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Norbert Basil MacLean III O'Connor-Keough
Norb08.jpg
Norb MacLean III in 2007.
Nickname Norb
Place of birth Toms River, New Jersey
United States
Allegiance Dual citizenship
Australia Commonwealth of Australia
(By Descent)
United States United States of America
(By Birth)
Service/branch United States Department of the Navy Seal.svg United States Navy
Years of service 1989-1994 U.S. Navy
Rank USN: CTA3(AW) - Cryptologic Technician
Petty Officer
(Air Warfare)
Unit Central Security Service
Naval Security Group
United States Department of State
Naval Mobile Construction Battalion-21
Battles/wars Gulf War
Awards Joint Service Achievement Medal
National Defense Service Medal
Navy Battle E
Navy Expert Rifleman Medal
Navy Expert Pistol Shot Medal
Other work Lobbyist & Publisher of
Equal Justice for Troops blog

Norbert Basil MacLean III O'Connor-Keough (born Norbert Basil MacLean III; February 10, 1971) is a dual American-Australian citizen, advocate and lobbyist for military justice reform, former cryptologist, private pilot, published writer, and United States Navy veteran. MacLean is most noted for championing equal access to the Supreme Court of the United States for members of the United States Armed Forces.[1][2][3]

Since the establishment of the Supreme Court of the United States in 1789, by the United States Constitution, members of the United States Armed Forces did not have the right to seek direct review of courts-martial convictions to the nation's highest court. In 1984 Congress passed the Military Justice Act of 1983 which gave limited Supreme Court review to service members. This limited review consists of death penalty sentences, cases in which the Court of Appeals for the Armed Forces granted discretionary review (which only happens less than 20 percent of the time), and cases certified by a service judge advocate general (which almost always inures to the benefit of the government).[4] Despite the Military Justice Act of 1983, more than 80 percent of all court-martialed service members were being shut out of the Supreme Court from a flaw in the law.[4][5] Civilian state and federal prisoners, illegal aliens, enemy combatants and detainees all have a right to petition the Supreme Court to review their convictions. But service members do not.[2][6]

In March 2004 MacLean began to lobby Congress to permit all court-martialed service members access to the Supreme Court.[7] Under MacLean's proposal, for the first time in America's history, service members would have equal access to the nation's highest court in the land which they serve to protect and defend. Two bills were introduced in the 110th Congress to rectify the inequity in the law: Equal Justice for Our Military Act of 2007, HR 3174 and Equal Justice for United States Military Personnel Act of 2007, S.2052. The two bills are identical and adopt the language MacLean first proposed in 2004 to Congress.[3] On September 11, 2008 the Senate Judiciary Committee unanimously voted to approve S.2052.[8][9] There were no objections and the bill was reported out to the full Senate.[10][11] The next day S.2052 was placed on the Legislative Calendar of the Senate.[12] On September 27, 2008 the U.S. House of Representatives suspended the rules, held debate on the floor and passed HR 3174 by two-thirds voice vote.[13][14] Despite the House passing HR 3174, both bills died in the 110th Congress because one Republican Senator blocked a Senate floor vote under the unanimous consent calendar.

On January 15, 2009 Rep. Susan A. Davis (D-Calif.) chairwoman of the Subcommittee on Military Personnel of the House Armed Services Committee reintroduced the bill in the 111th Congress as the Equal Justice for Our Military Act of 2009, HR 569.[15] HR 569 has been referred to the House Judiciary Committee. On January 30, 2009 Senators Dianne Feinstein (D-Calif.), then-Republican Arlen Specter (D-Penn.) and Russ Feingold (D-Wis.) reintroduced the Senate bill in the 111th Congress as the Equal Justice for United States Military Personnel Act of 2009, S.357.[16][17] The language of the reintroduced bills are the same as the previous bills in 110th Congress. Both the House and Senate bills are also the same language as MacLean first proposed to Congress in 2004.[7]

Contents

Military service

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Naval cadet and midshipman

Prior to enlisting in the Navy, MacLean served from 1985-87 as a Naval cadet in the Naval Junior Reserve Officers' Training Corps at Rancocas Valley Regional High School in Mount Holly, New Jersey.[18] MacLean was the first and only underclassman, as a sophomore, to become executive officer of the battalion of cadets.

MacLean then served as midshipman from 1987-89 in the U.S. Naval Sea Cadet Corps, at the formerly named Naval Air Engineering Center, Lakehurst, New Jersey and had dual hats as public affairs officer for Squadron One as well as deputy public affairs officer for Reserve Naval Mobile Construction Battalion-21. In November 1988, local newspapers in New Jersey reported that MacLean participated in a military exercise with RNCMB-21 at the Guantanamo Bay Naval Base. The next year, MacLean participated in "Atlantic Stinger ‘89" at Naval Air Station Bermuda which was the first ever NMCB anti-terrorist air deployment exercise outside of the continental United States.[19]

In 1988, while a senior at Manchester Township High School, he received a U.S. Congressional appointment from New Jersey Congressman H. James Saxton to the U.S. Military Academy at West Point, New York for the class of 1993 entering in the summer of 1989.[20] But according to the St. Petersburg Times MacLean was so smitten with Naval service that he passed on the Congressional nomination to West Point.[21] MacLean had also been a member of the U.S. Navy Flying Club at Navy Lakehurst since 1988 and was a private pilot. It is unclear whether he continues to fly.[20]

Active duty United States Navy

Class of 1990 Cryptologic Technician(Administrative) graduating class (90065) at Corry Station Naval Technical Training Center, Pensacola, Florida. MacLean is pictured fourth from the left. (Click on photograph to enlarge.)

From 1989 through 1994 MacLean served in the Navy as an enlisted cryptologic technician and held high level security clearances including top secret and Sensitive Compartmented Information.[22] He worked for senior level United States government officials.

On May 11, 1990 he graduated Cryptologic Technician(Administrative) "A" School in class 90065 at Corry Station Naval Technical Training Center, Pensacola, Florida. Upon graduation MacLean was selected for admiral (otherwise known as "flag") staff duty and served on the staffs of Rear Admirals (Upper Half) James S. McFarland and later in 1992 Isaiah C. Cole when each were serving dual roles as Commander of the Naval Security Group Command and simultaneously Deputy Director of Naval Intelligence in Washington, D.C.

In 1991, MacLean was chosen as an aide to then-U.S. Presidential Special Negotiator Richard Armitage during the U.S.-Philippines military bases closure agreement. MacLean was temporarily assigned from the COMNAVSECGRU to Armitage's staff and worked out of the U.S. Department of State during the summer of 1991.[21][23] Secretary of Defense Dick Cheney, on May 13, 1992, awarded MacLean the Joint Service Achievement Medal for his work as an aide to Armitage.

