Next Thursday, the Supreme Court will decide whether or not to grant certiorari in United States v. Ali–the case in which the highest court in the military justice system, the Court of Appeals for the Armed Forces (CAAF), unanimously upheld the constitutionality of court-martial jurisdiction over a civilian contractor, albeit with sharp divisions among the five judges as to why.
I’ve previously written about the Ali case in some detail (including my first-ever Lawfare post). In those posts, I did my best to explain why I believe that Ali is the most important military jurisdiction case to come to the Supreme Court in the last quarter century (at least since the Court’s 1987 decision in Solorio v. United States). In this post, I’d like to suggest why the Solicitor General’s concerted effort to convince the Justices to the contrary in his Brief in Opposition to Certiorari (“BIO”) ultimately fails to persuade–and why, if anything, the BIO underscores the case for why cert. should be granted next week…
By way of background (those familiar with the case and/or my prior posts should skip to Part II), Ali is a dual Canadian-Iraqi citizen who was court-martialed for his role in an assault while serving as a translator attached to (and working with) U.S. military forces in Iraq in 2008. The government was able to court-martial Ali thanks to a 2006 amendment to Article 2(a)(10) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802(a)(10). Prior to 2006, the UCMJ had authorized military trials for civilians “serving with or accompanying an armed force in the field,” but only during “time of war,” which CAAF’s predecessor had interpreted during Vietnam to require a formal declaration of war–thereby barring such a trial during Vietnam and effectively turning the provision into a dead-letter (we haven’t declared war since 1942).
In 2006, Congress expanded that authorization to also allow such trials during a “contingency operation,” which federal law defines as virtually any overseas deployment (and some domestic ones) where troops are or may become involved in operations against an “enemy of the United States or against an opposing military force.” Ali can’t be tried in a civilian U.S. court because the usual hook for civilian criminal jurisdiction in such cases, the Military Extraterritorial Jurisdiction Act (MEJA), doesn’t allow trials of “host country nationals.“ Thus, Ali became the first civilian contractor to be tried by a U.S. court martial under the 2006 amendment.
Ali eventually entered into a plea agreement, wherein he agreed to plead guilty to lesser offenses (while reserving his right to challenge his amenability to military jurisdiction on appeal) in exchange for the government dropping the more serious assault charge. In July 2011, the Army Court of Criminal Appeals rejected Ali’s constitutional challenge to his court-martial, and in July 2012, CAAF affirmed.
As I explained shortly after CAAF’s decision came out, though, the five CAAF judges split badly with regard to the reasoning. Judge Erdmann’s majority opinion, for example, rested almost entirely on the (controversial) conclusion that Ali, as a non-citizen tried for offenses committed outside the United States, lacked Fifth and Sixth Amendment rights, and so had no basis on which to object to military jurisdiction. (Historically, the principal constraint on the government’s power to subject civilians to military jurisdiction has been the jury-trial protections of Article III and the Fifth and Sixth Amendments.)
Leaving aside the structural flaws with the majority’s analysis, the reason why this argument makes no sense as applied to Ali is because, unlike, for instance, the Guantanamo detainees, Ali did have substantial, voluntary connections to the United States–to wit, his predeployment training at Fort Benning, Georgia, and his employment by a U.S. military contractor. Indeed, these two connections were, by themselves, enough for the Fourth Circuit to reject a due process challenge to a MEJA conviction of a South African contractor with similar contacts to the United States for assault against a British contractor on a NATO base in Afghanistan.
Chief Judge Baker concurred in the judgment, largely criticizing the majority for such a simplistic (and analytically questionable) approach to the question presented. In Judge Baker’s view, Ali’s citizenship (or lack thereof) wasn’t relevant because of the Fifth and Sixth Amendment issue; it was relevant because of the more functional approach he believed courts should take to the appropriateness of military jurisdiction over civilians. Thus, trying non-citizens for crimes committed while functionally intertwined with forward-deployed servicemembers in a zone of active combat operations presented the strongest case for military jurisdiction both as a matter of constitutional law and U.S. policy, leaving the harder questions about military jurisdiction over U.S. citizen civilians and/or civilians inside the United States for another day.
