Full disclosure, I am an amici (or at least we’ve moved to be amici) in the case as part of the long-windedly titled, “Brief of Amici Curiae John F. O’Connor, Michael J. Navarre, Air Force Appellate Defense Division, and Navy-Marine Corps Appellate Defense Division.”  Our brief, which borrows from the lead amici’s law review article on the same topic, is available here.  

Amici make among other arguments the intial argument that the exercise of court-martial jurisdiction over Mr. Ali is unconstitutional because court-martial jurisdiciton is not the least possible power needed to maintain good order and discipline among active duty troops.  And the amici brief offers CAAF an alternative to finding Art. 2(a)(10), UCMJ unconstitutional by finding that Mr. Ali was not serving “in the field” at the time of his court-martial, as required by  a narrow reading Article 2(a)(10) because the historical understanding of “in the field” is limited to circumstances where it is logistically impractical to turn a civilian over to civilian authorities.

Review is granted in the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Briefs will be filed under Rule 25 on Issues I and II only.

We’ll follow-up with links to briefs and more information when available. ACCA decision available here, prior coverage here and here to name a few.  H/t DHS

As noted in Reid v. Covert, “the extraordinary circumstances present in an area of actual fighting havebeen considered sufficient to permit punishment of some civilians in that area by military courts under military rules.” Covert, 354 U.S. at 33. “In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.” Id. This recognition by the Supreme Court of the historical use of military courts to try civilians in areas of actual fighting, coupled with the recognition of the broad authority of military commanders on the battlefront would seem to authorize, or at least not prohibit, the exercise of military jurisdiction over appellant by the commander of the United States forces in Iraq.

More analysis later.

UPDATE: Mark Sherman, one of AP’s SCOTUS reporters, has the first hearing coverage here. One confusing statement in the report. We’ll see if we can help them out.

UPDATE 2:  Here is NIMJ Executive Director Michelle Lindo McCluer’s synopsis of the arguments.

WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

Oral argument is scheduled for 24 May 2011 at 1000.

I believe, if my sources are correct, that this is United States v. Mohammad Allaa Ali, the first and only civilian court-martial under the amended Art. 2(a)(10), UCMJ.  We discussed here the possibility of the Army JAG sending the Art. 69 appeal to ACCA, but thought it was a long shot.  Well I guess I’ll be a monkey’s uncle because it has come to pass.  Anyone with the briefs on hand, we’d appreciate a copy.  Send to noman@caaflog.com.

UPDATE:  And how did I miss this, “On March 31, 2010, Army TJAG certified Ali court-martial to Army Court of Criminal Appeals on whether court-martial had jurisdiction under Article 2(a)(10) and whether court-martial had subject-matter jurisdiction over the offenses.” And the government brief, now here, and defense brief, now here.

H/t MMM

First, . . . that Congress’s constitutional power to regulate the land and naval forces seemingly carried with it a power to court-martial only actual servicemembers.  Second, the constitutional preference for civilian justice over military justice required that any court-martial jurisdiction be confined to “the least possible power adequate to the end proposed.”  Third, in assessing whether a court-martial was the necessary forum, it would not suffice to argue that if a court-martial lacked jurisdiction there would be no recourse· against the accused. If Congress could create federal criminal jurisdiction over an offense, its failure to do so would not strengthen the case for court-martial jurisdiction.

After an extensive review of historical courts-martial practice and SCOTUS precedent, the article finds that Art. 2(a)(10) likely does not pass the mustard, explaining that:

[E]xisting judicial precedent creates a significant, and perhaps insurmountable, obstacle to the enforcement of Article 2(a)(10). Moreover, even if a court were to cast aside existing precedent as dicta, or the Supreme Court repudiated existing case law in this area, there is little in the historical practice or in the historical understanding of Congress’s powers to support the constitutionality of Article 2(a)(10) in the context of modern warfare.

While I agree that as currently drafted Art. 2(a)(10) would face significant constitutional hurdles if the power were exercised today, I don’t agree with JO’C that ”the circumstances that historically have been found sufficient to permit the court-martial of civilians largely do not exist today, and might never exist again.” Rather, I think that based on the current state of warfare and those points that the SCOTUS and military law historians agree upon, there is a small set of circumstances where Art. 2(a)(10) would both (a) serve a purpose in maintaining good order and discipline in a military force in the field and (b) satisfy other historic conditions for exercising military jurisdiction over civilians.  Those are . . . let’s see if Army Lawyer is amenable to a rebuttal article.

Laura A. Dickinson, Military Lawyers, Private Contractors, and the Problem of International Law Compliance, 42 N.Y.U. J. Int’l L. & Pol. 355 (2010)

Won Kidane, The Status of Private Military Contractors Under International Humanitarian Law, 38 Denv. J. In’l L. & Pol’y 361 (2010)

Katherin J. Chapman, Note, The Untouchables:  Private Military Contractors’ Criminal Accountability Under the UCMJ, 63 Vand. L. Rev. 1047 (2010)

Matthew Dahl, “Runaway Train”:  Controlling Crimes Committed by Private Contractors Through Appliation of the Uniform Code of Military Justice, 14 Barry L. Rev. 55 (2010)

Adam Ebrahim, Note, Going to War with the Army You Can Afford:  The United States, International Law, and the Private Military Industry, 28 B.U. Int’l L.J. 181 (2010)

Andres Healy, Note, The Constitutionality of Amended 10 U.S.C. § 802(a)(10):  Does the Military Need a Formal Invitation to Reign in “Cowboy” Civilian Contractors?, 62 Fla. L. Rev. 519 (2010)

John S. Kemp, Note, Private Millitary Firms and Responses to Their Accountability Gap, 32 Wash. U. J.L. & Pol’y 489 (2010)

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.