Today’s WaPo ran this lengthy article examining the dismissal of the MEJA prosecutions of the Blackwater contractors arising from the Nisour Square shootings in Baghdad in 2007.  Del Quentin Wilber, Missteps, Errors and Miscommunication Doomed Balckwater Case, Wash. Post, Feb. 11, 2010, at A4.  The WaPo also reports here that Iraq has ordered all former Blackwater contractors out of the country.  None of the Blackwater contractors involved in the Nisour Square shootings remains in Iraq.

Today’s New York Times reports here that “[t]wo former Blackwater security guards were arrested Thursday on murder charges stemming from a shooting in Afghanistan last May that left two Afghans dead and a third wounded.”  James Risen, Two Former Blackwater Guards Are Charged with Murder in an Afghan Shooting, New York Times, Jan. 8, 2010, at A10.  The article also reported:  “In the criminal case involving Blackwater in Afghanistan, the two former guards — Justin Cannon, 27, of Corpus Christi, Tex., and Christopher Drotleff, 29, of Virginia Beach, Va. — were arrested after being indicted in federal court in Virginia on charges of second-degree murder, attempted murder and firearms violations. At the time of the May 5 shooting in Kabul, the men were working for Paravant LLC, a subsidiary of Xe Services, and under a contract they were assigned to train Afghan soldiers.”

I’ve posted the brief filed at the Sixth Circuit on behalf of Steven Green here.

Here are the two issues the brief raises:

I.  The Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261) is unconstitutional because it violates the separation of powers, the non-delegation doctrine, and Equal Protection and Due Process under the Fifth Amendment.

II.  Appellant was subject to the Uniform Code of Military Justice (UCMJ – 10 U.S.C. §801 et seq.).  The district court was therefore without jurisdiction to try him under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261).

Here’s the Summary of Argument:

Argument I – MEJA is unconstitutional because it violates the separation of powers and non-delegation doctrine.  Congress as the Legislative Branch of government has improperly delegated its constitutional powers to the Executive Branch by allowing the Executive to have the unfettered discretion to decide whether a person who commits a crime while a member of the Armed Forces, is to be tried by the military under the UCMJ or in district court under MEJA.  Moreover, the disparate treatment of Green and the more severe punishments he faced compared to his military co-accused violated Green’s rights to equal protection and due process.

Argument II – Green was improperly subjected to prosecution in district court under MEJA because his discharge from the Army was invalid.  The “clearing process” that is an essential component of a soldier’s separation from the military failed to comply with Army Regulations thereby rendering Green’s discharge invalid and subjecting him to prosecution under the UCMJ rather than MEJA.

It should be interesting to compare the United States’ response to the second issue to arguements that the U.S. has advanced in asserting post-DD 214 jurisdiction in court-martial cases.

The Louisville Courier-Journal reports here that Steven Green has filed an appeal with the Sixth Circuit challenging his MEJA conviction arising from the rape of a 14-year-old girl in Iraq and the murder of the girl and three of her family members.  The report indicates that Green, who had already been discharged from the Army when the crimes came to light, is challenging the validity of his discharge and argues that he should have been court-martialed instead of being prosecuted in federal court.  I’ll try to get a copy of the appeal and post it.

We had closely followed the Green capital MEJA prosecution in Kentucky, which resulted in a discharged soldier being convited of conspiracy, rape, and multiple murders for crimes he committed inMahmoudiya, Iraq while he was on active duty. The jury did not unanimously agree to a death sentence, as is required in federal (and military) practice.  Phil Cave’s Court-Marital Trial Practice blog links to this AP article reporting that yesterday, Green was senetnced to five consecutive life sentences for his crimes.

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ’s summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.

As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit “the offense with one or more other defendants, at least one of whom is not subject to” the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I’d say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically “subject to the UCMJ.” Who in these procurement fraud cases isn’t subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don’t know that such a metric has been borne out yet, though you would think in 3 years it would have. I’ll get back to everyone with some stats later this week.

Second thought–not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that’s not an issue. Also, the lead in portion of subsection (d) discusses “member of the Armed Forces subject to . . .,” whereas the exception in (d)(2) omits the “member of the Armed Forces” language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

Last year, we expressed our dismay about an increase in the number of recruits entering the military on conduct waivers. This year, we celebrated the news that the Army had stopped enlisting potential recruits with felony convictions and recent drug use.

The New York Times reports that former Army PFC Steven D. Green “got into the Army in 2005 on a so-called morals waiver, having had problems with alcohol and drug abuse.” This example gives an all-too-disturbing face to the statistics suggesting those who entered the military on conduct waivers are more likley to commit misconduct than are those who didn’t.

Here’s a link to today’s NYT article on the former PFC Green’s sentence. The Times reports that the jury deadlocked on sentence, resulting in life without eligibility for parole.

Here’s a link to a USA Today article.

The federal jury deliberating on the sentence in the Green capital MEJA case didn’t reach a conclusion today. Here’s an AP article on today’s sentencing arguments.

As reported by this CNN article, the defense concluded its sentencing case in the Green capital MEJA prosecution today. The jury will hear sentencing argument Wednesday morning.

Former Army PFC Steven Green’s defense counsel continued to present their sentencing case today, presenting testimony of a mitigation specialist and one of Green’s relatives concerning his upbringing. Today’s AP report is located here. Judge Russell recessed the case until Monday, when the defense will continue to present evidence. Judge Russell told the jury that the case would be submitted to them for sentencing by Wednesday.

Professor Gary Solis — a renowned expert on war crimes, a professor at Georgetown Law, and a retired Marine judge advocate — testified as a defense sentencing witness at today’s Green proceedings, as discussed in this AP article. The article provides this synopsis of his testimony:

Solis, who teaches law at Georgetown University in Washington, D.C., said facing such stressful conditions can impair a soldier’s judgment, especially when the unit lacks leadership.

“It’s not long before judgment is degraded,” said Solis, a veteran of two tours in Vietnam. “That’s what leaders are for. To help soldiers.”

Here’s our daily AP update on the Green trial, where the defense continued to present its sentencing case today.

Here’s an AP article on today’s proceedings in the Green capital MEJA case. On Thursday, the jury convicted Green of death eligible offenses. Today the prosection presented its sentencing case, which included testimony from relatives of the four murder victims.