President Hamid Karzai issued a decree on Tuesday ordering the disbanding of private security forces in Afghanistan by the end of the year.

The decree, however, provides an exception for private security firms working inside of compounds used by international groups, embassies, businesses and nongovernmental organizations.  The Associated Press reported. Such guards “will have to stay inside of the organization’s compound and will have to be registered with the Interior Ministry,” the decree says, according to The A.P.

Even so, the ban would appear to constitute a significant change in the security makeup of the country. There are at least 24,000 private armed guards working for 52 security companies registered with the country, some foreign but most Afghan, who escort convoys of supply trucks across dangerous roads to NATO military bases, protect government and military buildings, and provide protection for political leaders and others.

It would seem the trouble with local companies is spilling over to US companies and civilians in Afghanistan

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.

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

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).

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.

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.

[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]

Last Friday, counsel for the civilian contractor — including our very own No Man — filed this habeas petition on his behalf in the U.S. District Court for the District of Columbia. According to the Sun, military officials in Iraq “are making arrangements for Price to return home.” If the Sun is correct, then the petition, which is pending before Judge Sullivan, will become moot.

[Disclaimer: I am one of the counsel for Mr. Price with CAAFlog commenter John O'Connor--not sur ehow I missed this, but the original post forgot to mention our colleague Geoff Hengerer, who is also on the brief, but not part of the CAAFlog commentariat]

The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years’ annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won’t qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?

The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I’m right about that, perhaps the next Congress will correct this oversight.

The writ appeal, which attempts to invoke CAAF’s All Writs Act jurisdiction over a case that is pending Art. 69 review, comes while the Denedo cert. petition by the U.S. Solicitor General makes its way to SCOTUS for a fall conference—see our prior coverage here, here, and here. As our loyal readers both know, the question presented in Denedo is essentially whether CAAF has the power to review a writ, alleging ineffective assistance of counsel at trial, filed by a former service member after his court-martial has become final. In Denedo, there is no UCMJ provision addressing the power that CAAF asserted. Rather, in Denedo, CAAF premised its assertion of jurisdiction on the All Writs Act.

CAAF, in a 3-2 decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), recently held that the government could take an interlocutory appeal to CAAF when the the Gov’t lost at CCA. In Lopez de Victoria, the statute at issue (Art. 62, UCMJ) addressed only CCA jurisdiction and was silent on CAAF jurisdiction.

Both CAAF decisions, Denedo and Lopez de Victoria, have been criticized by the Solicitor General for their expansion of CAAF jurisdiction, as we noted here, though only Denedo is before SCOTUS on petition for certiorari.

The argument for CAAF jurisdiction in Ali, it could be argued, is even weaker than the argument for CAAF jurisdiction in Denedo and Lopez de Victoria. At least in Lopez de Victoria the statute (Art. 62, UCMJ) expressly mentioned CCA’s authority to review a government appeal. In Denedo the fact that no statute addressed the particular power CAAF was asserting added some credibility to the All Writs Act argument. However, in Ali, the statute at issue (Art. 69, UCMJ), in fact, expressly states that CCA and CAAF do not have jurisdiction over a case that has resulted in a sub-jurisdictional sentence (i.e. less than one year of confinement awarded in Mr. Ali’s case). Of course, the argument could also be made that the case for jurisdiction is the same as in Denedo because no statute specifically addresses the type of appeal at issue in Ali, a writ of habeas corpus seeking limited review of jurisdictional issues in the case.

