I’ve covered every opinion in CAAF’s 2011 term except one: United States v. Ali, 71 M.J. 256, No. 12-0008/AR (C.A.A.F. 2012) (CAAFlog case page) (link to slip op.). The case involved a dual Canadian/Iraqi citizen who was a civilian contractor working for U.S. forces as an interpreter in Iraq in 2008. In February of that year, he was involved in verbal and physical altercations with another linguist. He was subsequently placed into pretrial restriction, then pretrial confinement by U.S. Army authorities. He was charged with violations of the UCMJ, and was eventually convicted by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134. He was sentenced to confinement for five months, but pursuant to the pretrial agreement only a sentence of time served (115 days) was approved by the convening authority.

CAAF granted review to determine if jurisdiction existed under Article 2(a)(10) to try Ali by court-martial, and if so, then to decide the constitutionality of such an exercise of jurisdiction. Article 2(a)(10) (10 U.S.C. § 802(a)(10)) extends court-martial jurisdiction to: “In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.” In the penultimate opinion of the term, CAAF ruled unanimously that Ali was subject to a constitutional exercise of court-martial jurisdiction. Judge Erdmann wrote for the court, with Chief Judge Baker and Senior Judge Effron both writing separate concurring opinions.

The opinion was analyzed by MAJ Jeremy Steward on 31(b)log in early August. He observed that CAAF’s finding of a constitutional exercise of jurisdiction “may be quite narrow and limited to the facts of this particular case.” Additionally, Professor Steve Vladeck analyzed the opinion at Lawfare, beginning his analysis with this broadside:

The CAAF’s nominal unanimity as to the result belies the profound flaws with Judge Erdmann’s majority opinion–which, among other things, is yet another example of some court of appeals judges refusing to take the Supreme Court’s decision in Boumediene seriously, embracing instead extreme arguments that not even the Executive Branch has advanced. The far more analytically coherent and defensible justifications for the result can be found in the concurring opinions authored by Chief Judge Baker and Judge Effron—opinions that nevertheless raise some troubling questions of their own.

Professor Vladeck particularly attacks the majority for “unjustifiably discount[ing] Ali’s one very important voluntary connection to the United States–his employment by a U.S. contractor” in determining that Ali is not protected from trial by court-martial by the Fifth and Sixth Amendments. This attack is based on the fact that such employment has formed the basis for prosecution of a foreign national for an offense against another foreign national in U.S. Article III courts, under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §§ 3261-3267). Since CAAF’s opinion in Ali (and Professor Vladeck’s analysis), the Fourth Circuit upheld the MEJA prosecution of a foreign national for an offense against another foreign national based on his status as a military contract employee. United States v. Brehm, __ F.3d __, No. 11-4755 (4th Cir. Aug. 10, 2012).

Using such a connection to affirm an Article III prosecution under MEJA and a court-martial prosecution under Article 2(a)(10) does appear facially inconsistent, but there’s an important distinction between Ali and Brehm that Professor Vladeck overlooks: the fact the MEJA doesn’t apply to citizens of of the host country; a fact key to Judge Erdmann’s opinion:

Leaving aside the fact that MEJA expressly provides for concurrent jurisdiction with courts-martial, the problem this argument presents is that no Article III alternative exists under the facts of this case. While MEJA extends to civilians “employed by or accompanying the Armed Forces,” 18 U.S.C. § 3261(a) (2006), which likely includes non-United States citizens, it does not extend to citizens of the host nation. See 18 U.S.C. § 3267(1)(C), (2)(C) (excepting all “national[s] of or [those] ordinarily resident in the host nation”). Thus, there is no available alternative forum here, and Congress used the “least possible power adequate” to try Ali in this case.”

Ali, slip op. at 34-35 (internal citation omitted) (emphasis added). Moreover, in a footnote to the above paragraph, Judge Erdmann wrote:

 In regard to the issue raised in Senior Judge Effron’s separate opinion, Ali, __ M.J. at __ (7) (Effron, S.J., concurring in part and in the result), our holding is limited to the narrow circumstances presented by this case, namely the exercise of court-martial jurisdiction over a dual citizen of the host country and a third country. We do not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.

Ali, slip op. at 35-36, n. 28 (emphasis added). Ali therefore applies court-martial jurisdiction under Article 2(a)(10) to a non-U.S. citizen civilian only in circumstances where there is no Article III jurisdiction. The court’s opinion specifically disclaims circumstances implicating a jurisdiction-conferring statute (i.e., MEJA). But more importantly, it also disclaims all Supreme Court precedent involving application of court-martial jurisdiction to United States citizens:

Indeed, all of the cases relied upon by Ali for the constitutional limitations on congressional extension of military jurisdiction over civilians involved United States citizens tried by court-martial not in a time of war. None of these cases purported to address the issue before us, which is the constitutionality of military jurisdiction over a noncitizen tried outside of the United States during a contingency operation. Under the circumstances of this case, the concerns raised by the Supreme Court are not applicable.

Ali, slip op. at 24-25 (emphasis added). MAJ Steward’s words come to mind: “this result may be quite narrow and limited to the facts of this particular case.”