Finally, Judge Effron also concurred in the judgment, albeit on the far narrower and more limited ground that Ali’s unique status as a “host country national,” and therefore the inapplicability of MEJA, settled the constitutional question. (Of course, that implies that Congress can control the scope of military jurisdiction by negative reference to civilian jurisdiction, an argument that raises issues of its own.)
I had a lot more to say about the pros and cons of these three competing approaches in my earlier posts; for now, suffice it to say that they each bespeak dramatically different understandings of the proper scope of military jurisdiction over civilian contractors going forward… But before getting to that, let me turn to the genesis of this post, i.e., the government’s BIO.
II. The Government’s Opposition to Certiorari
The BIO rests on two distinct arguments. In its words,
The CAAF correctly upheld petitioner’s conviction by court-martial for offenses committed while accompanying a U.S. Army unit during Operation Iraqi Freedom and serving a mission-critical role for that unit. That decision does not conflict with any decision of this Court or a federal circuit court. To the contrary, it is fully consistent with the well-settled understanding that “[f]rom a time prior to the adoption of the Constitution the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules.”
The CAAF’s holding, moreover, lacks broad importance. As petitioner acknowledges, court-martial proceedings against civilians accompanying U.S. troops in a war zone are extremely rare—this is the first such proceeding in over forty years—and petitioner himself was sentenced only to the 115 days that he had already served in pretrial confinement. This case arose from the unusual circumstance in which petitioner’s Iraqi citizenship prevented his prosecution in a U.S. civilian court under MEJA’s exception for host-country nationals, even though petitioner has long resided in Canada and also has Canadian citizenship. That circumstance is unlikely to recur with any frequency, and the Secretary of Defense has recently issued a directive sharply curtailing military leaders’ authority to try civilians by court-martial. Further review is not warranted.
In other words, the BIO argues, CAAF got it right (albeit based on a theory that far-more-closely resembles Chief Judge Baker’s concurrence in the judgment than Judge Erdmann’s majority opinion), and whether or not they did, any error will impact a vanishing class of cases. This latter argument is the quintessential “bad-vehicle” argument that the government often makes to the Court to try to dissuade it from taking a case… As I explain below, though, it fails to persuade.
III. Why the “Bad Vehicle” Arguments Don’t Work…
Starting with the BIO’s second argument first (since it’s arguably more important at the cert. stage), each of the four propositions the government invokes to explain why this case doesn’t merit the Court’s attention can be easily dispatched.
A. ”[T]his is the first such proceeding in over forty years.”
Of course it is!! As summarized above, to avoid constitutional problems, CAAF’s predecessor effectively read the relevant provision out of the UCMJ during Vietnam, only to have it resurrected (and the constitutional question squarely raised) by Senator Graham in a largely unnoticed (at the time) 2006 amendment thereto. As Tadić (or, e.g., Hamdan) demonstrate, someone’s got to be the test case, and for Article 2(a)(10), Ali is it. And lest there be any doubt on the subject, the Supreme Court has long understood this very point… As Chief Justice Roberts explained for the Court two years ago in Stern v. Marshall (citing the same Justice Black opinion from Reid v. Covert on which the BIO repeatedly relies),
A statute may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely. “Slight encroachments create new boundaries from which legions of power can seek new territory to capture.” Although “[i]t may be that it is the obnoxious thing in its mildest and least repulsive form,” we cannot overlook the intrusion: “illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” We cannot compromise the integrity of the system of separated powers and the role of the Judiciary in that system, even with respect to challenges that may seem innocuous at first blush.
In other words, for those (like me) who believe the Constitution generally draws bright lines between the jurisdiction of civilian and military courts, the first case testing (and arguably crossing) that line is the most important case–because of, and not just despite, the fact that it’s first.
B. ”[P]etitioner himself was sentenced only to the 115 days that he had already served in pretrial confinement.”
True, but irrelevant. Ali’s appeal is not moot, and by this same logic, there would be no constitutional problem with military jurisdiction over civilians in any case resulting in no or modest incarceration. But as Chief Justice Warren wrote for the Court a half-century ago,
Many deep and abiding constitutional problems are encountered primarily at a level of ‘low visibility’ in the criminal process—in the context of prosecutions for “minor” offenses which carry only short sentences. We do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct.
