Amicus Curiae Brief — United States v. Gates (No. 06-691)

FILED

’ NOV 27 2006

OFFICE OF THE CLERK

No. 06-691 SUPREME COUAT, U.S.

IN THE

Supreme Court of the United States

UNITED STATES Ex REL. MICHAEL G. NEw,

Petitioner,

Vv.

DONALD H. RUMSFELD, SECRETARY OF DEFENSE, AND

FRANCIS J. HARVEY, SECRETARY OF THE ARMY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals For The

District of Columbia Circuit

BRIEF OF THE NATIONAL INSTITUTE OF MILI-

TARY JUSTICE AS AMICUS CURIAE

IN SUPPORT GF PETITIONER

Of Counsel: THEODORE J. BOUTROUS, JR.

PROF. STEPHEN A. SALTZBURG Counsel of Record

THE GEORGE WASHINGTON DANIELS. FLOYD

UNIVERSITY LAW SCHOOL WILLIAM E, THOMSON

2000 H STREET, N.W. WENDY L. WALLACE

WASHINGTON, DC 20052 SHANNON E. MADER

GIBSON, DUNN & CRUTCHER LLP

HARDY VIEUX 333 SOUTH GRAND AVENUE

ROBINS, KAPLAN, MILLER & LOS ANGELES, CALIFORNIA

CIRESI L.L.P. 90071-3197

1875 EYE STREET, N. W. (213) 229-7000

WASHINGTON, DC 20006 Counsel for Amicus Curiae

QUESTIONS PRESENTED

Amicus is a non-profit corporation dedicated to advanc-

ing the fair administration of military justice, and will ad-

dress the following questions:

1. What is the proper standard of review applicable to

collateral attacks on court-martial convictions?

2. Does a more. deferential standard of review apply to

collateral attacks on military convictions where the defendant

is not, or is no longer, in custody?

TABLE OF CONTENTS

Page

CFF ES 8 APU PR EIN E RED sicciissccevsnocesdiveenivintenenctinnniention i

INTEREST OF AMICUS CURIAE .sssssssessssssssssssvsssssesee

SUMMARY OF ARGUMENT............c:ccssscsssceeesseereeeceees l

ATE CIENT viciireviiiabiavconckinctinatiaetennitcseaitateiedmemonsen 5

PIF INGEN & cvecuessrssnsorsssopsiseeeionrenienieetninianmbvonsesiianniins 8

I. THIS COURT SHOULD CLARIFY THE

STANDARD OF REVIEW FOR

COLLATERAL ATTACKS ON COURT-

MARTIAL CONVICTIONS ALONG THE

LINES SET FORTH IN KAUFFMAN. .........:cc0sse0000 8

A. Burns Has Engendered Confusion..................0 8

B. The Court Should Clarify Burns By

Adopting The Kauffman Test .......:cssccsessereeees li

Il. COUNCILMAN DOES NOT ESTABLISH

A SEPARATE STANDARD OF REVIEW

FOR NON-HABEAS COLLATERAL

TS CGA scissuhntitcicciescsanicendicieancmantaimaaninadisipss 15

EA AT eosssscsisicivaces -ccciopushdctiitanibeisidigeiiaaeeteie eine 20

TABLE OF AUTHORITIES

CASES - Page(s)

Allen v. Van Cantfort,

ee ee CE es FEED vrseciccnsvnrensCesceneneninsenteonestnnton 2

Bowling v. United States

FES F.26 1556 (Ped. Cir, 1963).......cccsiesosersevcere 10, 13, 16

Brosius v. Warden,

yi Dk Lk A + | ene 2, 11, 13, 14

Brown y. Glines,

es I iiccienntvcsivinizionssnseacininenbarnomsttacseniiens 11

Burns v. Wilson,

PO Thais BOT CFSE veercccsinnversveses hcsbdelaatdienviiaennnens passim

Calley v. Callaway,

FER Oe Be CN, TOTS ecercctecestcescsivenrissatinnnenss passim

Clinton v. Goldsmith,

Ee I Ce IIT insecinectiicesovside cesephentsecdannbbneniebibetonipatite l

Dodson v. Zelez,

917 F.2d 1250 (10th Cir. 1990), ............-ceccesseseees 2, 10, 12

Hamdan v. Rumsfeld,

SP SR, BP CI cihtsinrhintisnbaivisonaitiettibeitensimevcion LS

Hatheway v. Sec’y Of Army,

oe EK y FT. Lf, | | cc pean 18

Kaiser v. Sec’y Of The Navy, ;

Fad. BO, TARO TD. CORO. IBD) ciricronscnccessosericscenseies 19

Kauffman v. Sec’y Of Air Force

GES Fe FOt CR. Ce, FIP vn ccccsevsitonvcnnorescaneosnsen passim

Khan y. Hart,

DES FZ TAGE CURIA, VIB) ccccvecersccsccsesgerovecetoasessiees 12

iV

Lips v. Commandant, U.S. Disciplinary Barracks

FPF FB FS CHEW, 1GGS) ses cenicvetovocessoncseiacessesnverstens 12

Longval v. United States,

He Fs GF ee iasscccisssennavnnicnsssnvarterveiiguectvuneita’ 17

Madsen v. United States,

BE FOE, Ch, Fae te ivctisiccecsassnstriinpeniivienncnte 10

Matias v. United States,

WF Fe Bet CO, TOI sein rcisccerstsessecarescsseccocevsones 16

Matias v. United States, ;

Br se es ee cs ncccvipicccicsevisdisnncssscadibanteciotntweises 10

Mendrano vy. Smith,

FRE ieee AGO CRE CH, FUDD ovicssiicasieresntsnrncntciestrececen 18

Moore v. United States,

Be ay FC iicenkitctbdetarceinehiiesnsseintitecds 10, 16

Parker v. Levy,

EE Be Fe I citiinicseadiotoaeceeeniaaenin M13

Priest v. Sec’y Of Navy,

DFG FR TOES Cat. EO. SOT TD iievitecccssesteckdscevebivtersatvens 18

Rasul v. Bush,

OE Trade CE iis cds scsdseschcvesrnntereganaermeestenmmentions ]

Schlesinger v. Councilman,

Ss FEE OF) hans cctustitininniteoegiaeenien passim

Swisher v. United States, !

