US v. Ali Fully Briefed
The hearing page for US v. Ali now has links to all of the briefs in the case. Appellant’s Brief, Government’s Brief, Appellant’s Reply, and the long-windedly titled Brief of Amici Curiae John F. O’Connor, Michael J. Navarre, Air Force Appellate Defense Division, and Navy-Marine Corps Appellate Defense Division.
Oral Argument is still set for Thursday, April 5, 2012 University of Washington School of Law, Seattle, Washington. For those living in a closet, the issues are:
(1) [W]hether the military judge erred in ruling that the Court had jurisdiction to try Appellant and thereby violated the due process clause of the Fifth and Sixth Amendments by refusing to dismiss the charges and specifications; (2) whether the court-martial had jurisdiction over Appellant pursuant to Article 2 (a) (10), Uniform Code of Military Justice; and (3) whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
Briefs were focused on issues (1) and (2).
[Familiar disclaimer in light of my name above]
One problem with the defense’s primary argument on Issue I is that Mr. Ali is not a U.S. citizen. That, it seems to me, is fatal to the defense’s constitutional attack on the new Article 2(a)(10). The defense’s attack is based on constitutional rights that Mr. Ali simply does not enjoy as a non-citizen.
Defense counsel argue that Mr. Ali, even though he is not a U.S. citizen, is entitled to a trial that complies with all the requirements of the U.S. Constitution. This is a weak argument but, astonishingly, seems not even to be discussed in the government’s response. In my opinion, the non-citizen argument is a clear win for the government.
To see why that is, begin by spelling out Mr. Ali’s complaints about his court-martial. On pages 10-11 of their opening brief, Mr. Ali’s counsel list two deficiencies. According to defense counsel, Mr. Ali’s guilty plea (before a military judge sitting as a general court-martial) violated the Constitution because: (1) the judge was not an Article III judge (meaning, he did not have life tenure and was not chosen by the President with the advice and consent of the Senate) and because (2) Mr. Ali, had he elected to go to trial rather than plead guilty, would not have been entitled to a civilian jury of more than five members.
Why does a non-citizen have the right to either of those two things? Salim Ahmed Hamdan, another non-citizen accused, who is more (jurisprudentially) notorious than Mr. Ali, conceded in his petition for habeas corpus that “a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ) . . . would have authority to try him.” Hamdan v. Rumsfled, 548 U.S. 557, 560 (2006). In other words, Mr. Hamdan conceded that, as a non-citizen, he had no right to claim any Constitutional requirements above and beyond what would be afforded to him in a court-martial. And that was a wise concession, because until now no one seems to have thought to doubt the constitutionality of Article 2(a)(10)’s next-door neighbor, Article 2(a)(9), which authorizes courts-martial to try “Prisoners of war in custody of the armed forces,” a category of persons that, I imagine, consists almost entirely of non-citizens. No one, it seems, imagines that non-citizen prisoners of war are entitled to an Article III judge and jury. So why should a non-citizen contractor be entitled to these things?
On pages 12-14 of their response brief, defense counsel take up the argument that a non-citizen is entitled to an Article III trial (with an Article III judge and jury). Defense counsel rely entirely on United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). But that case is beside the point. There, the U.S. government chose to try Mr. Verdugo-Urquidez, a non-citizen, in an Article III court. Mr. Verdugo-Urquidez raised Fourth Amendment challenges to evidence obtained in a search and seizure that occurred in Mexico, and the Court held that the Fourth Amendment did not apply to extra-territorial searches and seizures of non-citizens’ property. Along the way, the Court suggested that other provisions of the U.S. Constitution did apply to Mr. Verdugo-Urquidez’s prosecution, namely, those provisions concerned with trial procedure. And that suggestion seems fair enough—if the government chooses to prosecute a non-citizen in an Article III court, then the government should have to play by Article III rules, including the rules that are at issue in Mr. Ali’s case (namely, the rules that entitle the defendant to an Article III-qualified judge, and to a civilian jury of more than five persons). I think all could agree that if the United States had chosen to try Mr. Ali in an Article III court, then Mr. Ali would have had the right to an Article III judge and, if he chose, the right to a jury of more than five civilians.
But that’s not what happened. The U.S. government chose to try Mr. Ali not in an Article III court but instead in a court-martial. And nothing in the defense counsel’s briefs explains to me why it is unconstitutional to try a non-citizen in a court-martial.