According to records held by the National Archives and Records Administration MacLean is believed to be the youngest sailor in the U.S. Navy, at age 18, to have achieved Air Warfare wings and be designated an Enlisted Aviation Warfare Specialist.[24]

While on active duty MacLean received a Congressional nomination from Rep. Saxton to the U.S. Naval Academy at Annapolis, Maryland. In 1992 MacLean was due to enter the U.S. Naval Academy Preparatory School in Newport, Rhode Island prior to attending the Naval Academy. Because of MacLean's court-martial in 1992 he never entered NAPS.[25]

Complaint of wrongs against superior, court-martial and appeals

MacLean, an openly gay man, was court-martialed in October 1992 on what he claims were trumped up charges of bad checks after he had filed a meritorious complaint of wrongs under UCMJ article 138 against then-Commander Robert W. Cosgriff, commanding officer of the Naval Security Station, Washington, D.C. In early 1992 MacLean alleged a wrongful demotion in rank and harassment by Cosgriff.[22] Several months after MacLean's complaint Cosgriff appointed an investigating officer to investigate MacLean and recommended a court-martial.[26] The Navy Times reported that MacLean's military pay had been interfered with and was not being credited to his bank accounts which caused checks to be returned. Further, that bank notices sent to MacLean were being signed by someone other than MacLean.[26] Later his pay records were missing immediately before the court-martial causing him to plead guilty to three counts of violating UCMJ article 123a due to missing evidence.[26]

A month after MacLean’s court-martial, his complaint of wrongs against Cosgriff was found meritorious. Navy documents show MacLean was reinstated to his previous rank. In May 1993, the Assistant Secretary of the Navy (M&RA) approved the decision on MacLean's complaint. MacLean claims he did not obtain documentation of this decision until almost a decade later through the Freedom of Information Act. In 2004, a retired U.S. Marine Corps Lieutenant Colonel and a former U.S. Navy judge advocate Lieutenant provided sworn declarations stating that documentary evidence of MacLean's meritorious complaint against the officer that recommended his court-martial was not made available to MacLean's defense attorneys.[27] The evidence demonstrated the appearance of bias and prejudice by Cosgriff against MacLean prior to recommending MacLean's court-martial. Despite the meritorious complaint of wrongs Cosgriff was permitted to initiate MacLean's court-martial over the contrary findings and recommendations of a military investigating officer that held the evidence against MacLean was weak or non-existent.[26] The investigating officer, in a report, checked a "no" box where it asked if reasonable grounds exist to believe MacLean committed the offenses alleged.[26]

The military courts failed to address many of MacLean's allegations.[22] Specifically that Cosgriff had an other-than-official interest in his prosecution and should have been disqualified from the court-martial process. MacLean's attorneys argued, among other things, that the other-than-official interest by Cosgriff who recommended MacLean's court-martial, equated to a violation of MacLean's constitutional due process rights to be free from a court-martial tainted with bias and prejudice. In 2004 for its part, the United States Navy argued in federal court that MacLean "has purposely and flagrantly misrepresented the facts to the court in a futile effort to reverse an otherwise correct and just court-martial conviction."[26]

Article III courts lacked jurisdiction to review court-martial

The Supreme Court's doors were sealed off for me

—MacLean quoted in "Bill would let some military members go to high court"
Navy Times (April 11, 2005)

National newspapers, including the Washington Post, reported that MacLean was highly praised by his civilian and military superiors in the years prior to his known sexual orientation and court-martial.[21][23] After MacLean’s case concluded review in the military courts he was sealed out of Supreme Court review due to an inequity in federal law which does not permit service members to appeal to the high court unless the Court of Appeals for the Armed Forces grants review or relief in a case.[28] MacLean's constitutional due process claims have never been adjudicated on the merits in any Article III court because those courts lack the jurisdiction to review the case. Nor does the Board of Corrections of Naval Records have the jurisdiction to review MacLean's case because Congress took away the boards jurisdiction to review courts-martial when it passed the Military Justice Act of 1983 by enacting Title 10 U.S.C. 1552(f). The court-martial punished MacLean with a dishonorable discharge which was never carried out because in 1993 the Naval Parole & Clemency Board mitigated that discharge due to his outstanding service record.[29] MacLean was eventually discharged from active U.S. Naval service in August 1994.

From 2002 until it dissolved in 2008 the international law firm of Heller Ehrman, with shareholder Daniel S. Silverman of Heller's San Diego office as lead counsel, represented MacLean. Each attempt to challenge MacLean's court-martial on constitutional due process grounds was unsuccessful as all Article III courts ruled that no jurisdiction existed to review the court-martial on the merits even with recovered missing evidence.[30] New evidence included MacLean's missing pay records showing thousands of dollars in Navy pay not credited to MacLean's bank accounts, the final resolution of his complaint against his commanding officer demonstrating bias and prejudice, copies of unauthorized general court-martial subpoenas issued to civilians in the name of the President of the United States months before any court-martial was convened against MacLean,[26] redacted official U.S. Navy documents showing that in 1994 officials were "sitting on it so it will go away!!!"[31]

In November 2002 MacLean tried to challenge the court-martial in the U.S. District Court for the Southern District of California on constitutional due process grounds. In 2003 the district court held that it did not have jurisdiction to review the court-martial and dismissed the case. Five years later the nation's highest military court, the Court of Appeals for the Armed Forces, in Denedo v. United States, cited MacLean's U.S. district court case in a sharply divided 3-2 published majority opinion and dissent on whether or not military courts even have jurisdiction to hear a former servicemember's case when evidence is later discovered after a court-martial is final.

MacLean also attempted to obtain review of his court-martial under the Tucker Act in both the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit. Both those courts held, in MacLean v. United States, that it did not have jurisdiction to review MacLean's court-martial due to the six year statute of limitations and declined to apply equitable tolling to the statute of limitations.[32][33] Prior to Heller Ehrman dissolving, its website had a pro bono page dedicated to MacLean's case.[30]

Financial institutions settled lawsuits linked to illegal military subpoenas

National newspapers reported MacLean sued American Security Bank, Citibank, Riggs Bank, Sears and others in the mid-1990s for violating his privacy in turning over his private bank records to the military. It was alleged in federal lawsuits MacLean filed in U.S. District Courts in the District of Columbia and the Middle District of Florida that MacLean's banks and creditors violated the Right to Financial Privacy Act when it turned over his financial records to the Navy pursuant to illegal court-martial subpoenas. General court-martial subpoenas were issued before MacLean's court-martial was convened. MacLean won non-disclosed out of court settlements with several financial institutions.[34][35]

Ineligible for presidential pardon

In May 2009 the pardon attorney at the U.S. Department of Justice informed MacLean that he was not eligible for a presidential pardon because the United States has a "well-established policy to not process applications for clemency from non-residents of the United States."[36] MacLean, while a citizen of the United States, is also a citizen of Australia and no longer resides in America. In 2007 he moved from America to Australia and is therefore precluded from applying for a presidential pardon because he lives outside the United States.[3]

Equal rights in Australia versus the United States

See main articles on:
Human rights in Australia
Human rights in the United States
LGBT rights in Australia
LGBT rights in the United States

While Australia does not have a bill of rights (individual rights are found in the Constitution, common law and by statute), as an Australian citizen MacLean enjoys greater procedural due process protections and equal rights residing in Australia than he would living in the United States as an American citizen.

Had MacLean served in the Royal Australian Navy, instead of the U.S. Navy, he would have been allowed to serve as an openly gay man.[37] The United States does not allow open homosexuals to serve in its Armed Forces. America's policy on its homosexual uniformed citizens is "Don't ask, don't tell". MacLean also would have been able to petition the High Court of Australia – the equivalent of the Supreme Court of the United States because Australia allows its uniformed citizens full procedural due process protections.[38][39] Unlike the United States, had MacLean been convicted by an Australian military court, he would have been eligible for a royal pardon regardless of his country of residence.