Fn Ekle he CE, TI ike icieerstensiccssereoenicdeons 2

United States Ex Rel. New v. Rumsfeld,

350 F. Supp. 20: $0 (D.B.C. OOK)... cccecccseresserscossesosenss 6, 7

United States Ex Rel. New v. Rumsfeld,

443 F.3d 403 (DC. Cig. 2006) 0..00ccccsssscsssecenee 3, 5, 7, 8, 14

United States v. Gaudin,

ER eS FE, .. ; Fame an mn Ree MerR estan tener? Minne 6

United States v. New,

FO lds Fe a Dae OL iccerssnecvirsiveceniesstnevtntionanmeen 2,3

Watson v. Mccotter,

Fo FB BES (1D Cop. 1966). oiccecccvecncsscesersernscnsscoverenes 3

Witham v. United States,

Bee Ce Pk ls Be isieniccsivsvntnstertectrnenmeataionaas 11

CONSTITUTION

Oe I passim

STATUTES

10 U.S.C. § 802(a) (as amended by Pub. L.

No. 109-364, § 552, 120 Stat 2083 (2006)) ..............0.0. 4

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Sa as Ae I iiriscceevidanvidasptiea hice ahiamaamaseipenenimugiadiiin 16

Be ane i ssitisasicihisicisvsbaiaipsainsdcbicanginainpeasancioaiamuancadameniaa 5

Fe NOE sisvisssorenistncvensteisasdamcsaasecitoiaadmcanelaiailians 5

Be Aran Oe IIE asietintsboeibsisbuiacadaioouseh elo ncnasoabaacibeccancacueiealae manana 5

ein HE es inessdioieniaciniitadeiciccensehcnceicesnsceabacibeasplgncsiicidaiaal 5

Fn Be A iiveisssiescsceincoabciniscvieneaietiensaephaiicadaasbiaielaeats 16

Pe RS TEE 16

Fe BE innsiniensclineseidbencecieetseniieemiamaaniaa 16

Be SPE CARTE sein intcdessciivaeiatiageddnhatdinsbbectlaiaaiaiaannnanaiian 16

I IE iii iiisnccinisisuanchacnmadatmaaunaden 7

Te ate Se SI ics dhieesbidsesntioninteishicniiceteennaabenamicabacasmanniel 10, 13

ee A era TION sisisusiiihrscninisseeeesiinsincaihesadenicdagaaindataaamudad 11

Or ele 13

Se A nn 11.

OTHER AUTHORITIES

BISHOP, JOSEPH W. JR., CIVILIAN JUDGES AND

MILITARY JUSTICE: COLLATERAL REVIEW OF

COURT-MARTIAL CONVICTIONS,

61 COLUM. L. REV. 40, 59.(1961) ....0nccsdiicorcssovesoreesveternes 9

CHAPMAN, JOHN K., NOTE, REFORMING FEDERAL

HABEAS REVIEW OF MILITARY CONVICTIONS:

WHy AEDPA WOULD IMPROVE THE SCOPE

AND STANDARD OF REVIEW,

SF VANE Bic BEG. TF I wert vinccsenseiivsintonetenenpsonnis 14

CIVILIAN REVIEW OF COURT MARTIAL

ADJUDICATIONS,

OP COLUM. L. REV. 1259 (1 9G)... cesiesccsiccoscosvsosseones 3,14

EVERETT, MILITARY ADMINISTRATIVE DISCHARGES

— THE PENDULUM SWINGS,

ii alec 19

HARRISON, KEITH M., BE ALL YOU CAN BE

(WITHOUT THE PROTECTION OF THE

CONSTITUTION),

S HARV. BLACKLETTER J. 221 (1991)........2.0050ceresecsovesess 20

MANUAL FOR COURTS-MARTIAL,

UNITED STATES R.C.M. 1003 (2005)............:ccceeeeecereeees 15

ROSEN, MAJ. RICHARD D., CIVILIAN COURTS AND

THE MILITARY JUSTICE SYSTEM: COLLATERAL

REVIEW OF COURTS-MARTIAL,

SER in Bs BS, Fo ivi ecticerceipiecunetmviotnevviisipesaions 3

_ SANDEL, CHARLES P., COMMENT, OTHER-THAN-

HONORABLE MILITARY ADMINISTRATIVE

DISCHARGES: TIME FOR CONFRONTATION,

21 SAN DIEGO L. REV. 839 (1984).............ccsrcosssreverereees 20

SULLIVAN, THE LAST LINE OF DEFENSE: FEDERAL

HABEAS REVIEW OF MILITARY DEATH PENALTY

Vii

CASES,

TO Wi. Ni DIG, EI sia seiviiiiseeiosccsepenincevisicsrenianbioatas y

WALKER, MAJ. JEFF, THE PRACTICAL

CONSEQUENCES OF A COURT-MARTIAL

CONVICTION,

2001-DEC. ARMY LAW 1, 8 (2001)..........:cesseseesereereeeees 19

WARREN, EARL, THE BILL OF RIGHTS AND THE

MILITARY,

BT Re Md Las Vs DRE CE GED teiccsicctacsnrensvepacaninnstannantiisn 11

RULES

DUPREME COURT RULE 37. HG) ccvsisnescssecseveiasetsscvenisesavcnsieansoe 1

RE CUE TEN FEI ain ices cssnntsssieinditicncnsidceepaiclintibaiea 1

BRIEF OF THE NATIONAL INSTITUTE OF

MILITARY JUSTICE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE!

The National Institute Of Military Justice (NIMJ) is a

District of Columbia non-profit corporation dedicated to ad-

vancing the fair administration and public understanding of

the military justice system. NIMJ’s advisory board includes

law professors, private practitioners, and other experts in the

field, none of whom are on active duty in the military, but

nearly all of whom have served as military lawyers, several

as flag and general officers.

NIMJ appears regularly as an amicus curiae before the

United States Court of Appeals for the Armed Forces, and

appeared before this Court as an amicus in support of the

government in Clinton v. Goldsmith, 526 U.S. 529 (1999),

and in support of petitioners in Rasul v. Bush, 542 U.S. 466

(2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

NIMJ is actively involved in public education through its

website, www.nimj.org, and its numerous publications.

