The Code Committee’s 2009 Annual report has some interesting data on civilian cases–I’ll  leave the rest to CAAFlog.  See CAAFlog’s post here and report  here.

First, the Report only mentions one of three cases that DoD defended relating to Art. 2(a)(10) civilian UCMJ matters in the covered period in the section “highlight[ing]” the types of cases the Army handles.  As we reported, the three cases we know about last year were Price v. Gates (see here), Adolph v. Gates (see here and here) and Breda v. Gates (see here). 

As we noted here, the Price v. Gates case ended in the dismissal of the habeas petition as the result of Mr. Price not being charged and being allowed to return home.   (Disclaimer:  I was one of multiple counsel on the case)

The summary of the the one case covered Adolph v. Gates begins, “In Adolph v. United States, the U.S. District Court for the District of Columbia dismissed Mr. Adolph’s habeas petition challenging his pretrial confinement.”  About midway through the paragraph you discover that “[t]he district court did not reach the merits of the issue because Mr. Adolph voluntarily dismissed his petition as moot when the Army transferred him to the custody of the U.S. Marshals.”   The summary of the petition states that Adolph’s petition argued “that the 2006 amendment to Article 2(a)(10) extending UCMJ jurisdiction over civilians accompanying the force during a contingency operation was unconstitutional because Congress can only extend UCMJ jurisdiction over civilians in a time of declared war.”  Mr. Adolph (Disclaimer:  I was one of multiple counsel on the case) also mentioned something about the constitutionality of exerting Art. 2(a)(10) authority over him when he was in Kuwait.  But, I can see how space limitations may have led that summary to be shorter.  The result of the case was a MEJA conviction and a sentence of “two years probation and 104 hours of community service.”  I’ll let you judge whether his choice to contest UCMJ jurisdiction was a good one, but me thinks a court-martial would not have given him probation.

In the third case, Mr. Breda was ultimately charged under MEJA and received two years confinement for abusive sexual contact.  See USAO press release here.

The Foreign Criminal Jurisdiction cases report was also interesting.  First, the report stated, “During this reporting period, foreign authorities tried a total of 451 cases involving U.S. personnel. Seven trials, or 1.6%, resulted in acquittals.”  When you look at the sentences for those cases, I doubt these were more than mainly bar fights and traffic offenses. So that could be a dubious statistic, but interesting compared to CAAFlog’s number on court-martial acquittal rates below. 

Second, the jurisdictional waiver statistics are also interesting:

[F]oreign authorities released to U.S. authorities four of the 72 exclusive foreign jurisdiction cases involving military personnel. In concurrent jurisdiction cases in which the foreign countries had the authority to assert primary jurisdiction, U.S. military authorities were able to obtain waivers of the exercise of this jurisdiction in 1906 of the 2046 cases. Overall, the U.S. obtained waivers in 93.2% of all exclusive and concurrent jurisdiction cases. This figure reflects an increase of 5.5% in obtaining waivers compared to the previous reporting period. . . .

[In roughly FY07] Foreign authorities released 50 of [880 civilian] cases (5.7% of the total of that reporting period) to U.S. military authorities for administrative actions or some other form of disposition. In this reporting period [roughly FY08], civilian employees and dependents were involved in 864 offenses. The foreign authorities released 26 of these cases (3.0% of the current total of this reporting period). This figure represents a decrease of 2.7% in obtaining releases of foreign criminal jurisdiction over civilian employees and dependents. [No Man  Note:  That's actually a 47.37% change, but 2.7% difference]

Interesting that the waiver stats for military and civilians are going in opposite directions.  I wonder if any perception about US justice for these civilians influenced the willingness of countries to release civilians to the US pursuant to SOFAs or other agreements?  And it doesn’t appear that our partner nations have all that dim a view of MilJus as the waiver rate for uniformed personnel went up.

I became a judge advocate 22 years ago.  In that time, I don’t think any court-martial issue has sparked as much commentary in civilian law reviews as the expansion of court-martial jurisdiction to cover civilians accompanying the military in the field in contingency areas.  Here are two more articles on the subject:

Major Christopher S. Morgan & Major Shawn D. McKelvy, Essay: The “Ethical” Case for Trying Civilian Contractors Under the Uniform Code of Military Justice, 50 So. Tex. L. Rev. 859 (2009).

