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EQUAL JUSTICE FOR OUR MILITARY ACT 

OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS AND 

COMPETITION POLICY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 569 

JUNE 11, 2009 

Serial No. 111–79 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

CHARLES A. GONZALEZ, Texas 

SHEILA JACKSON LEE, Texas 

MELVIN L. WATT, North Carolina 

BRAD SHERMAN, California 

MIKE QUIGLEY, Illinois 

HOWARD COBLE, North Carolina 

JASON CHAFFETZ, Utah 

BOB GOODLATTE, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL ISSA, California 

GREGG HARPER, Mississippi 

CHRISTAL SHEPPARD, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 11, 2009 

Page 

THE BILL 

H.R. 569, the ‘‘Equal Justice for Our Military Act of 2009’’ ................................. 3 

OPENING STATEMENTS 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Chairman, Subcommittee on Courts and 

Competition Policy ............................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts and 

Competition Policy ............................................................................................... 5 

WITNESSES 

The Honorable Susan A. Davis, a Representative in Congress from the State 

of California 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Dwight H. Sullivan, Attorney, Washington, DC 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 14 

Major General (Ret.) John D. Altenburg, Jr., Attorney, Washington, DC 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 35 

(1) 

EQUAL JUSTICE FOR OUR MILITARY ACT 

OF 2009 

THURSDAY, JUNE 11, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS AND

COMPETITION POLICY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Henry 

C. ‘‘Hank’’ Johnson, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Johnson, Conyers, Gonzalez, Jackson 

Lee, and Coble. 

Staff present: Eric Garduno, Majority Counsel; Rosalind Jackson, 

Majority Professional Staff Member; and David Whitney, Minority 

Counsel. 

Mr. JOHNSON. The Subcommittee on Courts and Competition Policy will now come to order. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

And I will now yield so much time to myself as I may consume. 

Good morning and welcome to the Subcommittee’s hearing on 

H.R. 569, the ‘‘Equal Justice for Our Military Act of 2009.’’ 

H.R. 569 is intended to allow all members of the Armed Forces 

broader access to discretionary review of courts-martial decisions 

by the United States Supreme Court. 

It is important to highlight for this hearing that there are two 

categories of cases where accused service members do not currently 

have the right to seek Supreme Court review. 

The first are cases that the court of appeals for the Armed 

Forces, CAAF, decides not to review. In essence, if the CAAF refuses to hear a case, the Supreme Court is precluded from hearing 

it on direct appeal. 

According to the Defense Department statistics, approximately 

84 percent of all cases appealed to the CAAF are denied review 

and, thus, are denied the opportunity to seek further direct appellate review by the Supreme Court. 

The second category of cases are those that involve petitions for 

extraordinary relief or interlocutory appeals in which the CAAF denies relief. 

In other words, if the CAAF denies an accused service member 

extraordinary relief or an interlocutory appeal, that decision cannot 

be reviewed by the Supreme Court. 

2 

This is particularly troubling because in these cases, the government has the right to appeal CAAF decisions to the Supreme Court 

if they are granted relief, thus creating what some might consider 

a double standard in favor of the government. 

The bill before us, H.R. 569, 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 justifiable. 

Opponents of H.R. 569 argue that removing these limits may increase the government’s costs and result in a substantial workload 

for military lawyers, the Department of Justice, and the United 

States Supreme Court. 

Opponents say these additional burdens are unnecessary because 

the military offers a comprehensive appellate process that provides 

greater review than what is available in the civilian justice system. 

Some also say that permitting such opportunity for review 

lessens the authority of the CAAF and the military justice system, 

which could ultimately threaten the discipline and order of the 

military. 

Proponents of H.R. 569 counter that service members who risk 

their lives protecting our freedoms and rights should also have 

those same freedoms and rights available to them to the fullest extent possible, even if it means additional costs. 

Proponents further point out that greater access to the Supreme 

Court will not negatively impact the authority of the CAAF or the 

military justice system, since the Supreme Court already has jurisdiction to review many of the cases decided by the CAAF. 

Today, we have three witnesses to testify regarding H.R. 569. 

When we originally scheduled this hearing, we had a total of five 

witnesses; but due to scheduling conflicts, the ABA president and 

his designee were not able to attend and the Administration has 

decided not to send a witness. 

While I was initially disappointed that the Administration was 

not able to send a witness, I take it as a sign that the Obama administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the 

previous Administration. 

I now recognize my colleague, Howard Coble, the distinguished 

Ranking Member of the Subcommittee on Courts and Competition 

Policy for his opening remarks. 

[The bill, H.R. 569, follows:] 

3 


HR569-1.eps
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HR569-2.eps
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Mr. COBLE. Thank you, Mr. Chairman. And I move to strike the 

last word. 

Today’s hearing, folks, will focus on H.R. 569, a bill that proposes 

amendments to the Federal judicial code and the uniform code of 

military justice, properly known as UCMJ. 