The question that everyone (including, apparently, the government) seems to want CAAF to decide is this: If a civilian U.S. citizen employed in a military “contingency operation” is charged with a crime, would it be lawful for the U.S. to try that citizen in a court-martial, pursuant to Article 2(a)(10), rather than in an Article III court, pursuant to MEJA? That is indeed an interesting, and difficult, question. But that question is simply not presented here, and Mr. Ali’s case is not the right vehicle with which to answer it.
I wonder why the government has not been making the non-citizen argument from the start. The non-citizen argument doesn’t appear to have been raised below. (I base that assertion on my reading of ACCA’s opinion in the case, although I note that ACCA does take pains to remark, in a summing-up paragraph, that Mr. Ali is a “non-citizen.”) The government’s failure to make this argument seems to come close to waiving the issue. If the government had lost below, and had then appealed with an opening brief along the lines of what it has filed here as a response brief, then in that case the government may indeed have waived the non-citizen argument altogether. But since the government is the appellee, I do not think any such waiver rules apply. And if I’m right about that, then that would mean the government might win based on an argument that it did not even make.
Of course, all the above applies to Issue 1. The case could instead be decided (in the defense’s favor) on Issue 2.
SMS–
While you may not like the decisions after Hamdan, they were pretty clear that non-citizens, even detained enemy combatants, have rights–and that hasn’t changed. See Boumediene v. Bush., etc, etc., etc. Note that the defense address’s this argument by noting that the decision said those rights apply to a non-citizen and did not confine them to Art. III courts (Brief at 12-14 (citing United States v. Verdugo-Urquidez. 494 U.S. 259 (1990)). The government likely did not address this point because it was relatively non-controversial, given the decisions in Boumediene etc.
MNMN–
To be sure, I agree that non-citizens have rights. At the very least they have the right to due process under the 14th Amendment. And they have the right to petition Article III courts for habeas corpus, as Boumedienne held. But do they have the particular rights at issue here?
The rights at issue here are far from the core protections of the criminal process. As far as I see it, they are all Sixth Amendment rights. (The right to a grand jury indictment, under the Fifth Amendment, would seem not to apply because that right does not even extend to U.S. citizens when prosecuted by the states. Hurtado v. California, 110 US 517 (1884).) Ditto for the right to an Article III judge (the State of California is free to prosecute me without one).
The Sixth Amendment rights that remain (to a jury of more than five civilians, and to some degree of unanimity in the verdict) are, it seems to me, not essential to due process. Nor is it clear to me that the Sixth Amendment should automatically be deemed more important than the earlier part of the Constitution that gives Congress the right to “make Rules for the Government and Regulation of the land and naval Forces.” Art I, Section 8.
The defense relies on a line of SCOTUS decisions that limited Congress’s power under Art I Sec 8(e.g., Toth v. Quarles, Reid v. Covert). But these decisions all considered civilians who were also U.S. citizens and, it seems to me, these cases should be read in that light. Extending these decisions to civilian NON-citizens may be a correct limitation on Congress’s power to create courts-martial under Article 1 Section 8, but if this extension is correct, it seems to me to require a bit more explanation why.
Take just two examples of how CAAF’s ruling here could unintentionally limit Congress and the Presidents’ conduct of war. Imagine that our forces have imposed martial law in a country. Surely, in that case, our forces may detain and prosecute host-country nationals suspected of committing a crime, without granting those host-country nationals all the protections of the Sixth Amendment. (And, indeed, I suspect we did so for a time when first processing Iraqi detainees.) Now move this example five years down the line, and imagine that Congress agrees to a SOFA that permits our military to court-martial select host-country nationals, say, perhaps, host-country nationals who are employed in positions of trust by our armed forces. According to the defense position here, both of these (sensible?) uses of non-Article III courts overseas are forbidden by the Sixth Amendment. Perhaps that is right. But it seems to me to call for much more discussion and debate.
The second example is not as crazy as it may sound. In order to try an East German hijacker, our country convened the United States Court for Berlin in 1979, under the Commander-in-Chief’s powers under Article II. For more details (and an argument suggesting that the right answer to these issues is to create overseas Article III courts), see Maryellen Fullerton, Hijacking Trials Overseas: The Need for an Article III Court, 28 Wm. & Mary L. Rev. 1 (1986), http://scholarship.law.wm.edu/wmlr/vol28/iss1/2