United States v. Ali

UNITED STATES, Appellee
v.
Mr. Alaa Mohammad ALI, Appellant
No. 12-0008/AR
Crim. App. No. 20080559
United States Court of Appeals for the Armed Forces
Argued April 5, 2012
Decided July 18, 2012
ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., joined. BAKER, C.J., and EFFRON, S.J., each
filed a separate opinion concurring in part and in the result.
Counsel
For Appellant: Lieutenant Colonel Peter Kageleiry Jr. (argued);
Colonel Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison,
and Major Jacob D. Bashore (on brief).
For Appellee: Captain Chad M. Fisher (argued); Colonel Michael
E. Mulligan, Major Amber J. Roach, and Captain John D.
Riesenberg (on brief).
Amici Curiae for Appellant: John F. O’Connor, Esq., Michael J.
Navarre, Esq., and Dwight H. Sullivan, Esq. (on brief) -- for
the Air Force Appellate Defense Division. Captain Paul C.
LeBlanc, JAGC, USN (on brief) -- for the Navy-Marine Corps
Appellate Defense Division.
Amicus Curiae for Appellee: Jeffery C. Barnum (law student)
(argued); Eric Schnapper, Esq. (supervising attorney) (on brief)
-- for the University of Washington School of Law.
Military Judge: Timothy Grammel
This opinion is subject to revision before final publication.
United States v. Ali, No. 12-0008/AR
Judge ERDMANN delivered the opinion of the court.
Pursuant to his pleas, Mr. Alaa Mohammad Ali, a foreign
national working as a civilian contractor in Iraq, was convicted
by a military judge sitting as a general court-martial of making
a false official statement, wrongful appropriation, and
wrongfully endeavoring to impede an investigation, in violation
of Articles 107, 121, and 134 of the Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 907, 921, 934 (2006). Ali was
sentenced to five months of confinement. In accordance with a
pretrial agreement, the convening authority approved a sentence
of time served. The United States Army Court of Criminal
Appeals (CCA) affirmed the findings and only so much of the
sentence as included 115 days of confinement and ordered that
Ali be credited with 115 days of confinement credit to be
applied against his sentence. United States v. Ali, 70 M.J.
514, 521 (A. Ct. Crim. App. 2011).1
Prior to trial Ali filed a motion to dismiss, arguing that
under the facts of this case Congress could not exercise
military jurisdiction over him, but if the exercise was proper,
the court-martial lacked jurisdiction under Article 2(a)(10),
UCMJ. The military judge denied the motion holding that the
1
Oral argument was held at the University of Washington School
of Law, Seattle, Washington, as part of the court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n. 1
(C.A.A.F. 2003). This practice was developed as part of a
2
United States v. Ali, No. 12-0008/AR
congressional exercise of jurisdiction was constitutional and
the court-martial had jurisdiction pursuant to Article 2(a)(10),
UCMJ.2 After Ali’s conviction, his case was forwarded to the
Army Judge Advocate General (JAG) for review under Article
69(a), UCMJ. The Army JAG subsequently forwarded Ali’s case to
the CCA for review of the jurisdictional issues. Direction for
Review, United States v. Ali, No. 20080559 (A. Ct. Crim. App.
filed Mar. 31, 2010). The CCA affirmed the military judge’s
jurisdictional determinations. Ali, 70 M.J. at 520.
We granted review to determine whether Ali falls within the
scope of Article 2(a)(10) and, if so, whether this exercise of
jurisdiction violates the Constitution.3 We hold that Ali falls
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
Following the denial of his motion to dismiss, Ali filed a
petition for extraordinary relief with the CCA, which the CCA
denied. Ali v. Austin, Army Misc. Dkt. No. 20080678 (A. Ct.
Crim. App. 2008). Ali then filed a writ-appeal petition with
this court which was also denied. Ali v. Austin, 67 M.J. 186(C.A.A.F. 2008) (summary disposition).
3
We granted review of the following issues:
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.
II. Whether the court-martial had jurisdiction over
Appellant pursuant to Article 2(a)(10), Uniform
Code of Military Justice.
III. Whether an Article 134 clause 1 or 2
specification that fails to expressly allege
either potential terminal element states an
3
United States v. Ali, No. 12-0008/AR
within the scope of Article 2(a)(10) and that the congressional
exercise of jurisdiction, as applied to Ali, a non-United States
citizen Iraqi national, subject to court-martial outside the
United States during a contingency operation, does not violate
the Constitution.
Background
I. Events Leading to the Charges Against Ali
Mr. Ali was born in Baghdad and is an Iraqi citizen. Ali
fled Iraq in 1991 and ultimately settled in Canada where he
obtained Canadian citizenship in 1996. Under both Canadian and
Iraqi law, Ali retained his Iraqi citizenship. In December
2007, Ali entered into an independent contractor agreement with
L3 Communications, an American company, to provide linguist
services in Iraq under L3’s contract with the United States Army
Intelligence and Security Command.4 The contract stated that the
work may take place in a combat zone or other dangerous
offense under the Supreme Court’s holdings in
United States v. Resendiz-Ponce and Russell v.
United States, and this Court’s Opinion in United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
United States v. Ali, 70 M.J. 418 (C.A.A.F. 2011) (order
granting review).
4
Ali’s employment contract was with L3 Communications (L3),
however, in his Army Letter of Identification and
Authorizations, the organization is identified as “Titan
Corporation.” Ali’s employer is referred to as “L3,” “Titan,”
“L3 Titan,” and “L3/Titan Corporation” in the record. All
references in this opinion are to L3.
4
United States v. Ali, No. 12-0008/AR
environment but did not contain a provision notifying Ali that
he was subject to the UCMJ.
After receiving predeployment training at Fort Benning,
Georgia, Ali was assigned to serve as the interpreter for 1st
Squad, 3rd Platoon, 170th Military Police Company, stationed in
Hit, Iraq. 1st Squad was tasked with training and advising the
Iraqi police in Hit. As an interpreter, Ali accompanied 1st
Squad on its missions and served as the direct link between the
squad and the Iraqi police officers. Ali wore the same clothing
as the soldiers but was not issued a weapon. Initially Ali
lived with the soldiers of 1st Squad but when the squad was
moved to a different location, he lived with other interpreters
serving with the 3rd Platoon. For administrative purposes Ali
was supervised by the L3 Site Manager in Al Asad, Iraq, but for
operational purposes he reported directly to Staff Sergeant
Butler, squad leader for 1st Squad.
On February 23, 2008, Ali had a verbal altercation with
another Iraqi interpreter, Mr. Al-Umarryi. During this
altercation Al-Umarryi struck Ali in the back of the head with
his fist. The incident was reported to Butler and while Ali was
alone in Butler’s room waiting for the squad leader to return,
he took a knife off Butler’s weapons belt without Butler’s
permission or knowledge. Ali later had another confrontation
5
United States v. Ali, No. 12-0008/AR
with Al-Umarryi which resulted in four cuts to Al-Umarryi’s
chest and a bloody nose for Ali.
On February 23, Ali was placed on restricted liberty which
prohibited him from leaving Victory Base Complex and required
that he check in with L3 twice a day. L3 was aware of this
restriction. Ali violated the restriction and traveled to Al
Asad. He was then placed in pretrial confinement on February
29. On March 27, charges were preferred against Ali and on
April 9, 2008, his employment was terminated by L3. On May 10,
the charges were referred to a general court-martial and on May
24, 2008, Ali’s counsel filed a motion to dismiss for lack of
jurisdiction.
II. Ruling of the Military Judge
In his ruling on Ali’s motion to dismiss, the military
judge found that jurisdiction existed over Ali under Article
2(a)(10), which provides for UCMJ jurisdiction “[i]n time of
declared war or contingency operation, [over] persons serving
with or accompanying an armed force in the field.”5
In finding jurisdiction, the military judge held:
Operation Iraqi Freedom (OIF) was a contingency operation as
defined by Congress in 10 U.S.C. § 101(a)(13) (2006); Ali was a
“person” as that term is used in the statute; Ali was “serving
with or accompanying an armed force” because he “served as an
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United States v. Ali, No. 12-0008/AR
interpreter on every mission the squad went on” and was an
“integral” and “necessary part of the team;” and, Ali was
serving “in the field” for purposes of Article 2(a)(10), because
the area of Hit was an area of “actual fighting.”
In finding jurisdiction over Ali, the military judge
focused on Ali’s status at the time of trial and again held that
he was a person accompanying an armed force in the field during
a contingency operation. Citing Perlstein v. United States, 151
F.2d 167, 169-70 (3d Cir. 1945), the military judge rejected
Ali’s argument that there was no jurisdiction because L3 had
terminated his employment prior to the referral of charges
holding that “[Ali’s] relationship with his civilian employer is
not determinative.”6
The military judge also rejected Ali’s argument that the
Government could not exercise jurisdiction because he was not on
notice that he was subject to the UCMJ. The military judge held
that while there was no requirement that Ali be notified that he
5
Article 2, UCMJ, enumerates individuals who are subject to
court-martial under the UCMJ.
6
In Perlstein, the United States Court of Appeals for the Third
Circuit affirmed the lower court’s finding that the court-
martial had jurisdiction over the accused, a civilian contractor
working for the Army in Africa who was alleged to have stolen
jewelry after being terminated but before departing Africa. The
court explained that “it is not Perlstein’s employment status. .
. that furnishes the test of the court martial’s [sic]
jurisdiction over him.” 151 F.2d at 169.
7
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was subject to the UCMJ, Ali had, in any event, been notified
that he was subject to the UCMJ.7
After finding jurisdiction over Ali under the terms of
Article 2(a)(10), UCMJ, the military judge went on to review
“whether Congress has the power, under the United States
Constitution, to extend military jurisdiction as far as it did
to reach the accused.” The military judge held that the
exercise of court-martial jurisdiction over Ali, “under the
facts of this case,” was constitutional pursuant to art. 1, § 8,
cl. 14 of the United States Constitution (granting Congress the
authority “to make Rules for the Government and Regulation of
the land and naval Forces”). Addressing Ali’s argument that he
was denied his Fifth Amendment right to presentment or
indictment of a grand jury, the military judge explained
“[b]ecause this is a case arising in the land or naval forces,
the Fifth Amendment explicitly states that the accused has no
such right at this court-martial.”
7
The military judge found that Ali attended a predeployment
briefing at Fort Benning where he was notified that he would be
subject to the UCMJ. While Ali disputes this finding of fact,
we accept the military judge’s factual finding on this point as
it is supported by record testimony indicating that Ali signed
in at the briefing immediately following. See United States v.
Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000) (“When an accused
contests personal jurisdiction on appeal, we review that
question of law de novo, accepting the military judge’s findings
of historical facts unless they are clearly erroneous or
unsupported in the record.”).
8
United States v. Ali, No. 12-0008/AR
III. Ruling of the Army Court of Criminal Appeals
Following Ali’s conviction, the Army JAG sent Ali’s case to
the CCA for review under Article 69, UCMJ. Before the CCA Ali
argued that “Congress exceeded the scope of its legislative
authority when it amended the UCMJ to extend court-martial
jurisdiction to reach civilians during contingency operations
and thereby deprived him of the due process protections of the
Fifth and Sixth Amendments to the United States Constitution.”
Ali, 70 M.J. at 517.
The CCA first evaluated the statutory application of
Article 2(a)(10) and agreed with the military judge that
“appellant and his offenses fall squarely within the
jurisdictional language of Article 2(a)(10).” Id. at 518.
