Hearing Of The Courts And Competition Policy Subcommittee Of The House Judiciary Committee - H.R. 569, The Equal Justice For Our Military Act Of 2009

Statement

Chaired By: Rep. Hank Johnson

Witnesses Panel I: Rep. Susan A. Davis; Panel II: Dwight H. Sullivan, Attorney; John D. Altenburg Jr., Attorney

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REP. JOHNSON: (In progress) -- 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. 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's 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. This is particularly troubling because in these cases the government has the right to appeal CAAF decisions to the Supreme Court that 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 substantially larger 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 great or 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 would 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. And 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.

REP. HOWARD COBLE (R-NC): 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, popularly 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 one 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'd 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.

REP. JOHNSON: Without objection.

REP. COBLE: That said, it's 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. I think this is a mistake and it appears to me the administration's 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'm sure General Altenburg and Colonel Sullivan, who have arranged their schedule three times so they can be with us, can probably tell us the range of penalties the UCMJ prescribe for failure to report for duty, if you'll pardon my inserting a little humor in this, but unfortunately, 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, the 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 hopefully 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.

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

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, 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's 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 casebook 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 -- or your written statements will be placed into the record, and we would ask that you limit your oral arguments or your oral remarks to five minutes. You'll note that we have a lighting system that starts with a green light and at four minutes it 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-minute rule.

Representative Davis, would you please proceed?

REP. 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 my -- 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.

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.

REP. JOHNSON: Thank you, Madame Chair, and we thank you for your appearance today.

And I'll now call forward the second panel.

Colonel Sullivan, are you ready to proceed, sir?

MR. SULLIVAN: Yes, sir.

REP. JOHNSON: Please.

MR. SULLIVAN: Mr. Chairman, Ranking Member Coble, members of the committee, I'm grateful for the opportunity to speak with you this morning about 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 as -- for the Air Force, the Marine Corps, DOD, and nothing I say should be imputed to anyone but myself.

For the last two years, I've represented Air Force, members -- (inaudible) -- and a reserve lawyer in the Marine Corps, I've represented sailors and Marines appealing court-martial convictions. Now, before that, I was the chief defense counsel for the Office of Military Commissions, (sort of ?) 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 combatant the right to seek Supreme Court review if they are convicted by military commission, and that's codified at 10 USC 950g. But most American service members who are convicted by court martial 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 -- they also have less of a right to seek Supreme Court review than does the prosecution in a court-martial 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 FY '08 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 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 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's an Article I court, but it functions like one of the geographic courts of appeals reviewing criminal convictions, 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 appeals. If you're 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 the 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 file cert petitions. 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 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.

REP. JOHNSON: Thank you, Colonel Sullivan.

General Altenburg, are you ready, sir?

MR. ALTENBURG: I am, sir.

REP. JOHNSON: Please proceed.

MR. 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 1960s 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'm going to assume that I'm an accused soldier and then an accused civilian, and I'm going to compare and contrast by 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 '83 amendments to the UCMJ. If I'm a civilian, there's no automatic appeal unless 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 '83 amendments. Unless I'm indigent, I must pay all those costs, like filing fees and court costs, associated with an appeal with the civilian intermediate appellate court. In the military, I'm provided an appellate counsel through all levels of appeal, at no expense to me, both before and after the '83 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 '83, 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 civilian appellate counsel for the civilian appellate court unless I've 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 guilty finding 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 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've 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 if I 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 '83 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 attack in federal district court, both before and after 1983. The collateral attack may proceed 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 is 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 of confinement, then by the court of criminal appeals. In the civilian, there's only an automatic review in capital cases. In the military, counsel's provided; in the civilian, they're not provided unless indigent. In the military, all costs are paid by the government; in the civilian, the costs are paid by the appellant. In the military, there's an appellate court factual review; in the civilian court, there is no factual review.

This concludes my comments.

REP. 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. Assuming the bill is passed, how do you think pending cases should be handled?

MR. SULLIVAN: You raise a very good point, Mr. Chairman, because the -- 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. It would require a change to Rule 13 of the Supreme Court rules. 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 eight months from the date of enactment.