SUMMARY OF ARGUMENT

This case involves the D.C. Circuit’s rejection of a for-

mer United States servicemember’s non-habeas collateral

attack on his court-martial conviction. In this brief, NIMJ

will address two issues of profound consequence for the rela-

tions between the civilian and military court systems, as well

as the members of the United States armed forces: (1) what

is the proper standard of review applicable to collateral at-

tacks on court-martial convictions, and, relatedly, (2) whether

a more deferential standard of review applies where the de-

1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all par-

ties have been filed with the Clerk. Pursuant to Rule 37.6, NIMJ states

that this brief was not authored in whole or in part by counsel for any

party, and that no person or entity other than NIMJ or its counsel] made a

monetary contribution to the preparation or submission of this brief.

fendant is not or is no longer in custody. The Court ‘should

grant certiorari in order to resolve these timely and important

issues, which are here uniquely intertwined.

As Judge Sullivan put it in his opinion concurring in the

underlying judgment of the Court of Appeals for the Armed

Forces (CAAF), “The instant case is ultimately about the

process due an American servicemember on trial for the

crime of disobedience of a lawful order, i.e., how the lawful-

ness of the disobeyed order is to be determined at a court-

martial and whether that procedure is constitutional.” United

States v. New, 55 M.J. 95, 115 (C.A.A.F. 2001) (Sullivan, J.,

concurring in the result), Pet. App. 96a. The standard by

which Article III courts are to review collateral attacks on the

military courts’ determinations of such issues is of vital im-

portance and has long been the subject of widespread confu-

sion among the circuits.

Over fifty years ago in the landmark case of Burns v.

Wilson, 346 U.S. 137 (1953), a plurality of this Court held

that Article III courts must review collateral attacks on court-

martial convictions to determine whether the court-martial

tribunal gave “full[{] and fair[]” consideration to the peti-

tioner’s claims. /d. at 143. That articulated standard has

been the source of widespread confusion among the lower

courts ever since. See, e.g., Brosius v. Warden, 278 F.3d

239, 242 (3d Cir. 2002) (Alito, J.) (“The degree to which a

federal habeas court may consider claims of errors committed

in a military trial has long been the subject of controversy

and remains unclear.”). Indeed, the Burns test has proven

unusually difficult for courts to understand and apply in a

principled fashion, and has been variously characterized as

“mean[ing] many things to many courts,” Kauffman v. Sec'y

of Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969), “anything

but clear,” Dodson v. Zelez, 917 F.2d 1250, 1252 (10th Cir.

1990), “somewhat hazy,” Swisher v. United States, 354 F.2d

472, 475 (8th Cir. 1966), and the source of “considerable

confusion.” Allen v. Van Cantfort, 436 F.2d 625, 629 (ist

Cir. 1971). Commentators have been even more critical, one

calling the Burns standard “a facile phrase, easy to state, but

difficult to define and to apply[.]”2 And, from the very be-

ginning, at least one member of this Court deemed the Burns

test “inconclusive” and based on an understanding of the

“traditional scope of inquiry” that was “demonstrably incor-

rect,” as well as a conception of the relationship between this

Court and military law that “disregards both history and the

statute books.” Burns, 346 U.S. at 844-46, 849 n.1 (Frank-

furter, J., dissenting from denial of rehearing).

It is unsurprising, then, that the circuits have given the

Burns “full and fair consideration” standard significantly di-

vergent interpretations. Compare Watson v. McCotter, 782

F.2d 143, 145 (10th Cir. 1986) (“When an issue is briefed

and argued before a military board of review, we have held

that the military tribunal has given the claim fair considera-

tion, even though its opinion summarily disposed of the issue

with the mere statement that it did not consider the issue

meritorious or requiring discussion.”), with Kauffman, 415 at

997 (“We hold that the test of fairmess requires that military

rulings on constitutional issues conform to Supreme Court

standards, unless it is shown that conditions peculiar to mili-

tary life require a different rule.”). As a result, servicemem-

bers seeking to challenge collaterally a court-martial convic-

tion face a confusing patchwork of obscure and often incon-

sistent tests, with materially disparate results.

The court of appeals’ decision here compounds the con-

fusion by holding, based on dicta in Schlesinger v. Council-

man, 420 U.S. 738 (1975), that yet another standard of re-

view — one even more deferential, and even more impenetra-

ble, than Burns — applies to non-habeas collateral attacks.

See United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406

(D.C. Cir. 2006), Pet. App. 4a-S5a. But there is no principled

2 Note, Civilian Review of Court Martial Adjudications, 69 Colum. L.

Rev. 1259, 1262 (1969). See also Maj. Richard D. Rosen, Civilian

Courts and the Military Justice System: Collateral Review of Courts-

Martial, 108 Mil. L. Rev. 5, 7 (1985) (“The [Burns] Court ... provided

little direction for applying [the] ‘full and fair’ consideration test, causing

considerable confusion among the lower federal courts.”).

reason to review differently convictions where the service-

member is not or is no longer in custody, since sentences

such as the bad-conduct discharge at issue here have stigma-

tizing and deeply harmful effects that follow the ex-

servicemember throughout the rest of his or her life. More-

over, the court of appeals’ decision misreads Councilman to

require a standard that the court itself “ha{d] serious doubt

whether the judicial mind is really capable of applying.” /d.

at 408. The decision thus exemplifies the confusion that

Burns continues to engender in the lower courts — a confu-

sion that Councilman, with its cryptic dicta and uncertain

relationship to Burns, exacerbates.

The members of the United States armed services and

those subject to the military justice system? deserve reason-

able clarity on an issue on which their fundamental liberties,

reputations, and ability to participate fully in society may ul-

timately rest.4 NIMJ is concerned solely with the adverse

systemic implications of the decision below as it relates to

the standard of review of collateral attacks on military con-

victions, and takes no position on the underlying merits of

petitioner’s claims. In view of the undesirable, widespread

implications of the decision below, NIMJ urges this Court to

grant the petition and clarify the standard of review by adopt-

ing the test articulated by the D.C. Circuit in Kauffman, 415

F.2d at 997, which should apply to both habeas and non-

habeas collateral attacks.

3 In addition to the more than two million active duty personnel, cer-

tain categories of retired and reserve personnel, members of the National

Oceanic and Atmospheric Administration, Public Health Service, and

other organizations, when assigned to and serving with the armed forces,

military prisoners, prisoners of war, and, in time of declared war or a con-

tingency operation, persons serving with or accompanying an armed force

in the field also are subject to trial by court martial. 10 U.S.C. § 802(a)

(as amended by Pub. L. No. 109-364, § 552, 120 Stat. 2083 (2006)).

