Since 2005, federal legislation has been introduced in the 109th Congress, 110th Congress, 111th Congress, 112th Congress, 113th Congress, 114th Congress, and 115th Congresses to amend Title 28 United States Code section 1259 to allow members of the United States Armed Forces to appeal court-martial convictions when the Court of Appeals for the Armed Forces denies a petition for grant of review or extraordinary relief. In the 112th Congress the Equal Justice for Our Military Act of 2011, H.R. 3133 was introduced in the House of Representatives and the Equal Justice for Our Military Act of 2011, S. 1664 was introduced in the Senate. No actions were taken on either bill.A version of the bill was re-introduced by Rep. Susan A. Davis (D-Calif.) yearly until the year before her departure from Congress in 2021. The law was eventually changed as part of the National Defense Authorization Act for Fiscal Year 2024. However, the Supreme Court still lacks administrative authority over the CAAF, including over contempt of court and attorney discipline cases. Advocates continue to argue for an expansion of the Supreme Court's jurisdiction to hear these matters.
Controversy over Supreme Court access Since the establishment of the Supreme Court by the United States Constitution in 1789, Congress has not allowed service members direct appeal to the nation’s highest federal court should the service member be convicted by courts-martial. In 1950 Congress created the modern military justice system by enacting, in 1951, the Uniform Code of Military Justice. In 1984 Congress passed the Military Justice Act of 1983, that gave service members limited access to the Supreme Court.Elsea, Jennifer K., Supreme Court Review of Decisions of the U.S. Court of Appeals for the Armed Forces Under Writs of Certiorari , Congressional Research Service, February 27, 2006 Under existing law, Title 28 United States Code section 1259, a service member may appeal to the Supreme Court in death penalty cases or if review is granted by the Court of Appeals for the Armed Forces (CAAF) - which happens about twenty percent of the time.Barry, Kevin, A Face Lift (And Much More) For An Aging Beauty: The Cox Commission Recommendations To Rejuvenate The Uniform Code Of Military Justice , 2002 L. Rev. M.S.U. – D.C.L. 57 (2002) Also, the government can appeal any ruling in which the service member prevails by having the individual service judge advocate general certify an issue for appeal.
CAAF, as initially established in 1951 (known then as "Court of Military Appeals") was the final authority on cases arising under the military justice system, except for a limited number of cases considered by the Supreme Court under collateral proceedings, such as through writs of habeas corpus.
In March 2004, Norbert Basil MacLean III, a former United States Navy cryptologist, began to petition Congress to permit all court-martialed service members access to the Supreme Court.McHugh, John; Davis, Susan, House Armed Services Committee letter to Department of Defense General Counsel William J. Haynes II, April 23, 2004 Under MacLean's proposal, which Rep Davis (D-Calif.) and Senator Feinstein (D-Calif.) adapted as introduced bills in the House of Representatives and Senate, service members would be able to access the nation's highest court if CAAF denied a grant of review or relief in extraordinary writ and writ-appeal cases.Ernde, Laura, "Senate OKs Review of Courts-Martial", Los Angeles Daily Journal, September 12, 2008, front page
An August 2006 report issued by the American Bar Association (ABA) showed that ninety percent of all court-martialed service members whose cases were eligible for review by the court could not have Supreme Court review because the court had either denied a grant of a petition for review or denied extraordinary relief.American Bar Association Resolution 116, adopted by ABA House of Delegates on August 7–8, 2006 The ABA called on Congress in 2006 to change the law and permit all court-martialed service members the right of review in the high court.
109th Congress H.R. 1364 Equal Justice for Our Military Personnel Act, 2005, 109th Congress (referred to committee—did not pass)
On April 23, 2004, the House Armed Services Committee sent a bipartisan letter, written by Reps. Davis (D-Calif.) and John Michael McHugh (R-NY), to The Pentagon asking for feedback on MacLean's proposal. Then-Principal Deputy General Counsel Daniel J. Dell'Orto wrote to lawmakers opposing MacLean's proposal of Supreme Court access for service members. According to the Los Angeles Daily Journal, Dell'Orto stated that changing the law and giving service members greater Supreme Court access would only serve to burden the nation's highest court.Walbert, Claude, "Bill Would Let Court-Martialed Appeal to Justices", Los Angeles Daily Journal, March 21, 2005, front page Rep. Davis first introduced the Equal Justice for Our Military Act on March 17, 2005, in the 109th Congress.Equal Justice for Our Military Act , H.R. 1364 introduced in the 109th Congress (March 17, 2005) After its introduction the bill was opposed by the Bush administration through then-Department of Defense General Counsel William J. Haynes II. Haynes wrote to Congress in opposition stating "there is no apparent justification to modify the current review process, thereby increasing the burden upon the Supreme Court and counsel to address the myriad of matters that would be encountered with expanded certiorari jurisdiction."Ernde, Laura, "Momentum Grows for Opening High Court to Servicemembers", Los Angeles Daily Journal, July 17, 2007, front page The bill failed in the 109th Congress.
