CAAFlog » MEJA

Here is a link to the new Civilian Extraterritorial Jurisdiction Act (CEJA) Bill (S.2598/H.R.5096) introduced last week by Congressman David Price (D-N.C.) and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)—with a number of Senate co-sponsors.   The bill has been referred to the House and Senate Judiciary committees.

The new bill looks a lot like the prior CEJA introduction, S.2979 (2010) (prior coverage here and here), but there are very interesting changes in the new bill that are worthy of discussion. I’ve posted a quick and dirty blackline comparing the text of S.2598 to S.2979, here.  More on the changes later.

Last December, in a Worth the Read post, I said:

Judge McMahon has issued a decision in United States v. Santiago, 13 Cr. 039(CM) (S.D.N.Y. Dec. 19, 2013), in the Southern Dist. of N.Y.

Today Reuters reports:

A former Marine corporal was convicted on Wednesday of lying to military investigators about an accidental 2008 shooting in Iraq that partially blinded a Navy corpsman.

A federal jury in New York rendered a split verdict, finding Wilfredo Santiago guilty of one count of making false statements but acquitting him of a second.

The unusual case wound its way from a U.S. base in Iraq to a civilian courtroom in Manhattan more than six years after the shooting, following a series of bureaucratic delays within the military that drew scathing criticism from the trial judge, Colleen McMahon.

Here is WaPo coverage fo the verdict today. The jury now deliberates on the death penalty.

CNN reports that former Army PFC Steven D. Green, the soldier at the center of the 2006 rape and murder case originating in Mahmoudiya, Iraq, has committed suicide in a federal prison in Arizona.

Green was convicted of the rape and murder of Abeer Qassim al-Janabi, a 14-year-old Iraqi girl.  According to the prosecution, Green, along with several of his fellow soldiers, planned the attack days in advance. While the others were raping Abeer, Green murdered three members of the girl’s family: her father, Qasim Hamza Raheem; mother, Fakhriyah Taha Muhsin; and six-year-old sister, Hadeel Qasim Hamza. He then raped Abeer and killed her. The attack was later cited by Iraqi insurgents as the basis for an attack on an Army outpost in which one soldier, SPC David Babineau, was killed, and two others, PFCs Thomas Lowell Tucker and Kristian Menchaca, were captured, tortured, and murdered.

Green’s involvement in the Mahmoudiya killings surfaced after he had already been discharged by the Army. He was charged under the Military Extraterritorial Jurisdiction Act, and convicted in 2009.  The federal jury was unable to decide whether to invoke the death penalty, and Green was sentenced to life in prison.  In a Daily Mail interview following his conviction, he was quoted as saying he “didn’t think of Iraqis as humans.”

Three other soldiers were convicted of rape and murder and were sentenced by courts-martial to confinement ranging from 90 to 110 years.  Two more soldiers were convicted of obstruction of justice in an attempt to cover up the crimes, and received lesser sentences.

According to CNN, Green hanged himself on Thursday, and died two days later.

The Green case was one of our Top-10 stories for 2009.  Additional CAAFlog coverage can be found here, here, here, and here.

I’ve covered every opinion in CAAF’s 2011 term except one: United States v. Ali, 71 M.J. 256, No. 12-0008/AR (C.A.A.F. 2012) (CAAFlog case page) (link to slip op.). The case involved a dual Canadian/Iraqi citizen who was a civilian contractor working for U.S. forces as an interpreter in Iraq in 2008. In February of that year, he was involved in verbal and physical altercations with another linguist. He was subsequently placed into pretrial restriction, then pretrial confinement by U.S. Army authorities. He was charged with violations of the UCMJ, and was eventually convicted by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134. He was sentenced to confinement for five months, but pursuant to the pretrial agreement only a sentence of time served (115 days) was approved by the convening authority.

CAAF granted review to determine if jurisdiction existed under Article 2(a)(10) to try Ali by court-martial, and if so, then to decide the constitutionality of such an exercise of jurisdiction. Article 2(a)(10) (10 U.S.C. § 802(a)(10)) extends court-martial jurisdiction to: “In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.” In the penultimate opinion of the term, CAAF ruled unanimously that Ali was subject to a constitutional exercise of court-martial jurisdiction. Judge Erdmann wrote for the court, with Chief Judge Baker and Senior Judge Effron both writing separate concurring opinions.

The opinion was analyzed by MAJ Jeremy Steward on 31(b)log in early August. He observed that CAAF’s finding of a constitutional exercise of jurisdiction “may be quite narrow and limited to the facts of this particular case.” Additionally, Professor Steve Vladeck analyzed the opinion at Lawfare, beginning his analysis with this broadside:

The CAAF’s nominal unanimity as to the result belies the profound flaws with Judge Erdmann’s majority opinion–which, among other things, is yet another example of some court of appeals judges refusing to take the Supreme Court’s decision in Boumediene seriously, embracing instead extreme arguments that not even the Executive Branch has advanced. The far more analytically coherent and defensible justifications for the result can be found in the concurring opinions authored by Chief Judge Baker and Judge Effron—opinions that nevertheless raise some troubling questions of their own.