Australia has broader equal rights protections for its gay and lesbian citizens than the United States. Australia recognizes same sex partnerships for purposes of federal governmental benefits, provides anti-discrimination laws in education, employment, housing and adoption on the basis of sexual orientation, permits same sex partnership visas with rights of migrant partners to claim medicare and other benefits, the Australian Defence Force recognizes same sex couples (known as interdependent relationships) and provides the same benefits as hetrosexual couples, and most of the individual states and territories recognize same sex partnerships as de facto couples.

Awards, decorations and insignias

  • MacLean's United States awards, decorations and insignias include:
United States Department of Defense medals
Us jointservachiev rib.svg Joint Service Achievement Medal
United States unit awards
NavyE.gif Navy Battle E
United States campaign and marksmanship medals
National Defense Service Medal ribbon.svg National Defense Service Medal (Gulf War)
NavRifleEx.jpg Navy Expert Rifleman Medal
NavPisRibEx.jpg Navy Expert Pistol Shot Medal
United States veteran’s association medals
Sarbronze.jpg Sons of the American Revolution Bronze Medal[40][41]
Moarotcaward.jpg The Retired Officers Association (renamed MOAA) Medal[41]
United States letters of commendation and recognitions
Cold War Recognition Certificate by Secretary of Defense
Letter of Commendation by Commander, Naval Security Group Command
Letter of Commendation by Commanding Officer, Reserve Naval Mobile Construction Battalion-21
United States badges and patches
Navy air warfare.jpg Aviation Warfare
Navy hash mark.jpg Service stripe (One)
Joint Service Achievement Medal certificate awarded to Petty Officer MacLean by Secretary of Defense Dick Cheney. (Click on JSAM certificate to enlarge.)
Joint Service Achievement Medal citation accompanying certificate awarded to Petty Officer MacLean by Secretary of Defense Dick Cheney. (Click on JSAM citation to enlarge.)

MacLean's work on Supreme Court access

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.

MacLean's op-ed "Separate and unequal military justice"
Los Angeles Times (September 10, 2008)

108th Congress - the start of lobbying

After MacLean was shut out of the Supreme Court, and learning that other service members were also, he began his plight to correct the long standing inequity in American law.[2][3][42] MacLean first started to lobby Members of the 108th Congress in March 2004 to amend the law and permit service members equal access to the Supreme Court.[7] MacLean's proposal to Congress was simple: to permit a petition for writ of certiorari to be filed by any member of the U.S. Armed Forces who was denied review or relief by the Court of Appeals for the Armed Forces. This concept would bring the Armed Forces court in line with all other federal Circuit Courts of Appeal concerning Supreme Court review of federal criminal convictions. MacLean's proposal, for the first time in America's history, would afford service members full procedural due process protections in appellate review of courts-martial to the Supreme Court.

April 23, 2004 letter from Chairman John McHugh and Rep. Susan A. Davis of the then-Total Force Subcommittee (renamed Military Personnel Subcommittee) of the House Armed Services Committee to Department of Defense General Counsel William J. Haynes II. (Click on letter to enlarge.)

On April 23, 2004 the House Armed Services Committee sent a bipartisan letter, written by Reps. Susan A. Davis (D-Calif.) and John Michael McHugh (R-NY), to The Pentagon asking for feedback on MacLean's proposal.[25] Then-Principal Deputy General Counsel Daniel J. Dell'Orto wrote to lawmakers opposing MacLean's proposal of Supreme Court access for service members. According to the Los Angeles Daily Journal, Dell'Orto stated that changing the law and giving service members greater Supreme Court access would only serve to burden the nation's highest court.[25] Rep. Susan A. Davis first introduced the Equal Justice for Our Military Act on March 17, 2005 in the 109th Congress.[43] After its introduction the bill was vehemently opposed by the Bush administration through then-Department of Defense General Counsel William J. Haynes, II. Haynes wrote letters to Congress in opposition stating "there is no apparent justification to modify the current review process, thereby increasing the burden upon the Supreme Court and counsel to address the myriad of matters that would be encountered with expanded certiorari jurisdiction."[44] The bill failed in the 109th Congress.

MacLean undeterred then worked with Legislative Research Inc. ("LRI"), based in California, to develop two decades of military justice statistics to present to Congress. LRI completed its study in March 2006.[45] Military justice statistics were then compared to U.S. Department of Justice federal criminal civilian statistics which demonstrated a substantial disparity in appellate review between civilians and uniformed citizens. This led the American Bar Association ("ABA"), in August 2006, to issue a report and unanimously pass a resolution urging Congress to correct the law and permit U.S. armed forces members equal access to the Supreme Court.[5] The ABA report references critical military justice statistics compiled as a direct result of MacLean's work on this issue.[5]

109th Congress grants enemies high court access but not service members

How could you say that a detainee at Guantanamo Bay has a right to appeal to the U.S. Supreme Court and a serviceman doesn't?

—MacLean quoted in "Bill offers troops way to appeal"
San Diego Union Tribune (July 26, 2007)

The 109th Congress enacted the Military Commissions Act of 2006, in which section 950g(d) (promulgated in Title 10 U.S.C. § 950g(d)), gives the Supreme Court the ability to review by writ of certiorari any final judgment issued by the U.S. Court of Appeals for the D.C. Circuit, in an appeal filed by terrorists and war criminals who are convicted by U.S. military commissions. But America's own uniformed citizens were still being shut out of equal Supreme Court access. In the media MacLean was critical of Congress giving enemy combatants Supreme Court access but not U.S. service members who were fighting those enemies and terrorists in defense of America.[2][46][47][48]

It is shameful that even enemy combatants have access to our highest court, but those serving to protect and defend us are shut out...

—MacLean quoted in "Supreme Court Access for Military Members Convicted of Crimes?"
Wall Street Journal (September 30, 2008)

By law (with few exceptions), the members of our armed forces cannot ask the Supreme Court to review convictions by court-martial. Enemy combatants have a clearer road to the Court than those serving in the U.S. military do. . . Our troops deserve better.

—MacLean's commentary "Who Hears the Troops?"
Legal Times (June 9, 2008)

110th Congress - House passes bill but Senate fails to act

Reps. Susan A. Davis, (D-Calif.) and Ike Skelton (D-Mo.) of the House Armed Services Committee reintroduced the bill that had previously failed in the last Congress on July 25, 2007 in the U.S. House of Representatives entitled the Equal Justice for Our Military Act of 2007, HR 3174.[49] The reintroduced bill was in broader form and included not only denials for extraordinary writs but also petitions for direct review. It would amend 28 USC sections 1259(3) and (4) so that if the Court of Appeals denied review or relief to a service member an appeal could be taken to the Supreme Court. Six days after HR 3174's introduction it received bipartisan support by Rep. Rodney Alexander (R-La.), a U.S. Air Force Reserve veteran, who signed on as cosponsor.