To be sure, the government here may simply be pointing out that, at present, no individual’s liberty hangs in the balance. But again, that argument only flies if you buy the government’s argument that Ali’s is an unusual, if not unique case. And if the Court denies certiorari, it will only be such until the next one.
C. ”This case arose from [an] unusual circumstance . . . . [that] is unlikely to recur with any frequency.”
Again, True, but irrelevant. What the government is effectively arguing here is that the only civilian contractors who are going to be court-martialed under Article 2(a)(10) are those who fall into MEJA’s “host-country nationals” exception. I agree, of course, that this will not be that large a set of cases–although I do think it will be non-zero, especially where translators or other logistical staff are concerned. The problem is that neither the text of the statute nor the government’s own theory of the constitutional issue (more on that in a minute) brook any distinction based upon this fact. Recall that the statute authorizes trial by court-martial of any civilian, of any citizenship, “serving with or accompanying an armed force in the field” during a contingency operation. And the government’s theory of the merits turns not on Ali’s status as a host-country national, but rather on the fact that he’s a non-citizen enmeshed with forward-deployed units in a foreign combat theater.
Given these points, there’s no immediately obvious reason why future cases would necessarily be limited to those involving host-country nationals other than prosecutorial discretion. And as the Court put it in response to a similar argument four years ago, “Of course, Congress legislates against a background assumption of prosecutorial discretion, but this tells us nothing about the boundaries of punishment within which Congress intended the discretion to be exercised; prosecutorial discretion is not a reason for courts to give improbable breadth to criminal statutes.”
D. ”[T]he Secretary of Defense has recently issued a directive sharply curtailing military leaders’ authority to try civilians by court-martial.”
Again, true, but irr–okay, I’m getting repetitive. Perhaps with an eye toward the weakness of its position in this respect, the SG in the end relies upon a (fortuitously timed!) directive from the Secretary of Defense requiring that (1) the Secretary specifically approve court-martial charges against a civilian; (2) the Justice Department pass on prosecuting the defendant under MEJA; and (3) the charged conduct result in a potential adverse effect on military operations.
This directive is certainly a good thing. But with regard to weakening the case for certiorari, I don’t buy it. For starters, nothing stops this or any future Secretary from approving such cases or overriding this directive. And in any event, the fact that MEJA wasn’t available in theory or practice and that there’s a potentially adverse effect to the military only matters if one believes that those points are relevant to the merits of the constitutional question. Certainly they are on the government’s theory, but the government’s theory isn’t the only one out there…
E. Whither the CAAF majority?
But the most important point to make about the BIO’s argument that Ali is a bad vehicle is the dog that didn’t bark–the SG’s refusal to align the Justice Department with Judge Erdmann’s majority opinion for CAAF. After all, Judge Erdmann’s rationale–that Ali is categorically unprotected by the Fifth and Sixth Amendments and so therefore has no right not to be tried by the military–would only apply to non-citizens with no substantial connections to the United States, arguably a far smaller set of hypothetical future defendants than any of those contemplated in the BIO. Then, the only issue would be whether the Justices were really inclined to revisit Judge Erdmann’s case-specific analysis of Ali’s case-specific connections to the United States–something the Court has been ill-inclined to do in a litany of other cases.
Moreover, the fact that the SG doesn’t take a firm position on the merits of the majority’s rationale doesn’t just undermine its bad-vehicle argument; it also more fundamentally bolsters the argument that CAAF shouldn’t have the last word, since the Justice Department won’t even defend the opinion that would control if cert. is denied. In one sense, it’s a commendable tactical decision by Justice Department, since it suggests some (understandable!) discomfort with Judge Erdmann’s reasoning. But then the question becomes what the right answer should be. And once we accept that the CAAF majority didn’t offer it, the case for cert. becomes much, much stronger.
IV. Three Brief Thoughts on the Merits
The above analysis goes to explaining why, regardless of how the Justices are inclined to rule on the merits, cert. should be granted in Ali. But if you’ve gotten this far, I thought I’d also briefly flag three big questions raised, and not answered, by the position that the BIO appears to take on the merits of the constitutional question. (I already raised some of these in my critique of Chief Judge Baker’s concurrence back in July.)