The purpose of these proposed amendments is to grant the Supreme Court greater discretionary jurisdiction to review appeals 

from service members who have been court-martialed and sentenced to a bad conduct or dishonorable discharge, dismissal or 

confinement to 1 year or more. 

I commend the sponsor of H.R. 569, Representative Susan Davis, 

our colleague, for her commitment to improving the circumstances 

and conditions of those who volunteer their service and, in some 

cases, their lives in the defense of our Nation. 

This is the third Congress that Representative Davis has introduced legislation on this topic. 

In the past, we have elicited views from the affected agencies, departments and the judiciary branch to evaluate the legislation before us. 

If there is no objection, Mr. Chairman, I would like to ask that 

letters from the Department of Defense and the Supreme Court be 

made a part of the official record, regarding the issue at hand. 

Mr. JOHNSON. Without objection. 

Mr. COBLE. That said, it is regrettable, and you just touched on 

it, Mr. Chairman, that while today’s hearing marks the first real 

legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake. 

And it appears to me that the Administration has chosen to go 

AWOL on this matter today. This marks the second time in 90 

days that the Administration has been missing in action before this 

Subcommittee, in a hearing where Members are reviewing proposals that relate directly to our service members. 

I am sure General Altenburg and Colonel Sullivan, who have arranged their schedule three times so they could be with us, can 

probably tell us the range of penalties the UCMJ prescribes for 

failure to report for duty, if you will pardon my inserting a little 

humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are 

not subject to the UCMJ’s disciplinary provisions. 

Mr. Chairman, in closing, I want to note that we need to insist 

that the Administration does, in fact, take seriously its obligation 

to respond to our requests for information. 

This is particularly true when matters before this Subcommittee 

and the full Committee, for that matter, directly impact the rights 

of service members, their resources and requirements of our armed 

services, and the administration of our judicial system. 

I look forward to learning more about the intricacies of the matter from the witnesses who are here today and hope for the Administration to come back to us in the near future with any further 

thoughts that they may have on the subject before us. 

This concludes my opening remarks, Mr. Chairman, and I yield 

back. 

Mr. JOHNSON. Thank you, Mr. Ranking Member, for your statement. 

6 

And without objection, other Members’ opening statements will 

be included in the record. 

I am now pleased to introduce the witnesses for today’s hearing. 

Our first panel will feature Congresswoman Susan Davis. Representative Davis represents California’s 53rd 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 also had substantial personal exposure to military life 

as the daughter of a World War II medic and wife of an Air Force 

doctor. 

Welcome, Representative Davis. 

Mrs. DAVIS. Thank you. 

Mr. JOHNSON. And I really appreciate your evenhandedness in 

dealing with all of the issues that come before our Subcommittee, 

and you are a great leader. 

Now, our second panel will begin with Colonel Dwight H. Sullivan. Colonel Sullivan is a civilian senior appellate defense counsel 

at the Air Force Appellate Defense Division and he is a Colonel in 

the United States Marine Corps Reserve. 

He has served as the Chief Defense Counsel for the Office of 

Military Commissions and he has also served as a Managing Attorney with the ACLU of Maryland. 

He is a co-author of ‘‘Military Justice: Cases and Materials,’’ 

which is a case book published by LexisNexis in 2007, and he is 

co-editor of ‘‘Evolving Military Justice,’’ which is an anthology published by the Naval Institute Press back in 2002. 

Welcome, sir. 

Second will be Major General John D. Altenburg, Jr., who is now 

retired from the United States Army and is a principal with the 

Washington, D.C. office of Greenberg Traurig, an international law 

firm. 

Before joining Greenberg Traurig in 2002, he was a consultant 

on governance and ethics issues to the President and the World 

Bank Group. 

General Altenburg has served as the Appointing Authority for 

Military Commissions. General Altenburg also concluded a 28-year 

Army career in 2001 as the Deputy Judge Advocate General of the 

Army. 

Welcome, General. 

Thank you all for your willingness to participate in today’s hearing. 

Without objection, your statements, your written statements will 

be placed into the record, and we would ask that you limit your 

oral arguments or your oral remarks to 5 minutes. 

You will note that we have a lighting system that starts with a 

green light and at 4 minutes, it turns yellow, then red at 5 minutes. 

After each witness has presented his or her testimony, Subcommittee Members will be permitted to ask questions, subject to 

the 5-minute rule. 

Representative Davis, would you please proceed? 

7 

TESTIMONY OF THE HONORABLE SUSAN A. DAVIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mrs. DAVIS. Thank you very much. Thank you, Chairman Johnson, Ranking Member Coble, and Members of the Committee. I certainly do want to thank you for taking the time to hold this hearing, as well as giving me the opportunity to testify and submit my 

remarks for the record. 

When American men and women decide to serve their Nation in 

the Armed Forces, they make many sacrifices, from lost time with 

families to injury to irreplaceable loss of life. 

Most Americans, 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 

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 to the United States Court of Appeals for the Armed Forces, what we know as CAAF, most have no 

recourse. 

This issue was brought to the attention of my office years ago by 

a 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 the Chairwoman of the Subcommittee on Military Personnel, 

a long-time advocate for service members, and a representative of 

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. 

