In a published opinion in United States v. Escobar, __ M.J. __, No. 38343 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to slip op.), the Air Force Court of Criminal Appeals holds that the provisions of Article 12 (prohibiting confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces) and the provisions of Article 13 (prohibiting punishment before trial and conditions of arrest or pretrial confinement that are more rigorous than necessary) do not apply to situations where a foreign sovereign confines an American service member for violations of that other sovereign’s laws.

The appellant was a Staff Sergeant assigned to Camp Darby, Italy, and suspected of child-exploitation offenses by the Italian Sigonella Carabinieri. He was placed into pretrial confinement by Italian authorities, where he remained for 85 days. American military authorities subsequently obtained jurisdiction over the appellant and he was transferred to military pretrial confinement.

The appellant was eventually convicted in accordance with his pleas of guilty, by a general court-martial composed of a military judge alone, of two specifications of aggravated sexual contact with a child who was under 12 years of age, two specifications of indecent liberties with a child, one specification of indecent conduct with a child, one specification of producing child pornography, and one specification of possessing child pornography, in violation of Articles 120 and 134. He was sentenced to confinement for 22 years, total forfeitures, reduction to E-1, and a dishonorable discharge. A pretrial agreement limited the approved confinement to 20 years.

At trial the appellant received administrative credit against the sentence for all time spent in pretrial confinement including the 85 days in Italian custody. But the appellant sought additional credit:

At trial, the appellant contended that he was entitled to additional credit for the time he spent in the Italian confinement system. The appellant asserted that because he was in immediate association with foreign nationals—namely Italians—while in Italian confinement, this constituted a violation of Article 12, UCMJ. He also argued that his conditions of confinement while in Italian confinement were unduly harsh, entitling him to additional credit for violations of Article 13, UCMJ.

Slip op. at 3-4. The judge denied the appellant’s motion (though did grant additional credit for Government’s failure to follow its own regulations related to service members held in confinement by other nations).

After considering the text and legislative history of the articles, the CCA affirms:

The language of Articles 12 and 13 is not plain and unambiguous on whether they apply to a military member detained by a separate sovereign pending criminal prosecution by that sovereign where such confinement is not at the behest of military authorities. Both articles are written in the passive voice, so it is not clear from the plain language who is prohibited from taking action in contravention of these articles.7 Article 12, UCMJ, begins: “No member of the armed forces may be placed in confinement in immediate association with . . . .” Article 13, UCMJ, similarly begins: “No person, while being held for trial, may be subjected . . . .”

Unclear language can become clear, however, if the congressional intent behind the legislation is reviewed. Wise, 64 M.J. at 475; United States v. Disney, 62 M.J. 46, 51 (C.A.A.F. 2005) (looking, inter alia, to legislative history to define the purpose of a statute criminalizing the certain activities with explosive materials); United States v. Reeves, 62 M.J. 88, 93 (C.A.A.F. 2005) (invoking legislative history to understand the congressional purpose behind the Child Pornography Prevention Act of 1996); Loving v. United States, 62 M.J. 235, 241–42 (C.A.A.F. 2005) (relying on legislative history to glean the congressional intent behind Article 76, UCMJ, 10 U.S.C. § 876).

Having looked at the legislative history of Article 12, UCMJ, we conclude this statutory provision was not intended to apply to situations where a foreign sovereign is imprisoning a military member for violations of that sovereign’s laws.

Slip op. at 5.

Likewise the legislative history for Article 13, UCMJ, includes the following explanation:

The provision as to the rigor of restraint is derived from present Army and Navy practice. The article also makes clear that a person being held for trial may be punished for offenses not warranting trial by court-martial.

House Subcommittee Hearings, at 916.

Thus, the legislative history clarifies that the concern of Congress in enacting both Articles 12 and 13, UCMJ, was about actions taken by military authorities, not actions taken by separate sovereigns.

Slip op. at 6-7.

The AFCCA notes that prior unpublished opinions from itself and from the NMCCA reached the same conclusion with respect to Article 13. Slip op. at 7, (citing United States v. Suttle, NMCCA 201100030 (N.M. Ct. Crim. App. Oct. 31, 2011)). Slip op. at 7 n.8 (citing United States v. Marcuson, ACM 33537 (A.F. Ct. Crim. App. Feb. 29, 2000), aff’d, 54 M.J. 363 (C.A.A.F. 2000) (mem.)).

The court summarizes its conclusion with language reminiscent of its Article 12 jurisprudence challenged last term by the Judge Advocate General of the Air Force in the certified cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page):

In sum, Article 12, UCMJ, and Article 13, UCMJ, apply everywhere to the actions of military authorities who confine those subject to the Code pursuant to a completed or pending court-martial. The provisions do not provide protection to servicemembers who are confined by a separate sovereign pending criminal prosecution by that sovereign, where such confinement is not at the behest of military authorities.

Slip op. at 8.

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