CAAF has denied the writ appeal in Ali v. Austin, which we previously discussed here, here, and here. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It’s still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69. But barring such a move, the first civilian convicted by a U.S. court-martial since the Vietnam war will have no right to a judicial direct appeal.
The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years’ annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won’t qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?
The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I’m right about that, perhaps the next Congress will correct this oversight.