It 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 Act, H.R. 569, amends U.S. 

Code to permit convicted service members to appeal to the Supreme Court in cases where their 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 or writ appeal. 

This remedial approach would provide service members with due 

process, access to discretionary Supreme Court review 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 advocates. 

Last Congress, this bill was passed by voice vote on the House 

floor and, in addition, the Senate Judiciary Committee 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 other Americans. They deserve better. 

I certainly hope that you will join me in support of this legislation to attain equal treatment for those who fight for our country. 

8 

Chairman Johnson, once again, thank you very much, Mr. Coble 

and others, for the opportunity to submit my remarks for the 

record, and I look forward to working together on this issue. 

Thank you. 

[The prepared statement of Ms. Davis follows:] 

9 

PREPARED STATEMENT OF THE HONORABLE SUSAN A. DAVIS, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA


Davis-1.eps
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Davis-2.eps
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Davis-3.eps
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Mr. JOHNSON. Thank you, Madam Chair, and we thank you for 

your appearance today. 

And I will now call forward the second panel. 

Colonel Sullivan, are you ready to proceed, sir? 

Colonel SULLIVAN. Yes, sir. 

Mr. JOHNSON. Please. 

TESTIMONY OF DWIGHT H. SULLIVAN, ATTORNEY, 

WASHINGTON, DC 

Colonel SULLIVAN. Mr. Chairman, Ranking Member Coble, Members of the Committee, I am grateful for the opportunity to speak 

with you this morning about the Equal Justice for Our Military 

Act. 

At the outset, I would like to emphasize that I am speaking 

strictly in my personal capacity. I am not speaking for the Air 

Force, the Marine Corps, DOD, and nothing I say should be imputed to anyone but myself. 

For the last 2 years, I have represented Air Force members appealing court-martial convictions as a civilian lawyer. And as a reserve lawyer in the Marine Corps, I have represented sailors and 

Marines appealing court-martial convictions. 

Now, before that, I was the chief defense counsel for the Office 

of Military Commissions. So I was the head of the office that provided defense counsel for Guantanamo detainees being tried by 

military commissions. 

In 2006, in the Military Commissions Act, Congress gave every 

alien, unlawful, enemy combatants the right to seek Supreme 

Court review if they are convicted by a military commission, and 

that is codified at 10 USC 950g. 

But most American service members who are convicted by courtmartial have no right to seek Supreme Court review on direct appeal. 

So alien, unlawful, enemy combatants at Guantanamo Bay have 

a greater right to seek Supreme Court review than do the American soldiers, sailors, Marines and airmen who guard them. 

Members of the U.S. military also have less of a right to seek Supreme Court review than do civilian state defendants, civilian defendants in U.S. district courts, and they also have less of a right 

to seek Supreme Court review than does the prosecution in a courtmartial case. And H.R. 569 would largely correct these imbalances. 

Now, perhaps it would be helpful to the Committee to have an 

overview of the military justice system, using fiscal year 2008 as 

an example, to see how this plays out in practice. 

Worldwide, in fiscal year 2008, the five branches of the armed 

services, combined, tried about 3,000 courts-martial, a little bit 

more than 1,000 general courts-martial, which is the felony forum, 

a little bit less than 2,000 special courts-martial, for a combined 

total of 3,008 court-martial cases worldwide. 

Now, of those, a little bit more than 2,000 resulted in a conviction and a sentence that authorized the case to go on appeal under 

10 USC 866. 

And what happens is after the same officer who convenes the 

court approves the results, the case goes on appeal to one of the 

four Courts of Criminal Appeals, which are intermediate appellate 

13 

courts that sit in the Washington, D.C. area, most of which are 

comprised of senior uniformed military lawyers. 

And again, about 2,000 cases went on appeal to those four courts 

in fiscal year 2008. 

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 

CAAF, for further review. 

Now, CAAF consists of five civilian judges—by statute, they must 

be civilians—appointed by the President, confirmed by the Senate, 

for 15-year terms. 

It is an Article I court, but it functions much like one of the geographic courts of appeals reviewing criminal convictions, but with 

one crucial difference, and, that is, if you are convicted in U.S. district court, you have a right of appeal to one of the courts of appeals. 

If you are convicted by a court-martial and your case goes on appeal to the Court of Criminal Appeals, you have to file a petition 

and ask CAAF to exercise discretionary review. 

Now, there are two categories of cases that CAAF must hear. If 

there is an approved death sentence in a case, CAAF has to hear 

that case. Congress has said so. 

And then, also, the Judge Advocate General of the service, the 

top uniformed lawyer in each of the military services, can require 

CAAF to review a case. 

And so in practice, that provides the prosecution with a guaranteed right of appeal to CAAF, because if the prosecution loses at 

the intermediate appellate court, the Judge Advocate General can 

require CAAF to review that case. 

Once the case goes through CAAF’s 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 to CAAF, which then results 

in Supreme Court review. 

