Let me start by stating the obvious: the No Man thinks this should be the #1 military justice story of 2008. I certainly agree that it’s a huge story. A silver medal is hardly a badge of shame. But even following the successful prosecution of Alaa Mohammad Ali, court-martial cases brought against civilians will likely remain rare. And given that rarity, I don’t think this story rises to the level of the most significant of the year.

Having noted Navarre, M.J.’s dissent, let’s move onto substantive matters.

In 1968, Mr. Raymond G. Averette was a civilian contractor in Vietnam, where he worked for Pacific Architects and Engineers, Incorporated, and supervised a motor pool for the United States Army. See generally United States v. Averette, 40 C.M.R. 891 (A.C.M.R.), rev’d, 19 C.M.A. 363, 41 C.M.R. 363 (1970). He was charged with and, contrary to his pleas, convicted of “conspiracy to commit larceny of thirty-six thousand batteries and attempted larceny of the same and was sentenced to be confined at hard labor for one year and to pay a fine of $2,000.00, with provision for additional confinement not to exceed one year until said fine is paid. The convening authority approved the sentence.” Id. at 891. The Army Court of Military Review rejected a jurisdictional challenge to his prosecution by court-martial, upheld the findings of guilty to the two charges of which he was convicted while tinkering a bit with the supporting specifications, and upheld the year of confinement while reducing the fine to $500. CMA reversed, concluding that Article 2(10) did not provide jurisdiction to prosecute a civilian accompanying U.S. forces in the field unless Congress had declared war.

Thirty-six years later, Congress would revisit and expand Article 2(10). The John Warner National Defense Authorization Act for Fiscal Year 2007 amended Article 2(10) to authorize courts-martial of civilians accompanying the military in the field in time of “declared war or a contingency operation.” Pub. L. No. 109-364, Div. A, Title V, §552, 120 Stat. 2083, 2217 (2006) (emphasis added). Professor Geoffrey S. Corn observes that the amendment was “[r]eportedly inserted by Senator Lindsay Graham of South Carolina.” Professor Corn also observes, “How this amendment will be implemented by the armed forces, and whether it will withstand constitutional scrutiny in all respects, are two unanswered questions.” 2008 saw the first baby steps toward answers to those two key questions.

On 2 April 2008, as some media outlets acknowledged, the No Man was the first to break the news that a civilian contractor in Iraq had been charged under the expanded Article 2(10). The accused, Alaa Mohammad Ali, was a joint Canadian-Iraqi citizen charged with assault with a dangerous weapon arising from a stabbing at Contingency Outpost 4, Iraq, in February 2008.

On 22 June 2008, according to a Multi-National Corps – Iraq press release, Mr. Ali appeared at a court-martial and “pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement.”

Mr. Ali’s case raised a number of intriguing jurisdictional issues. But his sentence was less than the quantum necessary to qualify for Article 66 review, meaning he had no right to judicial appellate review absent the Judge Advocate General of the Army’s referral of the case to ACCA. Mr. Ali unsuccessfully sought a writ from ACCA and then filed a writ appeal at CAAF. Here’s a copy of his brief in support.

CAAF ultimately summarily denied the writ appeal. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It’s still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69(d) either before or after processing an Article 69 appeal. Unless he does so, the interesting jurisdictional challenges that Mr. Ali’s counsel raised in his writ appeal will lie dormant, waiting to be invoked in the next inevitable prosecution of a civilian accompanying the U.S. military in Iraq or Afghanistan.

This is the first in an end-of-year series of posts looking back at 2008 and setting out what I think are the ten most significant military justice stories of the year.

On 21 July 2008, the Judge Advocate General of the Army issued a memorandum establishing military justice additional skills identifiers (ASI). A copy is available here. The memo offered words dear to any military justice wonk: “Military justice is our Corps’ statutory mission.” The military justice ASIs are designed to encourage Army judge advocates “to set goals to achieve greater skill in litigation and expertise in military justice.” It establishes four mil jus ASIs: Basic Military Justice Practitioner, Senior Military Justice Practitioner, Expert Military Justice Practitioner, and Master Military Justice Practitioner. This produces a career progression that “encourage[s] counsel to seek out litigation-related assignments to deepen their level of military justice training and experience.”

ASIs won’t be rigid assignment requirements, but they will be considered by PPTO (the Army’s equivalent of monitors or detailers) when filling billets.

As the Super Muppet of Appellate Advocacy discussed here, the program is similar but not identical to the Navy JAG Corps’ Military Justice Litigation Career Track program, which then-RADM MacDonald established in 2007 in this instruction.

In my experience, military attorneys generally do an excellent job in run-of-the-mill cases. As I’ve observed before, for many civilian defendants, Gideon v. Wainwright is a false promise. Appointed counsel are generally provided only to the indigent. But in Maryland, the indigence cut-off was well below the poverty line. The working poor often earned too much to qualify for a public defender but not enough to hire a lawyer. As a result, when waiting for my cases to be called in Maryland circuit and district courts, I would often see unrepresented defendants tried, convicted, and sentenced. That just doesn’t happen in the military, where everyone has a right to a free counsel.

But while the military justice system does an excellent job with run-of-the-mill cases, I’ve noticed over my roughly 21 years in the military justice system that it tends to do a poor job in the big cases. Consider, for example, that in 2 of the 10 military death penalty cases that have completed direct appeal under the current system, the death sentence was set aside because apparently no one in the courtroom knew — or could figure out — the proper instruction for voting on the sentence in a capital cases. Or that another 3 of those 10 death sentences were reversed at least in part on IAC grounds. In all, 8 of the 10 have been reversed; the military justice system is batting the Mendoza line in capital cases on appeal.

The Army’s military justice ASI program and its Navy predecessor appear to recognize the system’s difficulty with the big cases and take reasonable steps designed to shore up that weak spot. These programs also appear to recognize the danger of a military justice brain drain as operational law is increasingly perceived as the career enhancing, sexy specialty for military lawyers. Hence then-Major General Black’s reminder that “[m]ilitary justice is our Corps’ statutory mission” — not, mind you, one of its statutory missions.

It will take years to determine whether these programs are actually successful. But merely recognizing the problem and seeking to fix it makes this one of the ten most significant military justice developments of 2008.