In its constitutional analysis, the CCA found that Article
2(a)(10) was appropriately limited by the requirements that
there must be a declared war or contingency operation and that
the person must be serving with or accompanying the force in the
field. Id. at 520.
These two requirements, when applied in conjunction
with the temporal requirement that either a declared
state of war or a contingency operation be in
existence, ensure that the exercise of jurisdiction
over civilians is “restricted” to the “narrowest
jurisdiction deemed absolutely essential to
maintaining discipline among troops in active
service.”
Id. (quoting Kinsella v. United States ex rel. Singleton, 361
U.S. 234, 240 (1960)). Finding that the exercise of military
9
United States v. Ali, No. 12-0008/AR
jurisdiction over Ali was proper, the CCA found no violation of
either the Fifth or Sixth Amendments. Id.Discussion
In his appeal to this court, Ali renews his arguments that:
(1) the exercise of UCMJ jurisdiction over him violated his
Fifth and Sixth Amendment rights; and (2) he does not fall
within the scope of the provisions of Article 2(a)(10). We will
address these issues in reverse order as it is unnecessary to
review the constitutional questions if Ali does not fall within
the statutory scope of Article 2(a)(10). See Crowell v. Benson,
285 U.S. 22, 62 (1932) (“When the validity of an act of the
Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be
avoided.”).
I. UCMJ Jurisdiction
“Jurisdiction is the power of a court to try and determine
a case and to render a valid judgment. Jurisdiction ‘is a legal
question which we review de novo.’” United States v. Harmon, 63
M.J. 98, 101 (C.A.A.F. 2006); United States v. Kuemmerle, 67
M.J. 141, 143 (C.A.A.F. 2009). Generally, there are three
prerequisites that must be met for courts-martial jurisdiction
to vest: (1) jurisdiction over the offense, (2) jurisdiction
10
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over the accused, and (3) a properly convened and composed
court-martial. See Rule for Courts–Martial (R.C.M.) 201(b);
Harmon, 63 M.J. at 101. Only the first two of these
requirements are at issue in this case.
A. Jurisdiction Over the Offense
“[G]eneral courts-martial have jurisdiction to try persons
subject to this chapter for any offense made punishable by [the
UCMJ].” Article 18, UCMJ, 10 U.S.C. § 818 (2006); R.C.M.
201(b)(5) (“The offense must be subject to court-martial
jurisdiction.”). Additionally, the UCMJ “applies in all
places.” Article 5, UCMJ, 10 U.S.C. § 805 (2006). Because Ali
was charged with and convicted of misconduct punishable by
Articles 107, 121, and 134 of the UCMJ, the court-martial had
jurisdiction over the offenses.
The court-martial’s jurisdiction over the offense alone,
however, is not sufficient to establish jurisdiction. Since
1987 it has been clear that an inquiry into court-martial
jurisdiction focuses on the person’s status, i.e., whether the
person is subject to the UCMJ at the time of the offense.
Solorio v. United States, 483 U.S. 435 (1987).8 Our inquiry into
8
Solorio overruled O’Callahan v. Parker, 395 U.S. 258 (1969), in
which the Supreme Court held that court-martial jurisdiction
depended on the “service connection” of the offense charged.
Solorio, 483 U.S. at 436. In Solorio, the Supreme Court
returned to its earlier precedent: “[i]n an unbroken line of
decisions from 1866 to 1960, this Court interpreted the
Constitution as conditioning the proper exercise of court-
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whether jurisdiction over the offense exists therefore requires
an analysis of the criteria found in Article 2(a)(10); whether
Appellant was subject to the UCMJ under its terms.
In its current form, Article 2(a)(10) reflects a long-
standing principle that civilians serving alongside the military
may be subject to courts-martial under the military justice
system in some limited circumstances. Prior to the founding of
this country, the British Articles of War of 1765 provided for
jurisdiction over “[a]ll Suttlers and Retainers to a Camp, and
all persons whatsoever serving with Our Armies in the Field.”
British Articles of War of 1765, section XIV, art. XXIII,
reprinted in William Winthrop, Military Law and Precedents 941
(2d ed., Government Printing Office 1920). The first American
Articles of War enacted in 1775 included this language from the
British Articles. American Articles of War of 1775, art. XXXII,
reprinted in Winthrop, Military Law and Precedents at 956. The
Articles retained that language with only minor modifications
until enactment of the Uniform Code of Military Justice in 1950.
See Winthrop, Military Law and Precedents at 98. When the UCMJ
was enacted in 1950, under Article 2(10) courts-martial
jurisdiction included, “[i]n time of war, all persons serving
with or accompanying an armed force in the field.” Article
2(10), UCMJ (1950).
martial jurisdiction over an offense on one factor: the
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United States v. Ali, No. 12-0008/AR
In 1970 this court held that the term “time of war” in
Article 2(a)(10) referred only to a “war formally declared by
Congress.” United States v. Averette, 19 C.M.A. 363, 365, 41
C.M.R. 363, 365 (1970). Since Congress had not formally
declared war since World War II, the subsequent reach of Article
2(a)(10) was substantially reduced. However, in 2006 Congress
amended the language of Article 2 in the 2007 National Defense
Authorization Act to read “[i]n time of declared war or
contingency operation,” effectively nullifying Averette. 2007
National Defense Authorization Act, Pub. L. No. 109-364, § 552,
120 Stat. 2217 (2006) (emphasis added).9 Thus, in its current
form Article 2(a)(10) provides jurisdiction “[i]n time of
declared war or contingency operation, [over] persons serving
with or accompanying an armed force in the field.” We address
each of these statutory requirements in turn.10
military status of the accused.” Id. at 439.
9
Unfortunately there is virtually no legislative history in the
Congressional Record that explains the congressional intent for
including the amended language.
10
In his ruling, the military judge evaluated the “four”
elements of Article 2(a)(10), including “persons” and found
“Congress’ use of the broad term ‘persons’ encompasses the
accused, who is a citizen of Iraq and a citizen of Canada.” The
parties do not dispute the application of the term “persons” to
Ali.
13
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1. “Contingency Operation”11
Neither Ali nor the Government contest the military judge’s
finding that Operation Iraqi Freedom was a contingency operation
as that term is defined in 10 U.S.C. § 101(a)(13) (2006).12
2. “Serving With” or “Accompanying an Armed Force”
Ali argues that because the terms “serving with” and
“accompanying” are not defined in Article 2(a)(10), the Manual
for Courts-Martial, or case law, the terms are ambiguous. Ali
suggests that this court look to the Military Extraterritorial
Jurisdiction Act (MEJA) and the North Atlantic Treaty
Organization Status of Forces Agreement (NATO SOFA) for the
definition of those terms as each excludes nationals of the host
11
Although Ali does not argue that Operation Iraqi Freedom was
not a contingency operation, he suggests that the statutory
definition of contingency operation is overly broad and thus
there is a risk that Article 2(a)(10) could be applied to
civilians in a wide variety of circumstances.
12
10 U.S.C. § 101(a)(13) defines contingency operation as:
[A] military operation that -- (A) is designated by
the Secretary of Defense as an operation in which
members of the armed forces are or may become involved
in military actions, operations, or hostilities
against an enemy of the United States or against an
opposing military force; or (B) results in the call or
order to, or retention on, active duty of members of
the uniformed services under section 688, 12301(a),
12302, 12304, 12304a, 12305, or 12406 of this title,
chapter 15 of this title, or any other provision of
law during a war or during a national emergency
declared by the President or Congress.
14
United States v. Ali, No. 12-0008/AR
country from its jurisdiction.13 Ali goes on to urge this court
to read into Article 2(a)(10) an exclusion of nationals of the
host nation because “it is evident that [he] is a member of a
class of persons that Congress intended to exclude from the
definition of serving with or accompanying an armed force in the
field.”
In response, the Government refers us to United States v.
Burney, 6 C.M.A. 776, 788, 21 C.M.R. 98, 110 (1956),14 where we
addressed the phrase “persons serving with or accompanying an
armed force.” In Burney, we stated that “[t]he test is whether
[the accused] has moved with a military operation and whether
his presence with the armed force was not merely incidental, but
13
MEJA is applicable to civilian employees “employed by the
Armed Forces” which includes employees of a Department of
Defense or other qualifying federal agency contractor who are
outside the United States in connection with their employment
and who are not a national or ordinary resident of the host
nation. 18 U.S.C. § 3267(1) (2006). MEJA limits the phrase
“accompanying the Armed Forces” to dependents of military
members, civilian employees of the Department of Defense, or
Department of Defense contractors. 18 U.S.C. § 3267(2) (2006).
The NATO SOFA defines “civilian component” as “the civilian
personnel accompanying a force of a Contracting Party who are in
the employ of an armed service of that Contracting Party, and
who are not stateless persons, nor nationals of any State which
is not a Party to the North Atlantic Treaty, nor nationals of,
nor ordinarily resident in, the State in which the force is
located.” Agreement between the Parties to the North Atlantic
Treaty regarding the Status of their Forces, art. I, ¶ 1(b),
June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67.
14
The defendant in Burney was a civilian employed by a
government contractor stationed at an Air Force base in Japan
when he was tried by court-martial for assault with a deadly
weapon in violation of Article 128, UCMJ. Id. at 781-82. The
15
United States v. Ali, No. 12-0008/AR
directly connected with, or dependent upon, the activities of
the armed force or its personnel.” Id. We also noted that “an
accused may be regarded as ‘accompanying’ or ‘serving with’ an
armed force, even though he is not directly employed by such a
force or the Government, but, instead, works for a contractor
engaged on a military project.” Id.Nothing suggests that Congress could not have placed the
limitations against application to host-country nationals found
in MEJA within Article 2(a)(10), and we find it unnecessary to
rely on the definitions found in either MEJA or the NATO SOFA,
particularly when we have previously addressed those terms as
used in Article 2(a)(10) in the military context. Thus, we look
to the facts of this case in light of prior precedent to
determine whether Ali was “serving with” or “accompanying the
force.” In his ruling on the motion to dismiss, the military
judge found:
The accused was serving with 1st Squad, 3rd Platoon,
170th Military Police Company. He served as an
interpreter on every mission the squad went on. Not
only was he an integral part of the team, he was the
necessary part of the team. Without the accused, or
another interpreter, the squad could not perform the
military mission it had in Operation Iraqi Freedom.
He was the only member of the team that was necessary.
Even the squad leader, SSG Butler, could be replaced
by another Soldier taking charge, and the mission
could be accomplished.
Court of Military Appeals held that the exercise of court-
martial jurisdiction was constitutional. Id. at 803.
16
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The military judge identified several other factors indicating
that Ali was serving with the Army, including: he wore a tape
stating “U.S. Army” and the unit patch for the 42nd Military
Police Brigade on his uniform, as did the soldiers in his squad;
he wore body armor and a helmet like the soldiers; he lived in a
combat outpost, at first with other soldiers then with other
interpreters; he received mission orders from the squad
leader/team chief and reported for operational purposes to the
squad leader/team chief; and when he had interpersonal conflicts
he raised them with his military supervisors.
Additionally, the military judge found that Ali and the
soldiers of 1st Squad faced daily threats from enemy insurgents
operating in the area around Hit. The squad was routinely
attacked with improvised explosive devices, vehicle-borne
explosive devices, small arms fire, precision small arms fire,
and indirect fire. As an interpreter, Ali would have been
specifically targeted by the enemy in an attempt to inhibit
United States Army communications capabilities. For operational
purposes, Ali’s role as interpreter was integral to the mission
of 1st Squad. He was virtually indistinguishable from the
troops serving in 1st Squad and he faced the same daily routines
and threats as they did.
