A Soldier’s Right to Fight

September 30, 2008 by Casey Hynes   · Print Print ·

By CASEY HYNES, Correspondent

Photo by flickr’s Chang’r

Photo by flickr’s Chang’r

This summer the Supreme Court decided that detainees at Guantanamo Bay had the right to petition their release in a federal court. The decision was met with strong sentiments of approval and derision. Supporters said it would help restore America’s reputation in the eyes of the world, while critics said it would lead to more terrorist attacks on U.S. soil.

For Norbert Basil MacLean III, a former cryptologist for the United States Navy, that decision was not nearly as egregious as that of Congress’ in 2006, when it passed the Military Commissions Act. The bill granted enemy combatants the right to direct review of their military commission cases in the Supreme Court.

“The worst of the worst – an enemy combatant – has access to our high court while a serviceman or woman who puts their life on the line for our protection and defense is shut out,” MacLean said. “How does Congress reconcile giving enemies access to our high court and at the same time closing the door on those who fight for our democratic way of life? I don’t think this can be reconciled.”

Under the Uniform Code of Military Justice, members of the armed services can bring their cases to the Supreme Court only under very limited circumstances. These include cases in which the defendant could face the death penalty, cases certified to the U.S. Court of Appeals for the Armed Forces by the judge advocate general for review, and cases where the appeals court granted the accused member’s petition for review or the appeals court otherwise granted relief to the accused, according to a Legal Times article written by MacLean.

Cases in which a soldier faces the death penalty are rare. According to the Death Penalty Information Center, there have been 135 military executions since 1913, the last of which took place in 1961. In July, however, President Bush approved the death penalty for Army Private Ronald A. Gray, who was convicted of committing four murders and eight rapes while stationed at Fort Bragg during the 1980s, according to the Associated Press.

As noted by Rep. John Conyers, D-Mich., during a recent floor statement, members of the armed services whose cases are rejected by the military appeals court cannot request that the Supreme Court hear their case. Conyers also pointed out that, “adding insult to injury,” the government can appeal to the Supreme Court if the appeals court finds against the government.

Conyers was speaking in favor of the Equal Justice for Our Military Act, which would theoretically correct the imbalance. Bills in support of the act recently passed in both the House and Senate, a great victory for someone like MacLean. A dual citizen in the United States and Australia, MacLean has been on a passionate and personal crusade over the past several months to bring this issue to light.

“The Supreme Court doesn’t exist [for military service members],” he said.

MacLean’s dedication to the cause began with his own experience. As he tells it, he was court-martialed and eventually discharged from the Navy for writing bad checks due to problems with his military pay, he says. MacLean believes that the charges were brought against him because he filed a complaint against a commanding officer for harassment. The court eventually found in MacLean’s favor, but the officer was able to bring court-martial charges against him several months later.

It was during his ordeal that MacLean discovered he had no real way of appealing his case outside of the military justice system, and has since sought to rectify the situation for other military members.

And with the passage of the Equal Justice for Our Military Act, it looks as if he may see some progress.

The Equal Justice for Our Military Act would amend the federal judicial code to allow members of the armed services to directly appeal their cases to the Supreme Court, under certain circumstances in which they have been denied relief by the Court of Appeals for the Armed Forces. The issue has received bipartisan support, and a bill was passed by the House of Representatives on Sept. 27. An identical bill was approved by the Senate Judiciary Committee on Sept. 11, but still needs to be voted on by the full Senate.

“I am very pleased that the House of Representatives passed this bill that will afford our uniformed citizens access to the highest court in the land which they serve to protect and defend,” MacLean said in an e-mail. “This legislation, which is long overdue, stops the second-class legal treatment of our troops.”

MacLean’s push to attract attention and support for the issue are driven in part by his belief that if the American public knew about this imbalance, they would be outraged and want a change to the law.