So turning, again, to fiscal year 2008, there were a total of 134 

cases that CAAF reviewed either because they granted a petition, 

part of their discretionary docket, or because one of the Judge Advocates General directed that they review that case, 134 cases. 

Now, of those 134 cases, ultimately, 20 went on to qualify—20 

went on to file cert petitions. So most of these cases do not result 

in cert petitions, even after the door to the Supreme Court has 

been opened. 

There were another 715 cases where CAAF denied review and, 

as best as I can tell, those 715 service members whose petitions 

were denied are the only Americans convicted in a criminal court 

who did not have the right to seek Supreme Court review, and they 

didn’t have that right because they were members of the U.S. military. 

And again, H.R. 569 would largely correct that imbalance and 

provide U.S. service members with a similar right to seek access 

to the Supreme Court. 

Thank you. 

[The prepared statement of Colonel Sullivan follows:] 

14 

PREPARED STATEMENT OF DWIGHT H. SULLIVAN


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Mr. JOHNSON. Thank you, Colonel Sullivan. 

General Altenburg, are you ready, sir? 

General ALTENBURG. I am, sir. 

Mr. JOHNSON. Please proceed. 


DHS-6.eps
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TESTIMONY OF MAJOR GENERAL (RET.) JOHN D. ALTENBURG, 

JR., ATTORNEY, WASHINGTON, DC 

General ALTENBURG. Chairman Johnson, Ranking Member 

Coble, and distinguished Members of the Subcommittee on Courts 

and Competition Policy, I thank you for the opportunity to discuss 

the proposed Equal Justice for Our Military Act of 2009. 

I 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 when considering the proposed legislation. 

I served as an enlisted soldier in the 1960’s for several years and 

then subsequently, after I attended law school, I came back and 

served as an officer for 28 years, and I think that gives me not a 

unique perspective, but certainly a little different perspective on 

these matters. 

For purposes of this discussion, I am going to assume that I am 

an accused soldier and then an accused civilian, and I am going to 

compare and contrast my appellate rights as a military service 

member both before the 1983 amendments and after, and then 

compare them, also, to my appellate rights as a civilian. 

In the military, if the sentence includes either a punitive discharge or confinement exceeding a year, then my military case is 

appealed automatically to the intermediate appellate court, both 

before and after the 1983 amendments to the UCMJ. 

If I am a civilian, there is no automatic appeal, unless it is 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 

1983 amendments. 

Unless I am 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, I am provided an appellate counsel through all 

levels of appeal at no expense to me, both before and after the 1983 

amendments. 

In the civilian sector, I must retain my own attorney to appeal 

to the civilian intermediate appellate court, again, unless I am able 

to establish that I am indigent. 

Both before and after 1983, I may retain, in addition to my military appellate counsel, a civilian appellate counsel at my own expense. 

In the civilian sector, I may retain, at my own expense, a civilian 

appellate counsel for the civilian appellate court, unless I have 

been appointed a counsel based on my being indigent. 

In the military, the intermediate appellate court, both before and 

after 1983, 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 the case after my trial court has convicted me must disapprove any finding, any guilty filing, unless he or she is convinced 

beyond a reasonable doubt that I am guilty. 

21 

There are three different entities that must be convinced beyond 

a reasonable doubt of each element of the offense to convict and to 

uphold 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 courts must be 

convinced beyond a reasonable doubt upon review. 

There is no corollary in the civilian sector. The civilian appellate 

court is almost always limited to finding legal errors 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 have 

said earlier, the CAAF, both before and after 1983. 

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 at my own expense. This is true 

both before and after the 1983 amendments. 

In the civilian sector, I must pay all expense 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 attack in Federal district court both 

before and after 1983. 

The collateral attack may proceed through Federal district— 

through Federal intermediate appellate court and then to 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 1983, if my petition to the highest military 

appellate court is granted, but the appeal itself was denied, then 

I may petition directly to the Supreme Court of the United States. 

To review the differences today, in the military, there is an automatic appeal of all cases by either an SJA or the Judge Advocate 

General and, if more than a year confinement, then by the court 

of criminal appeals. 

In the civilian, there is only an automatic review in capital cases. 

In the military, counsel is provided. In the civilian, they are not 

provided, unless indigent. 

In the military, all costs are paid by the government. In civilian, 

the costs are paid by the appellant. 

In the military, there is an appellate court factual review. In a 

civilian court, there is no factual review. 

This concludes my comments. 

[The prepared statement of General Altenburg follows:] 

22 

PREPARED STATEMENT OF MAJOR GENERAL JOHN D. ALTENBURG, JR. 


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Mr. JOHNSON. Thank you, General Altenburg. 

And I will now begin questioning, granting myself so much time 

as I may consume. 

I want to ask you both. There currently is no effective date indicated in the text of the bill or language discussing how pending 

cases may be dealt with. 


JDA-4.eps
26 

Assuming the bill is passed, how do you think pending cases 

should be handled? 

