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.

9 Responses to “Green brief”

  1. Cossio says:

    The Feds respone to #2 will be whatever is good for the Goose (Government) is not good for the Gander (small guy).

    In other words, the clearing process only matters when we want to burn someone at the stake, not when someone has a legitmate grievance.

    Even if Green could have been CM (was still in the military), whether they choose a Federal Civilian Court or Court-Martial is of no consequence.

  2. Cossio says:

    I had a question for the other Anons who in the last post assume that if Green wins his appeal (to question II) that he will subject to a CM;

    Assuming arguendo that he wins #II, wouldn’t you expect them (his defece team) to make some double jeopardy claim (which would have merit) ?

  3. Reply says:

    1. Non-delegation is a dead letter. Sentencing differential isn’t constitutional error.

    2. Court doesn’t care about compliance w army regs. Discharge is a discharge.

    Game over, please insert 25c to play again.

  4. Cossio says:

    I agree with you, its Game Over either way, just throwing a Hypo there.

    You broke it down to the Lowest Common Denominator, some people find that distasteful, but I happen to think it works just as well as the Highest Common Factor.

  5. Dew_Process says:

    Reply 1024 – it may also fall into the “political question” arena. The “Executive” chose which of 2 forums were available, and being on AD does not legally or constitutionally preclude trial in federal court.

    Cossio, by filing the appeal challenging jurisdiction, they’ve waived any former jeopardy claim.

  6. John O'Connor says:

    Dew:

    I don’t see how choice of forum is a political question. The forum either has jurisdiction or it doesn’t. I think the thrust of the argument is that, as I recall it, MEJA doesn’t create federal court jurisdiction over servicemembers who can be court-martialed except in narrow circumstances (such as where they have a civilian co-conspirator and the government wants to proceed against them in one court).

  7. Cloudesley Shovell says:

    The second issue would be very interesting if the court were to substantively address it. CAAF’s jurisprudence on the matter of whether a discharge is “valid” or not is absolutely shameful. CAAF has abandoned all pretense that jurisdiction is strictly construed and given the gov’t every benefit of the doubt in order to save convictions in spite of the fact that the gov’t had validly discharged the accused.

  8. Craig Manson says:

    Non-delegation is indeed a loser here. The issue is whether Congress has articulated “an intelligible principle” to side-board executive discretion. See J.W. Hampton, Jr. & Co. v. United States, 276 US 394, 409 (1928); Whitman v. American Trucking Assns., 531 US 457 (2001). In enacting both the UCMJ and MEJA, Congress has done that. But here’s where John O’Connor’s coment becomes salient. In the absence of MEJA (and setting aside the precise jurisdictional issue for a second) in the post-Solorio world, choice of forum would be discretionary with the Executive branch as part of the President’s duty to “take care that the laws be faithfully executed,” if not part of his duties as Commander-in-Chief. This is not so much an application of “political question” doctrine as it is a separation of powers issue. But MEJA does exist and it does deprive the Executive of some discretion in that it prohibits prosecution of military members subject to the UCMJ. 18 USC 3261(d). On the other hand, a person who “while a member of the Armed Forces subject to [the UCMJ]” engages in conduct defined in MEJA [18 USC 3261(a)(2)], can be punished under MEJA if “such member ceases to be subject to [the UCMJ].” 18 USC 3261(d)(1). So Green’s case is all about whether he “cease[d] to be subject to [the UCMJ].”

    One final note on the choice of forum issue: MEJA actually preserves Executive discretion in one situation: that being where a person subject to the UCMJ is accused in an information or indictment with one or more other persons not subject to the UCMJ. Since statute does not strip jurisdiction from a court-martial for persons subject to the UCMJ, the Government had the choice of whether to try Green’s co-actors in a court-martial (which is what happened) or in the District Court with Green.

  9. Cossio says:

    Cloudesley Shovell: The second issue would be very interesting if the court were to substantively address it. CAAF’s jurisprudence on the matter of whether a discharge is “valid” or not is absolutely shameful. CAAF has abandoned all pretense that jurisdiction is strictly construed and given the gov’t every benefit of the doubt in order to save convictions in spite of the fact that the gov’t had validly discharged the accused.

    Yes. Couldn’t say it better myself. Seemingly you can be discharged 18 months after the fact and the Government can somehow have jurisdiction, according to the CCA’s