A. Rewriting the Statute to Save It
At the heart of the BIO’s argument on the merits is a theme quite similar to the one sounded by Chief Judge Baker in his concurrence in the judgment in CAAF–that the Constitution should permit military jurisdiction over non-citizens who are effectively performing core military functions in a foreign combat theater. As I noted when the opinion came out, this view is both normatively attractive and constitutionally coherent, insofar as it treats such contractors as effectively part of the “land and naval forces” that the Make Rules Clause gives Congress the power to regulate and that the Grand Jury Indictment Clause of the Fifth Amendment exempts from ordinary civilian criminal process.
To get there, though, requires a complete rewriting of the statute–which, again, draws no distinction based upon the citizenship of the defendant, the territorial location of the proscribed conduct, or the defendant’s (or his offense’s) relationship to ongoing combat operations. Even if one could rewrite the statute to save it, such analysis would still require a fundamental shift away from the bright line drawn by the Court’s prior jurisprudence.
B. Wartime vs. Peacetime (and Where Contingency Operations Fit)
When the Court in the past has been confronted with the appropriateness of court-martial jurisdiction over civilians, it has drawn a bright line between “peacetime” (in which a quartet of decisions from the late 1950s and 1960 categorically forswear the exercise of military jurisdiction over civilians) and “wartime” (in which the Court has not blessed such jurisdiction, but has at least left open its possible validity). Thus, the most recent case on point, McElroy v. United States ex rel. Guagliardo, specifically and categorically rejected the constitutionality of court-martial jurisdiction over civilian contractors during “peacetime.” The animating principle behind these cases has consistently been that, given the nature of U.S. military engagement since the Second World War, there would be no meaningful stopping point once military jurisdiction over civilians was allowed in circumstances other than “war.”
The really hard question that the 2006 amendment to the UCMJ raises, then, is whether “contingency operations” fall on the “war” side of this line–and, if not, whether the Court is really ready to scrap the line outright. Here’s how such operations are defined:
The term “contingency operation” means 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, section 712 of title 14, or any other provision of law during a war or during a national emergency declared by the President or Congress.
I won’t go into detail, but the list of things that have been designated as contingency operations under the UCMJ include plenty of deployments that we’d never consider to be “war.” Indeed, the FY2012 NDAA amended the definition to include as contingency operations military deployments in response to major emergency or disaster declarations by the President under the Stafford Act–i.e., wholly domestic, and usually non-man-made, emergencies.
There’s a lot more to say about the importance of preserving the war vs. peace distinction as a constitutional matter, but I suspect the point has been made. That’s why CAAF’s predecessor interpreted the pre-2006 version of the UCMJ to only authorize military jurisdiction over civilians in cases in which Congress formally declares war. Any other, more liberal line, regardless of where Congress (or the Court) draws it, would become incredibly difficult to police…
C. What Was Iraq in 2008?
That leaves the most important point for last. Even if one were favorably disposed toward a functional, rather than formal, test for “war” vs. “peace,” is it so clear that, by the spring of 2008 (when Ali’s offenses were committed), our operations in Iraq still fell on the “war” side of this line? That is to say, if the Court really is willing to adopt a functional approach to when it’s permissible to exercise military jurisdiction over civilians, and is inclined toward the government’s view that such jurisdiction is appropriate over non-citizens who are effectively performing core military functions in a foreign combat theater, is it open-and-shut that Ali’s is such a case? That a translator working in the Green Zone in 2008 was effectively exercising a core military function in a foreign combat theater? I’m sure plenty of readers think the answer is obvious. I’m equally sure that at least some of you have a different “obvious” answer.
* * *
Ironically, then, this case is actually a very difficult one even under the government’s proposed functional approach to the constitutional question. To my mind, that’s an argument for holding to the prior cases’ bright-line test, at least for now–for forswearing military jurisdiction over civilians absent a declaration of war, and for “fixing” the problem raised in cases like Ali by repealing the “host-country national” exception in MEJA, not shoehorning these cases into the court-martial system.
But whether you agree with me or not, the closeness of this case on the merits, the need for the Court to either affirm the bright line or to explain with some specificity when (and why) it can be blurred, the government’s refusal to defend CAAF’s decision on the merits, and the unconvincing nature of its other arguments against certiorari, all suggest at least one point on which I hope we can all agree: The Supreme Court needs to take this case.