Armed Forces Members' Rights

Since 2002, San Diego’s Daniel Silverman has been representing Norbert MacLean, a former member of the Navy, who was court martialed and dishonorably discharged for allegedly writing bad checks.  Mr. MacLean contends that he was brought up on trumped-up charges by his commanding officer, against whom Mr. MacLean had brought a written complaint (which was found to be meritorious).  His case is based on a claim of vindictive prosecution by Mr. MacLean's commanding officer. 

The case proceeded through the military justice system, including the Court of Criminal Appeals, the Court of Appeal for the Armed Forces, the United States District Court and the United States Court of Federal Claims, where Mr. MacLean is now seeking reinstatement and back pay.  In addition to the involvement of the judicial branch, both the executive and legislative branches of the United States Government have weighed in on this case, because several subpoenas were issued illegally on behalf of the President of the United States before the court martial was convened.  These issues have resulted in both a White House and a Congressional investigation into the illegally issued subpoenas.

Mr. MacLean lost his appeal before the Court of Appeals for the Armed Forces (“CAAF”) and, based on the current language in the operative statute, does not have a right to seek review of this decision by the United States Supreme Court.  In contrast, when the Government loses before the CAAF, it has a right to petition the Supreme Court for relief.  As a result of this inequity, San Diego Congresswoman Susan Davis recently introduced a bill before the U.S. House of Representatives (“Equal Justice for Servicemembers Act”) which would give servicemembers the right to petition the U.S. Supreme Court if they lost before CAAF.  We have now obtained bipartisan support for the bill and are hopeful the bill will become law during the next session of Congress.