Steven P. Cullen, Out of Reach:  Improving the System to Deter and Address Criminal Acts Committed by Contractor Employees Accompanying Armed Forces Overseas, 38 Pub. Cont. L.J. 509 (2009).

Colonel Peter Masterton, whose scholarship I greatly respect, has published an article on Article 2(a)(10):

Colonel R. Peter Masterton, Court-Martial Jurisdiction Over Civilians in Contingency Operations: A New Twist, 35 N.E. J. on Crim. & Civ. Con. 65 (2009).

Our horde of Article 2(a)(10) aficionados will want to look at this law review article:

Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice (“UCMJ”) over Civilians and the Implications of International Human Rights Law, 17 Cardozo J. Int’l & Comp. L. 59 (2009).

James Adolph, the civilian contractor who had been held in pretrial confinement in Kuwait, apparently with an eye toward trial by court-martial under Article 2(a)(10), voluntarily dismissed his habeas petition today. A copy of his voluntary dismissal is available here. It explains that Mr. Adolph was returned to the United States yesterday and concludes:

While Mr. Adolph received this relief only after having been unconstitutionally confined by military authorities for 55 days with no indictment or preferral of charges, without the bail hearing to which civilians are entitled under the United States Constitution, and only after having filed a petition for a writ of habeas corpus, the fact remains that Mr. Adolph has now obtained all the relief he sought in his Petition and Amended Petition. Accordingly, Mr. Adolph hereby dismisses his Amended Petition for Writ of Habeas Corpus without prejudice.

We previously discussed the habeas petition in the civilian contractor case of Adolph v. Gates, No. 1:09-CV-00135 (EGS). Today DOJ filed this motion for extension of time in the habeas case noting that Adolph has been indicted under MEJA in the United States District Court for the Western District of Oklahoma for the same alleged offenses for which DOD was holding him in Kuwait. As a result, Secretary Gates has “withheld court-martial proceedings against Petitioner.” U.S. Marshals are expected to take Adolph from Kuwait to Oklahoma no later than 2 March. “In light of these developments,” DOJ observes, “this litigation may soon be resolved without the need for judicial action on Petitioner’s Amended Petition.”

We previously noted the Breda v. Gates habeas case, which challenges a civilian contractor’s susceptibility to court-martial jurisdiction. On 5 February, Judge Huvelle issued a show cause order in the case. Today, DOJ moved to dismiss the case as moot. DOJ reports that it lifted travel restrictions on the contractor and that he has now flown home to Texas. I’ve posted a copy of DOJ’s motion here.

Greetings from the Saturn of Glen Burnie Service Department. (I know what you’re thinking: Charleston one day, Glen Burnie the next; is there no end to the excitement? No, no there’s not.)

Yesterday Judge Emmet G. Sullivan of the United States District Court for the District of Columbia issued this show cause order in Adolph v. Gates, Civ. No. 09-135, a habeas action on behalf of a civilian confined in Kuwait with a view to court-martial proceedings. The United States’ filing is due 10 days after DOJ is served with Judge Sullivan’s order.

We previously discussed the habeas filing here. The petition itself is available here.

Here is a link to the habeas corpus petition of a civilian contractor, David Breda, filed as a result of confinement on UCMJ charges. According to the petition, the format and language of which seem vaguely familiar, Breda is in confinement at Al Asad Air Base, Iraq. Breda, a “full-fledged U.S. civilian,” again that phrase seems vaguely familiar, is being held in pretrial restriction in lieu of arrest pending charges.

Here is a link to a Petition for Writ of Habeas Corpus in the case of James Adolph v. Dr. Robert M. Gates (SecDef, for all those asleep for the last year). The case was filed today in the United States District Court for the District of Columbia and requests release of Mr. Adolph from military pre-trial confinement based on the unconstitutional application of the UCMJ to a civilian working with US forces in Kuwait.

[Disclaimer: I am one of the counsel for Mr. Adolph with lead counsel, CAAFlog commenter John O'Connor. Our colleagues Geoff Hengerer and Sarah Gordon joined us in writing the brief]