Here is a link to the unanimous Army Court of Criminal Appeals opinion finding Art. 2(a) (10), UCMJ constitutional.  United States v. ALAA MOHAMMAD ALI, No. 20080559, Slip op. (A.Ct.Crim.App. Jul 18, 2011).  Here is one relevant exceprt:

As noted in Reid v. Covert, “the extraordinary circumstances present in an area of actual fighting havebeen considered sufficient to permit punishment of some civilians in that area by military courts under military rules.” Covert, 354 U.S. at 33. “In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.” Id. This recognition by the Supreme Court of the historical use of military courts to try civilians in areas of actual fighting, coupled with the recognition of the broad authority of military commanders on the battlefront would seem to authorize, or at least not prohibit, the exercise of military jurisdiction over appellant by the commander of the United States forces in Iraq.

More analysis later.

15 Responses to “ACCA Finds Art. 2(a)(10), UCMJ Constitutional”

  1. Cloudesley Shovell says:

    Pretty good analysis as far as it goes. However, it is apparent from the factual discussion that at least some articles of the UCMJ could not be enforced against Appellant.

    At p.4, the Court states, “Unlike the soldiers he was supporting, however, appellant did not carry a weapon and had the right to refuse to participate in a mission.” I doubt he could be lawfully charged with an Art. 92 violation, or anything from Art. 84 to Art. 94, for that matter.

    Given that, I’m a bit disappointed the Court did not examine the Art. 107 charge more closely. Do the statements of a civilian qualify as “official”? I am also very disappointed that the Court did not get into the thorny issue of whether one can make the Art. 134 terminal element stick against a civilian. (Yes, I know, guilty plea, but still). Perhaps those issues could be raised or certified at CAAF.

    Finally, one wonders why there was no assault conviction. I’m assuming it went away as part of the plea deal.

  2. Ama Goste says:

    CS, I believe the assault charge dismissal was part of a PTA.

  3. Mike "No Man" Navarre says:

    CS–I would beg to differ. The Court glosses over the jurisdictionally relevant facts as they actually applied at the time of the plea. For example, the fact that the courts in the US were open at the time of this offense and there was nothing impeding the US Govt from bringing the appellant within that jurisdiction. The opinion reads like Mr Ali was landing on the beaches of Normandy when he was arrested. That’s just one issue among others.

  4. John O'Connor says:

    I’m not surprised, though I disagree with the analysis.

  5. stewie says:

    Not exactly a deep analysis is it? Very basic, very perfunctory, and no discussion at all about the fact that the civilian courts also had jurisdiction over this guy.
    It seems to me the definitions and language they use can be used to justify a pretty broad range of conflicts and situations.

  6. Peter Orlowicz says:

    While it’s true that the civilian courts also had jurisdiction, it’s far from clear to me (and not evident on the face of Article 2(a)(10)) that the mere existence of civilian court jurisdiction should defeat military court-martial jurisdiction. It certainly doesn’t with respect to service members subject to the UCMJ; rather, it’s a discretionary choice by the government to proceed in a federal district court or the UCMJ. I think there could be an argument that it serves a compelling government interest to be able to hold court-martial proceedings of civilians subject to the Code in the same manner as servicemembers, as a means of accountability to the units serving in the field. Justice meted out halfway around the world is liable to escape notice to the units in the field, and the local populace for that matter.

    There are certainly some special considerations since the defendant here is a civilian employee (and I haven’t read the footnote 15 cases dealing with overseas civilian employees in peacetime), but the mere existence of civilian federal court jurisdiction doesn’t seem like it should be determinative on the constitutional question.

  7. Ama Goste says:

    PO, the fact of the civilian courts being open might not matter if it wasn’t for SCOTUS precedent that says that matters when talking about the court-martial of civilians. There’s also SCOTUS precedent about charging civilian dependents accompanying the forces overseas in military courts. Despite the fact that several of the dependents in those cases committed far more aggravated crimes (murder) than that at issue in Ali and no other jurisdiction would prosecute them, SCOTUS said “no dice.” Of course, there are valid arguments that dependents and civilian contractors are different animals, so we’ll see what SCOTUS has to say about Ali.

  8. Ama Goste says:

    After going through the facts and background, this opinion is how many pages (<3) of analysis on a significant constitutional issue? Also, I didn't realize that someone born in Iraq needed to be naturalized in order to be a citizen of that country. (See p. 3.) Basic summary: Article 2(a) says it's cool, so it's constitutional.