And so it seems that there would probably -- it would probably be wise to have a similar standoff period built into the bill, Mr. Chairman.

REP. JOHNSON: Thank you.

MR. ALTENBURG: I agree, Mr. Chairman.

REP. JOHNSON: Okay, that was easy. (Laughs.)

All right, 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 cost will be substantial and whether you think they are worth the greater access to Supreme Court review provided by H.R. 569?

MR. SULLIVAN: Sir, 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 to this bill will be a thousand times however many additional cert petitions are filed by counsel.

And I say by counsel, because the -- right now -- I mentioned that there are 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 supreme -- a member of the Supreme Court bar may not file a frivolous cert petition. The Supreme Court's been emphatic about that in cases like Austin versus 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's 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're just typed out at the U.S. Disciplinary Barracks or wherever the member is.

So if the number of Supreme Court petitions doubled 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.

MR. ALTENBURG: I 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've 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.

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 -- to petition the Supreme Court is the fact that it would take additional manpower resources. And I think that's 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 cost 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 is going to be one who's 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's something that must be looked at hard, is what resources it is going to require from the military in terms of their respective JAG corps to make this work. And there'll be people on both the defense side to advise all the petitioners, and then the government's 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.

REP. JOHNSON: So basically, what I've 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 their 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?

MR. SULLIVAN: Yes, Mr. Chairman. Collateral review is not a substitute for certiorari on direct appeal and this true for two reasons. First, there's 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 this 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's considered waived.

The other reason why collateral review is not an adequate substitute is because of the familiar issue 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 Catch-22, 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's not an adequate substitute, Mr. Chairman.

REP. 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's been through the military justice system a waste of judicial resources?

MR. 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, you know, maybe analyzed more carefully, against the likelihood of a petition being granted. And it's 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's 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's a hollow advantage. It looks like it's an advantage, but in reality it wouldn't be and it would -- I think, arguably, it would mislead a lot of people into thinking they've got something that they don't really have when you look at the statistics for a Supreme Court granting certiorari.

REP. JOHNSON: Thank you, General.

I'll 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.

MR. SULLIVAN: Mr. Chairman, in practice right now, I don't believe that CAAF status as an Article I court plays into the legislation, and here's why. As we know, most Article I courts can't hold the 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 versus 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 status as an Article I court -- it has not really -- it hasn't greatly limited its powers, Mr. Chairman.

REP. 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?

MR. SULLIVAN: Well, Mr. Chairman, I'm 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's appropriate for the Supreme Court to be the Supreme Court in the same way that it's 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.

REP. JOHNSON: General Altenburg, would you -- would your reservations about the cost 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 required them to pay for their own court cost associated with such an appeal?

MR. 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'm 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's 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.

REP. JOHNSON: All right. Thank you, General.

Anything you'd like to add, Mr. Sullivan?

MR. SULLIVAN: I think there is one important point. Actually there are a couple of important points in dealing with the cost issue.

One, if -- 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. (Audio break) -- 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's been one this year.

But in reality there is no great burden on the government. They've -- you know, 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 a very small subset of the number of cases that are now 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 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.

Supreme Court receives more than 8,000 cert petitions a year. If 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.

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

MR. SULLIVAN: Well, sir, the -- in -- the average -- I crunched the numbers. And the average number of cert petitions filed, since the Military Justice Act of '83 was passed, is 22. So even if it quadrupled -- and I don't think there's any chance it would be that great an increase -- that would be an increase of 88. It's not going to be that great a burden.

REP. JOHNSON: All right. Well, I thank you both for responding to my questions.

I'll now recognize our ranking member, my good friend Mr. Coble, for as much time as he may consume.

REP. HOWARD COBLE (R-NC): 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?

MR. SULLIVAN: Sir, I love the military justice system. I was on active duty for 13 years. I've practiced most of my life in the military justice system. It is a wonderful system.

And so nothing I say should be taken as any way denigrating the system.

REP. COBLE: And I didn't take it that way.

