CAAFlog » September 2011 Term » United States v. Ali

Today the Golden CAAF II was spotted hanging hooves off Waikiki.  Cowabunga!

Cowabunga 2

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.

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 a link to the petitioner’s reply to the SG’s opposition the the cert petition in Ali v. United States, No. 12-805.

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.

The SG almost always, but not invariably, waives the United States’ right to respond to military cert petitions.  It appears that Ali, No. 12-805, will be one of the rare exceptions.  Yesterday, the SG’s deadline for filing an opposition was extended to 6 March 2013.

I believe that this will be the fourth time since 2006 that the SG has chosen to respond to a military cert petition without a call for response from the Supremes.  The previous cases were  Loving, No. 09-989; Smith, No. 10-18; and Huntzinger, No. 10-158.  In all three of those cases, the Supremes denied cert despite substantial speculation on CAAFlog that Smith would be a Golden CAAF winner.

The Supremes have docketed the cert petition in Ali v. United States, No. 12-805.  The SG’s response is due by 4 February.  The SG almost always, though not invariably, waives the right to file a response to a military cert petition.  One rare exception was Smith v. United States, No. 10-18, in which the SG elected to file an opposition to a military cert petition without prompting from the Supremes.

We’ll be keeping on eye on what the SG does in Ali, as well as in Behenna.

Here is a link to the recently filed petition in the case of Alaa  Mohammad Ali–if you are a MilJus type and don’t know who he is, crawl out from under your rock and join the rest of us. For those that do not practice MilJus,  here is our coverage of the case and the decision by CAAF upholding court-martial jurisdiction over civilians. 

The Questions Presented 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.

Disclaimer:  I am one of the counsel for Mr. Ali, along with John O’Connor, LTC Pete Kageleiry, and COL Patricia Ham.

Chief Justice Roberts has extended the deadline for filing a cert petition in United States v. Ali until 2 January 2013.  No. 12A491.

Counsel for Alaa Mohammad Ali, the civilian accompanying the U.S. military forces who was court-martialed in Iraq, has asked Chief Justice Roberts to extend the deadline for filing a cert petition until 31 December 2012.  And who are his counsel?  His counsel of record is our very own Michael J. Navarre, joined by John O’Connor and LTC Peter Kageleiry, Jr. and COL Patricia A. Ham of Army DAD.

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.”

Read more »

Two big news items out of CAAF.

Hasan Writ Denied

First, MAJ Nidal Hasan’s counsel filed a writ at CAAF on Aug. 7, 2012 asking for “the issuance of a writ of mandamus to disqualify the military judge in the pending court-martial of Major Nidal M. Hasan.”  On Friday CAAF denied the writ and motion to stay the proceedings.  See Daily Journal here.

Ali Motion for Reconsideration

Second, counsel for Alaa Ali, the first contractor convicted under the 2006 amendments to the UCMJ, has filed a motion for reconsideration of CAAF’s July 18, 2012 decision in his case, US v. Ali, No. 12-0008/AR.  The motion is []based in part on the Fourth Circuit’s recent decision in US v. Brehm, a MEJA case.  [UPDATE}  Here is a link to the Motion for Reconsideration.

In Brehm, the Fourth Circuit upheld MEJA jurisdiction over a South African national based, in part, on the accused’s contacts with the US that the court found sufficient to satisfy the limits of the Due Process clause:

Brehm did not target his conduct toward American soil or American commerce. Nevertheless, his actions affected significant American interests at KAF, not the least of which were the preservation of law and order on the base, the maintenance of military-related discipline, and the reallocation of DOD resources to confine Brehm, provide care for J.O., and investigate the incident. Indeed, Brehm’s very presence inside KAF was possible only pursuant to an official DOD Letter of Authorization, entitling him to DOD-furnished transportation, meals, and equipment.

Steve Vladek over at Lawfare beat me to the post on the conflict, here, with Ali where Judge Erdmann found:

Neither Ali’s brief predeployment training at Fort Benning, Georgia,22 nor his employment with a United States corporation outside the United States constitutes a “substantial connection” with the United States as envisioned in Verdugo-Urquidez. Ultimately, we are unwilling to extend constitutional protections granted by the Fifth and Sixth Amendments to a noncitizen who is neither present within the sovereign territory of the United States nor has established any substantial connections to the United States.

Under the Erdmann analysis could Brehm be prosecuted under MEJA without the protection of the Due Process clause?  Probably not because the court sits in the US.  But what about right to counsel if a contractor is arrested by the FBI in Kabul for transport back to the US?  Does the Sixth Amendment apply in the Erdmann world?

CAAF’s opinion in Ali is here.  Judge Erdmann writes the opinion of the court, joined by Judges Stucky and Ryan.  Both Chief Judge Baker and Senior Judge Ryan issued separate opinions concurring in part and in the result, which was to affirm Mr. Ali’s conviction.

CAAF’s opinion in Vela is here.  Chief Judge Baker writes the opinion of the court, joined by Judge Stucky and Senior Judge Cox.  Judge Erdmann, joined by Judge Ryan, concurred in part and dissented in part.  The majority affirmed ACCA’s ruling, which affirmed the findings and the sentence except forfeitures..

More later.

Here is a link to Professor Steve Vladeck’s thoughts on the US v. Ali oral argument.  Here and here are our prior discussions of the argument, including our guest blogger, which Prof. Vladeck very nicely links to.  A snippet from his comments:

But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn’t declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.

I must say that I found the prediction that the case is going to SCOTUS a bold prediction.  We await a decision.  Any predictions on when it comes out?