On September 17, 2007 a companion bill, identical to the House bill, was introduced in the Senate by Senators Dianne Feinstein (D-Calif.), then-Republican Arlen Specter (D-Penn.), and Russ Feingold (D-Wis.), entitled Equal Justice for United States Military Personnel Act of 2007.[50] When the Senate returned from its 2008 summer recess, Senator Hillary Clinton (D-NY), a member of the Senate Armed Services Committee, signed on as cosponsor to the bill.[51] On September 11, 2008 the Senate Judiciary Committee unanimously voted to approve S.2052.[8][11] The next day S.2052 was placed on the Legislative Calendar of the Senate.[12]

On September 27, 2008 the U.S. House of Representatives debated and passed, by two-thirds voice vote, the Equal Justice for Our Military Act of 2007, HR 3174.[13][14] Rep. Lamar S. Smith (R-Tx.), the Ranking Republican on the House Judiciary Committee opposed the bill during floor debate arguing, among other things, that there were no hearings in the House Judiciary Committee.[13] The next day, on September 28, 2008 MacLean publicly retorted that Smith himself had an opportunity to hold such hearings but did not. "In the last Congress, Rep. Smith as chairman of the Subcommittee on Courts, Internet & Intellectual Property of the Judiciary Committee outright refused to permit hearings on this subject. The previous Equal Justice for Our Military Act, HR 1364 (109th Congress) sat in his committee for 1 year and 9 months with absolutely no action." [52] It was expected that the U.S. Senate would take up the House passed HR 3174 during the week of December 8, 2008. However, several print media and blogs had reported opposition by at least one Republican Senator who blocked a Senate floor vote on the bill.[48][53][54] Both bills died in the 110th Congress because Senator Lindsey Graham (R-SC) blocked a Senate floor vote under the unanimous consent calendar.

111th Congress - House and Senate reintroduce bills

Early in the 111th Congress two identical bills were introduced in both the U.S. House of Representatives and Senate to give servicemembers the same right to appeal to the U.S. Supreme Court as civilian citizens. On January 15, 2009 Rep. Susan A. Davis (D.Calif.) chairwoman of the Subcommittee on Military Personnel of the House Armed Services Committee reintroduced the bill in the 111th Congress as the Equal Justice for Our Military Act of 2009, HR 569.[15][55] HR 569 has been referred to the House Judiciary Committee. Identical legislation was also introduced on January 30, 2009 when Senators Dianne Feinstein (D-Calif.), then-Republican Arlen Specter (D-Penn.) and Russ Feingold (D-Wis.) reintroduced the Senate bill in the 111th Congress as the Equal Justice for United States Military Personnel Act of 2009, S.357.[16][17] The language of the reintroduced bills are the same as the previous bills in 110th Congress. Both the House and Senate bills are also the same language as MacLean first proposed to Congress in 2004.[7]

On February 24, 2009, Chairman Skelton and Rep. Davis of HASC sent a letter to the House Judiciary Committee calling for a hearing on the Equal Justice for Our Military Act of 2009.[56]

In March 2009 before a joint session of the House and Senate Veterans' Affairs Committees, Ira Novoselsky, the national commander of the Jewish War Veterans of the United States of America announced that JWV was making the House bill and the issue of Supreme Court access for service members a legislative priority.[57] Novoselsky asked the Veteran's Committee to weigh in on the important issue and stated that "JWV supports legislation that will restore due process and equal treatment under the law for our service members and veterans".[57] The American Bar Association announced it also made the pending bills one if its legislative priorities for the 2009 ABA Day in Washington. Members of the ABA will receive briefing and training on the bills and then meet with lawmakers on Capitol Hill the day of April 23, 2009.[58]

On June 11, 2009, the Subcommittee on Courts and Competition Policy of the U.S. House Committee on the Judiciary held a hearing on HR 569.[59] Witnesses who appeared before the subcommittee included retired Army Major General John D. Alternburg, Jr., Rep. Davis, and attorney Dwight H. Sullivan.[59] Davis and Sullivan testified in support of the bill.[60][61] Altenburg testified in opposition of the bill.[62]

On July 30, 2009, the Subcommittee on Courts and Competition Policy held a mark up on HR 569 and approved the bill for full House Judiciary Committee action.[63]

CBO, CRS, veteran's groups, law associations and former chief judges weigh in on MacLean's proposal

Congressional Research Service reports

On October 6, 2008 the Congressional Research Service issued a report entitled "Supreme Court Appellate Jurisdiction Over Military Court Cases."[64] The CRS report noted that under existing law the Court of Appeals for the Armed Forces "functions as a gatekeeper for military appellants' access to Supreme Court review."[64] The report further noted that "if the CAAF denies an appeal, the U.S. Supreme Court will typically lack the authority to review the decision. In contrast, criminal appellants in Article III courts have an automatic right of appeal to federal courts of appeals and then a right to petition the Supreme Court for review."[64] On January 30, 2009, the CRS issued a second report also entitled "Supreme Court Appellate Jurisdiciton Over Military Court Case." This CRS report discusses HR 569 in the 111th Congress.[65]

Cost estimate by Congressional Budget Office

The Congressional Budget Office issued a cost estimate on October 22, 2008 regarding the Equal Justice for United States Military Personnel Act of 2007, S.2052, 110th Congress. The CBO estimated costs to be approximately $1 million (USD) a year if S.2052 was enacted which would include the workload of Department of Defense attorneys and Supreme Court clerks.[66] Further it estimates a possible additional $1 million to $2 million (USD) in appropriated funds for the Department of Defense to defend a case in the Supreme Court if a servicemember petitioned the high court for a writ of certiorari.[66] However, the CBO determined that by enacting S.2052 there would be no direct spending and it would impose no costs on local, state or tribal governments.[66]

On October 27, 2008 the Press-Enterprise noted in an article that the cost to the average family if S.2052 was enacted would be $0.16 (USD).[67] On the topic of costs related to an increase in workload, the American Bar Association has stated in a letter to House leaders that "to those that argue that permitting equal access to the courts will create workload problems, we emphatically respond that nothing is more important than the provision of fundamental due process to our service members."[68]

The military justice blog CAAFlog.com reported on October 27, 2008 that the CBO estimate "makes highly dubious claims."[69] The blog estimates costs to be in the neighborhood of $20,000 (USD) or 1/100th the high-end figure provided by the CBO cost estimate.[69] The blog argues that the additional $1 million to $2 million (USD) cost estimate is "outlandish" because it ignores the current practice regime. Finally, the article suspects that the "DOD wants to kill the bill, so it puffed up its likely cost."[69]

On June 11, 2009 Washington, DC attorney Dwight H. Sullivan testified before a House Judiciary subcommittee that the costs, should HR 569 (111th Congress) be passed, would be approximately $1,000 (USD) per case.[61]

Broad support of veteran's groups, legal associations and retired judges

The following organizations support service members' equal access to the Supreme Court:

Three retired chief judges of the Court of Appeals for the Armed Forces support the proposed legislation:

MacLean’s other work on military justice reform

FOIA litigation and reforms on compulsory process of civilians

Between 2003 through 2007, MacLean brought a series of Freedom of Information Act lawsuits against the U.S. Air Force, U.S. Army, U.S. Navy and the U.S. Department of Defense.[75][76][77] MacLean prosecuted some of the cases himself and others he was represented by the international law firms of Heller Ehrman LLP and O’Melveny & Myers. The non-profit organization First Amendment Project also represented MacLean in the Navy and Department of Defense cases.