Colonel SULLIVAN. You raise a very good point, Mr. Chairman, 

because if this bill was passed, there would actually need to be a 

change to the Supreme Court rules to provide the time within 

which the cert petition would be filed. 

So there would need to be some opportunity after the date of enactment to provide the Supreme Court with that opportunity. 

When Congress passed the Military Justice Act of 1983, it made 

the bill take effect on the first day 8 months from the date of enactment. And so it seems that it would probably be wise to have a 

similar standoff period built into the bill, Mr. Chairman. 

Mr. JOHNSON. Thank you. 

General ALTENBURG. I agree, Mr. Chairman. 

Mr. JOHNSON. Okay, that was easy. All right. 

Now, there are conflicting opinions and uncertainty in the written testimony concerning how much H.R. 569 is going to cost. 

Can each of you provide your best guess as to whether additional 

costs will be substantial and whether you think they are worth the 

greater access to Supreme Court review provided by H.R. 569? 

Colonel SULLIVAN. The cost of filing a cert petition consists mainly of printing costs. It costs about $1,000 to print a cert petition. 

So the main cost of this bill will be 1,000 times however many 

additional cert petitions are filed by counsel. And I say by counsel, 

because the—right now—I mentioned that there were 20 cert petitions filed in the last term by military members. 

Twelve of them were written by military appellate defense 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 member of the Supreme Court bar may not file a frivolous cert petition. The Supreme Court has been emphatic about that, in cases like Austin v. 

United States. 

So what happens in some cases is the client says, ‘‘I want to go 

to the Supreme Court.’’ The defense counsel says, ‘‘I can’t petition 

your case, because there is no non-frivolous issue.’’ And then in 

that instance, the counsel helps the client file a pro se petition. 

Those the government doesn’t pay anything for, because they are 

just typed out at the U.S. Disciplinary Barracks or wherever the 

member is. 

So if the number of Supreme Court petitions doubles under this 

bill, if the number of petitions prepared by military counsel doubled, it would be an additional expenditure of about $15,000, which 

seems to be a drop in the bucket. 

And certainly, the principle of equal access, I would say, is worth 

far more than that. 

General ALTENBURG. I would defer to Mr. Sullivan’s experience 

and knowledge about the appellate system, as I don’t have the direct experience in appellate work that he does. 

And I have talked to people in the military, and I think I have 

seen a document about a month ago that talked about over $1 million to do this, and I can’t say personally as to what I think it 

would cost. 

27 

I do think that there would be more than double the number of 

petitions. There are, by Mr. Sullivan’s own account, 715 were denied and to think that only 20 of them or 30 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 filing costs and the cost to 

have appeals or to petition the Supreme Court is the fact that it 

would take additional manpower resources. And I think that is one 

of the reasons that the Congress might consider going a little bit 

slow on this legislation and at least having some type 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 individual military member. 

It is going to be one who is not going to be advising a combat 

brigade in the Balkans or on a peacemaking 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 is something that must be looked at 

hard, is what resources is it going to require from the military in 

terms of their respective JAG corps to make this work. 

And there will be people on both the defense side to advise all 

the petitioners and then the government is going to 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. 

Mr. JOHNSON. So basically, what I have heard is that somewhere 

between $30,000 and perhaps as high as $1 million. 

Colonel Sullivan, General Altenburg indicates in his written testimony that because service members are allowed to attempt a collateral attack in Federal courts, they, in effect, already have an 

equal opportunity to the Supreme Court review. 

Do you agree with this statement and can you describe the difficulty in mounting a collateral attack of a court-martial in the 

Federal courts? 

Colonel SULLIVAN. Yes, Mr. Chairman. Collateral review is not a 

substitute for certiorari on direct appeal, and this is true for two 

reasons. 

First, there is an extremely narrow scope of review on collateral 

review. So, for example, in the 10th Circuit, where the United 

States Disciplinary Barracks is located and, hence, the circuit that 

handles most collateral attacks, if an issue has been fully and fairly considered by the military courts, the 10th Circuit won’t revisit 

it. 

If the issue wasn’t raised before the military courts, then the 

issue is considered waived and the court won’t revisit it. 

So the scope of review functions as a catch-22. Essentially, it 

weeds out almost every single claim a service member can make, 

because either it was raised in the military courts and then the Article III court won’t revisit it or it isn’t raised in the military courts 

and then it is considered waived. 

28 

The other reason why collateral review is not an adequate substitute is because of the familiar issue of preclusion or limitation 

rules in retroactivity regarding Teague v. Lane. 

The Supreme Court case in Teague v. Lane said that a new rule 

will not be applied retroactively on collateral review. 

So even if a service member was able to escape from that catch22, they still would not have the ability to get a court to recognize 

a new rule in a collateral attack, whereas that can happen on direct appeal. 

So it is not an adequate substitute, Mr. Chairman. 

Mr. JOHNSON. Thank you. 

General Altenburg, why shouldn’t cases that qualify for collateral 

attack in Federal courts be raised directly with the Supreme 

Court? 

Isn’t taking a case through the Federal court system, after it has 

been through the military justice system, a waste of judicial resources? 

