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The fate of a bill allowing any service member convicted by court-martial to appeal all the way to the U.S. Supreme Court now rests with the Senate, where even one senator could block final passage of a measure that has been debated since 2006.
Rep. Susan Davis, D-Calif., the chief sponsor of HR 3174, the Equal Justice for Our Military Act, said the measure passed Saturday by the House on a voice vote fixes an inequity that limits the cases service members can appeal in the military justice system to the Supreme Court.
Davis said this is especially unfair because the government has the right to appeal every military court-martial to the nation's highest court to uphold a conviction if it is reversed by a lower court.
A similar bill, sponsored by Sen. Dianne Feinstein, is pending in the Senate. Feinstein's bill, S 2052, was reported out of the Senate Judiciary Committee on Sept. 12 without an up-or-down vote, an action that falls far short of a full endorsement but leaves the bill available for consideration by the full Senate.
Senate consideration of either the House-passed bill or Feinstein's measure would require unanimous consent of all 100 senators in order for it to be considered so late in the legislative session.
Objection to the bill is considered likely because the Defense Department opposes it on the grounds that there are no limits on appeals, opening the possibility of abuse of the system by convicted service members.
With the Senate planning to wrap up its 2009 legislative session Wednesday, time is running out.
A sign of potential obstacles to approval was evident in a statement Saturday by Rep. Lamar Smith, R-Texas, who said he is reluctant to support Davis' bills because all the consequences had not yet been reviewed.
"Because of the haste with which this proposal is being considered, one might infer there are no questions that ought be addressed, or there are questions that might expose this bill as bad policy if Congress was not rushing to judgment," Smith said.
He was referring to the fact that the bill is being handled outside of the normal legislative process without hearings to review the possible impact.
Davis, who chairs the House Armed Services personnel panel that oversees military justice issues and personnel policy, called the bill "a simple matter of fairness."
"We ask our men and women in uniform to support and defend our Constitution, which guarantees due process, yet we deny some of them that process," she said. "The disparity with which defendants and the government are treated under the current law is an inequity that should be rectified."
Rep. John Conyers, D-Mich., the House Judiciary Committee chairman, said the denial of appeals by convicted service members is made even worse by the fact that a former service member convicted in a civilian court of a crime committed on active duty would have the right to petition the Supreme Court.
"Many Americans would be shocked to learn that soldiers serving their country in uniform are blocked from equal access to the Supreme Court," Conyers said.