I think lost in the oral argument in the Ali v. US case this past week, here, is the fact that the constitutionality of civilian UCMJ jurisdiction in times of contingency operations does not hinge on courts being open and actual hostilities being ongoing. Several other considerations inform the “least possible power” inquiry that Toth v. Quarles, 350 U.S. 11 (1955) used to limit congressional power to subject civilians to courts-martial:
- Is the civilian accompanying armed forces in an area of actual hostilities?
- Is the accused in the field with these forces?
- Are courts in the United States open?
- Does the military have the logistical capability to send the accused to the jurisdiction of a US court?
- Could Congress have given the military the power to try the accused in a civilian court?
Thus, there are conceivably circumstances under the current Art. 2(a)(10), UCMJ that an accused could be in a situation where an individual is in an area of hostilities, where US courts are open, but the military is unable to bring the accused into a Court’s jurisdiction. For example, if Mr. Ali had been taken to NJP proceedings during an intense battle at a remote location in the mountains of Afghanistan on December 12, 2001, where transportation out of the combat zone was impractical, too dangerous, or just unavailable, this would be a very different case.
But the facts of the case are that Mr. Ali was court-martialed at Camp Victory many days after being removed from his FOB and when celebrities, service members (whether on leave or in custody for a future court-martial), and civilians being charged under MEJA were moving in and out of Camp Victory with ease. Does the constitution allow this civilian to be deprived of the rights he has in an Art. III court under these circumstnaces? That’s the issue.
[Disclaimer: Since our amici brief argues Art. 2(a)(10) is unconstitutional as applied to Mr. Ali, you know my answer to this issue]