The acquittal by a federal civilian court of former Marine Sgt. Jose Luis Nazario, who was accused of killing unarmed detainees while on active duty in Fallouja, Iraq, has drawn much attention. The Times' Sept. 7 editorial, "Civil justice for an ex-Marine,” ignores serious due-process flaws in trying former service members in the federal civilian courts versus court-martial. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act, or MEJA. Amended in 2004, MEJA enables the government to try a former U.S. armed forces member in the federal civilian justice system for alleged crimes committed while on active duty, the system favored by The Times. But had Nazario been convicted under MEJA, he would have enjoyed greater access to the Supreme Court than someone on active duty who faces a court-martial.
Under existing law, all convicted civilians, former military service members tried under MEJA, illegal immigrants and enemy combatants have the right to direct review by the Supreme Court. (Enemy combatants have the right to direct review in the Supreme Court after their military commissions' cases are reviewed by the U.S. Court of Appeals for the D.C. Circuit as a result of the Military Commissions Act of 2006.) But members of the U.S. armed forces who are court-martialed under the Uniform Code of Military Justice, or UCMJ, do not. In the current system, cases such as Nazario's present serious issues of equal protection and lack of due process for the young men and women who serve in uniform. Having two systems -- MEJA and UCMJ -- with entirely different procedural due-process protections for our troops is grossly unfair. In August 2006, the American Bar Assn. passed a resolution urging Congress to amend the current law and permit our troops access to the Supreme Court.
Two bills have been introduced in this Congress to fix the law and grant court-martialed service members access to the Supreme Court. These bills are HR 3174, the Equal Justice for Our Military Act of 2007, and S 2052, the Equal Justice for United States Military Personnel Act of 2007. The Senate Judiciary Committee will consider S 2052 on Thursday.
Until and unless Congress and the Bush administration grant full due-process rights to those who are on active duty facing courts-martial under the UCMJ, former service members should not be tried under MEJA in civilian courts for alleged military-related crimes. The cornerstone of a true democracy is due process. Currently, our active-duty troops under the UCMJ are treated like second-class citizens when it comes to such due process. It is shameful that even enemy combatants have access to our highest court, but those serving to protect and defend us are shut out.
As a democratic society, we all have a responsibility to ensure that the young men and women who serve our country in uniform have basic procedural due-process protections. It is disingenuous for us as a nation to send our uniformed citizens off to faraway countries to promote our democratic way without affording them a fundamental right of democracy -- due process. Former service members receive greater due-process protections under MEJA; active-duty personnel under UCMJ are cheated of their rights. This is unjust and needs to be corrected.
Norbert Basil MacLean III is a dual American-Australian citizen and a U.S. Navy veteran who served on active duty from 1989-94. He has lobbied Congress on behalf of the pending federal legislation related to the military justice system.