However, at the heart of Professor Vladeck’s criticism is his concern that CAAF’s opinion stands for “the proposition that the Fifth and Sixth Amendments categorically do not apply to non-citizens with no voluntary connection to the United States when they have not come within the territory of the United States and developed substantial connections with this country” (third paragraph, emphasis added). This is really the tired old refrain that citizens lose their constitutional rights when they become servicemembers. The protections of the Fifth and Sixth Amendments are routinely invoked at courts-martial, and the UCMJ is deeply rooted in these constitutional guarantees. There’s the protection against double jeopardy (Article 44), against self-incrimination (Article 31), the guarantee of a Speedy Trial (Articles 10 and 33), the right to an impartial jury (Article 41), the right to obtain witnesses and evidence (Article 46), the right to the assistance of counsel (Article 27, for the most part), and plenty of caselaw applying the Due Process Clause (i.e., United States v. Barberi), the right to notice (i.e., United States v. Fosler), and the right to confrontation (i.e., United States v. Blazier). Obviously, merely extending court-martial jurisdiction to civilians under certain circumstances does not “categorically” remove the protections of the Fifth and Sixth Amendments.

Still, Professor Vladeck is right (as he often is) to point out that there is a threshold question that is overlooked by the majority: whether Congress has the authority to expand Article 2 in this fashion. That question is discussed in Chief Judge Baker’s concurring opinion, beginning with his statement that “the essential and threshold question in this case is whether Congress possesses the authority to amend the Uniform Code of Military Justice (UCMJ) to include within its jurisdiction civilian contractors serving with or accompanying the United States Armed Forces.” Ali, Baker, C.J. concurring, slip op. at 1 (emphasis added). The Chief Judge’s opinion sets out the two competing arguments: the Government’s assertion that the Article I, Section 8, Clause 14 power “To make Rules for the Government and Regulation of the land and naval Forces” permits extension of court-martial jurisdiction to this case, and the Appellant’s assertion that Congress exceeded this Article I power when it amended the UCMJ to include civilians during contingency operations.

The Chief Judge finds Clause 14 alone insufficient to justify this extension of jurisdiction. Concurring op. at 6. But by including the war powers, he finds the exercise of court-martial jurisdiction permissible “under the particular facts of this case” for five reasons:

First, “[t]his case involves a narrow application of Article 2(a)(10), UCMJ, to an Iraqi and Canadian national serving with and accompanying the United States Armed Forces on its missions during wartime in Iraq.” Baker, C.J. op. at 11.

Second, “courts have long accepted and affirmed an appropriate exercise of court-martial jurisdiction over civilians.” Baker, C.J. op. at 11.

Third, “there is no question that the context is one in which the war power is being exercised and that Appellant’s conduct fell within the ambit of that exercise of the war powers. . . . Appellant was ‘the direct link between the squad and the Iraqi Police officers being trained. Without an interpreter, the squad could not function and could not accomplish its mission.'” Baker, C.J. op. at 12.

Fourth, “[i]f Congress could not extend court-martial jurisdiction to Appellant in this context the United States could not at one time hold Appellant responsible for his criminal offenses and provide for the military discipline and readiness of a combat unit in the field.” Baker, C.J. op. at 14-15.

Fifth, “Congress’s authority to define jurisdiction in the manner that it has is clearly strongest overseas in the case of active hostilities exemplified here.” Baker, C.J. op. at 15.

Finally, Senior Judge Effron’s concurring opinion is the most narrow approach, as he concurs in the majority’s jurisdictional analysis “only with respect to: (1) Part II.C. of the majority opinion (addressing jurisdiction from the perspective of Appellant’s status as a host-country national whose conduct was excluded from Article III coverage by statute).” Ali, Effron, S.J. concurring, slip op. at 1. His opinion concludes with this overview:

Such an assessment requires consideration of whether the exercise of jurisdiction under the legislation involves the “least possible power adequate to the end proposed.”

The Supreme Court observed in Covert that the exercise of court-martial jurisdiction over civilians raises constitutional issues of the “utmost concern.”The present case does not provide an appropriate vehicle for addressing the full range of those important issues.

Application of the standard developed in the Toth-Guagliardo line of cases calls for a carefully developed trial and appellate record sensitive to the statutory text and operational context of the MEJA-UCMJ relationship in a specific set of factual circumstances. The constitutionality of UCMJ jurisdiction over civilians other than host-country nationals is an open question, and should remain so until properly developed and briefed in a case involving parties having a direct interest in the scope of such a decision.

Effron, S.J. op. at 10-11 (citations omitted).

Ultimately, CAAF’s decision to affirm the extension of court-martial jurisdiction in this case does not say that Congress’ decision to amend Article 2(a)(10) in 2006 from applying only “in time of war” to applying ““in time of declared war or contingency operation” was a good idea. After all, Mark Twain had a saying about members of Congress, and the CAAF majority seems skeptical of the reasoning for Congress’ action, noting in a footnote:

Unfortunately there is virtually no legislative history in the Congressional Record that explains the congressional intent for including the amended language.

Ali, slip op. at 13, n. 9. But as Chief Justice Roberts recently reminded us: “It is not [the court’s] job to protect the people from the consequences of their political choices.” National Federation of Independent Business v. Sebelius, __ U.S. __, 132 S.Ct. 2566, 2579 (2012).

Case Links:
Blog Post: Army JAG Certifies to ACCA (includes unofficial links to ACCA briefs)
Blog Post: ACCA Argument
ACCA Opinion
Blog Post: ACCA Publishes Ali Opinion
Blog Post: Constitutionality of Civilian UCMJ Jurisdiction Gets CAAF Review
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Amicus brief (O’Connor & Navarre)
Amicus brief (Schnapper & Barnum)
Oral argument audio
Blog Post: Argument recap
Blog post: Argument recap redux
CAAF opinion
Blog post: Motion for reconsideration denied
Blog post: Opinion analysis

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