I think lost in the oral argument in the Ali v. US case this past week, here, is the fact that the constitutionality of civilian UCMJ jurisdiction in times of contingency operations does not hinge on courts being open and actual hostilities being ongoing.  Several other considerations inform the “least possible power” inquiry that Toth v. Quarles, 350 U.S. 11 (1955) used to limit congressional power to subject civilians to courts-martial:

  • Is the civilian accompanying armed forces in an area of actual hostilities?
  • Is the accused in the field with these forces?
  • Are courts in the United States open?
  • Does the military have the logistical capability to send the accused to the jurisdiction of a US court?
  • Could Congress have given the military the power to try the accused in a civilian court?

Thus, there are conceivably circumstances under the current Art. 2(a)(10), UCMJ that an accused could be in a situation where an individual is in an area of hostilities, where US courts are open, but the military is unable to bring the accused into a Court’s jurisdiction.  For example, if Mr. Ali had been taken to NJP proceedings during an intense battle at a remote location in the mountains of Afghanistan on December 12, 2001, where transportation out of the combat zone was impractical, too dangerous, or just unavailable, this would be a very different case.

But the facts of the case are that Mr. Ali was court-martialed at Camp Victory many days after being removed from his FOB and when celebrities, service members (whether on leave or in custody for a future court-martial), and civilians being charged under MEJA were moving in and out of Camp Victory with ease.   Does the constitution allow this civilian to be deprived of the rights he has in an Art. III court under these circumstnaces?  That’s the issue.

[Disclaimer:  Since our amici brief argues Art. 2(a)(10) is unconstitutional as applied to Mr. Ali, you know my answer to this issue]

As Judge Stucky said during a question-and-answer session following oral argument at the University of Washington Law School yesterday, 99 percent of the cases CAAF hears involve active-duty service members who have been convicted at a court-martial; U.S. v. Ali, which concerns the court-martial of an Iraqi/Canadian interpreter serving with the Army in Iraq as an independent contractor, is part of the 1 percent that doesn’t. But as such, it was perhaps the most interesting, unique, and entertaining argument the Court will hear this term.

A packed house of law students, professors, judge advocates from the Pacific Northwest, and a few prominent others were treated to a very hot bench, as LTC Peter Kageleiry Jr., counsel for the appellant, was peppered with questions before he could even get to his opening.

The issues being argued were:

(I) Whether the, military judge erred in ruling that the court had jurisdiction to try appellant and thereby violated the due process clause of the fifth and, sixth amendments by refusing to dismiss the charges and specifications; and

(II) Whether the court-martial had jurisdiction over the appellant pursuant to Article 2 (a) (10), Uniform Code of Military Justice.

Both sides’ arguments were greeted with some skepticism by the judges. LTC Kageleiry asked the Court to apply the “Toth Doctrine” (United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)) to find that this court-martial did not have jurisdiction over the appellant, whom it claimed was not a member of the Armed Forces. But the judges questioned whether Toth applied noting that Toth involved a discharged American service member in the U.S., whereas this appellant was a non-citizen whose crimes occurred outside the U.S. And anyway, Art. 2(a)(10), UCMJ, which is at issue here, is different than Art. 2(a)(11). That led to a discussion about what constitutes “war,” and whether there is a limit to the least possible power argument. Counsel for appellant made the argument that the war powers clause was not in play because there was no declared war, which led to a colorfully sarcastic question (and probably the line of the argument) from Judge Stucky: “Well, what were we doing over there [in Iraq] then? And in Korea? Dancing down the primrose path?”

CPT Chad Fisher, the Government counsel, was grilled, for his part, on the Government’s decision to base its argument that jurisdiction to court-martial Mr. Ali was based solely on the “Make Rules” clause of the Constitution, while conceding that the “War Powers” clause should not be considered at all as a basis for court-martial jurisdiction. His argument was that, by nature of accompanying the Armed Forces in Iraq, the appellant virtually became a member of the land and naval forces. This drew questions from the judges designed to delineate the difference between being in the armed forces and merely accompanying them. This line of questioning culminated in Chief Judge Baker making the point that, if the Government had wanted Mr. Ali to be considered a member of the land and naval forces, it could easily have drafted a contract saying so. After all, he was there working for an independent contractor. The Government’s argument, while well-spoken and cogent, was hurt by the reluctance to use “war powers” as a viable means for jurisdiction, a point the judges went back to more than once.

The amicus argument, ably presented by U-Dub 3L student (and Coast Guard LT) Jeff Barnum, had no such problem. As such, Barnum’s well-crafted argument, which supported the Government, came across as most reasonable. Barnum, in fact, based his argument supporting jurisdiction on the war powers clause, stating that hostilities, whether contingency or otherwise, trigger the War Powers clause. He then identified a four-part test that he crafted for limiting this principle, arguing that Ali fell strongly within most of them.

1. Proximity to hostilities;
2. Civilian’s role within the military unit (e.g. appellant is a 10; Stephen Colbert would be a 0).
3. Extent to which offense impacts mission (e.g. writing a bad check = 0; sabotage = 10; Barnum estimated this fell in the middle)
4. Extent to which court-martial maintains good order and discipline on the field of battle .

On rebuttal, the appellant argued that this is a Government test case, but also admitted that, at this point, this case is unique; there are no others like it.

In the end, regardless of which way the Court falls, this has the feel of being that rare military case that may pique the interest of the U.S. Supreme Court. Therefore, CAAF’s opinion will no doubt generate much discussion and interest.