General ALTENBURG. I might say the same thing about all the 

petitions that might be filed at the Supreme Court, Mr. Chairman. 

But I agree with Mr. Sullivan that a collateral attack is not a 

substitute for a direct petition to the Supreme Court. 

My concern is the balance between the resources that would be 

required, which are unknown and, as I suggested, may be analyzed 

more carefully, against the likelihood of a petition being granted. 

And it is my sense that this legislation, first of all, assumes inequality, and both my written statement and my oral comments 

point out the fact that if there is inequality in the appellate systems, the military has the advantage, but for this one aspect. 

And when you consider the number of petitions that are granted 

by the Supreme Court, less than 2 percent, less than 1 percent, it 

simply is a—it is a hollow advantage. 

It is a—it looks like it is an advantage, but in reality, it wouldn’t 

be and it would—and I think, arguably, it would mislead a lot of 

people into thinking they have got something that they don’t really 

have, when you look at the statistics for a Supreme Court granting 

certiorari. 

Mr. JOHNSON. Thank you, General. 

I will ask all of you—or both of you. Some have taken note that 

the court of appeals for the Armed Forces is an Article I court. 

Why is this fact important for our discussion today? 

Either one of you, or both, may respond. 

Colonel SULLIVAN. Mr. Chairman, in practice, right now, I don’t 

believe that CAAF’s status as an Article I court plays into the legislation, and here is why. 

As we know, most Article I courts can’t hold a statute unconstitutional. So if CAAF were like other Article I courts in that respect, 

that would present a greater need for Supreme Court review. 

But CAAF, in a case called United States v. Matthews, actually 

held the old military death penalty system unconstitutional and 

said it did have the power to declare a statute unconstitutional. 

So unless that changes, I think that CAAF’s status as an Article 

I court—it has not really—it hasn’t greatly limited its powers, Mr. 

Chairman. 

29 

Mr. JOHNSON. Some might argue that the Court of Appeals for 

the Armed Forces was supposed to serve essentially as the supreme 

court for the military legal system and, as such, the due process 

rights of service members is accounted for. 

How do you respond to this, Colonel Sullivan? 

Colonel SULLIVAN. Well, Mr. Chairman, I am a member of the 

Maryland bar and, of course, in Maryland, the Maryland Court of 

Appeals 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 law. 

So one would expect that even if the Supreme Court’s review was 

broadened over military justice cases, that CAAF 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 the UCMJ, 

it is appropriate for the Supreme Court to be the Supreme Court 

in the same way that it is appropriate for the Supreme Court to 

step in sometimes and speak to the Maryland Court of Appeals 

when it disagrees with what the Maryland Court of Appeals—with 

how the Maryland Court of Appeals construes the Constitution. 

Mr. JOHNSON. General Altenburg, would your reservations about 

the costs that H.R. 569 would impose on military justice resources 

be lessened if we gave service members the right to appeal to the 

Supreme Court, as provided in H.R. 569, but require them to pay 

for their own court costs associated with such an appeal? 

General ALTENBURG. Well, that would address the financial resource aspect. If we were still going to do what the military does 

and no civilian counterpart does, and, that is, provide the counsel, 

I am, quite frankly, more concerned about the lawyers, the JAG officers that need to represent both the accused and the government 

in an appellate process. 

To me, that is the real cost that the Congress might address 

itself to, again, because of the constrained manpower resources of 

all the military services. 

But to directly answer your question, yes, that would take care 

of the court filing costs and purely monetary resource issues. 

Mr. JOHNSON. All right. Thank you, General. 

Anything you would like to add, Mr. Sullivan? 

Colonel SULLIVAN. I think there is one important point. Actually, 

there are a couple important points in dealing with the cost issue. 

One, if you—again, looking at what happened with the 20 cert 

petitions filed last year, as well as the 18 cert petitions filed by 

service members this year, in every single case, the Solicitor General waived the United States’ right to reply. So they filed literally 

a one-page piece of paper in response. 

Now, last year, there were two cases where the Supreme Court 

called for a response. They said to the Solicitor General, ‘‘No, we 

want your views.’’ There has been one this year. 

But in reality, there is no great burden on the government. They 

read the cert petition and prepare a one-page sheet of paper. 

And then in reality, again, the only cert petitions that will be 

filed by counsel are those with a non-frivolous issue, which will be 

30 

a very small subset of the number of cases that are now authorized 

er this legislation, authorized to go to the Supreme Court. 

So really what is going to happen is there is going to be a very 

small number—increase in the number of cert petitions prepared 

by military defense counsel, probably a greater increase in the 

number of pro se, in forma pauperis cert petitions filed mainly by 

service members who are confined, more one-page responses from 

the Solicitor General and then some miniscule increase in the Supreme Court’s overall docket. 

The Supreme Court receives more than 8,000 cert petitions a 

year. If this legislation quadrupled the number of military cert petitions that were filed, which doesn’t seem realistic, but even if it 

did, that would result in less than a 1 percent increase in the Supreme Court’s burden. 

