# Letter of William J. Haynes, II opposing SCOTUS access for troops

* GENERAL COUNSEL
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
1600 DEFENSE PENTAGON WASHINGTON, D.C. 20301-1600
The Honorable Lamar Smith Chairman Subcommittee on Courts,
    the Internet and Intellectual Property
U.S. House of Representatives Washington, DC 20515-6216
Dear Mr. Chairman:
This responds to your letter to the Secretary of Defense, dated November 4, 2005, requesting the Department's views on H.R. 1364, a bill "to amend title 28, United States Code, to enable the Supreme Court to review decisions in which the Court of Appeals for the Armed Forces denied relief." Your letter requested analysis of the relative merits of the legislation and asked for the Department's analysis of the number of appeals that would have been eligible for a petition of certiorari if the proposal had been enacted and in force each of the last five fiscal years that ended September 30, 2005. I have been asked to provide you a response.
The Department of Defense does not keep aggregate statistics of the number of appeals requested, but the United States Court of Appeals of the Armed Forces (USCAAF) annually publishes the Military Justice Reporter statistics regarding its appellate court activities. As requested, enclosed are USCAAF statistics for the past five fiscal years regarding petitions for grant of review filed and cases in which writ petitions and writ appeals were filed.
These current statistics may also be misleading as an indicator of future appellate activity in the form of writ petitions/appeals if it is presumed that the number of writ petitions/appeals currently denied would remain relatively the same. In fact, this new potential avenue for Supreme Court review may "spawn" a host of USCAAF writ petitions/appeals (regardless of merit), if only to acquire the necessary "dismissal or denial" necessary for requesting Supreme Court review. Appellants, with nothing further to lose, might file mutiple USCAAF writ petitions/appeals in the hope of eventually obtaining Supreme Court review. Additionally, many of these extraordinary writs are interlocutory in nature and brought during the trial of an active court-martial. Because adding an additional level of appeal during an active court-martial will necessitate an addtional period of delay, the potential exists for introducing truly excessive delay into the resolution of cases tried by courts-martial. The potential impact on the military justice system, military appellate counsel and resources, the Department of Defense Office of General Counsel, the Office of the Solicitor General and the Supreme Court may prove far more extensive than currently envisioned. For extraordinary writs brought by petitioners who have an adjudged court-martial sentence, extending avenues for the appellate review of cases lengthens the time before the case may be considered "final" and the sentence fully executed; administrative discharges may be delayed and appellants on appellate leave will continute to enjoy the military benefits afforded service members in that status. The legislation does not provide clear safeguards precluding these possiblities.
It is also important to note that no service member with a meritorious legal issue is denied USCAAF or Supreme Court review of that issue. USCAAF denies most extraordinary writ petitions because they do not raise issues that are truly extaordinary, but merely allege errors that can be addressed in the ordinary court of appellate review. Indeed, most such issues are later raised in the course of the ordinary appellate review, and appellants do have an opportunity to petition the Supreme Court for review of assignments of error in which USCAAF denies relief. To the extent that the legislation purports to rectify an "inequity" in that the Government has the right to appeal USCAAF's extraordinary writ decisions while individual appellants do not, it should be noted that only 16 cases in the last five years have granted relief to an appellant or remanded a case, and in no such case has the Government obtained Supreme Court review of such a decision. There is no demonstratable inequity that needs to be rectified enacting this legislation.
There is no apparent justification to modify the current review process, thereby increasing the burden upon the Supreme Court and counsel to address the myriad of matters that would be encountered with expanded certiorari jurisdiction. We oppose the proposed legislation.
The Office of Management Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the committee.
Sincerely,
William J. Haynes II
Enclosures: As stated.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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