Pardon the interruption from the wall-to-wall Nashiri coverage, but before it disappears too far into the past, I wanted to flag United States v. Ali--a case in which the Court of Appeals for the Armed Forces ("CAAF") heard oral argument last Thursday (and about which I have blogged in some detail before). The argument audio itself is available here, and cogent summaries thereof can be found over at CAAFlog here and here. In short, the question presented in Ali is whether it is constitutional to subject a civilian contractor to trial by court-martial if he is "serving with or accompanying an armed force in the field" during a "contingency operation."
In a series of cases decided during the 1950s and 1960s (which I've summarized in more detail in this essay), the Supreme Court repeatedly recognized categorical constitutional limits on the military's power to try civilians (including contractors), at least during "peacetime." To similar effect, the Court of Military Appeals (CAAF's predecessor) held in United States v. Averette during Vietnam that the phrase "time of war" in the UCMJ provision authorizing courts-martial of civilian contractors should be understood to mean declared war, in order to avoid the constitutional question that would otherwise arise from trying civilians during such undeclared hostilities. That question is now squarely presented, and I don't think it's at all obvious from the argument just how CAAF will rule. (For what it's worth, the Army Court of Criminal Appeals decision under review had relied entirely on the conclusion that the Supreme Court's case law did not consider the military's power to try a civilian who "committed all of his offenses and was court-martialed (1) during a time of actual hostilities and (2) in a location where actual hostilities were taking place.")
Given the likelihood that this case is headed for the Supreme Court one way or the other, I thought I'd offer one small (but, in my view, significant) reflection here, and do so below the fold:
As anything more than a cursory review of its case law will reveal, and contra the Army court of appeals, the Supreme Court has not historically distinguished between “hostilities” and “non-hostilities” when it comes to military jurisdiction over civilians; it has distinguished between “wartime” and “peacetime,” implicitly treating the conflict in Korea (for example) as the latter, not the former, in the Toth case. From the Justices’ perspective, holding fast to a requirement that Congress formally declare war before civilians even might face military trials has been the only way to ensure that the ever-shrinking gap between war and peace doesn’t also lead to a blurring of the line between military and civilian authority--a very real concern of the Founders that showed up in the Declaration of Independence and that helped to explain the Constitution's three distinct jury-trial protections.
Otherwise, civilians might be subjected to military jurisdiction anytime Congress authorizes the use of military force anywhere and for any purpose... The Army Court of Criminal Appeals' response to this concern was that the UCMJ only authorizes such trials during "contingency operation[s]," and so "there is no . . . danger of the broad application of the UCMJ to civilians." One look at the statutory definition of "contingency operation," though (see subsection (a)(13)), suggests just how myopic and unconvincing this argument is; virtually all deployments of U.S. forces overseas trigger that provision.
Another response might simply be that this is a problem not worth a solution because our military courts are models of fairness—and they may well be. As CAAF Judge Margaret Ryan wrote in 2009, “the military justice system today . . . generally provides substantial procedural protections and provision for appellate review by independent civilian judges [to] vindicate servicemen’s constitutional rights.” But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn't declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.
Of course, we might also conclude that allowing military jurisdiction over civilian contractors isn't a slippery slope at all, since they, unlike most of us, accompany our troops into the field and increasingly serve comparable functions as our servicemembers. So understood, doesn't it make sense to subject them to similar criminal process since they are, for all intents and purposes, part of our "land and naval forces"? Here, I think the best rejoinder comes from Justice Black. He was only writing for a plurality in Reid, but it seems difficult to quibble with this passage from his opinion:
it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were ‘necessary and proper’ for the regulation of the ‘land and naval Forces.’ Such a latitudinarian interpretation of these clauses would be at war with the well-established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate ‘the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces.’ There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over non-military America.