4 Collateral attack is, as a practical matter, generally the only available

avenue for review of military convictions by Art. III courts, though this

Court may review by certiorari cases where CAAF has granted review.

10 U.S.C. § 867a(a).

STATEMENT

In 1995, petitioner New, a medical specialist in the

United States Army, was court martialed and charged with

violating Article 92(2) of the Uniform Code of Military Jus-

tice (codified at 10 U.S.C. § 892(2)), which provides that any

person who, “having knowledge of any ... lawful order issued

by a member of the armed forces, which it is his duty to

obey, fails to obey the order ... shall be punished as a court-

martial may direct.” New, 448 F.3d at 405, Pet. App. 2a.

New had refused to obey an order to add United Nations

insignia—a shoulder patch and a field cap—to his uniform in

preparation for deployment to Macedonia. /d. New con-

tended that the order was unlawful “on various statutory and

constitutional grounds.” New, 448 F.3d at 405, Pet. App. 3a.

The court martial convicted New and sentenced him to a

bad-conduct discharge. Jd. The Army Court of Criminal

Appeals affirmed. Jd.

CAAF granted review, noting in its decision: “This case

involves some of the most difficult choices that may confront

our Government and our men and women in uniform.”

United States v. New, 55 M.J. 95, 100 (2001) (“CAAF Op.”),

Pet. App. 63a. “Military personnel are obligated to obey

lawful orders and regulations.... The term ‘lawful’ recog-

nizes the right to challenge the validity of a regulation or or-

der with respect to a superior source of law.” CAAF Op., 55

M.J. at 100 (citing 10 U.S.C. §§ 890, 891 & 892), Pet. App.

64a. If New thought the orders unlawful, he “had to decide

whether he should voice his opposition to those decisions,

how to do so, and whether to obey orders that he viewed as

unlawful.” CAAF Op., 55 M.J. at 100, Pet. App. 63a.

Before CAAF, New contended that his court martial

conviction should be reversed because, inter alia, his Fifth

Amendment rights were violated when the military judge de-

' cided the lawfulness of the order — assertedly an element of

10 U.S.C. § 892(2) — without submitting it to the members

(“military jury”). Jd., Pet. App. 63a-64a.

CAAF upheld New’s conviction, in a decision that pro-

duced four opinions from among the five-member panel.

The CAAF majority recognized that “the case before us

represents the first time, subsequent to [United States v.]

Gaudin, {515 U.S. 506 (1995),] that we must answer the

question whether lawfulness is an element that must be sub-

mitted to the members,” CAAF Op., 55 M.J. at 102, Pet.

App. 67a-68a, and that “[t]here are respectable arguments on

both sides of the question.” CAAF Op., 55 M.J. at 100, Pet.

App. 64a. The majority held that “[iJn light of the legislative

history of the [Uniform] Code [of Military Justice] and the

Manual [for Courts-Martial},” lawfulness was not an ele-

ment. CAAF Op., 55 M.J. at 105, Pet. App. 74a.

Judge Sullivan sharply rejected this view: “[A] military

accused has a codal and constitutional right to have the mem-

bers of his court-martial, not the military judge, determine

whether the Government has proved, beyond a reasonable

doubt, each and every element of the offense of which he is

charged.” CAAF Op., 55 M.J. at 118 (Sullivan, J., concur-

ring in result), Pet. App. 103a. He protested that “the major-

ity characterizes the lawfulness of an order as mere ‘surplu-

sage’ and judicially eliminates it as an essential element of a

disobedience offense,” contrary to “the traditional Anglo-

American view that only the disobedience of ‘lawful’ orders

is prohibited.” CAAF Op., 55 M.J. at 115, Pet. App. 95a. “I

strongly disagree with this radical departure from our politi-

cal, legal, and military tradition.” Jd.

Following the exhaustion of his direct appeals, New

sought to collaterally attack his conviction in the United

States District Court for the District of Columbia. See United

States ex rel. New v. Rumsfeld, 350 F. Supp. 2d 80 (D.D.C.

2004). New sought a declaration that his court-martial con-

viction was null and void because it was obtained in violation

_ of his constitutional rights. /d. at 87, Pet. App. 22a.

After noting that the scope of review applicable to

New’s claims was “a matter that demands some clarifica-

tion,” New, 350 F. Supp. 2d at 89, Pet. App. 26a, and “the

circuits have arrived at a variety of interpretations,” id., the

district court granted the government’s Rule 12(b)(6) motion

to dismiss. New, 350 F. Supp. 2d at 102; Pet. App. 52a-53a.

The Court of Appeals for the D.C. Circuit affirmed.

New, 448 F.3d at 405; Pet. App. la. The court recognized

that the threshold question of the standard of review was a

“tangled” issue. New, 448 F.3d at 406, Pet. App. 4a. Be-

cause New was not in custody, the court concluded that the

habeas corpus standard did not apply, even though “New, the

government, and the district court ha[d] all assumed that ju-

risdiction rests on 28 U.S.C. § 2241.” Id.

Based on Councilman, the court held “that collateral re-

lief was barred unless the judgment[ was] ‘void,’” which re-

quired an analysis of successive levels of comparative defer-

ence: “The Supreme Court pitched the Councilman standard

as more deferential than habeas review of military judg-

ments, which it has in turn described as no less deferential

than habeas review of state court judgments.” New, 448 F.3d

at 406-07, Pet. App. 4a-6a. The court, however, conceded

that this multi-tiered standard was too uncertain to actually

guide its analysis. New, 448 F.3d at 408, Pet. App. 7a. Ac-

cordingly, it applied a compromise guideline that did not

provide the protections set forth in Kauffman:

It suffices for our purposes to repeat Councilman’s

Statement that errors must be fundamental to void a

court-martial judgment on collateral review. And in

light of Councilman’s point that non-habeas review

is if anything more deferential than habeas review of

military judgments, a military court’s judgment

clearly will not suffer such a defect if it satisfies

Burns’ s “fair consideration” test.

Id. (citations omitted).

