The Code Committee’s 2009 Annual report has some interesting data on civilian cases–I’ll  leave the rest to CAAFlog.  See CAAFlog’s post here and report  here.

First, the Report only mentions one of three cases that DoD defended relating to Art. 2(a)(10) civilian UCMJ matters in the covered period in the section “highlight[ing]” the types of cases the Army handles.  As we reported, the three cases we know about last year were Price v. Gates (see here), Adolph v. Gates (see here and here) and Breda v. Gates (see here). 

As we noted here, the Price v. Gates case ended in the dismissal of the habeas petition as the result of Mr. Price not being charged and being allowed to return home.   (Disclaimer:  I was one of multiple counsel on the case)

The summary of the the one case covered Adolph v. Gates begins, “In Adolph v. United States, the U.S. District Court for the District of Columbia dismissed Mr. Adolph’s habeas petition challenging his pretrial confinement.”  About midway through the paragraph you discover that “[t]he district court did not reach the merits of the issue because Mr. Adolph voluntarily dismissed his petition as moot when the Army transferred him to the custody of the U.S. Marshals.”   The summary of the petition states that Adolph’s petition argued “that the 2006 amendment to Article 2(a)(10) extending UCMJ jurisdiction over civilians accompanying the force during a contingency operation was unconstitutional because Congress can only extend UCMJ jurisdiction over civilians in a time of declared war.”  Mr. Adolph (Disclaimer:  I was one of multiple counsel on the case) also mentioned something about the constitutionality of exerting Art. 2(a)(10) authority over him when he was in Kuwait.  But, I can see how space limitations may have led that summary to be shorter.  The result of the case was a MEJA conviction and a sentence of “two years probation and 104 hours of community service.”  I’ll let you judge whether his choice to contest UCMJ jurisdiction was a good one, but me thinks a court-martial would not have given him probation.

In the third case, Mr. Breda was ultimately charged under MEJA and received two years confinement for abusive sexual contact.  See USAO press release here.

The Foreign Criminal Jurisdiction cases report was also interesting.  First, the report stated, “During this reporting period, foreign authorities tried a total of 451 cases involving U.S. personnel. Seven trials, or 1.6%, resulted in acquittals.”  When you look at the sentences for those cases, I doubt these were more than mainly bar fights and traffic offenses. So that could be a dubious statistic, but interesting compared to CAAFlog’s number on court-martial acquittal rates below

Second, the jurisdictional waiver statistics are also interesting:

[F]oreign authorities released to U.S. authorities four of the 72 exclusive foreign jurisdiction cases involving military personnel. In concurrent jurisdiction cases in which the foreign countries had the authority to assert primary jurisdiction, U.S. military authorities were able to obtain waivers of the exercise of this jurisdiction in 1906 of the 2046 cases. Overall, the U.S. obtained waivers in 93.2% of all exclusive and concurrent jurisdiction cases. This figure reflects an increase of 5.5% in obtaining waivers compared to the previous reporting period. . . .

[In roughly FY07] Foreign authorities released 50 of [880 civilian] cases (5.7% of the total of that reporting period) to U.S. military authorities for administrative actions or some other form of disposition. In this reporting period [roughly FY08], civilian employees and dependents were involved in 864 offenses. The foreign authorities released 26 of these cases (3.0% of the current total of this reporting period). This figure represents a decrease of 2.7% in obtaining releases of foreign criminal jurisdiction over civilian employees and dependents. [No Man  Note:  That’s actually a 47.37% change, but 2.7% difference]

Interesting that the waiver stats for military and civilians are going in opposite directions.  I wonder if any perception about US justice for these civilians influenced the willingness of countries to release civilians to the US pursuant to SOFAs or other agreements?  And it doesn’t appear that our partner nations have all that dim a view of MilJus as the waiver rate for uniformed personnel went up.

5 Responses to “2009 Annual Report Civilian Case Coverage [Updated]”

  1. John O'Connor says:

    To follow on No Man’s comment, for the Army to lead its discussion of Adolph with the notion that the USDC “dismissed” Adolph’s habeas petition is completely misleading. The USDC dismissed Adolph’s habeas petition because Adolph asked the court to do so, because he had gotten all the relief he sought (trial in federal court and not by court-martial).

    I also am highly dubious of the Army’s claim that Adolph filed his habeas petition AFTER the Army was already working on getting him transferred back to the U.S. for a civilian trial. I have a draft charge sheet in my email archives that didn’t get written itself. I also had multiple communications with the DoJ lawyer called in to help assist in defending against the habeas petition. He never mentioned that they intended to try Adolph in civilian court until AFTER the district court issued a show cause order to the Secretary of Defense.

    Disclosure: I was one of Adolph’s counsel.

  2. filet of fish says:

    What’s the genesis of the different appellate divisions boasting about cases and making poor attempts at editorializing? Isn’t the point of the reporting requirement just to get statistics?

  3. Anonymous says:

    J’OC, is it possible that the Army was dual tracking a CM w/ a request for MEJA prosecution? If I recall, that was the the recommended practice since it often took the DOJ a long time to indicate whether or not they would take a case in USDC and speedy trial concerns militated having a CM in the chute if necessary.

  4. John O'Connor says:

    Well, I assume the Army was moving apace with court-martial proceedings while it awaited DoJ decision on whether it wanted the case. After all, they put Adolph in pretrial confinement based on an assertion that they intended to court-martial him.

    But I was contacted a few days after our filing by the DoJ lawyer assigned to work the case. I then sent him an amended petition a few days later and some exhibits. In all that, he never suggested that DoJ had any intent to take the case to federal court until AFTER Judge Sullivan issued an order directing Secretary Gates to respond to the petition. Then, a couple of days before the Secretary’s response was due, government counsel called me and asked for a short extension because they intended to bring Adolph back to the U.S. for prosecution in federal court We agreed, of course, because this was exactly the relief Adolph sought. All this makes me very skeptical of a claim that the government had already decided to ship Adolph to Oklahoma for a federal court prosecution at the time we filed Adolph’s original habeas petition.

    It’s not a big deal, and I kind of regret responding to No Man’s post because it sounds sort of like whining. The Army can write its history howver it wants, I guess.

  5. Mike "No Man" Navarre says:

    Here is what SecDef’s 10 Mar 2008 Withholding Memo pursuant to Art. 22, UCMJ and RCM 401 and 601 says about the issue raised in comments above:

    While the DoJ notification and decision process is pending, commanders and military criminal investigators should continue to address the alleged crime. Commanders should ensure that any preliminary military justice procedures that would be required in support of the exercise of UCMJ jurisdiction over civilians continue to be accomplished during the conncurrent DOJ notification process. Commanders should be prepared to act, as appropnate, should possible U.S. federal criminal jurisdiction prove to be unavailable to address the alleged criminal behavior.