Mr. JOHNSON. It would be about, what, 150 or so cases a year? 

Colonel SULLIVAN. Well, sir, the average, I crunched the numbers 

and the average number of cert petitions filed since the Military 

Justice Act of 1983 was passed is 22. 

Even if it quadrupled, and I don’t think there is any chance it 

would be that great an increase, that would be an increase of 88, 

it is not going to be that great a burden. 

Mr. JOHNSON. All right. Well, I thank you both for responding to 

my questions. 

I will now recognize our Ranking Member, my good friend, Mr. 

Coble, for as much time as he may consume. 

Mr. COBLE. Thank you, Mr. Chairman. 

And, gentlemen, as the Chairman has already noted, we appreciate your appearing with us today. 

Colonel, given the existing protections in the military justice system and the extensive appellate process already in place, how do 

you respond to those who may harbor the belief that the civilian 

justice system is inherently superior to that already provided to our 

men and women in uniform? 

Colonel SULLIVAN. Sir, I love the military justice system. I was 

on active duty for 13 years. I have practiced most of my life in the 

military justice system. 

It is a wonderful system. And so nothing I say should be taken 

as in any way denigrating the system. 

Mr. COBLE. And I didn’t take it that way. 

Colonel SULLIVAN. Oh, yes, sir, and I wasn’t suggesting that. 

Mr. COBLE. Yes. 

Colonel SULLIVAN. Right. But I do want to preface my remarks 

by saying having greater Supreme Court review is not saying that 

we distrust the military justice system and we need the Supreme 

Court to ride herd on them. I mean, that is not the point at all. 

The point is looking at the rights of the individual litigant in the 

system and to say 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 and join the United 

States military, and I think the answer to that question is no. 

And we also have to remember—I am counsel in a cert petition 

that is pending at the Supreme Court right now that was filed on 

behalf of a Marine who hasn’t even been tried yet. He is presumptively innocent, and the government appealed an issue in his case. 

31 

Well, he is—because the Court of Appeals chose to grant review 

in his case, he could file a cert petition at the Supreme Court. 

But he shouldn’t have had that right barred, cut off, if CAAF had 

exercised its discretion not to grant review. 

The fact that he is a United States Marine who was being tried 

for actions that he took in combat, he shouldn’t have a less right 

to Supreme Court access than would a civilian being tried for 

something they did on the streets of the United States. 

Mr. COBLE. Thank you, Colonel. 

General Altenburg, even if you are correct, General, that the legislation offers the illusion of expanded authority to contest courtsmartial convictions and that few service members will actually benefit in any meaningful way from its enactment, what, General, is 

the real harm that you can think of that would result if the Congress enacts this measure? 

General ALTENBURG. Thank you, sir. Well, first of all, in direct 

response to that, I should point out that I dissociate myself with 

anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority 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 if it has been somebody 

as high as the secretary of the chief of staff or it is just been somebody in the appellate branch. 

But I don’t agree with any of that. It would in no way harm the 

military. My sole concern is the lawyer resource issue. That is my 

sole concern, and the fact that we don’t really know what it is 

going to take and how many people are going to take advantage of 

this. 

And I would say this. If there is a study that we are confident 

is accurate, and it says we are 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 is five judge advocates in a service 

or 20 judge advocates in a service, whatever it might be that would 

allow them to conduct their other missions, then my only concern 

about this legislation is the fact that it is hollow. 

I would have no objection, other than the fact that I think it may 

be a false hope. 

Mr. COBLE. And it is the unknown, I guess, General, that bothers 

you. 

General ALTENBURG. Yes, sir. 

Mr. COBLE. General, let me ask you this. The colonel stated that, 

in his statement, that it is inappropriate to deprive members of the 

U.S. military of the same right to Supreme Court access that their 

civilian counterparts and even alien, unlawful, enemy combatants 

enjoy. 

Now, General, that is a powerfully equitable argument. How do 

you respond to that assertion? 

General ALTENBURG. Well, sir, I think, on its face, it has great 

attraction. But if you analyze the facts, as I tried to do in my oral 

statement in talking about what really happens in our systems and 

how much protection there is, I would say a couple of things. 

32 

One, with regard to unlawful 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 2001 and 2002, completely immature, needing development. And so the fact that these people 

have direct appeal to the Supreme Court, I think, is—it makes it 

sound worse for soldiers, but the fact is, I think, one of the reasons 

that the Supreme Court doesn’t defer—it doesn’t defer to anyone. 

But the fact is our appellate system in the military is very well 

developed and has matured over the years. 

Two major, major sets of amendments by this Congress in 1968 

and 1983 enhanced that, along with the development of case law, 

especially in the last 50 years and especially since 1982 or 1983. 

And it has made it a unique appellate system and a unique appellate process in terms of the protections afforded the military 

members. 