Employing this standard, the court of appeals refrained

from fully considering the constitutional issues on the merits,

but, instead, merely recapitulated the bases for CAAF’s rul-

ings and concluded there was no “fundamental defect” in the

present case, New, 448 F.3d at 408-11, Pet. App. 7a-14a,

“even though [the military court’s] application might be

highly contestable in another context.” New, 448 F.3d at

411, Pet. App. 13a. Had the court applied the Kauffman test,

it would have conducted its own independent analysis to de-

termine whether CAAF’s rulings were consistent with the

Constitution, and, if not, whether the peculiarities of military

life justified a departure from the constitutional standard.

Kauffman, 415 F.2d at 997. Instead, it simply deferred.

ARGUMENT

I. THIS COURT SHOULD CLARIFY THE

STANDARD OF REVIEW FOR

COLLATERAL ATTACKS ON COURT-

MARTIAL CONVICTIONS ALONG THE

LINES SET FORTH IN KAUFFMAN.

A. Burns Has Engendered Confusion

In Burns, a plurality of this Court defined the scope of

review in collateral attacks on court-martial convictions as

“whether the military have given fair consideration to each of

[the petitioner’s] claims.” Burns, 346 U.S. at 144. See also

id. at 142 (“{W)hen a military decision has dealt fully and

fairly with an allegation raised in [a habeas] application, it is

not open to a federal civil court to grant the wnt simply to re-

evaluate the evidence.”’).

The lower federal courts have struggled for fifty years to

distill from the Court’s “full and fair consideration” standard

a workable and meaningful test. The result has been wide-

spread confusion and widely divergent interpretations. In-

deed, as one commentator observed less than a decade after

Burns, “[t]reating the principal opinion in the Burns case as

the controlling precedent, a court may simply and summarily

dismiss a petition on the ground that the military did not re-

fuse to consider [the petitioner’s] allegations or it may, with

equal ease and upon the same authority, stress the require-

ment that military consideration shall have been full and

fair.” Joseph W. Bishop, Jr., Civilian Judges and Military

Justice: Collateral Review of Court-Martial Convictions, 61

Colum. L. Rev. 40, 59 (1961). See also Maj. Richard D.

Rosen, Civilian Courts and the Military Justice System: Col-

lateral Review of Courts-Martial, 108 Mil. L. Rev. 5, 7

(1985) (after Burns, lower courts have taken “diverse ap-

proaches to constitutional challenges to military convictions,

ranging from strict refusal to review issues considered by the

military courts to de novo review of constitutional claims”).

As a result of these differing standards, “the scope of re-

view accorded a claim will be dependent upon the particular

district or circuit in which the claimant files his petition. In

habeas corpus cases, this situs will be the district or circuit in

which the claimant, through no fault of his own, happens to

be confined.” Jd. at 8.5

There are presently five principal, but conflicting, for-

mulations of the “full and fair consideration” standard.

1. The D.C. Circuit held in Kauffman that the “full and

fair consideration” standard requires a court to determine

whether the court-martial complied with prevailing standards

of constitutional due process as enunciated by this Court,

“unless it is shown that conditions peculiar to military life

require a different rule.” 415 F.2d at 997. The Kauffman test

precludes review of a court-martial’s factual findings. Jd.

2. The Fifth Circuit held in Calley v. Callaway, 519

F.2d 184, 199-203 (Sth Cir. 1975), that the “full and fair con-

sideration” test requires a court to determine whether: (1) the

asserted error was of substantial constitutional dimension;

(2) the asserted error was one of law rather than of disputed

fact already determined by the tribunal; (3) military consid-

erations warrant different treatment of constitutional claims;

and (4) the tribunal gave adequate consideration to the issues

5 In most cases, this will be the United States District Court for the

District of Kansas and the Tenth Circuit, respectively, because the United

States Disciplinary Barracks at Fort Leavenworth is located there. /d. at

60 n.345; see also Sullivan, The Last Line of Defense: Federal Habeas

Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 16 (1994)

(discussing the importance of Tenth Circuit’s interpretation of Burns in

military death penalty cases).

involved and applied the proper legal standard to the issue.

The Calley standard limits review to “questions of law which

present constitutional issues.” /d. at 203.6

3. The Federal Circuit held in Bowling v. United States,

713 F.2d 1558, 1561 (Fed. Cir. 1983), that while questions of

fact resolved by military courts cannot be collaterally at-

tacked, allegations of “serious” constitutional violations, i.e.,

those that “demonstrate convincingly that in the court-martial

proceedings there has been such a deprivation of fundamental

fairness as to impair due process,” may be reviewed. The

Federal Court of Claims subsequently construed the Bowling

test as providing that courts “may only review those court-

martial matters in which the plaintiff alleges and proves that:

(1) significant constitutional defects have deprived the plain-

tiff of due process; (2) fundamental fairness was lacking in

the court-martial proceeding; and (3) the review does not

simply amount to a retrying or reweighing of the evidence.”

Matias v. United States, 19 Cl. Ct. 635, 642 (1990) (citing

Bowling, 713 F.2d 1560-61). See also, e.g., Moore v. United

States, 61 Fed. Cl. 146, 150-51 (2004); Madsen v. United

States, 48 Fed. Cl. 464, 468 (2000).

4. Recognizing the confusion Burns has engendered and

declining to “attempt any further explication of Burns,” the

Third Circuit recently applied the standard of review for state

habeas, as it is articulated in the Anti-Terrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254:

Whatever Burns means, we have no doubt that at

least absent a challenge to the constitutionality of

the statute under which the defendant was con-

victed ... our inquiry in a military habeas case may

not go further than our inquiry in a state habeas

case. Thus, we will assume — but solely for the sake

of argument — that we may review determinations

made by the military courts in this case as if they

6 In Dodson v. Zelez, 917 F.2d 1250, 1252-53 (10th Cir. 1990), the

Tenth Circuit adopted the Calley test.

11

were determinations made by state courts. Accord-

ingly, we will assume that 28 U.S.C. § 2254(e)(1)

applies to findings of historical fact made by the

military courts.... In considering other determina-

tions made by the military courts, we will assume

that 28 U.S.C. § 2254(d) applies.

Brosius, 278 F.3d at 245.

5. The Sixth Circuit has given the “full and fair consid-

eration” test an exceedingly narrow interpretation, essentially

limiting it to the question of whether the court-martial tribu-

nal physically listened to the petitioner’s claims. See Witham

v. United States, 355 F.3d 501, 503-05 (6th Cir. 2004) (not-

ing the Court of Criminal Appeals had considered the claims

raised by the petitioner and holding that “[w]here there is no

colorable jurisdictional question, a finding of full and fair

consideration ends our habeas corpus inquiry”).