17
United States v. Ali, No. 12-0008/AR
We conclude that Ali was both “serving with or
accompanying” the soldiers of 1st Squad at the time of the
offense.
3. “In the Field”
Ali urges this court to narrowly construe the meaning of
“in the field” under Article 2(a)(10) in light of the Supreme
Court precedent limiting military jurisdiction over civilians.
Ali argues that the term “in the field” must be narrowly
construed so as to require both (1) a contingency operation; and
(2) the practical unavailability of a civilian criminal forum.
The Government responds by noting that Colonel Winthrop broadly
defined the phrase to mean “the period and pendency of war and to
acts committed in the theater of war.” The Government goes on to
rely on the discussion in Burney in which this court stated that
“in the field” means in an area of actual fighting. Burney, 6
C.M.A. at 787-88, 21 C.M.R. at 109-10.
Although the Supreme Court in Reid v. Covert analyzed the
provisions of Article 2(11), the Court did distinguish and
discuss the “in the field” requirement of then Article 2(10):15
Experts on military law, the Judge Advocate General
and the Attorney General have repeatedly taken the
position that “in the field” means in an area of
actual fighting. . . .
Article 2(10) of the UCMJ, 50 U.S.C. § 552(10),
provides that in time of war persons serving with or
accompanying the armed forces in the field are subject
15
Article 2(10) was the predecessor to today’s Article 2(a)(10).
18
United States v. Ali, No. 12-0008/AR
to court-martial and military law. We believe that
Art. 2(10) sets forth the maximum historically
recognized extent of military jurisdiction over
civilians under the concept of “in the field.”
354 U.S. 1, 34 n.61 (citations omitted).
We see no reason not to adopt this interpretation of “in
the field,” which requires an area of actual fighting, for our
analysis of Article 2(a)(10). Cf. Burney. 6 C.M.A. at 787-88,
21 C.M.R. at 109-10. Ali and 1st Squad were living at a combat
outpost and conducting their missions in and around Hit, where
they faced attacks from enemy insurgents on a daily basis. The
military judge found that a typical mission required “mission
preparations, safety brief, accountability, convoy to the
mission site in up-armored HMMWVs, training of Iraqi Police . .
. [and] conduct[ing] patrols with the Iraqi police.” There is
little doubt that 1st Squad was in an area of actual fighting
and thus, “in the field.”
We therefore agree with the military judge and the CCA that
Ali was serving with or accompanying an armed force in the field
during a contingency operation. The misconduct is punishable by
Articles 107, 121, and 134, UCMJ, 10 U.S.C. §§ 907, 921, 934
(2006), and jurisdiction existed under Article 2(a)(10).
B. Jurisdiction over the Person
Post-Solorio, the status of the individual is the focus for
determining both jurisdiction over the offense and jurisdiction
over the person. See Harmon, 63 M.J. at 101 (“military
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United States v. Ali, No. 12-0008/AR
jurisdiction over the person continues as long as military
status exists”); United States v. Murphy, 50 M.J. 4, 7 (C.A.A.F.
1998) (citing Solorio for the proposition that “the test for
whether a military court-martial has jurisdiction to try an
accused is the military status of the accused”). The only
difference is that jurisdiction over the person depends on the
person’s status as a “person subject to the Code” both at the
time of the offense and at the time of trial. Compare Solorio,
483 U.S. at 451, with United States v. Howard, 20 M.J. 353, 354
(C.M.A. 1985) (“It is black letter law that in personam
jurisdiction over a military person is lost upon his discharge
from the service, absent some saving circumstance or statutory
authorization.”).
Having agreed with the military judge that Ali was a person
subject to the Code under Article 2(a)(10) at the time of the
offense, we now must determine whether there was something that
altered his status between the time of the offense and the time
of trial. Ali argues that he no longer fell within Article
2(a)(10) at the time of trial because L3 fired him prior to his
arraignment and he was no longer serving with or accompanying
the force. The Government responds that it is clear that Ali
was serving with and accompanying the force both at the time of
the assault and at the time of trial and therefore the court-
martial had jurisdiction.
20
United States v. Ali, No. 12-0008/AR
We need not determine whether the termination of Ali’s
employment by L3 also terminated his status of “serving with”
the force, as the facts demonstrate that he was still
“accompanying the force.” As noted in the analysis of R.C.M.
202(a):
Although a person “accompanying an armed force” may be
“serving with” it as well, the distinction is
important because even though a civilian’s contract
with the Government ended before the commission of an
offense, and hence the person is no longer “serving
with” an armed force, jurisdiction may remain on the
ground that the person is “accompanying an armed
force” because of continued connection with the
military.16
Manual for Courts-Martial, United States, Analysis of the Rules
for Courts-Martial app. 21 at A21-11 to A21-12 (2008 ed.) (MCM).
Thus, regardless of whether Ali continued to “serve with” an
armed force after his civilian employment termination, he
certainly continued to accompany the force while awaiting
trial.17 See Perlstein, 151 F.2d at 169 (holding that the
jurisdictional question was not the defendant’s employment
status but whether he was still accompanying the Army at the
time of the offenses); In re Di Bartolo, 50 F. Supp. 929, 931
(S.D.N.Y. 1943) (critical issue for purposes of jurisdiction was
16
MCM explanations of offenses are not binding on this court,
but are generally treated as persuasive authority. United
States v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008).
17
The fact that Ali’s continued accompaniment was not voluntary
is irrelevant for our analysis as his confinement was a direct
result of his actions in violating his restriction to Victory
Base Complex.
21
United States v. Ali, No. 12-0008/AR
not whether accused had been terminated by government contractor
at the time of court-martial, rather “[t]he primary issue is
whether the petitioner accompanied the Armies of the United
States”).
Accordingly, we find the court-martial had jurisdiction
over Ali. Having held that the court-martial had jurisdiction
over Ali under the provisions of Article 2(a)(10), we turn to
whether the exercise of that jurisdiction over Ali violated the
Constitution.
II. Whether Congress’s Exercise of Jurisdiction in Article
2(a)(10) Violates the Constitution
Ali’s primary argument is that Article 2(a)(10) is
unconstitutional as applied in this case because he was not
afforded the protections of the Fifth and Sixth Amendments. The
constitutionality of an act of Congress is a question of law
that we review de novo. United States v. Disney, 62 M.J. 46, 48
(C.A.A.F. 2005). Where, as here, an appellant argues that a
statute is “unconstitutional as applied,”18 we conduct a fact-
specific inquiry. See Dahnke-Walker Milling Co. v. Bondurant,
257 U.S. 282, 289 (1921) (“A statute may be invalid as applied
to one state of facts and yet valid as applied to another.”)
(citations omitted); Disney, 62 M.J. at 50-51 (determining,
based on the facts of the case, that the statute at issue was
18
Counsel for Ali asserted that his constitutional challenge was
“as applied” at oral argument.
22
United States v. Ali, No. 12-0008/AR
“constitutional as applied to [a]ppellant’s conduct”); United
States v. Marcum, 60 M.J. 198, 206-08 (C.A.A.F. 2004) (viewing
the case as a “discrete criminal conviction based on a discrete
set of facts” and determining that Article 125, UCMJ, 10 U.S.C.
§ 925 (2006), was “constitutional as applied to [a]ppellant”).
To succeed in his as-applied challenge, Ali must show that
he was entitled to Fifth and Sixth Amendment protections and
that, under the facts of this case, these protections were
violated when he was subjected to military jurisdiction. See
United States v. Salerno, 481 U.S. 739, 745 & n.3 (1987)
(describing the “heavy burden” required to assert a facial
challenge and noting how the appellant did not argue that the
legislative act was “unconstitutional because of the way it was
applied to the particular facts of their case”).
A. Fifth and Sixth Amendment Protections
Ali alleges that exercise of court-martial jurisdiction
violated his rights under the Fifth and Sixth Amendments, citing
the line of Supreme Court cases denying court-martial
jurisdiction over civilians.19 He argues those cases demonstrate
19
United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955)
(holding that former servicemember was not subject to court-
martial); Covert, 354 U.S. at 5, 41 (court-martial did not have
jurisdiction during peacetime to try capital case against
civilian dependent of a servicemember); Kinsella v. United
States ex rel. Singleton, 361 U.S. 234, 249 (1960) (conviction
by court-martial of wife of serviceman for noncapital crime was
not constitutionally permissible); Grisham v. Hagan, 361 U.S.
278, 280 (1960) (overseas civilian employee of armed services
23
United States v. Ali, No. 12-0008/AR
the Supreme Court’s unwillingness to expand military
jurisdiction to include civilians and urges the court to apply
the same framework in this case, thereby rejecting an overly
broad reading of Article 2(a)(10). Ali highlights the Supreme
Court’s concern, reflected in Covert, 354 U.S. at 37, that
courts-martial do not provide an accused the same protections as
civil courts, specifically “trial by jury before an independent
judge after an indictment by a grand jury.”
Unlike Ali, the defendant in Covert was a United States
citizen, and the Supreme Court’s concern reflected the
impermissible denial of constitutional protections to “an
American citizen when [she] was tried by the American Government
in [a] foreign land[] for offenses committed there.” 354 U.S.
at 5. 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
was not subject to court-martial jurisdiction in capital case);
McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 283-
84, 287 (1960) (overseas civilian employees of the Army and Air
Force were not subject to court-martial jurisdiction during
peacetime).
24
United States v. Ali, No. 12-0008/AR
operation. Under the circumstances of this case, the concerns
raised by the Supreme Court are not applicable.
However, we must first consider whether Ali, a foreign
national being tried outside the United States for a crime
committed outside the United States, enjoys the protections of
the Fifth and Sixth Amendments which the Supreme Court was
concerned with in Covert and the cases cited in note 19, supra.
This threshold determination is critical to our analysis as
Ali’s primary constitutional argument relies on his assertion
that he is in a position like that of the individuals the
Supreme Court determined could not be subjected to military
jurisdiction, see supra note 19, because he too is entitled to
Fifth and Sixth Amendment protections.
In his brief and at oral argument Ali relied on United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for the
principle that he was entitled to fundamental due process rights
under the Constitution because he was subjected to the judicial
power of the United States. Verdugo-Urquidez was a Mexican
citizen who was arrested for various drug offenses in Mexico on
a United States arrest warrant. Id. at 262. He was later tried
in a United States district court where he claimed that the
search of his residence in Mexico by United States law
enforcement violated his Fourth Amendment rights. Id. at 263.
The Supreme Court held that the Fourth Amendment did not apply
25
United States v. Ali, No. 12-0008/AR
where the search of a nonresident alien’s home occurred in a
foreign country. Id. at 261. While recognizing that the
Supreme Court did not extend Fourth Amendment protections to
Verdugo-Urquidez, Ali argues that since he was subjected to the
judicial power of the United States, he was entitled to
fundamental due process rights.
While Verdugo-Urquidez referenced several cases discussing
constitutional protections applicable to aliens,20 it also
explained that “[t]hese cases . . . establish only that aliens
receive constitutional protections when they have come within
the territory of the United States and developed substantial
connections with this country.” Id. at 271 (emphasis added).
