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 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. 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. 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. 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.
An August 2006 report issued by the American Bar Association (ABA) showed that ninety percent of all court-martialed servicemembers 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. The ABA called on Congress in 2006 to change the law and permit all court-martialed servicemembers the right of review in the high court.
Read more about this topic: Equal Justice For United States Military Personnel Legislation
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