Norbert Basil MacLean III

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Norbert Basil MacLean III
Norb MacLean III in 2007.
Nickname	Norb or Mack
Place of birth	Toms River, New Jersey United States
Allegiance	Dual citizenship Australia (By Descent) United States of America (By Birth)
Service/branch	United States Navy
Years of service	1989-1994
Rank	CTA3(AW) - Cryptologic Technician Petty Officer (Air Warfare)
Commands held	Naval Security Group United States Department of State Naval Mobile Construction Battalion-21
Awards	Joint Service Achievement Medal National Defense Service Medal Navy "E" Ribbon Navy Expert Rifleman Medal Navy Expert Pistol Shot Medal Bronze ROTC Medal [1]
Other work	American Military Justice Reform

Norbert Basil MacLean III (born 1971) is a dual American-Australian citizen, and United States Navy veteran, who pioneered equal access to the Supreme Court of the United States for members of the United States Armed Forces.^[2]

Contents 1 Family 1.1 American line of military veterans 1.2 Military Commonality 1.3 Australian connection 2 Military service 3 Awards, decorations and insignias 4 The military justice system in the United States 5 MacLean's work on Supreme Court access 6 Published Commentary 7 What others have said 7.1 Criticism 7.2 Praise 7.2.1 Pre-court martial 7.2.2 Post-court martial 8 References

[edit] Family

[edit] American line of military veterans

MacLean descends from a long line of highly decorated U.S. military veterans. MacLean's father, Norbert Jr., 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. ^{[3] [4] [5]} 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. ^[3] 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.^[3] Additionally, Norbert, Jr. holds the U.S. Army Combat Senior Parachutist Badge and the Combat Infantryman Badge. MacLean’s grandfather, Norbert Sr., also a Navy veteran, was awarded the Distinguished Flying Cross and the Distinguished Service Medal for his service in World War II.^{[6] [7]} Norbert, Sr. holds the Navy's Combat Aircrew Wings with two combat stars. ^[7]

[edit] Military Commonality

It is worth noting that all three generations of MacLeans have a commonality in military service. While MacLean did not serve in combat as did is father and grandfather all three MacLeans served during times of war - Norbert Sr. during World War II, Norbert Jr. during the Vietnam War, and Norbert III during the Gulf War. It also appears that none were drafted during time of war but that each freely volunteered for service. Finally all three generations of MacLeans were either awarded badges, decorations or insignias showing specific professional skills and knowledge in military aviation.

[edit] Australian connection

During Norbert Jr's U.S. Army service he met MacLean's mother, Noelene, 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 cancer when MacLean was only nine years old.^[8] In 2007 MacLean registered as an Australian citizen under descent.^[9] After MacLean's work in America on Supreme Court access and the introduction of two U.S. Congressional bills he moved in 2007 from his home in San Diego, California to Sydney, Australia. His book "Access Denied: America's Second Class Citizens" is expected to be published later in 2008.^[10]

[edit] Military service

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^[11] in Mount Holly, New Jersey and then as midshipman from 1987-89 in the U.S. Naval Sea Cadet Corps, Naval Air Engineering Station, Lakehurst, New Jersey. In 1988, he received a U.S. Congressional nomination 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.^[12] But according to the St. Petersburg Times MacLean was so smitten with Naval service that he passed on the Congressional nomination to West Point.^[13]

From 1989 through 1994 MacLean served in the Navy as an enlisted cryptologic technician and held a high level security clearance.^[14] He worked for senior level United States government officials including Richard Armitage in the first Bush administration and was also assigned to the Naval Security Group Command in Washington, DC.^[15][13] While on active duty MacLean also received another Congressional nomination from Rep. Saxton, but this time to the U.S. Naval Academy at Annapolis, Maryland.^[16]

MacLean, an admitted homosexual, was court-martialled in late 1992 on what he claims were trumped up charges of bad checks after he had filed a complaint against his commanding officer alleging harassment.^[17] According to newspaper articles, including those in The Washington Post,MacLean was highly praised by his civilian and military superiors in the years prior to his known sexual orientation.^{[15] [13]} MacLean’s complaint against his commanding officer was found meritorious but that officer still had him court-martialled over the contrary recommendations of a military judge that held the evidence against MacLean was weak or non-existent.^[17] His Navy pay was not being credited to bank accounts and checks were returned. Later his pay records went missing right before the court-martial causing him to plead guilty to three counts of violating Uniform Code of Military Justice article 123a. 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.^[18] 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.^[19]

The international law firm of Heller Ehrman represented MacLean in an unsuccessful attempt for his reinstatement to Naval service.^[20] Despite the discovery of new evidence both the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit held in published opinions, in MacLean v. United States, that the six year statute of limitations bars a service member from collaterally challenging a court-martial.^{[21] [22]} Heller Ehrman's website has a pro bono page on MacLean's case.^[20] In the mid-1990s several newspapers reported that MacLean sued his financial institutions for violating his privacy in turning over his private bank records to the military. He won non-disclosed out of court settlements with the banks.^{[23] [24]}