MR. SULLIVAN: Oh, yes, sir. And I wasn't suggesting that. (Laughs.)

REP. COBLE: Yeah.

MR. SULLIVAN: Right. But I do want to preface my remarks by saying -- having greater Supreme Court review is not saying that we should -- we distrust the military justice system and we need the Supreme Court to ride herd on them. I mean, that's 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 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'm a counsel in a cert petition that's pending at the Supreme Court right now that was filed on behalf of a Marine who hasn't even been tried yet. He's presumptively innocent. And the government appealed an issue in his case.

Well, he's -- if -- and 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.

You know, 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 less right to Supreme Court access than would a civilian being tried for something they did on the streets of the United States.

REP. COBLE: Thank you, Colonel.

General Altenburg, even if you are correct, General, that the legislation offers the illusion of expanded authority to contest courts-martial 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 if that would result if the Congress enacts this measure?

MR. ALTENBURG: Thank you, sir.

Well, first of all, in direct response to that, I should point out that I disassociate 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's been somebody as high as a secretary or the chief of staff, or it's just been somebody in the appellate branches, 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's my sole concern, and the fact that we don't really know what it's 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're 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 five judge advocates in the service or 20 judge advocates in the 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's hollow.

I would have no objection other than the fact that I think it may be a false hope.

REP. COBLE: And it's the unknown, I guess, General, that bothers you?

MR. ALTENBURG: Yes, sir.

REP. 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's a powerfully equitable argument. How do you respond to that assertion?

MR. 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'd say a couple of things.

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 '83. And it's 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 a consideration of all the reviews, all the reviews done for free, all the advantages that a military accused has that there's an assumption, I think, that the CAAF 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's a split among the circuits needs to be reviewed, you know, for the jurisprudence 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 the -- any accused doesn't get to petition the Supreme Court unless he or she is one of those that's 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's 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's like 12 in the last five years among all five services have been certified by TJAG. Dwight will, I'm sure, correct me with what the accurate numbers are, but the numbers are -- you know, whether it's 12 or whether it's 30, it's miniscule when you take it out over the fiscal years and you say, and you show that there's five services. They just don't do it that often.

And another example of just how sound the system is, is that not only can the TJAGs, if they choose to, certify a case on behalf of an accused -- that's not hollow. They've 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're 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.

REP. JOHNSON: Thank you, General.

GEN. ALTENBURG: Yes, sir.

REP. COBLE: Mr. Chairman, I see my time's expired. Could I have one final question?

REP. JOHNSON: Certainly, Mr. Coble. Take as much time as --

REP. 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?

GEN. ALTENBURG: Yes, sir. Just to make sure the services have the resources to do this -- that 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, you know, I don't have an objection. I think it would work.

REP. COBLE: Thank you both for your appearance today.

Mr. Chairman, I yield back.

REP. JOHNSON: Thank you, Mr. Coble.

Next we will have questions from our esteemed colleague from the great state of Texas, Congressman Gonzalez.

REP. CHARLES A. GONZALEZ (D-TX): Thank you very much, Mr. Chairman.

This topic will not get as a thorough debate and discussion than 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 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'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 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'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 increased cost and demands of what we do on the floor of Congress.

That is a given. Now, hopefully we'll 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?

GEN. 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's an issue there.

REP. GONZALEZ: And I understand what you've said. What is provided the service member throughout the process, I'm not going to say it's incredible; I think it's deserving and it's appropriate given the circumstances, but when it's all said and done, what is available to one party is not available to the other. And I think that's what causes us the discomfort and I think that's what was the inspiration and the motive for Congresswoman Davis to get so involved.

Mr. Sullivan, obviously that's your whole point, the inferior right, and that's what this act would balance and bring a more just result to the whole process.

MR. SULLIVAN: Yes, sir.

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

MR. SULLIVAN: No, sir.

GEN. ALTENBURG: I don't either, sir.

REP. GONZALEZ: Thank you very much.

REP. JOHNSON: There being no further questions, I'd like to thank all the witnesses for their testimony today. And without objection, members will have five 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 five 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. (Sounds gavel).

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