B. The Court Should Clarify Burns By Adopt-

ing The Kauffman Test

To clarify the Burns “full and fair consideration” test,

this Court should adopt the Kauffman test, which is the clear-

est, most principled, and most workable articulation of the

Burns standard. Three main reasons support its adoption.

1. The Kauffman test is clear and simple in its basic out-

lines. A court need only determine whether the court martial

complied with existing due process standards, as articulated

by this Court. If so, the inquiry is at end. If not, the court

determines whether conditions péculiar to military life justify

the military court’s application of a different rule, drawing

upon this Court’s substantial body of case law on the inter-

play between the Bill of Rights and the demands of military

life. See, e.g., Brown v. Glines, 444 U.S. 348 (1980); Parker

v. Levy, 417 U.S. 733 (1974); see also Earl Warren, The Bill

of Rights and the Military, 37 N.Y.U. L. Rev. 181 (1962).

In contrast to the relative simplicity of the Kauffman test,

the Calley test, for example, requires courts to conduct a

multi-pronged inquiry into whether (1) the asserted error was

of substantial constitutional dimension, (2) the asserted error

12

was one of law rather than of disputed fact already deter-

mined by the tribunal, (3) military considerations warrant

different treatment of constitutional claims, and (4) the tribu-

nal gave adequate consideration to the issues involved and

applied the proper legal standard. Calley, 519 F.2d at 199-

203. In addition to being more cumbersome, Calley is con-

fusing because it includes the Burns test as one of its four

prongs and does not specify whether the prongs are factors to

be balanced against one another or conditions that must all be

satisfied.’ Moreover, the factors vest considerable discretion

in the district court with little guidance. See Dodson, 917

F.2d at 1253 (“these factors still place a large amount of dis-

cretion in the hands of the federal courts”).

2. The Kauffman test also has the advantage of making

explicit that United States servicemembers are presumptively

entitled to the same protections of the United States Constitu-

tion as their fellow citizens, unless there is an articulated

military need to depart from these constitutional standards.

Kauffman thus ensures that the constitutional nghts of ser-

vicemembers will be protected while simultaneously afford-

ing appropriate consideration of the necessities of military

life and deference to court-martial proceedings.

As the Burns plurality recognized, several interests are at

stake in collateral proceedings attacking a court-martial con-

viction. On the one hand, “[t]he military courts, like the state

courts, have the same responsibilities as do the federal courts

to protect a person from a violation of his constitutional

rights.” Burns, 346 U.S. at 142. Collateral review exists in

part to ensure that these responsibilities are discharged. On

the other hand, Burns recognized the unique nature of mili-

tary life, see id. at 140 (“[{T]he rights of men in the armed

7 Courts have taken both approaches. Compare Khan v. Hart, 943

F.2d 1261, 1263 (10th Cir. 1991) (weighing factors against one another

and “strik[ing] the balance in favor of review”) with Lips v. Commandant,

U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993)

(“[R]eview by a federal district court of a military conviction is appropri-

ate only if the following four conditions are met”).

13

forces must perforce be conditioned to meet certain overrid-

ing demands of discipline and duty”), see also Parker, 417

U.S. at 743 (“This Court has long recognized that the mili-

tary is, by necessity, a specialized society separate from civil-

ian society.”), as well as the need for some level of deference

to court-martial proceedings. Burns, 346 U.S. at 142.

The Kauffman test, more so than the Calley, Bowling,

and Brosius tests, balances these interests. On the one hand,

the Kauffman test ensures that the rights of servicemembers

will be protected by guaranteeing that court-martial proceed-

ings comply with this Court’s due process standards. On the

other hand, the Kauffman test recognizes the unique nature of

military life by providing that court-martial proceedings may

depart from this Court’s due process standards where the pe-

culiar nature of military life requires it. Finally, by deferring

to the court-martial tribunal’s factual findings, the Kauffman

test comports with Burns’ mandate that “it is not open to a

federal civil court to grant the writ simply to re-evaluate the

evidence.” Burns, 346 U.S. at 142.

Neither the Federal Circuit’s Bowling test nor AEDPA

review as embraced in Brosius achieves the careful balancing

of interests that the Kauffman test does. Although Bowling

offers similar protections to servicemembers’ constitutional

rights, it fails to expressly allow that the necessities of mili-

tary life may require a different constitutional rule. Brosius

suffers from a similar infirmity. AEDPA accords a court-

martial tribunal’s conclusions of law some deference, but

nothing in AEDPA permits a court to tailor the applicable

constitutional rule to the unique circumstances of military

life. Instead, the only inquiry is whether the decision of the

court-martial tribunal was “contrary to, or involved an un-

reasonable application of, clearly established Federal iaw, as

determined by the Supreme Court of the United States.’”

Brosius, 278 F.3d at 245 (quoting 28 U.S.C. § 2254(d)(1)).

Thus, the Kauffman test better addresses the unique interests

at stake in collateral attacks on court-martial proceedings.

14

3. The Kauffman test is not pegged to the standard of

review in state habeas, and thus does not fluctuate depending

on whatever standard of review happens to prevail in state

habeas. In contrast, the tests articulated by a number of the

other circuits are often expressly framed in relation to the

standard of review in state habeas. See, e.g., Brosius, 278

F.3d at 245 (“Whatever Burns means, we have no doubt that

... OUr inquiry in a military habeas case may not go further

than our inquiry in a state habeas case.”); Calley, 519 F.2d at

203 (“The scope of review for violations of constitutional

rights ... is more narrow than in civil cases.”); cf’ New, 448

F.3d at 407 (“As the military habeas standard of review at

one time followed review of state court judgments toward

less deference, perhaps it (and other collateral review of mili-

tary decisions) should follow the current path toward

more.”). The Kauffman test affords a level of certainty ab-

sent from these other tests, which are subject to continual re-

calibration in light of changes in state habeas.