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.^[25] The United States still 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 access 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.^{[26] [27]}

[edit] Awards, decorations and insignias

• MacLean’s awards include:

Aviation Warfare Specialist

Joint Service Achievement Medal

Navy "E" Ribbon

National Defense Service Medal (Gulf War)

Navy Expert Rifleman Medal

Navy Expert Pistol Shot Medal

Sons of the American Revolution Bronze ROTC Medal (Awarded as a Navy JROTC cadet and recognized by the U.S. Navy.)[28] [1]

Retired Officers Association (renamed MOAA) ROTC Medal(Awarded as a Navy JROTC cadet and recognized by the U.S. Navy.)[28]

[edit] The military justice system in the United States

The American military justice system predates the United States Constitution and is derived from the 1775 Articles of War which were amended in 1776.^[29] Since its independence in 1776, the United States, did not allow its uniformed citizens access to the nation’s highest court should the service member be convicted by courts-martial. In 1951 Congress created the modern military justice system by enacting the Uniform Code of Military Justice. It wasn't until Congress passed the Military Justice Act of 1983 that service members had very limited access to the Supreme Court. The act skewed the law in favor of government appeals thereby creating inequities for America's uniformed citizens wishing to appeal a court-martial conviction to the Supreme Court.^[30] Under existing law, Title 28 United States Code section 1259, a service member may only appeal to the Supreme Court in death penalty cases or if granted review by the Court of Appeals for the Armed Forces - which only happens about ten percent of the time.^[31] Ninety percent of all American court-martialled service members are completely sealed off from Supreme Court access due to the inequity.^[32] The Court of Appeals for the Armed Forces essentially acts as gatekeeper to the Supreme Court unlike any other federal appeals court in America. The government can appeal any adverse ruling in which the service member prevails by having the individual service judge advocate general certified an issue for appeal.^[30]

“

We sent these young men and women off to war to promote democracy, yet we don't even want to allow them access to the nation's highest court in the land, said Norbert B. MacLean III, a former Navy petty officer.

”

– quoted in "Momentum Grows for Opening High Court to Servicemembers"
Los Angeles Daily Journal (July 17, 2007), front page.

[edit] MacLean's work on Supreme Court access

As a proximate result of MacLean being 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.^{[33] [2]} MacLean started to lobby Members of Congress in 2002 to amend the law and permit service members equal access to the Supreme Court. 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 straightforward 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. But more importantly, 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.

In April 2004 the House Armed Services Committee sent a bipartisan letter, written by Reps. Susan Davis and John Michael McHugh, to The Pentagon asking for feedback on MacLean's proposal.^[16] Then-Principal Deputy General Counsel Daniel J. Dell'Orto wrote to law makers opposing MacLean's proposal as well as the general idea 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.^[16] Rep. Susan Davis first introduced the Equal Justice for Our Military Act on March 17, 2005 in the 109th Congress.^[34] 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."^[35]The bill failed in the Republican controlled 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 of 2006.^[36] 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. ^[37] The ABA report references critical military justice statistics compiled as a direct result of MacLean's work on this issue.

In September 2006, Congress enacted the Military Commissions Act. Section 950g(d) of that law 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 get 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.

“

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)

On September 17, 2007 Senators Dianne Feinstein, Arlen Specter, and Russ Feingold, in the U.S. Senate of the 110th Congress, introduced the bipartisan Equal Justice for United States Military Personnel Act of 2007.^[38] A similar bill was introduced earlier in the U.S. House of Representatives by Rep. Susan Davis and Chairman Ike Skelton of the House Armed Services Committee entitled the Equal Justice for Our Military Act of 2007.^[39] The Military Officers Association of America supports the change in law according to Rep. Susan Davis' statement in the House when she introduced the legislation.^[40] Retired Court of Appeals for the Armed Forces chief judge Walter Cox III, a Reagan appointee, supports the bill.^[41]

[edit] Published Commentary

MacLean's published commentary include:

• Who Hears the Troops? Legal Times, June 9, 2008^[42]

[edit] What others have said

[edit] Criticism

• In 2004 then-Department of Defense Principal Deputy General Counsel Daniel J. Dell'Orto,, who now serves as acting general counsel, 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."^[16]

• In 2005 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 2005 Haynes opined 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."^[35]

• In 2007 "Military Justice Blog" wrote about MacLean (by blogger named "Sacramentum").^[43] 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.”

[edit] Praise

[edit] Pre-court martial

• In 1990 Rear Admiral Isaiah C. Cole, U.S. Navy, then-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.^[44].
• In 1991 MacLean was chosen as aide for then-Ambassador Richard Armitage when he was negotiating the Philippines military base closure agreements. Armitage commended MacLean 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.^[13]
• On May 13, 1992, 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."^[16]

[edit] Post-court martial

• In 2005, the press secretary for Rep. Susan 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.^[16]
• In 2006 the American Bar Association mentioned MacLean in its resolution and report to Congress 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.^[37]

[edit] References