I’ve posted the brief filed at the Sixth Circuit on behalf of Steven Green here.
Here are the two issues the brief raises:
I. The Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261) is unconstitutional because it violates the separation of powers, the non-delegation doctrine, and Equal Protection and Due Process under the Fifth Amendment.
II. Appellant was subject to the Uniform Code of Military Justice (UCMJ – 10 U.S.C. §801 et seq.). The district court was therefore without jurisdiction to try him under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261).
Here’s the Summary of Argument:
Argument I – MEJA is unconstitutional because it violates the separation of powers and non-delegation doctrine. Congress as the Legislative Branch of government has improperly delegated its constitutional powers to the Executive Branch by allowing the Executive to have the unfettered discretion to decide whether a person who commits a crime while a member of the Armed Forces, is to be tried by the military under the UCMJ or in district court under MEJA. Moreover, the disparate treatment of Green and the more severe punishments he faced compared to his military co-accused violated Green’s rights to equal protection and due process.
Argument II – Green was improperly subjected to prosecution in district court under MEJA because his discharge from the Army was invalid. The “clearing process” that is an essential component of a soldier’s separation from the military failed to comply with Army Regulations thereby rendering Green’s discharge invalid and subjecting him to prosecution under the UCMJ rather than MEJA.
It should be interesting to compare the United States’ response to the second issue to arguements that the U.S. has advanced in asserting post-DD 214 jurisdiction in court-martial cases.