Terrorism Trials: Military Commissions

CAAF Upholds Constitutionality of Military Jurisdiction Over Civilian Contractors

By Steve Vladeck
Wednesday, July 18, 2012, 6:56 PM

It's turned out to be a very big news day in national security litigation land... In addition to the extensive coverage of Aulaqi v. Panetta (to which I hope to add some thoughts of my own later tonight), I wanted to flag another very important, but less well-noticed development: The Court of Appeals for the Armed Forces' decision in United States v. Ali, upholding the constitutionality of Article 2(a)(10) of the Uniform Code of Military Justice, which authorizes court-martial jurisdiction over civilian contractors accompanying the armed forces in the field "during a contingency operation." I've written about the case before, and hope to have more thoughts tomorrow or Friday (once I've had a chance to digest the 71 pages worth of opinions). For now, let me just reiterate that I think Ali is, hands-down, the most important military jurisdiction case in 25 years--since the Supreme Court decided Solorio v. United States in 1987 [and arguably as important (gasp!) as the military commission cases arising out of Guantanamo].  Whether--and in what circumstances--Congress may constitutionally subject civilians to military jurisdiction is a deeply important question, one that the Court has struggled with in the past, and one I've always thought would pique the current Justices' curiosity whatever they're ultimately inclined to decide on the merits. I suspect that, thanks to today's decision, we'll soon find out whether I'm right...