Judges Tozzi, Sims, and Gallagher sat on the “hot” ACCA panel hearing oral argument in the historic case of US. v. Ali, which, as Judge Sims noted during the argument, “came to the Court not by the usual route.”  You’ll recall Mr. Ali is the Iraqi-Canadian the Army court-martialed for crimes committed in Iraq in 2008.  Ali ostensibly fell under US court-martial jurisdiction as the result of the 2006 expansion of Article 2(a)(10), UCMJ’s, reach to include those serving with or accompanying the forces in the field during contingency operations.  Because Ali worked for a Department of Defense contractor at the time of the commission of the offenses, the Army asserted jurisdiction.  Although Ali’s sentence didn’t meet the threshold to trigger an automatic appeal, the Army TJAG chose to certify the case to ACCA in order to have the burning issue decided by the courts.  Both sides did a great job with an issue that hasn’t had much previous litigation.  Having briefed and argued a case involving a 200-year-old statute with zero previous litigation, I sympathized with the challenges such situations present for the litigants. 

Defense Argument
Captain Tiffany Dewell presented the defense argument.  In her 15 minute opening, she made clear that, despite Congress’ changing the bounds of Article 2(a)(10)’s jurisdictional limits, court-martialing civilians under the new provision is facially (and “as applied”) unconstitutional, citing Toth v. Quarles.  She used Solorio to argue that military jurisdiction requires military status, at which point Judge Sims inquired whether Solorio involved a civilian.  Dewell replied that Kinsella involved a civilian, although Solorio didn’t.  She argued repeatedly that Ali should have been tried in a civilian US federal court or in the Iraqi court system.  In support of the extension of MEJA jurisdiction to this case, Dewell listed Ali’s travel to the US for training in connection with his job as a contractor as sufficient to constitute the contacts necessary to subject Ali to US criminal jurisdiction.  She even went so far as to argue that there would not be an ex post facto problem if Congress chose to expand MEJA to cover host-nation nationals, such as Ali.  When Judge Sims questioned the logistics of extraditing a defendant to the US to face MEJA charges, Dewell had clearly done her homework when she relayed that precedents for doing just that exist already.  At that point, I wondered if it would be worse for Ali to be tried under MEJA, given his relatively light court-martial sentence. 
Ignoring the constitutional issue for a moment, Judge Tozzi asked whether it mattered that Congress passed the amended Art 2 provision after it enacted MEJA (assuming MEJA applied to Ali).  Next, he queried what we should do with the plain language of the amended Article 2.  Dewell responded that Congress couldn’t use the “Necessary and Proper” Clause to unconstitutionally extend jurisdiction, emphasizing once more the constitutional nature of the defense argument.  Moreover, 2(a)(10) wasn’t essential to maintaining good order and discipline in the military, according to legendary military law scholar William Winthrop.  Returning to the constitutional issue, a judge’s question prompted Dewell to state that the Supreme Court has never found any version of Article 2(a)(10) unconstitutional.
Next Dewell focused on the relevant differences between civilian and military courts, including the panel size and the fact that military juries are not composed of one’s peers (especially true when dealing with civilian accuseds).  At this, Judge Tozzi broke in again and asserted that military justice has come a long way from the pre-UCMJ days.  Dewell’s response to this was spot on:  Yes, that’s true, but courts-martial still don’t provide all the statutory rights of an Article III court.  She continued, noting that the UCMJ is statutory, and, as such, can be changed at any time, unlike the constitutional protections guiding civilian courts.  Another problem raised is that of the triggering of appellate review.  Because civilians aren’t subject to punitive discharges, and appellate review by the service courts largely depends on one’s approved sentence, the only way a convicted civilian can ensure an automatic appeal in the military system is to get sufficient confinement time, criteria that Ali didn’t meet.
Later, Dewell focused on the potential breadth of classes of individuals who might fall under this expanded UCMJ jurisdiction: Red Cross and UN representatives, embedded reporters, and others.  When Judge Gallagher asked whether Ali’s citizenship was relevant to the UCMJ jurisdictional argument, Dewell replied that it did not affect the case.
Government Argument
Major Adam Kazin argued the government’s case and used his entire 30 minutes, largely due to panel questions.  His repeated refrain was that contractors like Ali wear the Army uniform, train and travel with military members, and are, for purposes of court-martial jurisdiction, part of the land and naval forces when they serve in the field in contingency operations.  Agreeing with the defense (to a degree), Kazin maintained that it comes down to a question of status.  At this assertion, Judge Sims asked whether any case law stating just that.  Kazin responded that “member” has varying meanings, depending on the context of its use.  One such meaning, Kazin argued, is accompanying the force, citing Reid v. Covert.
While Kazin agreed that the expanded Article 2 represents the maximum jurisdictional reach the military can hold over non-uniformed individuals (citing Winthrop’s recounting of spies and interpreters subject to military courts from pre-Constitutional days and Reid and Burney), Judge Sims asked how it could be that the old provision represented the “zenith” of military jurisdiction when the 2006 amendment went beyond that.  Kazin posited that the “in the field” requirement of the newly enacted language sufficiently limited the scope.