To be sure, Burns established a comparative standard of

review for collateral attacks on court-martial convictions that

is more deferential than that employed to resolve attacks on

state-court convictions. See Burns, 346 U.S. at 139. But fi-

delity to the Burns plurality is unwarranted here, because

Burns was simply wrong when it declared that “in military

habeas corpus the inquiry, the scope of matters open for re-

view, has always been more narrow than in civil cases,” id.,

as recognized at the time by Justice Frankfurter in his dissent

from denial of rehearing, Burns, 346 U.S. at 846, and numer-

ous commentators since. See, e.g., John K. Chapman, Note,

Reforming Federal Habeas Review of Military Convictions:

Why AEDPA Would Improve the Scope and Standard of Re-

view, 57 Vand. L. Rev. 1387, 1389, 1417-19 (2004); Note,

Civilian Review of Court Martial Adjudications, 69 Colum.

L. Rev. 1259, 1273 (1969). The scope of federal habeas re-

view of both state court and military convictions was identi-

cal until shortly before Burns, see Chapman, 57 Vand. L.

Rev. at 1389, and federal habeas review of state convictions

15

did not exist at all unti] 1867, whereas federal habeas review

of military convictions had been available since 1789.8

Il. COUNCILMAN DOES NOT ESTABLISH A

SEPARATE STANDARD OF REVIEW FOR

NON-HABEAS COLLATERAL ATTACKS.

That the D.C. Circuit eschewed the Burns test because

the petitioner was not in custody, and instead applied a stan-

dard of review it derived from admitted dicta in Schlesinger

v. Councilman, 420 U.S. 738 (1975), represents an additional

reason to grant the petition. The relationship between Burns

and Councilman has long divided the courts, and the decision

below exacerbates this confusion. The standard of review in

collateral attacks on court-martial convictions ought not to

turn on whether the petitioner was sentenced to confinement

or is still in custody when the petition is considered. Coun-

cilman does not require such a distinction, which ignores or

unduly minimizes the stigmatizing and long-term, harmful

effects of court-martial convictions that result “only” in puni-

tive separation from the armed services.?

1. Councilman did not involve a collateral attack on a

military conviction. Rather, it involved a servicemember’s

attempt to prospectively enjoin a pending court-martial on

the grounds that the offense at issue allegedly fell outside the

military court’s jurisdiction. 420 U.S. at 739-40. Council-

man should be read in this factual context. Indeed, this Court

recently construed Councilman as an abstention case primar-

ily concerned with principles of comity. See Hamdan v.

Rumsfeld, 126 S. Ct. 2749, 2770 (2006).

2. Councilman does not establish a separate standard of

review for non-habeas collateral attacks. Rather, it holds that

8 Compare Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82, with

Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385.

9A punitive discharge is one of nine types of authorized punishment.

MANUAL FOR COURTS-MARTIAL, UNITED STATES R.C.M. 1003 (2005).

There are three types of punitive discharge: (a) dismissal, (b) dishonor-

able discharge, and (c) bad-conduct discharge. /d. at R.C.M. 1003(b)(8).

16

(1) enactment of Art. 76 of the Uniform Code of Military

Justice, 10 U.S.C. § 876,!9 did not remove the federal courts’

traditional jurisdiction to hear non-habeas collateral attacks

on court-martial convictions, Councilman, 420 U.S. at 744-

45, and (2) as a matter of equitable doctrine, federal courts

must refrain from intervening in pending court-martial pro-

ceedings when the defendant servicemember can show no

harm other than the attendant resolution of his or her case in

the military court system. /d. at 758. Neither holding pur-

ports to alter or in any way affect the standard of review ar-

ticulated in Burns. Indeed, because the Court concluded that

abstention was appropriate, Councilman does not apply any

standard of review at all to the substantive claims.

Accordingly, in the thirty years since Councilman, many

courts have continued to apply the Burns test to non-habeas

collateral attacks — just as, prior to Burns, courts had applied

the same test to habeas and non-habeas collateral attacks.

Indeed, the case law of the Federal Circuit and the Court of

Federal Claims is confined to non-habeas collateral attacks —

mostly suits for backpay and reinstatement.!! Yet, since

Councilman, those courts have largely applied the Burns

standard, as interpreted by Bowling. See, e.g., Matias v.

United States, 923 F.2d 821, 826 (Fed. Cir. 1990) (applying

Burns and Bowling); Moore, 61 Fed. Cl. at 150 (“plaintiff

must show ... that the military courts failed to give fair con-

10 Art. 76 provides in relevant part that “the proceedings, findings, and

sentences of courts-martial as approved, reviewed, or affirmed as re-

quired by this chapter ... are final and conclusive” and “all action taken

pursuant to those proceedings [is] binding upon all ... courts ... of the

United States.” 10 U.S.C. § 876.

11 Under 28 U.S.C. § 1295(a)(2), the Federal Circuit has jurisdiction

over appeals from the district courts in certain backpay suits (under

$10,000) brought pursuant to 28 U.S.C. § 1346(a)(2). The Federal Cir-

cuit’s jurisdiction also extends to appeals from the Court of Federal

Claims, 28 U.S.C. § 1295(a)(3), which has jurisdiction to hear certain

claims against the United States, including those involving backpay, res-

toration of service, and correction of records. See 28 U.S.C. § 1491.

17

sideration to the claim”) (internal quotations omitted); Long-

val v. United States, 41 Fed. Cl. 291, 295 (1998) (same).

3. Councilman, however, does contain some language,

which the court below recognized was dicta, 448 F.3d at 406,

Pet. App. 4a, that could be understood to conflict with Burns

and that has caused confusion in the courts:

A judgment ... is not rendered void merely by error,

nor does the granting of collateral relief necessarily

mean that the judgment is invalid for all purposes.

On the contrary, it means only that for purposes of

the matter at hand the judgment must be deemed

without res judicata effect: because of lack of juris-

diction or some other equally fundamental defect,

the judgment neither justifies nor bars relief....

Id. at 747

[T]he question whether a court-martial judgment

properly may be deemed void — i.e., without res ju-

dicata effect for purposes of the matter at hand -

may turn on the nature of the alleged defect, and the

gravity of the harm from which relief is sought.

Moreover, both factors must be assessed in light of

the deference that should be accorded the judgments

of the carefully designed military justice system es-

tablished by Congress.

Id. at 753. Councilman also observes that “the grounds upon

which military judgments may be impeached collaterally are

not necessarily invariable” and “[flor example, grounds of

impeachment cognizable in habeas proceedings may not be

sufficient to warrant other forms of collateral relief.” Jd.

