Webster Smith Deserves same Appeal Rights as Enemy Combatants.

WASHINGTON — In the early 1990s, Norbert B. MacLean III, then a young Navy cryptologist, was court-martialed for writing bad checks, even though he says the evidence against him was far from overwhelming.

Mr. MacLean says he believes that decisions on his case were influenced by the fact that he had charged a superior with harassment. His faith in the military justice system lost, he says, he pleaded guilty and accepted a dishonorable discharge before discovering he could not appeal to the Supreme Court.

“I felt horrified,” said Mr. MacLean, a dual citizen of the United States and Australia. “Because I had chosen to wear a military uniform, I was being treated like a second-class citizen.”

If Congress returns to Washington in early December, it may consider legislation that would give service members the right to petition the Supreme Court.

Supporters say increasing access to the Supreme Court for court-martialed service members could be a first step in updating the Uniform Code of Military Justice, which went into effect in 1951 and has not been changed by Congress in major ways in the last 25 years.

“When the Uniform Code of Military Justice was established, it was cutting edge,” said Mr. MacLean, who has temporarily moved from Australia to the San Diego area to lobby Congress. “A lot has changed.”

Robert E. Reed, an associate deputy general counsel at the Pentagon, said the legislation would increase the burdens on the Supreme Court and Defense Department lawyers, adding that supporters were not taking a “panoramic view.” A White House spokesman, Carlton Carroll, said “our current line of thinking is close to” the Pentagon’s.

Under current law, some cases in the military justice system can automatically be appealed to the Supreme Court, including those in which a service member receives the death penalty and others that have been reviewed by the Court of Appeals for the Armed Forces, the civilian court that oversees the military justice system. But if the appeals court declines to hear a case, which happens on average more than 80 percent of the time, the service member cannot petition the Supreme Court.

Meanwhile, Congress has granted even captured enemy combatants greater access to the Supreme Court.

In September, the House approved a bill that would allow court-martialed service members to petition the Supreme Court, even if the Court of Appeals for the Armed Forces would not hear their case. A bill with the same language has been introduced in the Senate, but it is unclear whether action will be taken before the new Congress is sworn in next year.

The American Bar Association and the Military Officers Association of America have said they support the legislation.
“The right to at least file with the Supreme Court should be fundamental,” said H. Thomas Wells Jr., president of the American Bar Association. “The government can, and the service member can’t. That doesn’t seem to be a fair application.”

But Mr. Reed estimated that the Supreme Court and lawyers at the Pentagon could face hundreds of new petitions a year if Congress passed the measure.

“A lot of those supporters are only looking at this as a motherhood, apple pie sort of issue,” he said. “There’s a logic and a rationale to this. We’re not just trying to be mean and difficult for the defendants.”

The Congressional Budget Office estimated last month that the increased workload for the Pentagon and the Supreme Court would cost around $1 million a year.

Supporters of the bill say that the estimate is wildly inflated and that the number of petitions prompted by the legislation could be just one or two dozen.

“It’s baloney — and I would’ve used a different word if I could,” said Stephen A. Saltzburg, a law professor at George Washington University and general counsel for the National Institute of Military Justice. “The increased workload would be virtually nothing.”

It is hard to say what sort of cases might advance to the Supreme Court if the legislation passes. Supporters say the law’s greatest contributions may be symbolic.

“It’s a symbol that a service member has the exact same rights as anyone else,” said Walter T. Cox III, who served as chief judge of the Court of Appeals for the Armed Forces and later headed a commission that proposed changes in the military justice system. “That seems worth opening the door.”

Mr. Cox and other supporters hope Congress will consider other modifications to the system, like changing the appeals process and examining whether lawyers in the system are adequately trained. He hopes to convene a second commission that would look at some of those issues in the next few months.

For his part, Mr. Reed said many of the criticisms of the military justice system themselves were dated.

“It’s the same old people with the same old arguments and the same propositions,” he said. “If they do have some new ideas that they think could be beneficial, I hope they forward them to the department.”

Tuesday, November 10, 2009

United States Court of Appeals for the Armed Forces

450 E Street, Northwest

Washington, D.C. 20442-0001



SCHEDULED HEARINGS




United States v. Webster M. Smith, No. 08-0719/CG

(Appellee) (Appellant)



Counsel for Appellant: Ronald C. Machen, Esq.

Counsel for Appellee: LT Emily P. Reuter, USCG



Case Summary: GCM conviction of going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. Granted issue questions whether the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of [SR], the government’s only witness, on three of the five charges.



NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.