you said in that was should we be so inclined to pass this 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 would ban that argument i can assure you so i really appreciate your testimony we're not doing anything really new here in a way it's substantial don't get me wrong but what i'm saying is there is already supreme court review the problem as mr sullivan has pointed out and is our colleague congresswoman davis is that it is not balance that it is there is an interior right between the parties and that is going to be fundamentally objectionable to many of us i understand that there's going to be additional cost and the resources are going to be required and that will be our obligation and our duty and that is to meet the priest cost and demands as a result of what we do on the floor of congress that is a given now hopefully will rise