Thinking some more about the certification in McPherson, I wandered over to the AFCCA’s website where I found a recently published opinion in United States v. Wilson, No. ACM 3789, 73 M.J. 529 (A.F.Ct.Crim.App. Jan. 30, 2014) (link to slip op.). Last July, CAAF remanded Wilson for consideration of a single issue:
WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES; AND, WHETHER THE RECORD IN THIS CASE PERMITS SUCH A CONCLUSION TO BE DRAWN WITHOUT THE NECESSITY OF FURTHER FACT-FINDING.
On January 30, 2014, the AFCCA answered this question in the affirmative, finding that:
In light of the plain meaning of Article 12, UCMJ, which contains no geographical limitation whatsoever, and made further clear by its legislative history, we conclude that Article 12, UCMJ, applies to members of the armed forces “everyplace,” to include confinement facilities within the continental United States.
Slip op. at 5. The CCA denied the appellant relief on much the same grounds as in McPherson:
The appellant never sought administrative relief or even alleged that he was ever in immediate association with any foreign national. His complaints were instead directed towards the fact he was placed in solitary confinement. The appellant has not raised an allegation of a violation of Article 12, UCMJ, in any of his appellate pleadings before this court. Relief is not warranted for the following reasons: his failure to exhaust administrative remedies, the lack of unusual or egregious circumstances, and his lack of a request for relief for any alleged Article 12, UCMJ, violation.
Slip op. at 7-8 (see also footnote 3: “At oral argument, appellant’s counsel specifically rejected the argument that Article 12, UCMJ, 10 U.S.C. § 812, was violated.”).
The very next day, TJAG certified McPherson with an issue that – practically speaking – is a challenge to the CCA’s decision in Wilson. Fast work…