While there is no case law extending constitutional protections
granted by the Fifth and Sixth Amendments to noncitizens who are
tried overseas there is precedent to the contrary. See, e.g.,
Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (rejecting the
principle “that the Fifth Amendment confers rights upon all
persons, whatever their nationality, wherever they are located
and whatever their offenses”); United States v. Curtiss-Wright
20
Verdugo-Urquidez, 494 U.S. at 270-71 (citing Plyler v. Doe,
457 U.S. 202, 211-12 (1982) (illegal aliens protected by Equal
Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596
(1953) (resident alien is a “person” within the meaning of the
Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148 (1945)
(resident aliens have First Amendment rights); Wong Wing v.
United States, 163 U.S. 228, 238 (1896) (resident aliens
entitled to Fifth and Sixth Amendment rights); Yick Wo v.
26
United States v. Ali, No. 12-0008/AR
Export Corp., 299 U.S. 304, 318 (1936) (“Neither the
Constitution nor the laws passed in pursuance of it have any
force in foreign territory unless in respect of our own
citizens.”).
In holding that the Fourth Amendment was not applicable to
a United States Government search of a home owned by a
nonresident alien located outside the United States, Verdugo-
Urquidez reiterated these principles in its discussion of
Eisentrager, which is instructive as to the constitutional
rights afforded to noncitizens outside the United States. In
disposing of the Fourth Amendment claims which were raised in
Verdugo-Urquidez, the Supreme Court discussed the Fifth
Amendment claims that were raised in Eisentrager:
Indeed, we have rejected the claim that aliens
are entitled to Fifth Amendment rights outside the
sovereign territory of the United States. In Johnson
v. Eisentrager, the Court held that enemy aliens
arrested in China and imprisoned in Germany after
World War II could not obtain writs of habeas corpus
in our federal courts on the ground that their
convictions for war crimes had violated the Fifth
Amendment and other constitutional provisions. The
Eisentrager opinion acknowledged that in some cases
constitutional provisions extend beyond the citizenry;
“the alien . . . has been accorded a generous and
ascending scale of rights as he increases his identity
with our society.” But our rejection of
extraterritorial application of the Fifth Amendment
was emphatic:
“Such extraterritorial application of organic law
would have been so significant an innovation in the
Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects
resident aliens)).
27
United States v. Ali, No. 12-0008/AR
practice of governments that, if intended or
apprehended, it could scarcely have failed to excite
contemporary comment. Not one word can be cited. No
decision of this Court supports such a view. None of
the learned commentators on our Constitution has even
hinted at it. The practice of every modern government
is opposed to it.”
If such is true of the Fifth Amendment, which
speaks in the relatively universal term of “person,”
it would seem even more true with respect to the
Fourth Amendment, which applies only to “the people.”
Verdugo-Urquidez, 494 U.S. at 269 (citations omitted).
At its core, Ali’s argument suggests that regardless of
that fact that he is a nonresident who is not a citizen of the
United States and regardless of where the offense took place or
where he was tried, so long as he is subjected to judicial
processes of the United States, the Fifth and Sixth Amendments
apply because he is a “person” who stands “accused,” and is
being tried by the United States.21 Once again, Eisentrager is
instructive:
We have pointed out that the privilege of
litigation has been extended to aliens, whether
friendly or enemy, only because permitting their
presence in the country implied protection. No such
basis can be invoked here, for these prisoners at no
relevant time were within any territory over which the
United States is sovereign, and the scenes of their
offense, their capture, their trial and their
punishment were all beyond the territorial
jurisdiction of any court of the United States.
21
In Verdugo-Urquidez, the Chief Justice noted the contrast
between the language of the Fourth Amendment which refers to
“the people” with the language of the Fifth and Sixth Amendments
which refer to “persons” and “accused.” 494 U.S. at 265-66.
28
United States v. Ali, No. 12-0008/AR
339 U.S. at 777-78 (emphasis added). Ali’s case is similar.
The offenses giving rise to the charges against Ali took place
outside the United States.
To be sure, the Supreme Court held well before its decision
in Eisentrager, that:
all persons within the territory of the United States
are entitled to the protection guarantied by [the
Fifth and Sixth] amendments, and that even aliens
shall not be held to answer for a capital or other
infamous crime, unless on a presentment or indictment
of a grand jury, nor be deprived of life, liberty, or
property without due process of law.
Wong Wing, 163 U.S. at 238. Those protections, however, are the
result of the alien’s presence “within the territory” of the
United States. Id.Moreover, the Supreme Court has evaluated the question of
whether noncitizens are afforded the protections of the Fifth
and Sixth Amendments and has reasoned that aliens outside the
United States are not guaranteed those rights. See, e.g.,
Curtiss-Wright, 299 U.S. at 318; Balzac v. Porto Rico, 258 U.S.
298 (1922) (one of “The Insular Cases,” holding Sixth Amendment
right to jury trial inapplicable in Puerto Rico); Ocampo v.
United States, 234 U.S. 91 (1914) (Fifth Amendment grand jury
provision inapplicable in the Philippines); Dorr v. United
States, 195 U.S. 138 (1904) (jury trial provision inapplicable
in the Philippines). Thus we find no precedent, and the parties
have not provided any law, which mandates granting a noncitizen
29
United States v. Ali, No. 12-0008/AR
Fifth and Sixth Amendment rights when they have not “come within
the territory of the United States and developed substantial
connections with this country.” Verdugo-Urquidez, 494 U.S. at
271. 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. Whatever rights Appellant had
were met through the court-martial process.23
We are mindful of the Supreme Court’s repeated refusals to
extend court-martial jurisdiction over civilians and recognize
the high court’s repeated caution against the application of
22
The record indicates that Ali spent approximately seven days
at Fort Benning, Georgia, for predeployment training. The
training took place January 14, 2008, through January 21, 2008.
23
In his separate opinion, Chief Judge Baker finds that Ali is
entitled to the subset of Fifth and Sixth Amendment protections
provided by the statutory safeguards embedded in the UCMJ.
United States v. Ali, __ M.J. __ (17-19) (C.A.A.F. 2012) (Baker,
C.J., concurring in part and in the result). We agree that the
UCMJ provides some, but not all, Fifth and Sixth Amendment
protections to those who fall within its jurisdiction, however
Ali’s fundamental argument remains based on the distinction
between the full panoply of Fifth and Sixth Amendment rights
afforded to United States citizens in other courts and the
narrower range of these rights available to those subject to
court-martial under the UCMJ.
30
United States v. Ali, No. 12-0008/AR
military jurisdiction over anyone other than forces serving in
active duty. Covert, 354 U.S. at 40 (“We should not break faith
with this nation’s tradition of keeping military power
subservient to civilian authority, a tradition which we believe
is firmly embodied in the Constitution.”); Toth, 350 U.S. at 22(“There are dangers lurking in military trials which were sought
to be avoided by the Bill of Rights and Article III of our
Constitution.”). However, those cases are factually
distinguishable because the defendants in those cases were
United States citizens who indisputably enjoyed the protections
of the Fifth and Sixth Amendments.24 See Covert, 354 U.S. at 32(noting that like the defendant in Toth, the defendants were
American citizens).25
24
We note there is also precedent suggesting that civilians
serving alongside the military may be subject to the military
justice system. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304,
313 (1946) (citing the “well-established power of the military”
to assert jurisdiction over “those directly connected with” it);
Ex parte Milligan, 71 U.S. 2, 123 (1866) (“Every one connected
with [the military] . . . is amenable to the jurisdiction which
Congress has created for their government, and, while thus
serving, surrenders his right to be tried by the civil
courts.”); see also discussion of British and American Articles
of War supra pp. 12-13. But that question is not before us in
this case.
25
In his separate opinion, Chief Judge Baker notes the Supreme
Court’s call for the application of a “practical and contextual”
analysis of constitutional law overseas in Boumediene v. Bush,
553 U.S. 723 (2008). Ali, __ M.J. at __ (21) (Baker, C.J.,
concurring in part and in the result). We agree that such an
analysis is necessary in this case and note the Court’s concern
in Boumediene “[t]hat the petitioners in [Covert] were American
citizens was a key factor in the case and was central to the
plurality’s conclusion that the Fifth and Sixth Amendments apply
31
United States v. Ali, No. 12-0008/AR
Ali’s claim that the application of Article 2(a)(10) to him
violated the Constitution under the circumstances of this case
fails.26
B. Necessary and Proper Clause
Citing Covert, Ali’s second argument is that the Necessary
and Proper Clause, U.S. Const. art. I, § 8, cl. 18, cannot be
used to extend Congress’s power to authorize court-martial
jurisdiction over civilians under art. I, § 8, cl. 14 because
the term “land and naval Forces” refers only to members of the
armed forces.
As an initial matter, Congress has the power to “declare
War” and to “make Rules for the Government and Regulation of the
land and naval Forces.” U.S. Const. art. I, § 8, cls. 11, 14.
These powers are separate and distinct sources of constitutional
authority for congressional action. See Solorio, 483 U.S. at
441. Moreover, we recognize that “the Necessary and Proper
Clause cannot extend the scope of Clause 14.” Covert, 354 U.S.
at 21. In this case we find the Government’s argument that
Article 2(10) was based on clause 14 and that Ali was a member
of the “land and naval Forces” unpersuasive, but this is of no
moment. The Supreme Court has cited Congress’s “war powers” as
the constitutional source of authority and justification for
to American civilians tried outside the United States.”
Boumediene, 553 U.S. at 760.
32
United States v. Ali, No. 12-0008/AR
federal court decisions which “upheld military trial of
civilians performing services for the armed forces ‘in the
field’ during time of war.”27 Covert, 354 U.S. at 33 (“To the
extent that these cases can be justified, insofar as they
involved trial of persons who were not ‘members’ of the armed
forces, they must rest on the Government’s ‘war powers.’”
(citing Perlstein, 151 F.2d 167; Hines v. Mikell, 259 F. 28 (4th
Cir. 1919)); Ex parte Jochen, 257 F. 200 (S.D. Tex. 1919); Ex
parte Falls, 251 F. 415 (D.N.J. 1918); Ex parte Gerlach, 247 F.
616 (S.D.N.Y. 1917); Shilman v. United States, 73 F. Supp. 648(D.C.N.Y. 1947), rev’d in part, 164 F.2d 649 (2d Cir. 1947); In
re Berue, 54 F. Supp. 252 (S.D. Ohio 1944); McCune v.
Kilpatrick, 53 F. Supp 80 (E.D. Va. 1943); In re Di Bartolo, 50
F. Supp. 929 (S.D.N.Y. 1943))).
C. Reasonable Availability of Article III Forum
In the alternative, the Amici Navy-Marine Corps and Air
Force Appellate Divisions argue that in Toth and Singleton the
Supreme Court held that “if Congress reasonably could provide an
Article III forum for the trial of civilians accompanying the
military overseas, a court-martial is unconstitutional.” Amici
also argue that the “availability” of a civilian court is merely
26
This case does not present a situation involving a United
States citizen and we take no position as to that issue.
27
We recognize that Ali was in Iraq pursuant to a contingency
operation rather than a declared war. However, we are also
33
United States v. Ali, No. 12-0008/AR
a question of logistics and that military authorities could have
transported Ali back to the United States for trial in an
Article III court. (Citing Toth, 350 U.S. at 23 (suggesting
that Congress use the “least possible power adequate to the end
proposed”)). In other words, court-martial jurisdiction over
civilians is unnecessary when there are “available alternatives”
which guarantee constitutional protections.