This “fundamental defect” test figured in the Court’s

analysis only as a brief elucidation of what makes a judgment

“void” for purposes of a collateral attack, such that the Arti-

cle Til courts have subject matter jurisdiction. Jd. at 746-747.

That this is not meant to supplant Burns’ standard of review

is clear from the sentence that follows the Court’s discussion

of the “fund wmental defect” test: “But we are concerned here

18

only with petitioner’s broad jurisdictional argument, which

we reject for the reasons stated above.” /d. at 753. Under the

circumstances, Councilman’s brief reference to “fundamental

defect[s]” should not be read to require the far-reaching

changes in the Burns standard the D.C. Circuit here adopted.

The court of appeals appears to have been the first to de-

cide that Councilman established a separate standard of re-

view for non-habeas collateral attacks. However, the court

below was not alone in its uncertainty regarding Council-

man’s implications for Burns. While many courts have ig-

nored the “fundamental defect” test, applying the “full and

fair consideration” standard instead, see, e.g., Mendrano vy.

Smith, 797 F.2d 1538, 1541-42 (10th Cir. 1986) (citing Burns

but not Councilman), other courts have attempted to recon-

cile Councilman with Burns in one of two ways.

Some courts have combined Burns and Councilman to

formulate a single test. For instance, in Calley, the court

summarized its interpretation of Burns as follows:

Military court-martial convictions are subject to col-

lateral review by federal civil courts on petitions for

writs of habeas corpus where it is asserted that the

court-martial acted without jurisdiction, or that sub-

stantial constitutional rights have been violated, or

that exceptional circumstances have been presented

which are so fundamentally defective as to result in

a miscarnage of justice.

Calley, 519 F.2d at 203 (emphasis added).

Other courts have interpreted the “fundamental defect”

test as a threshold jurisdictional inquiry that, if satisfied, sets

the stage for review under the Burns standard. See, e.g.,

Hatheway v. Sec’y of Army, 641 F.2d 1376, 1379-80 (9th Cir.

1981); Priest v. Sec’y of Navy, 570 F.2d 1013, 1016 (D.C.

Cir. 1977). In this view, Councilman articulates the jurisdic-

tional pleading standard that plaintiffs must satisfy in order to

obtain collateral review. See id. (“We conclude that if

Priest’s interpretation of the First Amendment is correct, the

19

defect in the court-martial judgment caused by improper in-

structions would be sufficiently fundamental to void it.”).

4. At least in the absence of some statutory bar, there is

no principled reason to distinguish the standard of review

applicable to habeas and non-habeas collateral attacks on

military convictions. Such a distinction ignores or minimizes

the stigmatizing and harmful effects of any court-martial

conviction, including one that does not result in confinement.

As this Court has recognized, these grave, non-confinement

consequences include “deprivation of pay and earned promo-

tion, and even ... discharge or dismissal ... under conditions

that can cause lasting, serious harm in civilian life.” Coun-

cilman, 420 U.S. at 752. Indeed, a servicemember convicted

by court martial may also suffer “collateral civil disabilities,”

including restrictions on the right to vote, purchase or own

firearms, parental rights, and public employment eligibility.

Maj. Jeff Walker, The Practical Consequences of a Court-

Martial Conviction, 2001-Dec. Army Law 1, 8-11 (2001).

A punitive discharge is a serious matter that can be the

equivalent of a felony conviction, see MANUAL FOR COURTS

MARTIAL at R.C.M. 1003(b)(8)(B), and is profoundly stigma-

tizing. As the D.C. Circuit observed in Kauffman, “In terms

of its effects on reputation, the stigma experienced by the re-

cipient of a discharge under other than honorable conditions

is very akin to the concept of infamy.” 415 F.2d at 995

(quoting Everett, Military Administrative Discharges — The

Pendulum Swings, 1966 Duke L. J. 41, 50).

In addition, a court-martial conviction resulting in a pu-

nitive discharge can have deeply debilitating economic con-

sequences for the servicemember and his or her dependents,

such as loss of veterans’ retirement and medical benefits.

See Walker, supra, 2001-Dec. Army Law at 8-11. Equally

grave, the soldier may face severely curtailed employment

opportunities in the civilian sector. See, e.g., Kaiser v. Sec'’y

of the Navy, 525 F. Supp. 1226, 1228 (D. Colo. 1981)

(“Among the serious collateral, non-imprisonment conse-

quences of a court-martial conviction are the lifelong social

20

and psychological stigma and greatly limited employment

opportunities”); Keith M. Harrison, Be All You Can Be

(Without the Protection of the Constitution), 8 Harv. Black-

Letter J. 221, 238 (1991) (adverse effects on future employ-

ment); Charles P. Sandel, Comment, Other-Than-Honorable

Military Administrative Discharges: Time for Confrontation,

21 San Diego L. Rev. 839, 847 (1984) (significant stigma

and restriction of employment opportunities).

Applying a different, more deferential standard of re-

view to non-habeas collateral attacks on court-martial con-

victions ignores these grave effects based on a factor bearing

no relabionship to thé severity of the alleged constitutional

defect. Cf Kauffman, 415 F.2d at 996 (“To hold that collat-

era] review is contingent on confinement in every case would

arbitrarily condition the serviceman’s access to civilian re-

view of constitutional errors upon a factor unrelated to the

gravity of the offense, the punishment, and the violation of

the serviceman’s [sic] rights.”’).

CONCLUSION

For the foregoing reasons, this Court should grant the

petition.

Respectfully submitted.

Of Counsel: THEODORE J. BOUTROUS, JR.

PROF. STEPHEN A. SALTZBURG Counsel of Record

THE GEORGE WASHINGTON DANIELS. FLOYD

UNIVERSITY LAW SCHOOL WILLIAM E. THOMSON

2000 H STREET, N.W. WENDY L. WALLACE

WASHINGTON, DC 20052 SHANNON E. MADER

GIBSON, DUNN & CRUTCHER LLP

HARDY VIEUX 333 SOUTH GRAND AVENUE

ROBINS, KAPLAN, MILLER & Los ANGELES, CALIFORNIA

CIRESI L.L.P. 90071-3197

1875 EYE STREET, N. W. (213) 229-7000

WASHINGTON, DC 20006

November 27, 2006 Counsel for Amicus Curiae

- 100099952_6.DOC