  9. Snuffy says:

    Come on guys- analysis was not too bad for a service court. Lets get to CAAF then the SCT, ok?

  10. Peter Orlowicz says:

    Okay, having read over the cases cited in footnote 15 (the same cases Ama was alluding to, I think), I’m still not convinced that availability of civilian courts is a determinative factor. The death penalty cases seem to argue that the seriousness of the crime weighs against military jurisdiction because of the finality and absoluteness of a death sentence, and so the procedural guarantees of the Constitution ought to be at their strongest there. I was also struck by the brief discussion in McElroy (361 U.S. 281, 285-86) of the practice of civilians assisting in building earthworks to defend against Indian incursions:

    “To be sure, the 1872 opinion of the Attorney General, dealing with civilians serving with troops in the building of defensive earthworks to protect against threatened Indian uprisings, is entitled to some weight. However, like the other examples of frontier activities based on the legal concept of the troops’ being “in the field,” they are inapposite here. They were in time of “hostilities” with Indian tribes or were in “territories” governed by entirely different considerations. See second Covert, at 12-13. Such opinions, however, do not have the force of judicial decisions and, where so “episodic,” have little weight in the reviewing of administrative practice. Moreover, in the performance of such functions as were involved there, the military service would today use engineering corps subject to its jurisdiction.”

    Iraqi contractors seem a lot more like civilians building earthworks in Indian territory than civilians working in Morocco or Berlin in 1960 to me. Moreover, the assumption the Supreme Court made in 1960 regarding the use of military personnel for these kinds of tasks is a lot weaker today, given the kinds of outsourcing the military has engaged in over the past decades.

    That being said, I can understand the argument that ACCA should have spent more time and analysis on the issue, but I respectfully stand by my point that even based on the case law, mere availability of civilian prosecution shouldn’t be determinative on the constitutionality of Article 2(a)(10) as applied.

  11. Mike "No Man" Navarre says:

    Mr. Orlowicz–
    Appreciate the comments. And I think we’d all agree that ACAA shoul dhave given this subject a better than “good enough for government work” treatment. I’d say that in addition to the availability of a civilian forum there are at least 2 other impediments to jurisdiciton that the court did not even really scratch the surface on. (1) the limit on congressional power in this area placed by the Constitution and (2) the no broader than necessary for good order and discipline principle that cases have followed. I’d commend you to the article Contractors and Courts-Martial. Though I’ll admit I have some unaired disagreements with the author that are slowly becoming a piece of scholarship.

  12. Peter Orlowicz says:

    Mr. Navarre:

    Thanks for the linked article, it certainly helped in understanding more of the background landscape in this area. While I was reading it, however, it occurred to me that the point of “availability of a civilian forum” might require more scrutiny. I wasn’t thinking in these terms initially, but if the the availability of the federal district courts is premised on jurisdiction through MEJA, the ACCA at least seems to believe Mr. Ali is not subject to federal criminal jurisdiction on those grounds due to his status as an Iraqi citizen and the offense being committed in Iraq (footnote 4 of the ACCA opinion). Is there an independent grant of jurisdiction I’m overlooking? If not, maybe the non-availability of federal district courts weighs more in favor of exercising court-martial jurisdiction here rather than against.

    Of course, this doesn’t address your point (included in Mr. O’Connor’s article) that the Constitution just doesn’t grant Congressional authority to court-martial civilians under any circumstances. Still, to the extent Mr. O’Connor relied on MEJA as providing federal district court jurisdiction in his argument, it might be weaker in this particular case. On that point, the rationale given by the Supreme Court in the Toth case (Congress’ choices to extend federal court jurisdiction or not doesn’t in turn authorize court-martial proceedings against those Congress doesn’t choose to provide a civilian forum for) might be more persuasive.

  13. John O'Connor says:


    You’ll see I made the point about Toth in the article Navarre linked.


  14. Peter Orlowicz says:

    Mr. O’Connor:

    Yep, that’s where I saw it. Apologies if I didn’t make the attribution more explicit.

  15. Cloudesley Shovell says:

    No Man–point noted on the distinction between jurisdiction at the time of the offense v. time of trial. A problem, of course, of the government’s own making. It is inexcusable that even the most simple cases take four months to prosecute.