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.
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.
[9] Then-Principal Deputy General Counsel Daniel J. Dell'Orto wrote to lawmakers opposing MacLean's proposal of Supreme Court access for service members.
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.
[12] 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.
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.
[22][23][24] 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.
569, Members of the Minority charged that the bill was introduced primarily for the benefit of a single individual, former Navy Officer Norbert Basil MacLean III.
569 applies only to courts-martial that were initiated on or after the effective date of the Act, which thereby forecloses any personal benefit to Mr. MacLean, whose court-martial was concluded well before this legislation was introduced.
"[42] The CRS report noted that under existing law the CAAF "functions as a gatekeeper for military appellants' access to Supreme Court review.
The CBO estimated costs to be approximately $1 million a year if S.2052 was enacted which would include the workload of Department of Defense attorneys and Supreme Court clerks.
"[46] On June 11, 2009, Washington, DC attorney Dwight H. Sullivan testified before a House Judiciary subcommittee that the costs, should HR 569 (111th Congress) be passed, would be approximately $1,000 per case.
A front page article in the Los Angeles Daily Journal reported that Haynes opposed giving members of the U.S. Armed Forces access to the Supreme Court of the United States if they are court-martialed.
Haynes opined that "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.
"[49] The next month, in March 2006, Navy veteran Norbert Basil MacLean III lobbied lawmakers with twenty-two years of military justice statistics showing that over 80 percent of all court-martialed service members are shut out of seeking U.S. Supreme Court review.
[50] In August 2006, the American Bar Association issued a report and passed a resolution urging Congress to give servicemembers Supreme Court access.
On September 27, 2008, during floor debate on HR 3174 in the U.S. House of Representatives Rep. Lamar S. Smith (R-Texas) cited a February 6, 2006, Haynes letter in support of his opposition to servicemembers having equal access to the U.S. Supreme Court.
[20] On September 27, 2008, Representative Lamar S. Smith (R-Texas) in a House floor debate on the Equal Justice for Our Military Act of 2007, HR 3174, opposed granting access to the Supreme Court of the United States to members of the U.S. Armed Forces.
[20] In his floor debate, Smith cited a February 6, 2006, letter of former Department of Defense General Counsel William J. Haynes II, who also opposed access of servicemembers to the Supreme Court.
[20] The following are proponents to the legislation and have either testified before Congress or sent letters in support which are part of the Congressional record: After MacLean was precluded from Supreme Court access by operation of 28 U.S.C.
[6] MacLean's proposal, which was included in the HASC letter to the Defense Department, was simple: to permit a petition for writ of certiorari to be filed by any member of the U.S. Armed Forces who was denied review or relief by the CAAF.
MacLean's proposal would afford service members full procedural due process protections in appellate review of courts-martial to the Supreme Court.
Department of Defense Principal Deputy General Counsel Daniel J. Dell'Orto indicated opposition to the issue of access to the Supreme Court for members of the U.S. Armed Forces.
Dell'Orto wrote back to the Armed Services committee criticizing MacLean's proposal for fear it would "increase the burden upon the Supreme Court.
"[9] In 2006 then-Department of Defense General Counsel William J. Haynes II was critical of MacLean's proposal and indicated that the Bush administration opposes giving servicemembers equal access to the Supreme Court.
In February 2006 Haynes opined to Congress that "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.
"[11] After the House of Representatives passed the Equal Justice for Our Military Act of 2007, Robert E. Reed, an associate general counsel at the Department of Defense in the George W. Bush administration told The New York Times the legislation would increase the burdens on the Supreme Court and Defense Department lawyers, adding that supporters were not taking a “panoramic view.”[54] “A lot of those supporters are only looking at this as a motherhood, apple pie sort of issue,” he said.
[9] The American Bar Association mentioned MacLean in its resolution and report to Congress in 2006 which urged the law be changed to permit members of the U.S. Armed Forces to have equal access to the Supreme Court.