According to court files, the purpose of MacLean's litigation was to shed light on an alleged practice and abuse of the military issuing illegal court-martial subpoenas in the name of the "President of the United States" upon civilians when no subpoena power existed in cases where no court-martial had been convened.[75][77] The district court stated that "it is worth remarking that Defendants have produced information which does shed light on what the Army has done to prevent future occurrences of the issuance of unauthorized subpoenas." [75] Two watch dog organizations, Judicial Watch and Citizens for Responsibility and Ethics in Washington filed friend of the court briefs in support of MacLean and argued for the release of documents related to the alleged illegal military subpoenas. MacLean's litigation was mentioned to Congress in the Annual Report of the Code Committee on Military Justice.[78]

On May 11, 2005, Chief U.S. District Court Judge Irma Gonzalez partially granted a preliminary injunction and ordered the U.S. Navy to produce records for in camera inspection.[77] In the Air Force case, it had claimed a “no record” response to MacLean’s FOIA request. But during the course of the litigation 77 documents were found. In 2006, U.S. Magistrate Judge Cathy Ann Bencivengo ordered the Air Force to produce the documents or state a lawful exemption. On January 11, 2007 ten of the 77 withheld Air Force documents were eventually provided to MacLean with fewer redactions. MacLean, in the end, lost the cases because the courts ruled that there was no public interest in the documents and that the military officers involved had an overriding privacy interest which outweighed the public's interest in the documents.[75] Nevertheless, over 200 previously withheld documents in all combined FOIA cases were released by the military during four years of litigation.[75] These documents are available to the public and are contained in the court's case files as public record.

Despite the loss of the cases, MacLean’s FOIA lawsuits led to two notable reforms on compulsory process of civilian witnesses in military justice proceedings. The first is that the military justice schools “now includes the topic of compulsory process in its training courses for attorneys, and this issue also was addressed in the Army’s February 2006 ‘Trial Counsel Assistance Program’ newsletter.” [75] The second was that in 2007 President George W. Bush signed an Executive Order amending the discussion that follows Rule 405(g)(2)(B) of the Rules for Courts-Martial in the Manual for Courts-Martial. This amendment specifically indicates that “the investigating officer and any government representative to an Article 32, UCMJ, proceeding does not possess authority to issue a subpoena to compel against his or her will a civilian witness to appear and provide testimony or documents." [79][80]

Commentary calling on Congress to take further action to guarantee service members court access

MacLean wrote commentary on March 20, 2009, which appeared in two daily California legal newspapers entitled "Case Highlights Need For Action on Service Members' Court Access."[81] The commentary called on Congress to take action in light of the pending case of United States v. Denedo. MacLean's commentary cautioned Congress that it may have to take further action, besides passing the pending bills, to amend the Uniform Code of Military Justice if the Supreme Court rules that military courts cannot correct their own errors. The Government had argued in United States v. Denedo, that Congress never gave the military courts jurisdiction to correct their own errors under the All Writs Act. MacLean also criticized one Republican lawmaker, who he doesn't name, for blocking floor votes in the previous Congress. He wrote "the House-passed bill and the Senate Judiciary-approved bill died as a result of one lawmaker using parliamentary procedure to thwart the democratic process." And that other lawmakers "have obstructed fixing serious due process issues for our military . . . such obstruction degrades the service of our uniformed citizens and belittles the democratic ideals for which they risk their lives." Finally, he urged both political parties work together "to assure our troops have court access and a right to basic procedural due process." [81]

Started equal justice blog

In March 2009 MacLean started Equal Justice for Troops blog which addresses issues related to service members redress of grievances. The inaugural post called on Congress to repeal Title 10 of United States Code section 1552(f), and give back the military service boards of correction their jurisdiction to correct an unjust court-martial, in light of United States v. Denedo. By June 2009 the blog's visitor traffic, monitored by SiteMeter, indicated that over twenty percent were from governmental domains, including the U.S. House of Representatives, Library of Congress (Congressional Research Service), several of the military services including the Pentagon, and the Australian Government.[82]

Education

MacLean has been educated at the following institutions:

MacLean's published commentary

Date Publication Title
2009-03-20 Los Angeles Daily Journal "Case Highlights Need for Action on Service Members' Court Access"
2009-03-20 San Francisco Daily Journal "Case Highlights Need for Action on Service Members' Court Access"
2008-09-10 Los Angeles Times "Separate and unequal military justice"
2008-06-09 Legal Times "Who Hears the Troops?"

What others have said about MacLean

Criticism

U.S. Department of Defense officials in the George W. Bush administration were critical of MacLean's proposal to Congress. In 2004 Department of Defense Principal Deputy General Counsel Daniel J. Dell'Orto indicated opposition to the issue of equal access to the Supreme Court for members of the U.S. Armed Forces. The House Armed Services Committee wrote a letter to the Defense Department attaching correspondence from MacLean on the inequity. Dell'Orto wrote back to the Armed Services committee criticizing MacLean's proposal for fear it would "increase the burden upon the Supreme Court."[25] Later, in 2006 then-Department of Defense General Counsel William J. Haynes, II was critical of MacLean's proposal and indicated that the Bush administration opposes giving servicemembers equal access to the Supreme Court. In February 2006 Haynes opined, in letters, to Congress that "there is no apparent justification to modify the current review process, thereby increasing the burden upon the Supreme Court and counsel to address the myriad of matters that would be encountered with expanded certiorari jurisdiction."[44]

Not only were Bush administration officials critical, but in 2007 "Military Justice Blog" wrote about MacLean (by blogger named "Sacramentum").[83] Sacramentum characterizes MacLean as being angry because he challenged his guilty plea ten years later when missing evidence became available. Sacramentum, who appears to be a U.S. military attorney, further states: “just hope you are never assigned a case with an accused like this.”

After the House of Representatives passed the Equal Justice for Our Military Act of 2007, Robert E. Reed, an associate general counsel at the Department of Defense in the George W. Bush administration told the New York Times the legislation would increase the burdens on the Supreme Court and Defense Department lawyers, adding that supporters were not taking a “panoramic view.”[4] “A lot of those supporters are only looking at this as a motherhood, apple pie sort of issue,” he said. “There’s a logic and a rationale to this. We’re not just trying to be mean and difficult for the defendants.”[4] Reed's comment to the New York Times appears to be a swipe at MacLean's 2007 comment to the San Diego Union Tribune when he said "I think there is a high likelihood that this bill will pass because voting against it would be like voting against Mom and warm apple pie,” MacLean said.[2] Finally, Reed told the New York Times “It’s the same old people with the same old arguments and the same propositions.”[4]

Praise

Pre-court martial

MacLean was highly praised in his early Navy years.[21][23] In 1990 Rear Admiral Isaiah C. Cole, U.S. Navy, Commander Naval Security Group, presented Seaman MacLean with a letter of commendation for his work at the headquarters of the Naval Security Group Command, Washington, DC. MacLean, then age 19, had only been assigned to the command for three months when he first received the commendation.[84]. MacLean was chosen as aide for then-Ambassador Richard Armitage when he was negotiating the Philippines military base closure agreements. Armitage commended MacLean in a September 1991 letter to the Navy for "exemplary" performance, "especially considering his minimal experience with a diplomatic effort of this nature." MacLean showed "a level of maturity and ability far beyond what would be expected of his seniority and experience level," Armitage wrote.[21] On May 13, 1992, eight months after MacLean's assignment on the staff of Armitage, Secretary of Defense Dick Cheney awarded Petty Officer MacLean the Joint Service Achievement Medal for "meritorious service for the Armed Forces of the United States."[25]