My point in all of this is not to vote for or against CAAF jurisdiction in Ali, but, rather, seeing as how the Ali brief only devoted a page (in Courier-12 font) to the jurisdictional issue, I wonder if CAAF will order supplemental briefing to address this issue and the Golden CAAF in the room, Clinton v. Goldsmith? And what about the legislative history of the 1989 changes to Art. 69, does it suggest military appellate court intervention in the process? Ali’s brief cited McPhail, a 1976 CMA case that held CMA had jurisdiction over sub-jurisdictional cases under the All Writs Act. ACCA has more recently addressed the Art. 69 writ issue in Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998), but did not address the legislative history. The legislative history of the 1989 amendments to Art. 69, UCMJ seem to be more in line with Clinton v. Goldsmith than McPhail. See Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (noting congressional concern over extension of jurisdiction under the All Writs Act in cases like McPhail). How does the logic from Dew and McPhail fare post-Clinton v. Goldsmith? How do any of these cases fare post-Denedo if SCOTUS grants cert.? All issues worth a few more paragraphs.

As far as substantive issues, I throw this out to our readers: could CAAF, if they address the merits of Ali’s first argument, resolve the case on narrow factual grounds? The opinion might look something like: (1) we accept Col. Winthrop’s position that a civilian cannot constitutionally be made subject to UCMJ jurisdiction in time of peace (a position nominally supported by Reid v. Covert, 354 U.S. 1 (1957) and Kinsella v. Singleton, 361 U.S. 264 (1960)); (2) however, wars of today are not black and white; there is war, there is peace, and there is a whole lot in between that sure seems like war; but (3) where ever that line may fall between war and peace, what was going on in Iraq at the time of Mr. Ali’s detention and court-martial was not war.

Just thoughts. Talk amongst yourselves.

Misc. No. 09-8001/AR. Mohammad Allaa ALI, Appellant v. Lieutenant General Floyd Austin, Convening Authority, the United States Army & the United States, Appellees. CCA 20080678. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

Again, I think we scooped the world. Would be a greater scoop if we had the pleadings, anyone, throw me a bone here?

The press release observed, “He will continue to be afforded all the post-trial and appellate rights provided to servicemembers.” But that might not mean much. Mr. Ali’s sentence was confinement for five months. Such a sentence doesn’t bring his conviction within the relevant Court of Criminal Appeals’ Article 66 jurisdiction. So absent referral of his case to a CCA by the relevant Judge Advocate General, Mr. Ali’s first-ever conviction under the recent expansion of Article 2 will never be reviewed by any court.

The bottom line recommendation of the committee was to amend Art. 2(a)(10) to include civilians under the UCMJ in times of declared contingency operations. Where have I seen that?

But, the devil is in the details. The Committee had the following to say about which contingency operations and personnel should fall within their proposed amendment:

The committee believes that creation of a “contingency operation” by operation of law under section 101(a) (13) (B) is not sufficiently precise to limit application of new Article 2(a) (13) to the areas affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee’s recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article 2(a) (13). This will permit the Secretary the flexibility to include civilians participating in the contingency operation in the place that is the objective of the contingency operation, and also those directly supporting the contingency operation in other nearby places. However, this provision will also protect civilians at installations far removed from the site of the contingency operation, even though their work may have some connection to that operation.

In case you were wondering, the current conflicts in Iraq and Afghanistan fall under 10 U.S.C. 101(a)(13)(B). See Major Karl Kuhn, Field Manual (FM) 3-100.21, Contractors on the Battlefield, Supersedes FM 100-21, Army Lawyer, at 137 (Jan. 2004). Interestingly, one rationale for this distinction was taken from an article by Major Susan Gibson titled “Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem.” The Committee wrote:

Major Gibson emphasizes that the exercise of military jurisdiction in [only 10 USC 101(a)(13)(A) contingency operations] would be limited in scope and time: few civilians would be covered and contingency operations are, by definition, of limited duration.

The Memo contains lots of other great perspectives about contractors on the battlefield. I’ll post anything else that I find of interest. How did I miss this before?

BAGHDAD (Reuters) – The U.S. military held a pre-trial hearing on Tuesday for an interpreter accused of a stabbing in Iraq, the first attempt to apply military law to civilian contractors working for U.S. forces in Iraq.

… [Ali's] pre-trial hearing took place in a courtroom at a U.S. base in Baghdad with witnesses who were unable to be present testifying by video link, the military said in a statement.