Two big news items out of CAAF.
Hasan Writ Denied
First, MAJ Nidal Hasan’s counsel filed a writ at CAAF on Aug. 7, 2012 asking for “the issuance of a writ of mandamus to disqualify the military judge in the pending court-martial of Major Nidal M. Hasan.” On Friday CAAF denied the writ and motion to stay the proceedings. See Daily Journal here.
Ali Motion for Reconsideration
Second, counsel for Alaa Ali, the first contractor convicted under the 2006 amendments to the UCMJ, has filed a motion for reconsideration of CAAF’s July 18, 2012 decision in his case, US v. Ali, No. 12-0008/AR. The motion is based in part on the Fourth Circuit’s recent decision in US v. Brehm, a MEJA case. [UPDATE} Here is a link to the Motion for Reconsideration.
In Brehm, the Fourth Circuit upheld MEJA jurisdiction over a South African national based, in part, on the accused’s contacts with the US that the court found sufficient to satisfy the limits of the Due Process clause:
Brehm did not target his conduct toward American soil or American commerce. Nevertheless, his actions affected significant American interests at KAF, not the least of which were the preservation of law and order on the base, the maintenance of military-related discipline, and the reallocation of DOD resources to confine Brehm, provide care for J.O., and investigate the incident. Indeed, Brehm’s very presence inside KAF was possible only pursuant to an official DOD Letter of Authorization, entitling him to DOD-furnished transportation, meals, and equipment.
Steve Vladek over at Lawfare beat me to the post on the conflict, here, with Ali where Judge Erdmann found:
Neither Ali’s brief predeployment training at Fort Benning, Georgia,22 nor his employment with a United States corporation outside the United States constitutes a “substantial connection” with the United States as envisioned in Verdugo-Urquidez. Ultimately, we are unwilling to extend constitutional protections granted by the Fifth and Sixth Amendments to a noncitizen who is neither present within the sovereign territory of the United States nor has established any substantial connections to the United States.
Under the Erdmann analysis could Brehm be prosecuted under MEJA without the protection of the Due Process clause? Probably not because the court sits in the US. But what about right to counsel if a contractor is arrested by the FBI in Kabul for transport back to the US? Does the Sixth Amendment apply in the Erdmann world?