Post-court martial

Despite critics in the George W. Bush administration, in 2005, the press secretary for Rep. Susan A. Davis said in the Los Angeles Daily Journal that after considering MacLean's arguments, Davis believes both prosecution and defense should have equal opportunity to appeal to the Supreme Court. "He brought up a very important issue of equality under the law," Aaron Hunter, press secretary said.[25]

The American Bar Association mentioned MacLean in its resolution and report to Congress in 2006 which urged the law be changed to permit members of the U.S. Armed Forces to have equal access to the Supreme Court. The ABA report references MacLean's work on military justice statistics.[5]

During a June 2009 House Judiciary subcommittee hearing on HR 569 (111th Congress), Rep. Davis made reference to MacLean in her testimony as "a tireless champion for this issue and other military justice reform on behalf of the service members and veterans."[60]

Family

American line of military veterans & public servants

MacLean descends from several decorated U.S. military veterans and public servants. MacLean's father, Norbert Jr., was the chief of police in Lakehurst, NJ and after retirement from the department became the borough administrator.[85][86] He is a Vietnam War veteran who served in the U.S. Army. Norbert, Jr.'s decorations include the Purple Heart, Bronze Star Medal with Valor device, Army Commendation Medal and several Air Medals.[87][88][89] According to the book 173rd Airborne Brigade: Sky Soldiers, Norbert, Jr. was wounded three separate times in combat on a single day during assaults on a North Vietnamese Army base camp.[87] After two months of recovering in hospital Norbert, Jr. returned to the Republic of Vietnam and served in the 503rd Infantry Regiment. After the completion of his overseas combat tour, Norbert, Jr. was assigned to the Army's elite 82nd Airborne Division.[87] Additionally, Norbert, Jr. holds the U.S. Army Combat Senior Parachutist Badge and the Combat Infantryman Badge.

Norbert Sr., MacLean's paternal grandfather, is also a Navy veteran. During World War II he was awarded the Distinguished Flying Cross by Secretary of the Navy James Forrestal for "heroism while participating in an aerial flight combat operations" in the PBJ-1 Mitchell.[90] Norbert, Sr. holds the Navy's Combat Aircrew Wings with two combat stars.[90] In 1998 the Governor of New Jersey awarded Norbert, Sr. the state's top decoration, the Distinguished Service Medal for his service in the U.S. Navy during World War II.[91] In 2003, Norbert, Sr. was honored by the Mayor and Council of Island Heights, NJ for 25 years of volunteer service, including serving as fire chief, with the Island Heights fire department.[92]

It is notable that all three generations of MacLeans share a common background in military aviation.

Notable Australian lineage

During Norbert Jr's U.S. Army service he met MacLean's mother, Noelene Ann O'Connor, in Australia and soon after she moved to the United States. The Australian born Noelene died at a New York hospital on April 14, 1980 from ovarian cancer when MacLean was age nine.[93][94][95][96]

MacLean is an Australian citizen under descent[97] and his great-great-great grandfather was engineer Charles Yelverton O'Connor, CMG, who is noted for the development of Western Australia.[98] O'Connor served as the first Engineer-in-Chief of Western Australia and is most noted for the Goldfields Water Supply Scheme and Australia's west coast chief port of Fremantle Harbour.

Lionel Bowen, AC, BEM, who served as the seventh Deputy Prime Minister of Australia and as the 34th Attorney-General of Australia, is a first cousin three times removed to MacLean.[99]

Sir George Julius, who invented the world's first automatic totalisator, was MacLean's great-great grand uncle (through marriage to MacLean's great-great grand aunt Eva O'Connor).[100] Sir George Julius was the first chairman to the Council for Scientific and Industrial Research, which later became the Commonwealth Scientific and Industrial Research Organisation (CSIRO).[100] MacLean is a third cousin to noted artist Wendy Whiteley, OAM.[101]

Personal life

After MacLean's work in America on Supreme Court access and the introduction of two Congressional bills he moved in 2007 from his home in Ocean Beach, San Diego, California to Sydney, Australia. MacLean lives in the eastern suburbs of Sydney, in an area known as Waverley.[102] In Australia, MacLean legally changed his name to Norbert Basil MacLean III O’Connor-Keough.[1] Both surnames of “O’Connor” and “Keough” come from MacLean’s Australian side of his family – O’Connor being from MacLean’s maternal grandfather while Keough is from his maternal great-grandmother. On September 12, 2008 the Los Angeles Daily Journal reported in a front page article that MacLean had been lobbying hard on the U.S. Congressional bills travelling back and forth between his home in Australia to San Diego and Washington, DC.[3]

It is believed that MacLean is single and does not have any children. MacLean's former domestic partner is American born Ryan Lee Gehris. In 2007, according to records held by the Secretary of State of California, both MacLean and Gehris agreed to dissolve their domestic partnership.[103]

MacLean has been writing a book on human rights in the United States, "Access Denied: America's Second Class Citizens", which is expected to be published in 2010.[104]

There have been media reports that MacLean has been battling melanoma and a spinal cord injury. In April 2009, The Sydney Morning Herald reported that MacLean, known as Norbert Keough in Australia, underwent extensive surgery at the Prince of Wales Hospital, Sydney.[105]

