CAAF decided the Air Force case of United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014, holding that Article 12 does apply to service members confined in civilian facilities within the United States, but also holding that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF affirms the decision of the Air Force CCA and answers in the negative both the issue certified by the Judge Advocate General of the Air Force and the issue granted on petition of Senior Airman McPherson.
Judge Stucky writes for the court joined by all by Chief Judge Baker, who dissents from the majority’s conclusion about the applicability of Article 12 but concurs with the majority’s requirement for exhaustion of administrative remedies prior to judicial relief.
McPherson and the companion case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), are about the application of Article 12 of the UCMJ, which states:
No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.
It is the foreign nationals provision at issue in McPherson, because after McPherson was convicted of numerous offenses at a special court-martial and sentenced to confinement for eight months, reduction to E-1, a reprimand, and a bad-conduct discharge, he was initially confined at the Elmore County Detention Facility in Idaho (a somewhat-common practice, explicitly permitted by Article 58, used when there is no readily available military confinement facility). He was in that civilian facility for 15 days, and “for eight of those days, he was housed in an open bay with a foreign national known only as ‘The Mexican,’ who was awaiting deportation hearings.” Slip op. at 3-4 (quoting United States v. McPherson, 72 M.J. 862, 869 (A.F. Ct. Crim. App. 2013)). He did not complain about this co-mingling at the time or in his post-trial submissions to the convening authority, however he did raise the issue during the automatic review by the CCA.
The CCA reviewed the issue without specifically addressing the applicability of Article 12. Instead, the CCA determined that there was no excuse for failing to seek administrative relief and declined to provide any judicial relief. But the Government sought en banc reconsideration by the CCA, asserting that “the CCA had ‘implicitly establishe[d] as a matter of law in the Air Force that Article 12 applies to civilian confinement facilities.'” Slip op. at 4 (modification in original). The CCA denied the Government’s motion for reconsideration. The Judge Advocate General of the Air Force then certified the case to CAAF with the following issue:
Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.
CAAF subsequently granted review of a second issue upon petition by McPherson:
There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?
This procedural posture establishes the Government as appellee and cross-appellant, and McPherson as appellant and cross-appellee, but I will refer to them as “the Government” and “McPherson” for simplicity.
Judge Stucky’s majority opinion answers both issues in the negative and wholly affirms the opinion of the CCA, explicitly establishing as a matter of law that Article 12 applies to civilian confinement facilities and firmly embracing the requirement that judicial relief for a violation of Article 12 requires that the prisoner first exhaust administrative remedies. While both sides lose in this analysis, I think the greater loss is suffered by the Government.