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, cf. United States v. Brehm, No. 1:11-cr-11, 2011 U.S.
Dist. LEXIS 33903, at *3, 2011 WL 1226088, at *1. (E.D. Va.
Mar. 30, 2011) (finding that MEJA extended to a South African
civilian contractor who worked for the Department of Defense in
Afghanistan), 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
cognizant of the nature of the conflict and the existence of
actual hostilities.
34
United States v. Ali, No. 12-0008/AR
the “least possible power adequate” to try Ali in this case.
Toth, 350 U.S. at 23.28
III. Fosler/Ballan Issue
Charge III and its specification alleged a violation of
Article 134, UCMJ, specifically that Ali “[d]id, at or near
Combat Outpost 4, Iraq, o/a 23 Feb 08, wrongfully endeavor to
impede an investigation in the case of himself and H.A.U. by
wrongfully hiding evidence, to wit: the knife which injured
H.A.U.” The specification did not contain reference to the
terminal elements of clauses 1 or 2 of Article 134, prejudice to
good order or discipline or service discrediting conduct.
Ali pled guilty to Charge III. The stipulation of fact,
signed by Ali, stated that “Mr. Ali’s conduct was prejudicial to
good order and discipline in that it impeded the Soldiers of the
170th MP Company in their efforts to determine the facts of the
physical altercation, the reasons for the fight and the means of
Mr. Al-Umarryi’s injuries.” During the providence inquiry, the
military judge explained the elements of prejudice to good order
and discipline and service discrediting conduct to Ali. Ali
stated that his conduct was prejudicial to good order and
28
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
35
United States v. Ali, No. 12-0008/AR
discipline. Ali’s case is factually analogous to United States
v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). Ballan pled guilty to an
Article 134 charge which omitted the terminal element, entered
into a pretrial agreement, submitted a stipulation of fact which
addressed the terminal element, and indicated that he understood
the nature of the prohibited conduct during the providence
inquiry. Id. at 30-35. This court applied a plain error review
and found no material prejudice to Ballan’s substantial rights.
Id. Similarly, we find no material prejudice to Ali’s
substantial rights in light of the error in Charge III.
Decision
The decision of the United States Army Criminal Court of
Appeals is affirmed.
question of the constitutionality of court-martial jurisdiction
over a noncitizen who is not also a host-country national.
36
United States v. Ali, No. 12-0008/AR
BAKER, Chief Judge (concurring in part and in the result):
INTRODUCTION
I concur in the reasoning and the result with respect to
Issue II.1 I write separately regarding Issue I because, while I
agree with the result, I believe the essential and threshold
question in this case is whether Congress possesses the
authority to amend the Uniform Code of Military Justice (UCMJ)
to include within its jurisdiction civilian contractors serving
with or accompanying the United States Armed Forces. Working
forward from Article I of the United States Constitution, rather
than backward from the Bill of Rights, Congress must have an
enumerated and positive authority to act, even if its actions
would not otherwise run afoul of the Bill of Rights. Thus, the
military judge had it exactly right: “The two issues in this
motion are whether the accused falls within the terms delineated
by Congress in Article 2(a)(10), and, if so, whether Congress
has the power under the United States Constitution to extend the
jurisdiction of courts-martial to that extent.”
Only if one determines that Congress has an affirmative
power to act, does one need to then consider whether it has done
1
I concur in the result with regards to Issue III, but for
reasons stated in my concurring opinion in United States v.
Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012) (Baker, C.J., concurring
in the result), and my dissenting opinion in United States v.
Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J.,
dissenting), I conclude that Appellant was on fair notice of the
Article 134, UCMJ, 10 U.S.C. § 934 (2006), charge.
United States v. Ali, No. 12-0008/AR
so in a manner consistent with the Bill of Rights and in
particular the Fifth and Sixth Amendments. In this regard, the
majority goes too far in concluding that the Amendments do not
apply overseas to noncitizens: “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 established any
substantial connections to the United States.” United States v.
Ali, __ M.J. __ (30) (C.A.A.F. 2012). The Supreme Court offers
a more nuanced approach stating that “questions of
extraterritoriality [in the application of constitutional
rights] turn on objective factors and practical concerns, not
formalism.” Boumediene v. Bush, 553 U.S. 723, 764 (2008).
With respect to Appellant’s Fifth and Sixth Amendment
arguments, in this case, the only question we need to reach
expressly, or by implication, is whether the Government violated
Appellant’s Fifth and Sixth Amendments in the manner in which it
prosecuted him, as an Iraqi and Canadian national serving as a
combat translator while embedded in a United States military
unit in combat operations in Iraq. Appellant wore the same
uniform as the other members in his squad, served as an
interpreter on every mission the squad went on, and lived with
and near other soldiers in his squad. Without Appellant his
2
United States v. Ali, No. 12-0008/AR
team could not perform its military mission. Thus, he was an
integral member of this United States military unit.
In my view, if Appellant was sufficiently connected with
the Armed Forces to qualify for UCMJ court-martial jurisdiction
as a matter of statutory and constitutional law, then he was
also sufficiently connected to the Armed Forces to be entitled
to those rights embedded in the UCMJ to which members of the
Armed Forces are entitled, including those rights and rules that
are derived from the Fifth and Sixth Amendments. What he was
not entitled to were rights extending beyond those provided to
members of the Armed Forces as a matter of constitutional law.
DISCUSSION
A. Congressional Authority to Act
The threshold question presented by Appellant is a
structural one. Does Congress have authority to prescribe
court-martial jurisdiction over certain contractors serving with
or accompanying the United States Armed Forces? That is because
“[t]he Government may act only as the Constitution authorizes,
whether the actions in question are foreign or domestic.”
United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990)
(Kennedy, J., concurring); see also Reid v. Covert, 354 U.S. 1,
6 (1957) (plurality opinion) (the United States “can only act in
accordance with all the limitations imposed by the
Constitution”); United States v. Comstock, 130 S. Ct. 1949, 1956
3
United States v. Ali, No. 12-0008/AR
(2010) (“[T]he Federal ‘[G]overnment is acknowledged by all to
be one of enumerated powers,’ which means that ‘[e]very law
enacted by Congress must be based on one or more of’ those
powers.”) (2d and 3d set of brackets in original) (citations
omitted). If Congress does not have the power to legislate
jurisdiction in this manner, then we need not reach the Bill of
Rights issues. Moreover, the fact that an action does not
violate Appellant’s Fifth or Sixth Amendment rights does not
mean that the Congress has an enumerated or implied authority to
take the predicate action in question.
The Government identifies Article I, Section 8, Clause 14,
as its source of affirmative authority for Congress’s action.
This clause states that “The Congress shall have Power . . .
[t]o make Rules for the Government and Regulation of the land
and naval Forces.” Indeed, the Government rests its case upon
this clause. Appellant, on the other hand, argues that his
court-martial lacked jurisdiction because Congress exceeded its
legislative authority when it amended the UCMJ to extend court-
martial jurisdiction to reach civilians during contingency
operations. Appellant relies on Supreme Court case law for the
proposition that civilians may not be subject to military court-
martial generally, but to the extent they can, it can only occur
in the narrowest of circumstances necessitated by the lack of a
civilian alternative. Therefore, he argues that this Court
4
United States v. Ali, No. 12-0008/AR
should reject the application of court-martial jurisdiction to
him. See also Covert, 354 U.S. at 5 (rejecting court-martial
jurisdiction over American civilian dependants of servicemembers
stationed at a United States Air Force base in England and a
post in Japan); United States ex rel. Toth v. Quarles, 350 U.S.
11, 23 (1955) (rejecting court-martial jurisdiction over
civilian ex-servicemember); Ex parte Milligan, 71 U.S. (4 Wall.)
2 (1866) (concluding that a citizen not connected with military
service could not be tried by a military court when civilian
courts are still operating).
Addressing the Government’s argument first, on the one
hand, there is no question that Appellant was not a member of
the land and naval forces at the time of his offense or at the
time he was court-martialed. If he was, there would have been
no reason to charge him under Article 2(a)(10), UCMJ, 10 U.S.C.
§ 802(a)(10) (2006), as a civilian contractor serving with or
accompanying the Armed Forces. On the other hand, the Supreme
Court has recognized that the authority under this clause may
extend beyond those persons formally inducted into the United
States Armed Forces. “[T]here might be circumstances where a
person could be ‘in’ the armed services for purposes of Clause
14 even though he had not formally been inducted into the
military or did not wear a uniform.” Covert, 354 U.S. at 23.
5
United States v. Ali, No. 12-0008/AR
In my view, Appellant was certainly serving with and thus
also accompanying the United States Armed Forces, but he was
neither a member of the United States Armed Forces nor “in” the
United States Armed Forces. If he were, then the Government
should have charged him under Article 2(a)(1), UCMJ. Therefore,
to the extent Congress’s authority is based on Article I,
Section 8, Clause 14 (Rules and Regulations Clause) it must be
derived from an authority that is either implied from this
clause or is necessarily and properly derived from this clause
on the theory that if Congress is to govern and regulate the
United States Armed Forces effectively, it must also be able to
govern and regulate those who serve with and accompany the
United States Armed Forces as well. This assertion, however,
must be balanced against the Supreme Court’s continuing
admonition that “the jurisdiction of military tribunals is a
very limited and extraordinary jurisdiction” with respect to
civilians. Covert, 354 U.S. at 21. This admonition includes
courts-martial established pursuant to the UCMJ.
In the current legal context, I do not find sufficient
positive authority to reach this result on the authority implied
from Article I, Section 8, Clause 14 alone. Thus, if the
Congress is to have authority to prescribe court-martial
jurisdiction over civilian contractors serving with or
accompanying the armed forces in the field, additional and
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United States v. Ali, No. 12-0008/AR
complementary authority must be found somewhere in the
Constitution outside of the Rules and Regulations Clause. In
this case, the military trial judge and the United States Army
Court of Criminal Appeals (CCA) relied upon Congress’s
enumerated and implied war powers as well as its authority to
make rules and regulations. United States v. Ali, 70 M.J. 514,
519-20 (A. Ct. Crim. App. 2011). These powers are found, among
other places, in Article I, Section 8, and include the power to:
“lay and collect taxes . . . to . . . provide for the common
Defense”; “define and punish . . . [o]ffenses against the Law of
Nations”; declare war; make Rules concerning Captures on Land
and Water; raise and support armies; provide and maintain a
navy; and to provide for organizing, arming, and disciplining
the military. U.S. Const. Art. I, §8 cls. 1, 10-13, 16.
Congress also has the more general enumerated power of the purse
and authority to pass such laws as are “necessary and proper” to
effectuate its enumerated authorities. U.S. Const. Art. I, §8,
cl. 18. The Supreme Court has noted that the war powers provide
“considerably more extensive” authority than Article I, Section
8, Clause 14 alone. United States v. Averette, 19 C.M.A. 363,
364, 41 C.M.R. 363, 364 (1970) (citing Covert, 354 U.S. at 33).
While different courts, scholars, Congresses and Presidents
will point to different clauses within this lexicon to describe
and delimit Congress’s power, all will in some manner describe
7
United States v. Ali, No. 12-0008/AR
it as relating to the war powers. Most will also recognize that
the war powers are in some manner both exclusive and shared with
the President who serves as commander in chief and chief
executive and exercises enumerated and implied powers over
foreign affairs. U.S. Const. art. II, § 1, cl. 1, § 2 cls. 1-2;
American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)
(“Although the source of the President’s power to act in foreign
affairs does not enjoy any textual detail, the historical gloss
on the ‘executive Power’ vested in Article II of the
Constitution has recognized the President’s ‘vast share of
responsibility for the conduct of our foreign relations.’”
