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Brehm: Fourth Circuit Creates Split in Contractor-Contacts Analysis

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Sunday, August 12, 2012 at 7:00 PM

With a hat tip to Bobby, I wanted to flag that the Fourth Circuit on Friday upheld the conviction of Sean Brehm, a non-citizen convicted under the Military Extraterritorial Jurisdiction Act (MEJA) for an offense committed against another non-citizen on a NATO airbase in Afghanistan (i.e., a crime with virtually no direct U.S. contacts). (For an earlier post about the issues in Brehm, see here.) The relatively cryptic opinion by Judge King reduces to two key holdings: (1) that Congress has the power under the Make Rules and Necessary and Proper Clauses to proscribe extraterritorial offenses by non-citizen contractors; and (2) that Brehm’s contacts were sufficient to satisfy whatever limits the Due Process Clause imposes. As the court concluded,

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

I’ll confess to having some ambivalence about the first (Article I) holding, since I don’t think it is immediately obvious that Congress’s power over civilian contractors can fairly be traced to the Make Rules Clause of Article I, which only extends to “Rules for the Government and Regulation of the land and naval Forces.” But putting that aside, I think the far more significant point for present purposes is how inconsistent the Fourth Circuit’s analysis of Brehm’s contacts is with the Court of Appeals for the Armed Forces’ analysis in United States v. Ali, in which it held, controversially, that a non-citizen contractor in Iraq had insufficient contacts with the United States to support the applicability of the Fifth Amendment’s Due Process Clause.

Reasonable people can certainly disagree about which contacts analysis is more convincing (my own view tends toward a fairly liberal construction of contacts in this context), but I’m hard pressed to see how these two analyses can be reconciled even if they arise in slightly different contexts (and under different statutes). If contractors have sufficiently strong connections to the United States to subject them to civilian criminal jurisdiction for offenses even against non-citizens overseas, how can similar (if not stronger) connections not bring with them some modicum of due process protections?

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