Beyond all the gnashing of teeth and tearing of clothes over the various proposals to dismantle the Uniform Code of Military Justice in an effort to eliminate “sexual assault” in the military, there are some who envision a much more terrifying future.
Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.
The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.
So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).
Note: If you’re drinking coffee, put down the cup before you read further.
MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.
JUSTICE ALITO: Yes.
MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.
Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.
Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.
JUSTICE ALITO: When you say in a civil proceeding, you mean?
MR. DREEBEN: Yes, noncriminal. Noncriminal.
JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.
MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.
JUSTICE SCALIA: So just — just more -more likely than not is the test.
MR. DREEBEN: That’s an acceptable level of proof for the civil law.
And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.
For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…
Today the Golden CAAF II was spotted hanging hooves off Waikiki. Cowabunga!
For those of you who are new to CAAFlog, the Golden CAAF is a trophy that we send to any counsel who gets a cert grant to review a CAAF decision. The Golden CAAF I was awarded to Code 46 for the Denedo grant.
Will the Golden CAAF II soon be returning to the Mainland, destination DuPont Circle or Palo Alto? We should know the answer to the former at 1000 EDT a week from today.
Yesterday’s SCOTUSblog petition of the day was Behenna v. United States, No. 12-802.
The cert petition in Ali v. United States, No. 12-805, has been circulated for the Supremes’ Thursday, 9 May conference. That means we’ll likely know the result at 1000 on Monday, 13 May.
Too bad the Kabul Klipper has sworn off blogging. I’d be interested in the odds he places on whether the Golden CAAF II will be making a trip to DuPont Circle.
Here’s the Solicitor General’s opposition to the cert petition in Ali v. United States, No. 12-805, dealing with the permissibility of court-martialing a civilian contractor accompanying U.S. forces in a combat zone.
The cert petition is available here.
The Questions Presented by the cert petition are:
1. Whether Congress’s decision not to create federal district court jurisdiction for the trial of a class of civilians supporting military forces overseas provides sufficient constitutional justification for subjecting such civilians to trial by court-martial.
2. Whether a citizen of a foreign country serving as a civilian contractor in support of the United States military’s mission overseas is entitled to Fifth and Sixth Amendment rights in connection with criminal prosecution by the United States.
Here are the QPs as presented by the SG’s opp:
Under 10 U.S.C. 802(a)(10), “persons serving with or accompanying an armed force in the field” during a “declared war or a contingency operation” may be tried for violations of the Uniform Code of Military Justice (UCMJ) in a court-martial. Petitioner, a citizen of both Iraq and Canada who served as a civilian interpreter with a U.S. Army unit in Iraq, was charged in a court- martial with three violations of the UCMJ. He pleaded guilty and was sentenced to 115 days of confinement previously served. The questions presented are as fol- lows:
1. Whether Congress lacked the power under Arti- cle I of the Constitution to authorize the exercise of court-martial jurisdiction over petitioner.
2. Whether the exercise of court-martial jurisdiction over petitioner violated the Fifth and Sixth Amendments.
Here’s the QP from the cert petition in Datavs v. United States, No. 12-1113:
Whether, as a matter of law, trial defense counsel were ineffective when, despite their lack of knowledge and experience with sexual assault examinations, they failed to obtain an expert consultant in the field and, as a result, failed to contest or counter critical circumstantial testimony from the prosecution’s expert medical witness.
We’ve posted the full cert petition here.
Another military cert petition has been docketed with the Supremes: Datavs v. United States, No. 12-1113. I should be able to get at least the q.p. tomorrow.
Here’s an amicus brief filed by 37 retired generals and admirals (including 5 retired 4-stars) supporting certiorari in Behenna v. United States, No. 12-802.
Professor Steve Vladeck, one of the counsel on NACDL’s amicus brief in Behenna, No. 12-802, has posted this comment on the amicus brief. Professor Vladeck explains that “by virtue of both its own jurisprudence and subsequent legislation, our brief explains why the Supreme Court should do more ‘error-correcting’ in military appeals than in any other category of cases.”
The Supremes have docketed a pro se IFP cert petition seeking review of CAAF’s denial of a writ appeal petition. Robins v. United States, No. 12-8799. The Supremes have no statutory cert jurisdiction over such a case.