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
610-11 (1952) (Frankfurter, J., concurring))). At the same
time, as Justice Jackson noted in Youngstown, executive branch
lawyers are loath to describe or define this power with
specificity lest they in some manner limit its future and
necessary use. See Youngstown, 343 U.S. at 641 (1952) (Jackson,
J., concurring).
Courts are cautious as well. Id. at 635. This is based on
considerations of deference and other considerations generally
falling into the rubric of the political question doctrine. See
Nixon v. United States, 506 U.S. 224, 228 (1992) (a controversy
“involves a political question[] where there is a textually
demonstrable constitutional commitment of the issue to a
8
United States v. Ali, No. 12-0008/AR
coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it” (quoting
Baker v. Carr, 369 U.S. 186, 217 (1962))); see also Carr, 369
U.S. at 211 (emphasizing that resolution of foreign-relations
issues “frequently turn on standards that defy judicial
application, or involve the exercise of a discretion
demonstrably committed to the executive or legislature; but many
such questions uniquely demand single-voiced statement of the
Government’s views”) (footnote omitted). For example, the
Supreme Court, in discussing the nonjusticiability of a case
involving military policy, emphasized that:
it is difficult to conceive of an area of governmental
activity in which the courts have less competence.
The complex subtle, and professional decisions as to
the composition, training, equipping, and control of a
military force are essentially professional military
judgments, subject always to civilian control of the
Legislative and Executive Branches.
Gilligan v. Morgan, 413 U.S. 1, 10 (1973). One reason this
Court was established was to provide a mechanism of civilian
appellate review that had, or could develop, expertise in
military justice. See Noyd v. Bond, 395 U.S. 683, 694 (1969)
(noting that Congress deliberately chose to confide appellate
jurisdiction over courts-martial in a “specialized Court of
Military Appeals, so that disinterested civilian judges could
gain over time a fully developed understanding of the
distinctive problems and legal traditions of the Armed Forces”).
9
United States v. Ali, No. 12-0008/AR
Here, the Government’s assertion of jurisdiction is based
in part on the war powers. Where that exercise results in the
deprivation of individual liberty, some explanation is warranted
beyond the majority’s single statement that “[t]he Supreme Court
has cited Congress’s ‘war powers’ as the constitutional source
of authority and justification for federal court decisions which
‘upheld military trial of civilians performing services for the
armed forces’” in the context of World War I and World War II.
Ali, __ M.J. at __ (32-33) (quoting Covert, 354 U.S. at 33). A
number of principles are apparent.
First, court-martial jurisdiction over civilians is “a very
limited and extraordinary jurisdiction” and “was intended to be
only a narrow exception to the normal and preferred method of
trial in [civilian] courts of law.” Covert, 354 U.S. at 21. In
Toth, the Supreme Court concluded that “the constitutional power
of Congress to authorize trial by court-martial [over civilians]
presents another instance calling for limitation to ‘the least
possible power adequate to the end proposed.’” 350 U.S. at 23(quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31
(1821)); see also McElroy v. United States ex rel. Guagliardo,
361 U.S. 281, 286 (1960) (restating the Toth doctrine that
Congress must use “the least possible power adequate to the end
proposed” when defining court-martial jurisdiction over
civilians (quoting Toth, 350 U.S. at 23)). While Congress
10
United States v. Ali, No. 12-0008/AR
amended Article 2(a)(10), UCMJ, to apply in either a contingency
operation or declared war, “a strict and literal construction”
of court-martial jurisdiction over civilians should be applied.
Averette, 19 C.M.A. at 365, 41 C.M.R. at 365; see also William
Winthrop, Military Law and Precedents 100 (2d ed., Government
Printing Office 1920) (1895) (discussing that the predecessor of
Article 2(a)(10), UCMJ, Article 63 of the Articles of War, in
creating exceptional jurisdiction over civilians is to be
“strictly construed”). This case involves a narrow application
of Article 2(a)(10), UCMJ, to an Iraqi and Canadian national
serving with and accompanying the United States Armed Forces on
its missions during wartime in Iraq.
Second, at the same time, courts have long accepted and
affirmed an appropriate exercise of court-martial jurisdiction
over civilians. This jurisdiction is most appropriate in the
context of armed conflict where it is not feasible or
practicable to suspend military operations to pursue the
transfer of persons back to the United States for trial. Thus,
there have been a number of decisions by lower courts during the
twentieth century upholding court-martial jurisdiction over
civilians accompanying or serving with the armed forces “in the
field.” See Perlstein v. United States, 151 F.2d 167 (3d Cir.
1945); In re Berue, 54 F. Supp. 252 (S.D. Ohio 1944); In re Di
Bartolo, 50 F. Supp. 929 (S.D.N.Y. 1943); McCune v. Kilpatrick,
11
United States v. Ali, No. 12-0008/AR
53 F. Supp. 80 (E.D. Va. 1943). The Supreme Court has not
disturbed the legitimacy of these opinions. Moreover, the Court
noted in Covert that “[t]o the extent that these cases can be
justified, insofar as they involved trial of persons who were
not ‘members’ of the armed forces, they must rest on the
Government’s ‘war powers.’” 354 U.S. at 33.
Third, with respect to the application of Article 2(a)(10),
UCMJ, to Appellant, there is no question that the context is one
in which the war power is being exercised and that Appellant’s
conduct fell within the ambit of that exercise of the war
powers. Exercising its war powers, Congress specifically
authorized the conflict in Iraq with the Authorization for Use
of Military Force against Iraq Resolution of 2002. H.R.J. Res.
114, 107th Cong. (2002) (enacted). Appellant was serving as a
combat linguist in Iraq pursuant to both Congress’s exercise of
the war powers as well as the President’s. As the military
judge noted, Appellant’s duties were crucial to the success of
the United States mission. Appellant was “the direct link
between the squad and the Iraqi Police officers being trained.
Without an interpreter, the squad could not function and could
not accomplish its mission.”
Fourth, a functional approach should be taken when
determining the narrow and extraordinary limits of court-martial
jurisdiction over civilians. In Boumediene, the Supreme Court
12
United States v. Ali, No. 12-0008/AR
discussed the extraterritorial application of the Constitution
and demonstrated a clear focus not on formalism, but on what is
practical.2 553 U.S. at 764. The Court rejected a formalistic
test of sovereignty and citizenship when determining the reach
of the Constitution. While Appellant cites the Toth doctrine to
argue that Congress did not use “the least possible power
adequate to the end proposed,” and thus as long as civilian
courts were open in the United States, Congress could not allow
the military to exercise court-martial jurisdiction over
civilians, Appellant ignores key facts. See Ex parte Milligan,
71 U.S. (4 Wall.) at 127.
By court-martialing Appellant, the Government sought to
maintain discipline in the military and combat context as well
as to provide for criminal justice. The war powers and the
commander in chief’s authority surely include the power to
2
It is worth noting that in Covert objective factors, including
place of confinement and trial, unrelated to the petitioner’s
citizenship were relevant to each of the justices constituting
the majority. As the Court points out in Boumediene, 553 U.S.
at 759, Justice Black, writing for the plurality, contrasted the
particular facts in Covert with previous cases concerning the
extraterritorial application of the Constitution. 354 U.S. at
14 (plurality). Justice Frankfurter, concurring, argued that
“the ‘specific circumstances of each particular case” are
relevant in determining the geographic scope of the
Constitution. Id. at 54 (Frankfurter, J., concurring).
Finally, Justice Harlan, concurring, rejected a “rigid and
abstract rule” for determining the extension of constitutional
guarantees. Id. at 70 (Harlan, J., concurring). The Court in
Boumediene emphasized that practical factors are serious
considerations in determining the extraterritorial application
of the Constitution. 553 U.S. at 755-64.
13
United States v. Ali, No. 12-0008/AR
discipline civilians serving with the United States Armed Forces
in hostilities where it is “absolutely essential to maintain[]
discipline among troops in active service,” or would be
disruptive to combat operations. See Toth, 350 U.S. at 22(noting that court-martial jurisdiction over civilians should be
limited to the “narrowest jurisdiction deemed absolutely
essential to maintaining discipline among troops in active
service”); Ex parte Milligan, 71 U.S. (4 Wall.) at 126-27
(discussing necessity required to impose martial law).
Appellant’s reading of Toth would require the military to ship
host-country contractors home for even minor offenses. This
also suggests that if Appellant had committed more serious
offenses, Congress would not have had the authority to prosecute
him either. This is also inconsistent with Boumediene.
Appellant “was enmeshed within a military unit both during duty
time, when he was a required and integral part of accomplishing
the military mission, and during off-duty time, when he lived in
close proximity with and relied on the military unit to control
the society within which he lived.” Indeed, the military judge
found that the medical absence of the victim, who was also a
combat translator, rendered his squad “mission incapable” for
five days. If Congress could not extend court-martial
jurisdiction to Appellant in this context the United States
could not at one time hold Appellant responsible for his
14
United States v. Ali, No. 12-0008/AR
criminal offenses and provide for the military discipline and
readiness of a combat unit in the field.
Fifth, because the law does not prohibit the exercise of
court-martial jurisdiction over civilians per se, or on its
face, the scope of the exercise of authority here is limited by
the as-applied nature of Appellant’s challenge. In this case,
Appellant has received the same rights afforded to military
servicemembers accused of violating the UCMJ, including the
right to counsel and the right to appeal.3 Therefore, we are not
addressing a case of a civilian prosecuted in court-martial
without recourse to appeal, including appeal before a civilian
court, i.e., this Court. While jurisdiction could, in theory,
be exercised under Article 2(a)(10), UCMJ, in the context of
domestic security operations within the continental United
States, we do not face that situation here.4 Congress’s
authority to define jurisdiction in the manner that it has is
clearly strongest overseas in the case of active hostilities
exemplified here.
3
This latter right has been afforded to Appellant as a matter of
executive discretion and grace, but that does not negate the
fact that it was provided.
4
Note that Operation Noble Eagle, Executive Order 13223, applied
domestically (ordering reserves to active duty and delegating
certain authority to the secretaries of the departments of
Defense and Transportation to respond to threat of further
attacks after September 11, 2001). Exec. Order No. 13223, 66
Fed. Reg. 48, 201 (Sept. 14, 2001).
15
United States v. Ali, No. 12-0008/AR
Based on the foregoing analysis, the military judge and the
CCA have it right. The real question in this case is whether
the combination of the Rules and Regulations Clause, the war
powers, and the Necessary and Proper Clause authorized Congress
to legislate court-martial jurisdiction over this contractor, in
this context. While Appellant was not a member of the United
States Armed Forces, the war powers are implicated by the fact
that Appellant was serving with and accompanying a military unit
in combat and was an integral part of the unit and its mission.
The state of hostilities, as authorized by Congress and the
President, expands the exercise of Congress’s authority from one
relying solely on the Rules and Regulations Clause to one that
also rests upon the war powers by focusing on actual hostilities
and the location where actual hostilities are taking place. As
the military judge pointed out, “[a] deployed military unit
without discipline is nothing more than an armed mob roaming a
foreign country. Actual hostilities are a part of the
environment in which the armed forces are conducting their
military missions.” Therefore, the extension of court-martial
jurisdiction to Appellant, under the particular facts of this
case, is permissible pursuant to the Rules and Regulations
Clause of the United States Constitution and the war powers.
