Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.

Argument: NACDL’s amicus brief argues that Article 52(a)(3) of the Uniform Code of Military Justice, 10 U.S.C. § 852(a)(3), which permits nonunanimous verdicts by only a three-fourths majority in non-capital courts-martial involving serious offenses, is unconstitutional under Ramos v. Louisiana.  Courts-martial have been considered “judicial” for almost 135 years.  The UCMJ contemplates that the accused must be given a fair trial, and courts have recognized that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards unless conditions peculiar to military life require a different rule.  The Sixth Amendment has already been extensively incorporated into our military justice system.  With the exception of unanimous verdicts, servicemembers facing a court-martial for serious offenses receive the core panoply of constitutional trial rights, and the military justice system is none the worse-for-wear as a result.  Contrary to the lower court’s assertion, non-unanimity promotes unlawful command influence, rather than preventing it.  Although Congressional powers are necessarily broad in the area of military affairs, they are not absolute or unlimited.  Whether found under the Due Process Clause or, as Ramos holds, under the Sixth Amendment’s Impartial Jury Clause, the right to a unanimous verdict in a criminal prosecution is constitutionally mandated.  It is the Constitution that controls on this issue, not a provision within the UCMJ.

Concerns with Revisions to the Military Commissions Act of 2006 in the Senate-Passed Version of the National Defense Authorization Act of 2009 … The undersigned organizations want to make clear both our opposition to resuming the use of military commissions to try terrorism suspects, and our concern with numerous provisions in the amendment to the MCA that we strongly urge you to consider. … military commissions would still be incapable of delivering on the twin goals of any effective judicial system: ensuring that justice is fair, and ensuring that justice is swift.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: The Court should overrule Loving v. United States, which is no longer good law in light of Ring v. Arizona. Rules for Courts-Martial 1004 violates constitutional separation-of-powers principles. Only Congress may define the elements of a criminal offense. The foregoing separation-of-powers principles apply equally in the military justice system.