And I think that when you take into consideration all the reviews, all the reviews done for free, all the advantages that a military accused has, that there is an assumption, I think, that the 

CAAF is going to take any issue that is 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, needed to be reviewed for the jurist prudence 

of this country. And I think that we look to the CAAF to do the 

same thing, to look at the differences among the service courts of 

appeal and to take those significant cases and to take those 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 its face, it sounds really unfair that any 

accused doesn’t get to petition the Supreme Court unless he or she 

is one of those that has been accepted for review by the CAAF. 

But the big, bad prosecutors get to appeal any case they want to. 

All they have to do is have TJAG certify it. True enough. 

But the numbers of cases that the Judge Advocate General has 

certified is miniscule. It is not like they certify every case where 

the government loses on appeal at the circuit court—I mean, at the 

criminal court of appeals in the service. 

There is like 12 in the last 5 years among all five services have 

been certified by TJAG. Dwight will, I am sure, correct me with 

what the accurate numbers are, but the numbers are—whether it 

is 12 or whether it is 30, it is miniscule when you take it over the 

fiscal years and you show that there are five services—they just 

don’t do it that often. 

And another example of just how sound this system is is that not 

only can the TJAGs, if they choose to, certify a case on behalf of 

an accused, that is not hollow. 

They have done it 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 are going to certify this case so that the 

accused gets heard at the CAAF, and they have certified cases on 

behalf of the accused person. 

Mr. COBLE. Thank you, General. 

General ALTENBURG. Yes, sir. 

33 

Mr. COBLE. Mr. Chairman, I see my time has expired. Could I 

have one final question? 

Mr. JOHNSON. Certainly, Mr. Coble. Take as much time as—— 

Mr. COBLE. Thank you. Just one question. 

General, let me put a hypothetical to you. Let’s assume that the 

Congress does determine to enact something along the lines of H.R. 

569. 

Do you have any ideas for how it might be modified to mitigate 

some of the harms that concern you? 

General ALTENBURG. Oh, yes, sir, just to make sure that the 

services have the resources to do this. 

If that issue was addressed, if we were able to discern rather 

than guess, but to discern this is what the likely costs are in terms 

of resources, and the Congress were to approve those resources, I 

don’t have an objection. I think it would work. 

Mr. COBLE. Thank you both for your appearance today. 

Mr. Chairman, I yield back. 

Mr. JOHNSON. Thank you, Mr. Coble. 

Next, we will have questions from our esteemed colleague from 

the great state of Texas, Congressman Gonzalez. 

Mr. GONZALEZ. Thank you very much, Mr. Chairman. 

This topic will not get as a thorough debate and discussion than 

we are having today, and so I want to start with that. 

It is not going to get any better for any of the other Members 

of Congress, and it is going to be up to us and this Subcommittee 

to go to the full Committee and then the full Committee to go to 

all Members. 

And I really appreciate, General, what you said. And that was, 

should we be so inclined to pass this piece of 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 will advance that 

argument, I can assure you. 

So I really appreciate your testimony. 

We are not doing anything really new here, in a way. It is substantial, don’t get me wrong. But what I am saying is, there is already Supreme Court review. 

The problem, as Mr. Sullivan has pointed out, and as our colleague, Congresswoman Davis, is that it is not balanced; that there 

is an inferior right between the parties. And that is going to be 

fundamentally objectionable to many of us. 

I understand that there is going to be additional costs and the 

resources are going to be required, and that will be our obligation 

and our duty, and that is to meet the increased costs and demands 

as a result of what we do on the floor of Congress. 

That is a given. Now, hopefully, we will rise to that particular 

responsibility. 

But, General, let me ask you, do you agree that there is an inferior right between the two parties as far as seeking Supreme Court 

review? 

General ALTENBURG. I think that technically, on the face of it, 

there appears to be an inferior right, yes. 

I think in reality, it doesn’t play out that way. But I agree that, 

certainly, on the face of it, it looks like there is an issue there. 

34 

Mr. GONZALEZ. And I understand what you have said. What is 

provided the service member throughout the process, I am not 

going to say it is incredible, I think it is deserving, and it is appropriate given the circumstances. 

But when it is all said and done, what is available to one party 

is not available to the other, and I think that is what causes us 

the discomfort, and I think that is what was the inspiration and 

the motive for Congresswoman Davis to get so involved. 

Mr. Sullivan, obviously, that is your whole point, the inferior 

right, and that is what this act would balance and bring a more 

just result to the whole process. 

Colonel SULLIVAN. Yes, sir. 

Mr. GONZALEZ. Do any of you have anything further to add? 

Colonel SULLIVAN. No, sir. 

General ALTENBURG. I don’t either, sir. 

Mr. GONZALEZ. Thank you very much. 

Mr. JOHNSON. There being no further questions, I would like to 

thank all the witnesses for their testimony today. 

And without objection, Members will have 5 legislative days to 

submit any additional written questions, which we will forward to 

the witnesses and ask that you answer as promptly as you can. 

And those responses, as well as the questions, will be made a 

part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other additional materials. 

And with that, this hearing on the Subcommittee on Courts and 

Competition Policy is adjourned. 

[Whereupon, at 10:58 a.m., the Subcommittee was adjourned.] 

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