16
United States v. Ali, No. 12-0008/AR
B. Fifth and Sixth Amendments
Concluding that Congress does have the authority to
prescribe jurisdiction in this manner, one must then ask whether
it has done so in a constitutional manner. Appellant argues
that the military violated his Fifth and Sixth Amendment rights
when it exercised jurisdiction over him pursuant to Article
2(a)(10), UCMJ. Specifically, Appellant argues that the court-
martial lacked three fundamental protections provided in Article
III courts, an independent judge, grand jury indictment, and a
jury trial.
The military judge at trial concluded that “the Sixth
Amendment right to trial by jury does not apply to trials by
courts-martial.” The military judge also concluded, “Because
this is a case arising in the land or naval forces, the Fifth
Amendment explicitly states that the accused has no such right
at his court-martial.” The CCA affirmed this position:
“[B]ecause we find that the exercise of military jurisdiction
over appellant was proper, we find no violation of either the
Fifth or Sixth Amendment of the United States Constitution by
the military judge.” United States v. Ali, 70 M.J. 514, 520 (A.
Ct. Crim. App. 2011). The majority affirms this position as
well, but does so by relying on an expansive theory. It
concludes that “constitutional protections granted by the Fifth
and Sixth Amendments [do not extend] to a noncitizen who is
17
United States v. Ali, No. 12-0008/AR
neither present within the sovereign territory of the United
States nor established any substantial connections to the United
States.” Ali, __ M.J. at __ (30).
I conclude that Appellant’s Fifth and Sixth Amendment
rights were not violated by his court-martial, but through a
distinct and narrower analysis. As the military judge noted,
the Constitution delimits the application of Fifth and Sixth
Amendment to members of the United States Armed Forces. “No
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of war or public
danger; . . . .” U.S. Const. amend. V. This exception to the
requirement of indictment by grand jury “has been read over into
the Sixth Amendment so that the requirements of jury trial are
inapplicable.” Covert, 354 U.S. at 37 n.68 (citing Ex parte
Quirin, 317 U.S. 1, 40 (1942)). The Supreme Court has upheld
this limitation in the context of courts-martial. See, e.g., Ex
parte Milligan, 11 U.S. (4 Wall.) at 123; Ex parte Quirin, 317
U.S. at 40. And, the Supreme Court and this Court have also
recognized that constitutional rights may apply differently in
the military context. United States v. Marcum, 60 M.J. 198, 205
(C.A.A.F. 2004) (citing Parker v. Levi, 417 U.S. 733, 743
(1974)).
18
United States v. Ali, No. 12-0008/AR
It seems to me that if a civilian is sufficiently
integrated into the United States Armed Forces to qualify for
court-martial jurisdiction under Article 2(a)(10), UCMJ, then
that same person is sufficiently integrated so as to be entitled
to those Fifth and Sixth Amendment rights embedded in the UCMJ.
Certainly this principle should apply in this narrow case where
a foreign-national contractor served in the key role of a combat
interpreter, was fully integrated into the military mission of
his squad, lived with the squad, and wore the same clothing and
equipment as members of the squad. What he was not entitled to
were the rights to a jury trial and indictment by grand jury --
rights that extend beyond those to which members of the United
States Armed Forces are themselves entitled.
It is also a conclusion founded on the provision of rights
rather than a declaratory preclusion of rights. Under the
majority’s reasoning, Appellant essentially has no rights, other
than those that the Executive and Congress have chosen to
provide as a matter of discretion and grace through the
operation of the UCMJ. Because the majority concludes that a
noncitizen abroad has no Fifth or Sixth Amendment rights, this
analysis would apply whether the court-martial was adjudicating
a death penalty sentence or one for unauthorized absence.
To rule this conclusion, the majority relies on United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990), a Fourth
19
United States v. Ali, No. 12-0008/AR
Amendment case, for the proposition that “a foreign national
being tried outside the United States for a crime committed
outside the United States[] enjoys” no protections under the
Fifth or Sixth Amendments. Ali, __ M.J. at __ (25). I would not
rely on Verdugo-Urquidez to reach this result.
First, Verdugo-Urquidez is a Fourth Amendment case, and as
the Court itself recognized, the Fourth Amendment is not the same
as the Fifth Amendment.5 494 U.S. at 264.
Second, reliance on the substantial connection test drawn
from Verdugo-Urquidez seems particularly inapt in this case,
because it creates something of a legal oxymoron. On the one
hand, Appellant has sufficient connection to the United States
and the United States Armed Forces to be serving with or
5
The Supreme Court stated:
Before analyzing the scope of the Fourth
Amendment, we think it significant to note that it
operates in a different manner than the Fifth
Amendment, which is not at issue in this case. . . .
. . . .
That text [of the Fourth Amendment], by contract with
the Fifth and Sixth Amendments, extends its reach only
to the “the people.”
. . . .
The language [of the Fourth Amendment] contrasts with
the words “person” and “accused” used in the Fifth and
Sixth Amendments regulating procedure in criminal
cases.
Verdugo-Urquidez, 494 U.S. at 264-66.
20
United States v. Ali, No. 12-0008/AR
accompanying the United States Armed Forces for the purposes of
establishing court-martial jurisdiction. But, on the other
hand, his connection is not substantial enough to warrant
application of the Fifth or Sixth Amendments. In my view,
service with the Armed Forces of the United States in the
uniform of the United States in sustained combat is a rather
substantial connection to the United States.
Third, as noted in Part A, in Boumediene the Supreme Court
noted that constitutional law overseas should not be applied in
a formalistic manner, but in a practical and contextual manner.
Johnson v. Eisentrager rejected the argument “that the Fifth
Amendment confers rights upon all persons, whatever their
nationality, wherever they are located and whatever their
offenses.” 339 U.S. 763, 783 (1950). Verdugo-Urquidez stated
that Eisentrager’s rejection of the Fifth Amendment was
“emphatic.” 494 U.S. at 269. However, the Court has pulled
back from such broad strokes in recent years. For example, the
Court in Boumediene emphasized “that questions of
extraterritoriality turn on objective factors and practical
concerns, not formalism.” 553 U.S. at 764. Thus, Boumediene
appears to significantly limit the blanket reach of both
Verdugo-Urquidez and Eisentrager in favor of the more contextual
and nuanced view expressed above.
21
United States v. Ali, No. 12-0008/AR
Fourth, and perhaps most importantly, the majority’s
analysis would seem to apply in verbatim manner to noncitizens
serving in the United States Armed Forces today to whom this
Court routinely applies the rights guaranteed by the Fifth and
Sixth Amendments, as evidenced by the fact that our cases have
never asked whether the accused is a United States citizen.
Noncitizens are eligible to serve as enlisted members of the
United States Armed Forces, and, as of 2010, 16,500 noncitizens
were serving in the military, making up about 1.4 percent of
enlisted members. Office of the Under Secretary of Defense,
Personnel and Readiness, Population Representation in the
Military Services: Fiscal Year 2010 Summary Report at 39 (2011)
(38th annual report). Between 1999 and 2008, around 70,000
noncitizens enlisted, making up four percent of non-prior
service accessions into active-duty. Molly F. McIntosh et al.,
CNA, Non-Citizens in the Enlisted U.S. Military 5 (2011). To
the extent there is a distinction based on citizenship, it would
seem to depend on the distinction between serving as a fully
integrated contractor while wearing the uniform and serving in
the United States Armed Forces. There is a distinction, but in
my view, it is a tenuous distinction, for both forms of service
would appear to establish a substantial connection to the United
States, at the very least in a descriptive manner.
22
United States v. Ali, No. 12-0008/AR
I see it differently. Because Appellant was fully
integrated into the United States Armed Forces, as described in
Part A, and therefore subject to court-martial jurisdiction, he
has those same rights as are provided to members of the military
pursuant to the UCMJ, which after all is the same UCMJ pursuant
to which he was being prosecuted. Some, but not all, of those
rights are of course a reflection of and implementation of Fifth
and Sixth Amendment principles. Thus, Appellant is not without
the protections of the Fifth and Sixth Amendments because, when
subject to court-martial jurisdiction, he is protected by at
least some of these principles because they are embedded in the
UCMJ and the Manual for Courts-Martial, United States. What
constitutional rights he did not have, as servicemembers do not
have, were the right to an indictment by grand jury and trial by
civilian jury. For these reasons, I reach the same result but
break in a decidedly different analytic direction than the
majority.
In conclusion, as the military judge noted at trial, the
question presented is whether Congress, in an exercise of its
authority under Article I to make rules and regulations and
pursuant to its war powers, can subject this foreign national,
in this context, to court-martial jurisdiction and limit his
rights to those provided under the UCMJ, a code that already
applies to United States military personnel. I conclude that
23
United States v. Ali, No. 12-0008/AR
Congress possesses the authority to amend the UCMJ to include
within its jurisdiction civilian contractors serving with or
accompanying the United States Armed Forces and that, in this
case, the exercise of court-martial jurisdiction did not violate
Appellant’s Fifth or Sixth Amendment rights.
24
United States v. Ali, No. 12-0008/AR
EFFRON, Senior Judge (concurring in part and in the
result):
Appellant, an Iraqi national, worked as a civilian employee
for a Department of Defense (DoD) contractor during the period
of major American combat operations in Iraq. See Article
2(a)(10), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
802(a)(10) (2006) (providing for court-martial jurisdiction over
persons “serving with or accompanying an armed force in the
field” during a “contingency operation”). At trial and on
appeal, he has contested the jurisdiction of his court-martial
on both statutory and constitutional grounds.
The majority opinion affirms Appellant’s conviction, but on
grounds broader than necessary for the resolution of this case.
For the reasons set forth below, I concur only with respect to:
(1) Part II.C. of the majority opinion (addressing jurisdiction
from the perspective of Appellant’s status as a host-country
national whose conduct was excluded from Article III coverage by
statute); and (2) Part III of the majority opinion (disposing of
the nonjurisdictional issue regarding Charge III based upon this
Court’s recent decisions). Beyond those matters, the case
before us does not provide an appropriate vehicle for resolving
the broader issues addressed in the majority opinion.
United States v. Ali, No. 12-0008/AR
I. PROSECUTION OF DOD CIVILIANS AND DOD CONTRACTOR EMPLOYEES
IN ARTICLE III COURTS AND IN COURTS-MARTIAL
Over the past decade, American military forces have
conducted major combat operations in Iraq and Afghanistan.
During this period, DoD civilians and DoD contractor employees
have provided critical support to the armed forces. Among those
civilian employees, a number have engaged in misconduct
sufficiently serious to result in prosecution for crimes
committed in the theater of operations. The government has
prosecuted these cases under the Military Extraterritorial
Jurisdiction Act (MEJA), 18 U.S.C. §§ 3261-3267, and under
Article 2(a)(10), UCMJ.
Prosecutions in the Article III courts
According to the Department of Justice:
The Military Extraterritorial
Jurisdiction Act [MEJA], 18 U.S.C. § 3261,
et seq., is the principal Federal statute
used to prosecute certain U.S. Government
employees, contractors, and their dependents
who commit crimes overseas. . . .
Since MEJA was enacted, the Justice
Department has successfully prosecuted
numerous MEJA cases involving former
Department of Defense employees or
individuals accompanying them overseas.