Moving to the pertinent definition of “in the field,” Kazin stated that the language did not depend on one’s locale but on one’s mission—if the mission was with a direct view towards the enemy, then “in the field” applied, regardless of location.  Courts had previously interpreted this to include individuals on ships leaving the war zone.  Judges Tozzi and Sims then suggested several hypothetical situations with varying crimes, employment specialties, and citizenship statuses.  I had to smile when one hypo closely matched a scenario from my recently-written Military Justice course final.  Kazin responded that none of those factors matter in the Article 2 analysis; only one’s status vis-à-vis the military was relevant—he moved with the military, had a CAC (ID) card, and his actions were linked to the military.  This prompted Judge Tozzi to remark that Reid did set up degrees of status, but Kazin pointed out that Kinsella reversed that determination.
Judge Gallagher repeated her earlier question on citizenship, with Kazin agreeing that citizenship didn’t matter because the Constitution carves out an exception for military status.  Kazin also argued that the fact that Ali’s employer fired him after the incident didn’t sever court-martial jurisdiction, as Ali’s pretrial confinement at the base continued his “accompanying the force” status.  (Hearing that, I wondered what would happen to jurisdiction if Ali was placed in an Iraqi-run facility.)  Extending the “accompanying the force” definition, Judge Sims inquired whether all the thousands of individuals once held at Camp Bucca could have been court-martialed.  Kazin replied that he didn’t want to get into too many hypotheticals.  (Note to practitioners—Kazin pulled this off fairly well, but I can see some CAAF judges not appreciating that comment in answer to their questions.)  Returning to the Bucca detainee scenario, Kazin scored points by recognizing that such detainees would be subject to court-martial jurisdiction if they were determined to be POWs.  Judge Tozzi asked how to reconcile Kahanamoku and Ex Parte Milligan with the Ali case, to which Kazin noted that neither of those appellants served with the land or naval forces, plus they were subjected to military commissions versus a court-martial.
Kazin’s argument necessarily relied heavily on individual trial judges’ findings of fact in divining such issues as when does Article 2 jurisdiction over contractors end.  Kazin called the interpretation of “in the field” a mixed question of law and fact.
Kazin kept mentioning Congress’ intent in framing the Constitution and Article 2, but I had to scratch my head on that one, as I’m pretty sure the Constitution created Congress.
The appellate government counsel pointed out that we often have overlapping jurisdictions, but that doesn’t mean the accused has a constitutional right to one forum over another.  He also noted there is no notice requirement in the statute, although the military judge found that Ali had been briefed on the jurisdictional issue.
As you can tell, the panel was thorough in the range of its questions to counsel.  Near the end of the government argument, the judges tackled the issue of vagueness regarding Article 134 offenses as they apply to civilians.  Specifically, Judge Tozzi wanted to know if you could legitimately charge a civilian with AWOL or failure to obey lawful general orders or similar “military-specific” offenses.  While at least one senior attorney within DoD/GC believes otherwise, Kazin responded that such a determination would be fact specific, but, conceivably, actions violating Articles 86 or 92 might have a direct impact on good order and discipline that is punishable by court-martial.
Judge Tozzi asked the final question of Kazin:  So, Ali falls squarely with the separate military society described in Parker v. Levy?  “Yes.”  Judge Tozzi:  “Hmmm…OK.”
Defense Rebuttal
Dewell lost some points when she proclaimed that the government’s definition of “in the field” would cover civilians helping with Hurricane Katrina recovery operations and other domestic humanitarian mobilizations.  I don’t believe the definition is that broad, even accepting the government’s interpretation, and neither does that same civilian guru in the Pentagon.
When asked, Dewell argued that one’s military status should be the test for military jurisdiction, and the “open courts” rule (no military jurisdiction if civilian courts operating) should apply when dealing with civilians.  Judge Gallagher then asked why the defense didn’t believe such exigent circumstances existed in this case, to which Dewell replied “because the courts were open.”  “Which ones?”  “The Iraqi courts.”  At this, Judge Tozzi pounced, questioning whether constitutional rights applied to Iraqi courts.  Taking a slight detour, Dewell noted that the Toth case stands for the proposition that jurisdiction doesn’t lie simply because no other court would be able to hold a defendant accountable.  Then Judge Gallagher asked if firing Ali was sufficient discipline, and Dewell responded that it was not.  Next, Judge Gallagher turned to logistics: “Can we transport all necessary witnesses back to the US for trial?”  It’s been done before in MEJA cases apparently.
Picking up on the thread from the government’s argument, Dewell asserted that there is a problem with charging civilians with Article 134 offenses, citing Parker v. Levy.  Judge Gallagher asked the final question, making clear that another of Ali’s offenses clearly had comparable parallels in civilian court systems.
It will be interesting to see how this opinion shakes out.  I must say I didn’t expect the judges to appear to disfavor the legitimacy of the expanded Article 2(a)(10) jurisdiction as much as they appeared to do.  Of course, I’ve seen enough appellate arguments to know that oral argument seldom reveals much about the final vote on a case.

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