Convicted soldier urges Supreme Court to hear military appeals

McClatchy NewspapersAugust 20, 2012 

— A military court convicted Army Master Sgt. John E. Hatley of murder in wartime. Unfortunately for the defrocked combat infantryman, military law keeps him from appealing to the U.S. Supreme Court.

However, against all odds, the native of Decatur, Texas, is going where others have failed and Congress has hesitated. Representing himself from his Fort Leavenworth prison cell, Hatley has asked the high court to grant soldiers the same appeal rights as civilians.

“I’ve been in the military for 20 years and endured many hardships,” Hatley said, responding to a reporter’s emailed questions conveyed through a friend. “I accepted that as part of the career I had chosen. What you don’t know and are never told is that your rights are less than every other citizen in this country has.”

Airborne- and Ranger-qualified, the 44-year-old Hatley is presently a busted private held in the U.S. Disciplinary Barracks at the Army facility in Kansas. He’s serving a 40-year sentence after he was convicted in 2009 of playing a role in the killings of four bound and blindfolded Iraqi detainees.

Hatley’s men with the 1st Battalion, 18th Infantry Regiment, had seized the Iraqis after a firefight in March 2007. Rather than release them, prosecutors said – buttressed by the confessions of two U.S. soldiers – the Americans executed the detainees with pistol shots to their heads and then shoved their bodies into a canal.

Hatley denies it, and the bodies were never recovered. His guilt or innocence, though, isn’t relevant to the Supreme Court. His challenge is to the Uniform Code of Military Justice.

The code says a court-martial case cannot be petitioned to the Supreme Court if the top military appeals court previously declined to hear it. And it has.

Last January, without comment, the U.S. Court of Appeals for the Armed Forces denied his petition, after the Army Court of Criminal Appeals, a lower court, upheld Hatley’s conviction the previous year. Unless the Supreme Court changes the rules, that would end Hatley’s quest.

The question for the Supreme Court will be whether the military restriction violates constitutional guarantees of equal protection.

“For Pete’s sake, to not even be able to ask the Supreme Court for review!” Eugene R. Fidell, who teaches military law at Yale Law School, exclaimed in an interview. “This is unfortunate and wrong-minded.”

But Fidell, formerly the president of the nonprofit National Institute of Military Justice, added that the Supreme Court itself seems unlikely to rewrite the military legal code. That may be left up to Congress, where lawmakers led by Rep. Susan Davis, D-Calif., have tried unsuccessfully to change the rules.

“It’s a compelling argument that is not going to get anywhere except in Congress,” Fidell said.

Hatley’s case was “dead on arrival” in the Supreme Court, he said.

The Pentagon and its congressional allies have previously warned that allowing more Supreme Court appeals would impose too many burdens, and Davis’ legislation has been stalled for several years. Thirteen Republicans on the House of Representatives Judiciary Committee voiced opposition to the bill in 2010.

“The general counsel of the Department of Defense raised major questions about the wisdom and necessity of that bill, as well as its likely impact on the department,” Rep. Lamar Smith, R-Texas, noted during a 2008 debate, the last time the measure reached the House floor.

The Obama administration’s solicitor general has until Sept. 10 to weigh in on Hatley’s petition before the high court decides whether to consider it.

Hatley prepared his court petition with the help of a friend and the Leavenworth prison law library. His fellow inmates are paying close attention.

“There are numerous soldiers that are watching this case because of the hope that they have that the Supreme Court will give us our full constitutional rights,” Hatley said.

For civilians, the Supreme Court offers the quintessential last chance. Individuals who lose at trial may appeal. Whoever loses on appeal then may petition the Supreme Court, except for members of the U.S. military. Their legal recourse is the appeals court in each of the four branches of the military. Together, those courts review about 1,300 cases annually. A service member’s next and final stop is the Court of Appeals for the Armed Forces.

During the 2011 term, that top court received about 700 petitions. Most get rejected quickly. Last year, the court granted 119 petitions and denied 584. From 2005 to 2008, it denied or dismissed 2,274 petitions.

The intricacies of the legal world are new terrain for Hatley, who earned his GED certificate after his 1989 Army enlistment, and later took college classes. His first Supreme Court petition, for instance, included transcripts and documents in which the justices had no interest. Hatley resubmitted a slimmed-down document.

When not researching his case or lifting weights, Hatley said, he’s been reading. Most recently, he finished the nonfiction book “Gideon’s Trumpet,” about an indigent drifter who penciled a successful Supreme Court petition while serving time in Florida. The prisoner, Clarence Gideon, went on to win a unanimous court decision in 1963, securing the rights of poor prisoners to be represented by counsel.

“There are many men in Leavenworth that need to be here,” Hatley said. “There are many others that should never have been here, and never would have been here if they had been afforded a trial in a civilian court.”

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Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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