Article 12 of the UCMJ states:
No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.
The foreign nationals provision of this Article was at issue in 2014, with a pair of certified Air Force cases that asked CAAF to determine whether this provision applies to service members confined in federal facilities within the United States. Such confinement occurs under a number of pre- and post-trial scenarios, leading to situations where service members are likely to be confined with foreign nationals. The problem seemed most acute in the Air Force, particularly after the Air Force CCA held that Article 12 applies “everyplace.” United States v. Wilson, 73 M.J. 529, 533 (A.F. Ct. Crim. App. Jan. 30, 2014). Hoping to limit the Article’s application to only confinement facilities located outside the United States, the Air Force JAG certified Wilson and another case to CAAF.
But writing for a four-judge majority in both cases, Judge Stucky affirmed the Air Force CCA, holding that for Article 12 “there is no geographic limitation by its terms, so this Court will not read any such limitation into the plain language of the statute.” United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page). See also United States v. Wilson, 73 M.J. 404, 406 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page).
Chief Judge Baker dissented in both cases, with a comprehensive analysis of the legislative history of Article 12 that offered a pragmatic conclusion that the original intent of the drafters of the UCMJ was “on the one hand, to prevent the confinement of servicemembers in immediate association with enemy combatants and foreign nationals in military detention, and, on the other hand, to permit the transfer of servicemembers to federal prisons in order to facilitate their rehabilitation and promote discipline in military confinement facilities.” Wilson, 73 M.J. at 398 (Baker, C.J., dissenting).
CAAF’s resolution of McPherson and Wilson also affirmed the requirement that service members exhaust administrative remedies before seeking judicial relief for violations of Article 12. McPherson, 73 M.J. at 397. See Wilson, 73 M.J. at 406 n.2. Such remedies include raising the issue with confinement officials, complaining to the chain of command, and filing a complaint of wrongs under Article 138. See McPherson, 73 M.J. at 398.
The application of Article 12 to domestic facilities poses a significant problem for the Government, which has consolidated many local military confinement facilities into fewer regional ones, and will almost certainly continue this trend. The use of civilian facilities provides a crucial stopgap in the military’s corrections system. Unfortunately, the application of Article 12 to these civilian facilities produces undesirable results, such as holding military prisoners in solitary confinement in order to avoid any commingling with foreign nationals. See McPherson, 73 M.J. at 396. CAAF didn’t provide a clear answer for how the Government can avoid this conundrum.
CAAF’s holding that Article 12 applies without geographical limitation is our #9 Military Justice Story of 2014. But it’s likely that the court will revisit the issue of the Article’s application in the near future.