At the behest of MacLean, Legislative Research Inc. ("LRI"), based in California, developed two decades of military justice statistics to present to Congress. LRI completed its study in March 2006.Legislative Research Incorporated, "The Military Justice System: 1983-84 Through 2004-05: Twenty-two Years of Key Statistical Findings" (March 30, 2006) Preface by Norbert Basil MacLean III, presented to the House and Senate Armed Services Committees, Judiciary Committees of the 109th Congress and to the Clerk of the U.S. Court of Appeals for the Armed Forces. In August 2006, the American Bar Association ("ABA") issued a report and unanimously passed a resolution urging Congress to correct the law and permit U.S. armed forces members equal access to the Supreme Court. The ABA report references military justice statistics compiled as a direct result of MacLean's work on this issue noting that: "CAAF denies petitions for grant of review and petitions for relief far more often than it grants them. While there is significant variation from year to year, in 2004-05, petitions for review were denied in 78.3 percent (581) of the cases and granted in 19.54 percent (145) of the cases. Petitions for grants of extraordinary relief were denied in 70.45 percent (31) of the cases and granted in 4.55 percent (2) of the cases. Equally sobering, the statistical compilation reveals that during the same time-period, there were 7,564 court-martial convictions and only 799 petitions for grant of review granted by CAAF."
110th Congress Reps. Susan A. Davis, (D-Calif.) and Ike Skelton (D-Mo.) of the House Armed Services Committee reintroduced the bill that had previously failed in the last Congress entitled the Equal Justice for Our Military Act of 2007, H.R. 3174.Equal Justice for Our Military Act of 2007, H.R. 3174 introduced in 110th Congress-House (July 25, 2007) The reintroduced bill was in broader form and included not only denials for extraordinary writs but also petitions for direct review. It would amend 28 U.S.C. sections 1259(3) and (4) so that if the Court of Appeals denied review or relief to a service member an appeal could be taken to the Supreme Court. Six days after H.R. 3174's introduction, it received bipartisan support by Rep. Rodney Alexander (R-La.), a U.S. Air Force Reserve veteran, who signed on as cosponsor.Congressional Record - House (Daily Digest), page H9277 (July 31, 2007)
Senate Judiciary markup's bill and favorably reports it to full Senate On September 17, 2007, a companion bill, identical to the House bill, was introduced in the Senate by Senators Feinstein (D-Calif.), then-Republican Arlen Specter, and Russ Feingold (D-Wis.), entitled Equal Justice for United States Military Personnel Act of 2007.Equal Justice for United States Military Personnel Act of 2007, S. 2052 introduced in 110th Congress-Senate (September 17, 2007) When the Senate returned from its 2008 summer recess, Senator Hillary Clinton (D-NY), a member of the Senate Armed Services Committee, signed on as cosponsor to the bill.U.S. Congress. Senate (2008) Additional Cosponsors Congressional Record - Senate S8132 (September 8, 2008) On September 11, 2008 the Senate Judiciary Committee unanimously voted to approve S. 2052.U.S. Congress. Senate (2008) Reports of Committees Congressional Record - Senate S8479 (September 12, 2008)Feinstein, Dianne, Senate Judiciary Committee Approves Feinstein Legislation, Press Release, September 11, 2008 The next day S. 2052 was placed on the Legislative Calendar of the Senate.U.S. Senate Calendar of 110th Congress, General Orders, Order No. 959, page 102
House suspends rules and passes its version of bill On September 27, 2008, the House of Representatives debated and passed, by two-thirds voice vote, the Equal Justice for Our Military Act of 2007, H.R. 3174.Davis, Susan, House Passes Susan Davis Equal Justice for Our Military Act, Press Release, September 27, 2008 (retrieved on September 28, 2008) Rep. Lamar S. Smith (R-Tx.), the Ranking Republican on the House Judiciary Committee opposed the bill during floor debate arguing, among other things, that there were no hearings in the House Judiciary Committee. It was expected that the U.S. Senate would take up the House passed H.R. 3174 during the week of December 8, 2008. However, several print media and blogs had reported opposition by at least one Republican Senator who blocked a Senate floor vote on the bill.Slater, Dan, "Supreme Court Access for Military Members Convicted of Crimes?", The Wall Street Journal Law Blog, September 30, 2008 (retrieved October 12, 2008)Maze, Rick, "Appeal rights bill may die in Senate", Navy Times, September 30, 2008 (retrieved October 12, 2008)Palazzolo, Joe, "Service Members One Step Closer to SCOTUS Access", The Blog of Legal Times, September 30, 2008 (retrieved October 12, 2008)
111th Congress Early in the 111th Congress two identical bills were introduced in both the U.S. House of Representatives and Senate to give servicemembers the same right to appeal to the U.S. Supreme Court as civilian citizens. On January 15, 2009, Rep. Davis (D-Calif.) Chairwoman of the House Armed Services Subcommittee on Military Personnel|Subcommittee on Military Personnel of the House Armed Services Committee reintroduced the bill in the 111th Congress as the Equal Justice for Our Military Act of 2009, H.R. 569. H.R. 569 was referred to the House Judiciary Committee. Identical legislation was also introduced on January 30, 2009, when Senators Feinstein (D-Calif.), then-Republican Arlen Specter and Russ Feingold (D-Wis.) reintroduced the Senate bill in the 111th Congress as the Equal Justice for United States Military Personnel Act of 2009, S. 357.Feinstein, Dianne, Feinstein Introduces Legislation to Give Armed Forces Personnel the Same Due-Process Appeal Rights as Civilians, Press Release, January 30, 2009 The language of the reintroduced bills were the same as the previous bills in 110th Congress. Both the House and Senate bills were also the same language as MacLean first proposed to Congress in 2004.