Walter Cox, a former chief judge of the Court of Appeals for the Armed Forces, said that for most Americans, the issue is “out of sight, out of mind.”

“As a nation, we have both an ethical and moral obligation to make sure they have access to the highest court in the land,” he said. When American soldiers are paying with their lives to defend their country, at minimum they are owed due process, he said, adding that there is a potential for landmark cases to come out of a reform in military justice legislation.

Former Marine Corps officer and Marine judge advocate John O’Connor would likely disagree with this. O’Connor said that while a change in the law would be a “symbolic” victory, it is unlikely to have any real affect on most cases.

“It’s a misnomer in a sense that this would create equal access,” he said.

O’Connor clarified that service members who do gain access to the Supreme Court under the bill would have equal access. However, he said, those who receive a courts-martial not subject to review by the military, including cases in which punitive discharge or confinement for a year or more is part of the sentence, would not have access.

“Service members receiving such ‘sub-jurisdictional’ sentences at a court-martial would not have the same access to Supreme Court review as their civilian counterparts because this bill would not give the Supreme Court jurisdiction over a direct appeal of such a court-martial,” he wrote in a follow-up comment to this article.

The Supreme Court is unlikely to take a case unless it considers the case important enough, he explained, adding that the chances of a case that was denied by a military appeals court being heard by the Supreme Court are slim.

O’Connor expressed concern that such an option takes away from the finality of a court-martial, which would be “part of the cost-benefit analysis that would go into the bill.” He also said the passage of such legislation could end up taxing the resources of the appellate division, although he did not think the consequences would be dire if the bill was passed.

“Symbolic legislation is most defensible when there are hardly any costs to enacting the legislation,” he said.

O’Connor went on to say that he is not really for or against the bill, and wrote, “I just don’t think it’s likely to have much of an impact either way.”

Nonetheless, the bill does open that pathway for service members. Rep. Susan Davis, D – Calif., who introduced the legislation in the House, acknowledged that given the sacrifices members of the armed forces willingly make, equal justice should not be one of them.

“We all know when American men and women decide to serve their nation in the armed forces they make many sacrifices, from lost time with their families to irreplaceable loss of lives,” Davis said, according to a record of her floor statement. “Service members also sacrifice one of the fundamental legal rights that all civilian members enjoy.”

Casey Hynes may be reached at casey.hynes@gmail.com.



2 Responses to “A Soldier’s Right to Fight”

  1. John O'Connor on October 1st, 2008 11:59 am


    I think the quotes attributed to me in this article are taken a little bit out of context. My statement that EAJA is a misnomer because it does not really provide equal access to the Supreme Court is true, but your article doesn’t explain why. For those servicemembers who would get access to Supreme Court reivew under this bill, it would provide equal access. But there are a number of courts-martial that are not subject to appellate review by the military courts — essentially courts-martial where the approved sentence does not include a punitive discharge or confinement for a year or more. My point was that servicemembers receiving such “sub-jurisdictional” sentences at a court-martial would not have the same access to Supreme Court review as their civilian counterparts because this bill would not give the Supreme Court jurisdiction over a direct appeal of such a court-martial.

    Also, I think it’s not quite right to say I “criticized” EAJA as impacting the finality of courts-martial. It’s more correct to say I noted that fact, a fact that I think is undeniably true. That’s just part of the cost-benefit analysis that would go into the bill. And, to be clear, I’m not against the bill (or really for it, for that matter), I just don’t think it’s likely to have muich of an impact either way.

    Best regards,
    John O’Connor

  2. Casey Hynes on October 3rd, 2008 10:14 am

    “A Soldier’s Right to Fight” has been updated by the author to reflect Mr. O’Connor’s comments. In writing the story, I felt I had been clear about Mr. O’Connor’s opinion based on our conversation, but given his comments wanted to clarify his remarks and make sure he was not misrepresented.

Feel free to leave a comment...
and oh, if you want a pic to show with your comment, go get a gravatar!