Professor Vladeck particularly attacks the majority for “unjustifiably discount[ing] Ali’s one very important voluntary connection to the United States–his employment by a U.S. contractor” in determining that Ali is not protected from trial by court-martial by the Fifth and Sixth Amendments. This attack is based on the fact that such employment has formed the basis for prosecution of a foreign national for an offense against another foreign national in U.S. Article III courts, under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §§ 3261-3267). Since CAAF’s opinion in Ali (and Professor Vladeck’s analysis), the Fourth Circuit upheld the MEJA prosecution of a foreign national for an offense against another foreign national based on his status as a military contract employee. United States v. Brehm, __ F.3d __, No. 11-4755 (4th Cir. Aug. 10, 2012).

Using such a connection to affirm an Article III prosecution under MEJA and a court-martial prosecution under Article 2(a)(10) does appear facially inconsistent, but there’s an important distinction between Ali and Brehm that Professor Vladeck overlooks: the fact the MEJA doesn’t apply to citizens of of the host country; a fact key to Judge Erdmann’s opinion:

Leaving aside the fact that MEJA expressly provides for concurrent jurisdiction with courts-martial, the problem this argument presents is that no Article III alternative exists under the facts of this case. While MEJA extends to civilians “employed by or accompanying the Armed Forces,” 18 U.S.C. § 3261(a) (2006), which likely includes non-United States citizens, it does not extend to citizens of the host nation. See 18 U.S.C. § 3267(1)(C), (2)(C) (excepting all “national[s] of or [those] ordinarily resident in the host nation”). Thus, there is no available alternative forum here, and Congress used the “least possible power adequate” to try Ali in this case.”

Ali, slip op. at 34-35 (internal citation omitted) (emphasis added). Moreover, in a footnote to the above paragraph, Judge Erdmann wrote:

 In regard to the issue raised in Senior Judge Effron’s separate opinion, Ali, __ M.J. at __ (7) (Effron, S.J., concurring in part and in the result), our holding is limited to the narrow circumstances presented by this case, namely the exercise of court-martial jurisdiction over a dual citizen of the host country and a third country. We do not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.

Ali, slip op. at 35-36, n. 28 (emphasis added). Ali therefore applies court-martial jurisdiction under Article 2(a)(10) to a non-U.S. citizen civilian only in circumstances where there is no Article III jurisdiction. The court’s opinion specifically disclaims circumstances implicating a jurisdiction-conferring statute (i.e., MEJA). But more importantly, it also disclaims all Supreme Court precedent involving application of court-martial jurisdiction to United States citizens:

Indeed, all of the cases relied upon by Ali for the constitutional limitations on congressional extension of military jurisdiction over civilians involved United States citizens tried by court-martial not in a time of war. None of these cases purported to address the issue before us, which is the constitutionality of military jurisdiction over a noncitizen tried outside of the United States during a contingency operation. Under the circumstances of this case, the concerns raised by the Supreme Court are not applicable.

Ali, slip op. at 24-25 (emphasis added). MAJ Steward’s words come to mind: “this result may be quite narrow and limited to the facts of this particular case.”

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Here is a piece from DVIDS about the 2011 US Japan SOFA clarification. The article has this to say about the new rules regarding civilians:

Under the Military Extraterritorial Jurisdiction Act, SOFA civilians who commit certain crimes overseas can be extradited to the states to be tried in their local U.S. district court.

“The problem with that is it is hard to work,” said [Capt. Jonathan P. Stevens,trial counsel with Combat Logistics Regiment 37, 3d Marine Logistics Group,III MEF]. “All the witnesses and evidence are here, and you have to try to move it all to the states. Sometimes we’re unable to do that.” Additionally, a MEJA prosecution is reserved for serious felonies, said Stevens.

Serious felonies?  Really, one year or more in prison is just about every non-traffic offense in Title 18, no?

Update: Here is a link to the original article on a .mil website.

Seems like this is the new frontier of MEJA, catching child pornography viewers/distributors working for the USG overseas.  Here is the DOJ press release, a couple weeks dated, found it as we were researching our amici brief and forgot to post it until an email from a friend of CAAFlog reminded me.  Have we seen the end of MEJA?  This offense occurred in 2007.

Yesterday the Supremes denied cert in United States v. Green, 654 F.3d 637 (6th Cir. 2011), a MEJA case arising from the notorious Mahmoudiyah rapes and murders.