See also

References

  1. ^ a b New South Wales Attorney General, Birth, Deaths and Marriages, Change of Name Certificate, No. 24513/2007
  2. ^ a b c d e Rogers, Rick, "Bill Offers Troops Way to Appeal", San Diego Union Tribune, July 26, 2007
  3. ^ a b c d e Ernde, Laura, "Senate OKs Review of Courts-Martial", Los Angeles Daily Journal, September 12, 2008, front page
  4. ^ a b c d e Becker, Bernie, "Military Appeals Process is Challenged", New York Times, November 27, 2008, A30
  5. ^ a b c d American Bar Association Resolution 116, adopted by ABA House of Delegates on August 7–8, 2006
  6. ^ a b c d Coyle, Marcia, "Military appeals lack way to top", The National Law Journal, August 18, 2008, front page
  7. ^ a b c d McHugh, John; Davis, Susan, House Armed Services Committee letter to Department of Defense General Counsel William J. Haynes II, April 23, 2004
  8. ^ a b U.S. Congress. Senate (2008) Reports of Committees Congressional Record - Senate S8479 (September 12, 2008)
  9. ^ Maze, Rick, Bill would let troops appeal to Supreme Court, Army Times, September 12, 2008
  10. ^ Senate Judiciary Committee Official Business Meeting Notice and Summary, dated September 4, 2008
  11. ^ a b Feinstein, Dianne, Senate Judiciary Committee Approves Feinstein Legislation, Press Release, September 11, 2008
  12. ^ a b U.S. Senate Calendar of 110th Congress, General Orders, Order No. 959, page 102
  13. ^ a b c U.S. Congress. House (2008) Equal Justice for Our Military Act of 2007 Congressional Record - House H10623-24 (September 27, 2008)
  14. ^ a b Davis, Susan, House Passes Susan Davis's Equal Justice for Our Military Act, Press Release, September 27, 2008 (retrieved on September 28, 2008)
  15. ^ a b U.S. Congress. House (2009) Equal Justice for Our Military Act of 2009 Congressional Record - House H380 (January 15, 2009)
  16. ^ a b U.S. Congress. Senate (2009) Equal Justice for United States Military Personnel Act of 2009 Congressional Record - Senate S1124 (January 30, 2009)
  17. ^ a b Feinstein, Dianne, Feinstein Introduces Legislation to Give Armed Forces Personnel the Same Due-Process Appeal Rights as Civilians, Press Release, January 30, 2009
  18. ^ 1987 Yearbook, Rancocas Valley Regional High School, pictures MacLean and reflects he was then-Cadet Executive Officer of Navy JROTC Battalion of cadets. 1987 RVRHS Yearbook is maintained in the librarian's office, 520 Jacksonville Rd., Mount Holly, NJ 08060, Tel 1-609-267-0830
  19. ^ Naval Mobile Construction Battalion TWENTY-ONE, as reported on GlobalSecurity.org (retrieved on October 27, 2008)
  20. ^ a b Frush, Charlie, "A Caring Haven Where Boys Learn a Direction in Life", Philadelphia Inquirer, July 5, 1989, C2
  21. ^ a b c d e Vielmetti, Bruce, "Cryptologist sues banks over court-martial", St. Petersburg Times, February 19, 1994, 3B
  22. ^ a b c Walbert, Claude, "Ex Navy Officer Hopes for Military Justice", Los Angeles Daily Journal, June 19, 2003, page 2
  23. ^ a b c Powers, William F., "Area Banks Taken to Court Over Role in a Navy Probe", The Washington Post, February 16, 1994, D1
  24. ^ Military service record of MacLean, Norbert B. III, National Archives and Records Administration, National Personnel Records Center, Military Personnel Records, St. Louis, Mo.
  25. ^ a b c d e f Walbert, Claude, "Bill Would Let Court-Martialed Appeal to Justices", Los Angeles Daily Journal, March 21, 2005, front page
  26. ^ a b c d e f g McMichael, William H., "Ex-sailor seeks to reverse court-martial, appeal decision", Navy Times, September 1, 2003
  27. ^ MacLean v. United States of America, case number 02cv2250-K(AJB), U.S. District Court for the Southern District of California at docket number 9
  28. ^ Funk, Deborah, "Bill would let more service members appeal to high court", by Air Force Times, April 11, 2005
  29. ^ Chambers, Steve, "Navy Settles Dismissal Suit", Asbury Park Press, July 24, 1994
  30. ^ a b Armed Forces Members' Rights on Heller Ehrman website, retrieved on March 25, 2008
  31. ^ MacLean v. U.S. Dept of Defense, case number 04cv2425-IEG(JFS), U.S. District Court Southern District of California
  32. ^ MacLean v. United States, 67 Fed.Cl 14 (2005)
  33. ^ MacLean v. United States, 454 F.3d 1334 (Fed. Cir. 2006)
  34. ^ Roche, Tim, "Gay petty officer settles bank records suit", St. Petersburg Times, February 27, 1994, 3B
  35. ^ Powers, William F., "American security settles suit", The Washington Post, February 26, 1994, page C2
  36. ^ Rodgers, Ronald L., Pardon Attorney, U.S. Department of Justice letter to MacLean (May 5, 2009)
  37. ^ "Australia Ends a Prohibition On Homosexuals in Military", New York Times, November 24, 1992
  38. ^ Australia Defence Force Discipline Act of 1982
  39. ^ Gulam, Hyder, "An Update on Military Discipline: The 20th Anniversary of the Defence Force Discipline Act", 2004 Deakin L Rev 10 (2004)
  40. ^ "ROTC/JROTC Recognition Program" Sons of the American Revolution from website on March 25, 2008
  41. ^ a b U.S. Navy Uniform Regulation, chapter 5, section 3, article 5311.1. In 1987 MacLean was awarded the The Retired Officers Association ("TROA") ROTC medal which was prior to that veteran's organization changing its name to the Military Officers Association of America ("MOAA"). SAR and MOAA (formerly TROA) are "officially recognized Veterans' Organizations" within the meaning of the U.S. Navy Uniform regulations.
  42. ^ Funk, Deborah, "Bill would let more military defendants appeal to high court", Army Times, April 11, 2005
  43. ^ Equal Justice for Our Military Act, HR 1364 introduced in the 109th Congress (March 17, 2005)
  44. ^ a b Ernde, Laura, "Momentum Grows for Opening High Court to Servicemembers", Los Angeles Daily Journal, July 17, 2007, front page
  45. ^ Legislative Research Incorporated, "The Military Justice System: 1983-84 Through 2004-05: Twenty-two Years of Key Statistical Findings" (March 30, 2006) Preface by Norbert Basil MacLean III, presented to the House and Senate Armed Services Committees, Judiciary Committees of the 109th Congress and to the Clerk of the U.S. Court of Appeals for the Armed Forces.
  46. ^ MacLean, Norbert Basil III,"Commentary Who Hears the Troops?", Legal Times, June 9, 2008
  47. ^ MacLean, Norbert Basil III, "Separate and unequal military justice", op-ed, Los Angeles Times, September 10, 2008
  48. ^ a b Slater, Dan, "Supreme Court Access for Military Members Convicted of Crimes?", Wall Street Journal Law Blog, September 30, 2008 (retrieved October 12, 2008)
  49. ^ Equal Justice for Our Military Act of 2007, HR 3174 introduced in 110th Congress-House (July 25, 2007)
  50. ^ Equal Justice for United States Military Personnel Act of 2007, S.2052 introduced in 110th Congress-Senate (September 17, 2007)
  51. ^ U.S. Congress. Senate (2008) Additional Cosponsors Congressional Record - Senate S8132 (September 8, 2008)
  52. ^ BIG news: House of Representatives passes bill to expand servicemembers' access to SCOTUS CAAFLOG.com, September 28, 2008 (retrieved on October 12, 2008)
  53. ^ Maze, Rick, "Appeal rights bill may die in Senate", Navy Times, September 30, 2008 (retrieved October 12, 2008)
  54. ^ Palazzolo, Joe, "Service Members One Step Closer to SCOTUS Access", The Blog of Legal Times, September 30, 2008 (retrieved October 12, 2008)
  55. ^ Sullivan, Dwight, Bill introduced to expand SCOTUS jurisdiction over military justice cases, CAAFlog.com, January 17, 2009