Holding Criminals Accountable: Extending Criminal Jurisdiction
to Government Contractors and Employees Abroad: Hearing Before
the S. Comm. on the Judiciary, 112th Cong. 2 (2011) (statement
of Lanny A. Breuer, Assistant Attorney General), available at
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http://www.judiciary.senate.gov/pdf/11-5-
25%20Breuer%20Testimony.pdf.
As an example of a successful prosecution under MEJA, the
Department of Justice cited United States v. Brehm, No. 1:11-cr-
11, 2011 U.S. Dist. LEXIS 33903, 2011 WL 1226088 (E.D. Va. Mar.
30, 2011), appeal docketed, No. 11-4755 (4th Cir. Jul. 29,
2011). Brehm bears many similarities to the appeal now before
us -- a foreign national employed by a DoD contractor who
stabbed another foreign national and was apprehended by American
military personnel. In Brehm, the incident led to federal
civilian charges, trial in the Eastern District of Virginia,
conviction, and sentence to forty-two months of confinement.
Prosecution in courts-martial
Since 2006, Article 2(a)(10), UCMJ, has provided statutory
authority for the prosecution of civilians accompanying the
armed forces in the field during contingency operations.
Although the armed forces and military contractors have employed
a large number of civilians in Iraq and Afghanistan during that
period, the UCMJ has not been a significant factor in the
prosecution of misconduct by civilians. In contrast to the
prosecution of numerous civilians under MEJA, the parties in the
present case have identified only one civilian convicted under
the UCMJ during the conflicts in Iraq and Afghanistan --
Appellant, a host-country national. The charges against Ali,
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United States v. Ali, No. 12-0008/AR
like the charges against Brehm, grew out of an assault with a
knife on another foreign national. Ali received a court-martial
sentence of confinement for five months, reduced to 115 days as
a result of a plea agreement. Unlike Brehm, who received a much
longer sentence at his trial in the Eastern District of
Virginia, Ali was not subject to Article III jurisdiction under
MEJA. See 18 U.S.C. §§ 3267(1)(C), 3267(2)(C) (excluding host-
country nationals from coverage under MEJA).
II. UCMJ JURISDICTION OVER APPELLANT
The minimal use of UCMJ jurisdiction over civilians does
not diminish the importance of the case to the parties before
us, but it suggests caution as to the range of issues that
should be resolved in this case. The appeal before us involves
a narrow record focusing on a unique statutory niche occupied by
this Appellant, a host-country national whose conduct in the
theater of operations was excluded from Article III coverage
under MEJA.
Part II.C. of the majority opinion upholds the
constitutionality of UCMJ jurisdiction over Appellant. __ M.J.
at __ (33-35) (observing that in the absence of Article III
coverage of Appellant’s conduct under MEJA, court-martial
jurisdiction may be sustained under the Constitution because the
UCMJ provides the “least possible power adequate to the end
proposed” under the circumstances of the case) (citing Toth v.
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United States v. Ali, No. 12-0008/AR
Quarles, 350 U.S. 11, 23 (1955)). I agree with that portion of
the opinion. Although the legislative history of the MEJA
exclusion for host-country nationals is not extensive, it
reflects congressional sensitivity to the interests of a host
country in prosecuting its own citizens, an appropriate
consideration under the military and foreign affairs powers of
Congress. See H.R. Rep. No. 106-778, pt. 1, at 21 (2000); see
also Report of the Advisory Committee on Criminal Law
Jurisdiction Over Civilians Accompanying the Armed Forces in
Time of Armed Conflict, at 61 (Apr. 18, 1997) (reflecting
concern about “unnecessary conflicts of jurisdiction and other
difficulties” that could arise if Article III jurisdiction under
the proposed statute covered host-country nationals). I also
agree with the majority’s decision to not address the
constitutionality of UCMJ jurisdiction over other civilians.
III. JURISDICTION IN CIRCUMSTANCES NOT AT ISSUE
IN THE PRESENT APPEAL
The open question
The portion of the majority opinion that discusses the
rights of foreign nationals is not necessary to the disposition
of the present case. The case before us involves the very
narrow question of court-martial jurisdiction over a host-
country national excluded from Article III coverage under MEJA.
A very different constitutional question -- an open question --
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United States v. Ali, No. 12-0008/AR
would arise under the “least possible power adequate to the end
proposed” test if the conduct at issue involved a DoD civilian
or DoD contractor employee who, as third-county national, would
be subject to Article III coverage under MEJA.
The constitutional importance of considering the
availability of Article III coverage has been underscored by the
government’s recent appellate filing in Brehm, a MEJA case
involving a third-country national: “By authorizing the trial
of civilians in an Article III court, MEJA bestows on such
persons all of the constitutional guarantees accorded by Article
III and the Bill of Rights, and thus does not implicate the
concerns about depriving civilians of those protections when
they are tried by court-martial.” Brief for Plaintiff-Appellee
at 38 n.11, United States v. Brehm, No. 11-4755 (4th Cir. Feb.
14, 2012). In Brehm, the government’s filing addressed the
issue of court-martial jurisdiction over civilians under Article
2(a)(10), UCMJ, in the context of current contingency
operations, candidly acknowledging that the constitutionality of
the UCMJ provision presents an “open question.” Id. at 15 n.5.
In the present appeal, we do not have an adequate basis in
either the trial record or appellate filings to address the
“open question” of whether, or in what circumstances, UMCJ
jurisdiction can be extended over third-country nationals for
conduct that is subject to Article III coverage. In that
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United States v. Ali, No. 12-0008/AR
context, it is appropriate to limit our decision to the
statutory category now before us -- a host-country national
whose conduct is excluded from Article III coverage under MEJA.
The present case does not require us to address Johnson v.
Eisentrager, 339 U.S. 763 (1950), and its progeny.
Eisentrager did not involve conduct subject to trial in an
Article III court. In Eisentrager, the Supreme Court emphasized
that the case involved the conviction of an enemy alien by an
overseas military commission in circumstances where no Article
III court was available. See id. at 765, 777-78, 781.
Consideration of whether Eisentrager applies to persons subject
to Article III coverage under a statute such as MEJA should be
reserved for a case in which the affected person has an
opportunity to fully litigate that issue at trial and on appeal.
Structural considerations in the context of Article III coverage
The issue of jurisdiction involves a broader set of
constitutional values than the personal exercise of Fifth and
Sixth Amendment rights. The Supreme Court, in its consideration
of UCMJ jurisdiction over civilians, focused significant
attention on constitutional structure, including the separation
of powers, the role of Article III as the foundation for
criminal trials, and the function of trial by jury as a
limitation on governmental power. See, e.g., Kinsella v. United
States ex rel. Singleton, 361 U.S. 234, 237-38, 246-47 (1960);
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United States v. Ali, No. 12-0008/AR
Reid v. Covert, 354 U.S. 1, 10, 22, 36, 38-39 (1957); Toth v.
Quarles, 350 U.S. at 17-18; see generally Grisham v. Hagan, 361
U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo,
361 U.S. 281 (1960).
The Supreme Court, in its comparison of courts-martial to
Article III courts, took note of the reforms contained in the
Uniform Code of Military Justice, as well as the honor and
professionalism of military personnel, but concluded that
courts-martial are constitutionally distinct from Article III
courts from a separation of powers perspective. See, e.g.,
Covert, 354 U.S. at 36-38; Toth, 350 U.S. at 17-18. In its
separation of powers analysis, the Court focused on the fact
that the critical decisions of guilt and innocence in a court-
martial are made by “ad hoc bodies appointed by a military
officer from among his subordinates” who “do not and cannot have
the independence of jurors drawn from the general public.”
Covert, 354 U.S. at 36. The Court also focused on the absence
of judges with the degree of independence provided by the tenure
provisions of Article III. See id. at 36-37; Toth, 350 U.S. at
17-18.
Although the military justice system has continued to
evolve since the Supreme Court’s decisions in the Toth-
Guagliardo line of cases, the differences between courts-martial
and Article III courts remain fundamentally unchanged with
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United States v. Ali, No. 12-0008/AR
respect to the separation of powers. The division of
responsibilities for criminal trials in the Article III courts
embodies the classic constitutional allocation of powers among
legislative, executive, and judicial functions. The
organization of courts-martial, by contrast, reflects a long
tradition of concentrating power in the Executive Branch. As in
the past, today’s military justice system does not permit trial
by jury, does not provide constitutional or statutory tenure
protections for the judiciary, contains features that combine
prosecutorial and judicial functions, and reflects the
significant exercise of legislative functions by executive
officials. See, e.g., Articles 25, 26, 36, 56, 60, 92, UCMJ, 10
U.S.C. §§ 825, 826, 836, 856, 860, 892 (2006). The military
justice system exists as an instrument of command, designed to
promote the good order and discipline essential to the conduct
of military affairs.
The import of the differences between courts-martial and
Article III courts primarily concerns constitutional structure,
not due process. See Singleton, 361 U.S. at 246. The issue of
jurisdiction addresses the preference for trial by jury as a
matter of constitutional choice, not fundamental fairness. The
military justice system, on a daily basis, demonstrates that a
person can receive a hearing and appellate review consistent
with fundamental notions of fairness. See Weiss v. United
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United States v. Ali, No. 12-0008/AR
States, 510 U.S. 163, 176-81 (1994). In a trial by court-
martial, the accused enjoys many of the same rights as a
defendant in an Article III trial, and in some areas, the
accused before a court-martial has greater rights than a
defendant in an Article III proceeding. See, e.g., Homer E.
Moyer Jr., Procedural Rights of the Military Accused: Advantages
Over a Civilian Defendant, 22 Me. L. Rev. 105 (1970).
The constitutionality of a criminal trial, however,
involves more than adherence to general notions of fairness.
The Constitution, as a source of authority and a limitation on
power, mandates the conduct of criminal trials in a particular
manner. See Toth, 350 U.S. at 18. Cf. Crawford v. Washington,
541 U.S. 36, 61-63 (2004).
In the military justice system, Congress has established a
criminal trial forum that does not comport with the structure
mandated by Article III of the Constitution. Judicial review of
legislation that subjects civilians to trial by courts-martial
requires an assessment of whether the statute at issue, on its
face and as applied, fits within the narrow range of
constitutional exceptions to the requirements of Article III.
See, e.g., Guagliardo, 361 U.S. at 284-86; Covert, 354 U.S. at
30-34. Such an assessment requires consideration of whether the
exercise of jurisdiction under the legislation involves the
“least possible power adequate to the end proposed.” Toth, 350
10
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U.S. at 23. See Guagliardo, 361 U.S. at 286. Cf. United States
v. Solorio, 483 U.S. 435, 440 n.3 (1987) (noting that the “least
possible power” test is confined to the context in which it
arose -- a court-martial of a civilian).
The Supreme Court observed in Covert that the exercise of
court-martial jurisdiction over civilians raises constitutional
issues of the “utmost concern.” 354 U.S. at 3. The present
case does not provide an appropriate vehicle for addressing the
full range of those important issues.
Application of the standard developed in the Toth-
Guagliardo line of cases calls for a carefully developed trial
and appellate record sensitive to the statutory text and
operational context of the MEJA-UCMJ relationship in a specific
set of factual circumstances. The constitutionality of UCMJ
jurisdiction over civilians other than host-country nationals is
an open question, and should remain so until properly developed
and briefed in a case involving parties having a direct interest
in the scope of such a decision.
11