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.

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.

From the NY Times (and AP) regarding armed civilians subject to the UCMJ (and other private security contractors employed by the US) in Afghanistan:

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