This case presents important questions concerning allocation of the judicial power of the United States, between Article III courts and Article I courts-martial, to try civilians for criminal offenses. Mr. Ali is the first, and only, full-fledged civilian to be subjected to trial by court-martial by the United States since at least 1970.

So begins the listing of the reasons the writ should be granted in the Petition for a Writ of Certiorari in the case of Ali v. United States. Alaa Mohammad Ali, a dual Canadian-Iraqi national accompanying U.S. forces in Iraq as a contract linguist in 2008, was convicted in June of that year 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, UCMJ. 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. Throughout this experience, Mr. Ali was a “full-fledged civilian” whose prosecution was based on the provision of Article 2, UCMJ, that extends jurisdiction to:

In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

Article 2(a)(10). Similar extensions to persons “serving with” the armed forces long-predate the UCMJ. The British Articles of War of 1765 and the American Articles of War of 1775 included similar language. But prior to 2006, Article 2(a)(10) applied only “in time of war,” and caselaw interpreted this to require a formally declared war. Congress then struck out “war” following “In time of” and inserted “declared war or a contingency operation” (Pub.L. 109-364, § 552). “Unfortunately there is virtually no legislative history in the Congressional Record that explains the congressional intent for including the amended language.” United States v. Ali, 71 M.J. 256, 262 n.9 (C.A.A.F. 2012).

But the lack of congressional explanation didn’t deter the Army from commencing the general court-martial prosecution of Mr. Ali, nor the Judge Advocate General of the Army from referring the case to the Army Court of Criminal Appeals for review under Article 69, UCMJ, nor the ACCA from affirming the conviction, nor CAAF from granting review and itself affirming the conviction. Rather, from the beginning this case looked like a deliberate effort to test the new language of Article 2: The Army could have fired Mr. Ali, but chose to prosecute him instead (for relatively-minor offenses); the case was referred to a general court-martial, guaranteeing automatic review by the JAG under Article 69(a) (who could then forward the case to the ACCA under Article 69(d)); the military judge denied Mr. Ali’s motion to dismiss on jurisdictional grounds; both the ACCA and CAAF denied trial-level petitions for extraordinary relief; and the press was involved from the beginning.

At the end of that history is Judge Erdmann’s narrowly-tailored majority opinion. He relied on the absence of an Article III alternative to court-martial prosecution of Mr. Ali (as the Military Extraterritorial Jurisdiction Act (18 U.S.C. §§ 3261-3267) does not extend to citizens of the host country), and he did “not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.” Ali, 71 M.J. at 207 n.28. He also found that Article 2(a)(10) was not unconstitutional as-applied to Mr. Ali, particularly because “whatever [constitutional] rights [Mr. Ali] had were met through the court-martial process.” Ali, 71 M.J. at 268.

Unsurprisingly, these decisions are at the heart of the petition for certiorari, and as settled as the constitutionality of trial by court-martial for a civilian might be, it could soon become very unsettled.

In the aftermath of the trial, Mr. Ali’s case made #2 on our Top 10 list for 2008. But two years later the debate over whether the military justice system can function in a combat environment (at all) took the #1 slot on our Top 10 list for 2010. Now those questions combine, as the case of Mr. Ali returns as the #7 military justice story of 2012, and as we await the input – if any – of the Supreme Court.

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