CAAFlog » Article 2(a)(10)

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]

The Las Vegas Sun is reporting that the military will not proceed with a court-martial against the civilian contractor, Justin Price, whose case we discussed here. Here’s a link to the Las Vegas Sun article.

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.

The No Man makes several appearances in this student publication: Ian W. Baldwin, Note, Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 Iowa L. Rev. 287 (2008), which is available here.

A U.S. citizen currently restricted to Ali Base in Iraq by U.S. military officials, and poised to become the first civilian U.S. citizen charged under the UCMJ in nearly four decades, has filed a habeas corpus petition demanding to be released and allowed to return home immediately. Las Vegas resident Justin M. Price requested a writ of habeas corpus or a writ of mandamus from the U.S. District Court for the District of Columbia today. The petition asserts that the United States does not have the constitutional or statutory authority to subject civilians to trial by court-martial. Here is a link to the petition.

[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]

CAAF has denied the writ appeal in Ali v. Austin, which we previously discussed here, here, and here. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It’s still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69. But barring such a move, the first civilian convicted by a U.S. court-martial since the Vietnam war will have no right to a judicial direct appeal.

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.

On the occasion of the first civilian UCMJ case to come before CAAF, I must mention the timing of the writ appeal petition in Ali v. Austin (which, I will admit, was not on my mind until JO’C mentioned it) .

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.

Ask and ye shall receive. Here is the writ appeal petition filed on 18 Sep 08 by Mr. Ali challenging UCMJ jurisdiction in his case. See our prior coverage here. Mr. Ali is challenging jurisdiction on a number of fronts. Some are expected, that Congress exceeded its authority in amending Art. 2(a)(10) and permitting his court-martial, and others are not, arguing that because no implementing regulations are in place the Court does not have jurisdiction. I’ll post more substantive analysis later. Enjoy!

It appears the former civilian contractor that pled guilty to UCMJ charges and received a sub-jurisdictional sentence, as covered on CAAFlog extensively, including here and here, has filed a writ appeal. From the September 18, 2008 Daily Journal:

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?