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Letters to the 107th Congress

September 5, 2001

The Honorable Carl Levin
Committee on Armed Services
United States Senate
Washington, D.C. 20515

The Honorable John Warner
Ranking Member
Committee on Armed Services
United States Senate
Washington, D.C. 20515

Dear Mr. Chairman and Senator Warner:

I understand that you are scheduled to consider the National Defense Authorization Act for Fiscal Year 2002 in the near future. I am writing on behalf of the American Bar Association to express our support for Section 571 of the House version of the bill (H.R. 2586) and to express our opposition to Section 506 of the Senate version of the bill (S. 1155).

12-Member Court-Martial Panels

Last month, the ABA adopted policy in favor of 12-member panels in capital courts-martial. A provision to achieve this result was included as part of Section 571, during the House Armed Services Committee's markup of H.R. 2586. The military justice system is the only capital jurisdiction in the country in which the defendant does not have a right to a 12-member jury to determine guilt or innocence. Currently, the only requirement regarding the size of a court-martial panel is that it must have at least 5 members. Thus, the number of panelists in a military death penalty case tends to vary depending on the case. Unfortunately, the number of panelists is generally fewer than 12.

When the potential for execution exists, society must provide safeguards to ensure that justice is indeed accomplished. A system under which different defendants have panels of widely varying sizes making this ultimate decision is inevitably suspect. Further, the likelihood of an irreversible error occurring is far less with 12 panel members than with a much smaller number of jurors.

The proposed language in Section 571 states that the number of members on a panel for capital courts-martial should be "not less than 12." We commend the House Armed Services Committee for taking this monumental step and introducing such an important provision. However, we would recommend taking the legislation one step further by ensuring that panels in capital courts-martial have a fixed number of 12 members-no more and no less. The lack of a fixed number of members directly threatens the ultimate fairness of the capital courts-martial system.

Judicial Review of Military Selection Board Decisions

As you know, members of the armed services and veterans have devoted their lives to defending our nation and its principles. It stands to reason that they should enjoy the same benefits as other citizens, including the right to have their grievances heard and addressed in federal court. Section 506 of S. 1155 would abridge this right by restricting federal judicial review of military selection board decisions. A person challenging the action of the selection board would not be entitled to judicial relief unless the person had been considered by a special selection board or the Secretary concerned had denied such consideration.

Section 506 would remove jurisdiction from federal courts for any claims of an officer for failure of selection, unless (1) that officer's case has been referred to a special selection board, and (2) the officer has received favorable action from that special selection board. Perhaps the worst aspect of Section 506 is that in those few cases where the court would still have jurisdiction and finds error, the court would be limited to just one remedy-remanding the case for consideration by another selection board. Even after several remands, the court would have no power to grant effective or meaningful relief. As a result, service members would have a difficult time challenging military selection board decisions that are arbitrary, capricious, or otherwise contrary to law.

The ABA opposes legislation, such as Section 506, that restricts or modifies the jurisdiction of federal courts or available remedies in cases involving military selection boards unless and until Congress has had the opportunity to hold hearings on the issue. Section 506 was not the subject of hearings in either house of Congress.

As the world's largest voluntary professional association, with over 400,000 members, the American Bar Association urges you and your colleagues to support Section 571 of H.R. 2586, and to oppose Section 506 of S. 1155 unless and until Congress has held hearings on the review of the actions of military selection boards.


Robert D. Evans
Director, Governmental Affairs Office

cc: Members of the Committee

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