The Sixth Circuit yesterday, in a published opinion, affirmed the conviction of PFC Steven Green under MEJA, here.  The Court rejected Green’s argument that he had not been through the clearing process for discharge and thus was still subject to UCMJ jurisdiction and not MEJA.  The Court adopted CAAF’s standard for determining when a discharge is complete from United States v. King, 27 M.J. 327 (C.M.A. 1989) and United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), and thus found the District Court applied the wrong standard.  The Court went on to find, however, that Green had failed to prove he was not discharged: 

Green contends that his discharge was invalid because it failed to comply with Army Regulations 635-10, 635-19, and 635-200, which required the Army to: (1) collect his identification card; (2) conduct a departure ceremony; (3) advise him to apply for compensation; and (4) provide him with formal counseling. However, Green has cited no authority holding that these regulations are essential parts of the clearing process such that strict compliance is necessary to effectuate a valid discharge. These regulations involve ceremonies and briefings intended to aid a soldier’s transition to civilian life, and they are thus related to the separation process. They are not the sort of formal requirements that determine whether the administrative clearing process required for discharge has been completed.

The Court also rejected Green’s constitutional challenges to MEJA.  After swiftly disposing of the non-delegation and separation of powers arguments, the Court finds that Green’s class-of-one equal protection claim fails to show (1) that he was similarly situated with his active duty military conspirators, (2) that the decision to prosecute was improperly motivated, and (3) that the decision to prosecute was otherwise irrational.  It concludes by quickly dispensing of an odd substantive due process argument.

Judge Mul Thapar (sitting by designation) concurs to diverge from a very out of place colloquy by the majority opinion about leadership failures and Green’s unsuitability for enlistment.

H/t Anon

Here is a link to the audio of today’s Hearing before the Senate Judiciary Committee on CEJA, which was poorly titled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad.”  And here is the Committee page with links to witness testimony on the right.

Appears CEJA is back on track in the Senate Judiciary Committee, see announcement here:

The Senate Committee on the Judiciary has scheduled a hearing entitled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad” for Wednesday, May 25, 2011 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

The list of witnesses includes Lanny Breuer, the DOJ Criminal Division AAG.  I think the title is a bit odd, but maybe I am mis-reading the emphasis.  We had thought the bill was long lost, see prior coverage here.  H/t MMM

Blog of the Legal Times post here.  DC Circuit’s redacted opinion hereUnited States v. Slough, No. 10-3006 (D.C. Cir. Apr. 22, 2011).

Here is the press release from the DOJ Criminal Division and the EDVA USAO about the recent plea by contractor employee Sean Brehm to MEJA charges stemming from the “stabbing [of] another [contractor employee] with a knife at Kandahar Airfield in Afghanistan.”  Prior coverage of his motion challenging the constitutionality of MEJA here.  Nice little thank you to an SJA’s office in the press release, that’s nice to see.  Sentencing is scheduled for July 8, 2011.

Hereis an opinion from US District Court Judge Anthony Trenga of the EDVA, Alexandria Division denying contractor employee Sean Brehm’s constitutional challenges to the Military Extra-Territorial Jurisdiction Act (MEJA).  Brehm contended that:

[A]s applied to him, MEJA (1) violates the Due Process Clause of the Fifth Amendment because there are insufficient contacts between him and the Unites States to justify the United States’ exercise of jurisdiction; and (2) exceeds Congress’s enumerated legislative powers under Article I, Section 8 of the United States Constitution.

Here is DOJ’s Jan. 2011 press release about the charges.  I was never particularly enamored of these arguments, so this isn’t a surprising ruling–particularly since Brehm was a U.S. Army contractor employee working in Afghanistan.

Here is AP coverage via WaPo of a recent AP interview of former PFC Steven Green.  He discusses the tragedy of his experience in Iraq and leadership issues he felt played a part in his offense.  The article also notes that his appeal challenging MEJA is set for oral argument on January 21, 2011.  See our prior coverage here (with links to some briefs) and other briefs here (Gov’t Response) and here (Green’s Reply).  Green’s MEJA argument is summed up in his Reply brief:

Granting the Executive Branch unrestricted discretion to determine which of the two disparate jurisdictional systems [the UCMJ or MEJA] to apply violates the separation of powers doctrine and constitutes an unconstitutional delegation by the Congress to the Executive Branch of the exclusive power and responsibility of Congress to determine what conduct is subject to criminal sanction, fix the sentence for crimes, and set forth the procedures for the adjudication of criminal cases.

Green’s brief also argues that he was not subject to MEJA because he had not been properly discharged, and thus remained subject to the UCMJ only.  He argues that he had not correctly passed through the clearing process for discharge at the time of his indictment.