In a surprisingly slim opinion issued on Monday, a panel of the Army Court of Criminal Appeals held that civilian contractors accompanying military forces in the field during contingency operations are constitutionally subject to the UCMJ under the expanded Article 2(a)(10) provision.  In U.S. v. Ali, a civilian contractor pled guilty to making a false official statement, wrongful appropriation, and wrongfully attempting to impede an investigation, while continuing to dispute the court-martial’s jurisdiction over him based on Fifth and Sixth Amendment due process rights.

The court-martial stemmed from a feud between Ali and another contractor that occurred on an Army base in Iraq. Ali is a dual Iraqi-Canadian citizen.   The court spent a decent amount of time establishing that Ali met the requirements of the new Article 2(a)(10) provisions, specifically that he was accompanying our military forces in the field during a recognized contingency operation.

The panel pointed out that MEJA, which supplies extraterritorial civilian federal jurisdiction for many crimes committed by civilians accompanying our military forces overseas, wouldn’t provide a likely alternative to military jurisdiction here, as Ali was a citizen of the host-nation country, an exception to MEJA jurisdiction. The ACCA panel didn’t mention whether the Iraqi courts might have pursued criminal charges against Ali.  The court failed to address what has been a significant stumbling block to military jurisdiction over civilians in previous Supreme Court decisions–whether civilian courts were operating at the time the military asserted jurisdiction over Ali.

In holding the exercise of court-martial jurisdiction over Ali was constitutionally permissible, the panel primarily relied on two points:  Previous litigation over the extension of military jurisdiction over civilians involved situations that either occurred during times of peace or were not statutorially amenable to court-martial.  Distinguishing Supreme Court precedent on the issue, the court relied on
Congress’ and military commanders’ broad powers to regulate the military forces, particularly during times of actual hostilities, and Congress’ recently changing the 2(a)(10) language granting jurisdiction over civilians from only applying “in time of war” to also including crimes committed by civilians during specific “contingency operations.”

Certainly, this is not the last opinion to be written in the Ali case.  Next stop–CAAF.  I’m willing to bet CAAF grants review of this one.

See our previous coverage of the Ali argument here.

As a side note, this is the same ACCA panel deciding the Behenna casethat was argued last December.  Considering Senior Judge Tozzi’s departure from the court, I’d guess we’ll see that opinion shortly.

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