  56. ^ Sullivan, Dwight, Representatives Skelton and Davis request hearing on H.R. 569, CAAFlog.com, March 4, 2009 (retrieved March 17, 2009)
  57. ^ a b c Novoselsky, Ira, Legislative Priorities of the Jewish War Veterans of the USA, Before Joint Session of Senate and House Veterans' Affairs Committees (111th Congress - 1st Session), March 5, 2009, page 20
  58. ^ ABA Day in Washington, April 21–23, 2009 (retrieved March 20, 2009)
  59. ^ a b Hearing information on HR 569, House Judiciary Committee (retrieved June 3, 2009)
  60. ^ a b Testimony of Hon. Susan A. Davis (D-Calif.), Subcommittee on Courts and Competition Policy, House Committee on the Judiciary, June 11, 2009
  61. ^ a b Testimony of Dwight H. Sullivan, Attorney, Washington, DC, Subcommittee on Courts and Competition Policy, House Committee on the Judiciary, June 11, 2009
  62. ^ Testimony of Major General John D. Altenburg, Jr., U.S. Army, Retired, Subcommittee on Courts and Competition Policy, House Committee on the Judiciary, June 11, 2009
  63. ^ Congressional Record - Daily Digest, July 30, 2009, page D953
  64. ^ a b c Henning, Anna C., "Supreme Court Appellate Jurisdiction Over Military Court Cases", Congressional Research Service, October 6, 2008
  65. ^ Henning, Anna C.,"Supreme Court Appellate Jurisdiction Over Military Court Cases", Congressional Research Service, January 30, 2009
  66. ^ a b c Congressional Budget Office Cost Estimate - S.2052 Equal Justice for Our Military Act, October 22, 2008 (retrieved October 28, 2008)
  67. ^ Veterans' Benefits on the March, Press Enterprise, October 27, 2008
  68. ^ American Bar Association letter to House Leaders dated September 19, 2008
  69. ^ a b c Sullivan, Dwight, Padding the bill: The CBO issues what looks like a highly inflated cost estimate for the Equal Justice for United States Military Personnel Act, CAAFlog.com, October 27, 2008 (retrieved October 28, 2008)
  70. ^ Letter from Fleet Reserve Association Director Joseph L. Barnes to Senator Feinstein (July 9, 2008) retrieved on FRA website August 26, 2008
  71. ^ U.S. Congress. House. (2007) Representative Davis of California statement on Equal Justice for Our Military Act of 2007. 110th Cong. 1st sess. Congressional Record-House-Extension of Remarks E1618 (July 25, 2007)
  72. ^ Hynes, Casey, "A Soldier's Right to Fight", TakingBackPolitics.com, September 30, 2008 (retrieved October 12, 2008)
  73. ^ 2005 Annual Report of Code Committee on Military Justice section 1 page 2 "Senior Judge Everett also addressed the Code Committee and encouraged consideration of . . . Supreme Court review of cases in which petitions for grant of review have been denied . . ." March 28, 2006 (retrieved on October 12, 2008)
  74. ^ Davis, Susan, "Bill will allow service members to appeal to Supreme Court" Press Release, July 25, 2007, retrieved from Rep. Davis' website on March 25, 2008.
  75. ^ a b c d e f MacLean v. U.S. Department of the Army, U.S. District Court (S.D. Calif.), case no. 05-cv-1519, p. 19, fn8
  76. ^ MacLean v. United States Dept of Defense, case no. 05-56636, Ninth Circuit, July 11, 2007
  77. ^ a b c MacLean v. DOD, case no. 3:2004cv02425, U.S. Dist. Court (S.D. Calif.)
  78. ^ 2006 Annual Report of the Code Committe on Military Justice, Section III, Report of the Judge Advocate General of the Army, page 18, (for period of October 1, 2005 - September 30, 2006)
  79. ^ Manual for Courts-Martial (2008 ed.)
  80. ^ Executive Order 13430, April 18, 2007
  81. ^ a b MacLean, Norbert Basil III, "Case Highlights Need for Action on Service Members' Court Access", Los Angeles Daily Journal and San Francisco Daily Journal, March 20, 2009, page 6
  82. ^ SiteMeter, Equal Justice for Troops - Domain Tracking, retrieved on June 2, 2009
  83. ^ Military Justice Blog: Norbert MacLean, by Sacramentum, July 27, 2007 retrieved on March 27, 2008
  84. ^ A copy of the letter of commendation is contained in the court record of MacLean v. United States, case number 04-448C, U.S. Court of Federal Claims
  85. ^ "Lakehurst swears in new police chief", Asbury Park Press, January 4, 2005
  86. ^ Borough of Lakehurst website, Municipal Departments, retrieved on September 14, 2008
  87. ^ a b c 173rd Airborne Brigade: Sky Soldiers by 173rd Airborne Division, p216, published by Turner Publishing Company ISBN 1596520167
  88. ^ The Legacy of the Purple Heart, by Military Order of the Purple Heart, page 160, published by Turner Publishing Company ISBN 1563117231
  89. ^ Childers, Stephen, "From the Desk of the Mayor", Manchester Times, October 30, 2007
  90. ^ a b The Distinguished Flying Cross Society by Randy W. Baumgardner, published by Turner Publishing Company ISBN 1563116588
  91. ^ "New Jersey Residents Receive State's Top Military Award", State of New Jersey Military & Veterans Affairs, December 4, 1998
  92. ^ Island Heights Mayor and Council Newsletter, January 23, 2003
  93. ^ Obituary of Noelene A. (O'Connor) Grube, The Post Standard, April 16, 1980
  94. ^ Death Master File from Social Security Administration of "Noelene Grube" as reported on WorldVitalRecords.com retrieved on March 25, 2008
  95. ^ New York State Dept. of Health Cert. of Death state file number 00001029580 filed on April 15, 1980.
  96. ^ Noelene's name at birth was "Nolene Joy O'Connor" according to Office of Attorney General, New South Wales, Births, Deaths & Marriages, birth certificate registration number 1948/001504. She was the great-great granddaughter of noted engineer Charles Yelverton O'Connor.
  97. ^ Australian Citizenship Act of 2007; Australia law permits the children of any Australian parent to register as an Australian citizen.
  98. ^ New South Wales Births, Certificate of marriage of Gordon O'Connor and Noreen Betty Hardiman, Certificate no. 708486, December 7, 1946, Surry Hills, New South Wales, Australia. Gordon Thomas O'Connor is the great grandson of Charles Yelverton O'Connor, CMG, and is MacLean's maternal grandfather.
  99. ^ Kathleen Keough, MacLean's maternal great-grandmother, is the first cousin of Lionel Bowen and is listed as a witness on the marriage certificate of MacLean's maternal grandparents. Certificate of Marriage of Gordon O'Connor and Noreen Betty Hardiman at St. David's Church, Surry Hills, New South Wales, Certificate no. 708486, December 7, 1946.
  100. ^ a b Julius, Sir George Alfred (1873 - 1946) Australian Dictionary of Biography, Online Edition. Retrieved July 11, 2008
  101. ^ Whiteley's great-grandfather is Charles Yelverton O'Connor. C.Y. O'Connor is MacLean's maternal great-great-great grandfather.
  102. ^ Electoral Roll, New South Wales Electoral Commission
  103. ^ Dissolution of Domestic Partnership between Norbert Basil MacLean III and Ryan Lee Gehris, State of California, Secretary of State
  104. ^ "Access Denied: America's Second Class Citizens" is registered as a script with the Writers Guild of America, West and the Australian Writers' Guild. In 2002 MacLean's life story was also registered as a script with the Writers Guild of America, West and indicates that as of 2002 Judy Coppage of The Coppage Company, Studio City, California is MacLean's agent.
  105. ^ Hall, Louise, Sick building condemned, patients left in lurch, The Sydney Morning Herald, April 8, 2009, front page

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