Thanks to Ben for the warm introduction, and to the entire Lawfare crew for letting me crash the party. I thought I'd jump into the fray on a bit of a tangent, albeit one that both directly and indirectly implicates some of the issues we've been fighting over these past few months...
Lurking in the background of the ongoing debate over when terrorism suspects may be tried by a military commission is the broader question of when U.S. military courts may exercise jurisdiction over those besides our own armed forces. Thus, even as the D.C. Circuit gets set to consider the military commission appeals in Hamdan and al-Bahlul, another case seemingly headed for the Supreme Court may have far more to say about the underlying constitutional issue—even if surprisingly few have noticed.
In 1970, the Court of Military Appeals (the predecessor to today's Court of Appeals for the Armed Forces, or CAAF) ruled in United States v. Averette that Article 2(a)(10) of the Uniform Code of Military Justice (UCMJ), which authorized the trial by court-martial “in time of war” of “persons serving with or accompanying an armed force in the field,” only contemplated jurisdiction over civilians during declared wars (and not Vietnam), in light of the serious constitutional concerns that would otherwise arise. As the CMA summarized the relevant Supreme Court jurisprudence,
Despite the existence of statutory provisions for the exercise of court-martial jurisdiction over civilians in certain circumstances, the Supreme Court in a series of cases beginning with Toth v Quarles has disapproved the trial by courts-martial of persons not members of the armed forces. Toth involved the court-martial of a civilian for an offense committed while he was on active duty. In Reid v Covert, the Court held that civilian dependents accompanying the armed forces overseas in time of peace were not triable by court-martial for capital offenses. The Court expanded this holding in Kinsella v Singleton, to prohibit military jurisdiction over civilian dependents in time of peace, regardless of whether the offense was capital or noncapital. Grisham v Hagan held civilian employees committing capital offenses not amenable to military jurisdiction; this holding was enlarged to embrace noncapital offenses in McElroy v Guagliardo. [Those interested in a more in-depth discussion of these cases might consider pp. 301-08 of this article of mine.]
To be sure, as the CMA continued, “all these decisions covered offenses occurring in periods other than a time of declared war,” and so “they do not constitute authority that even in time of declared war courts-martial have no jurisdiction to try those who are not members of the armed forces.” Nevertheless, given that we haven’t had a declared war since before the UCMJ was codified in 1950, the practical effect of Averette was to effectively preclude court-martial jurisdiction over non-servicemembers.
Led by Senator Lindsay Graham, though, Congress amended Article 2(a)(10) in 2006 to authorize military jurisdiction over “persons serving with or accompanying an armed force in the field” “in time of declared war or contingency operation,” as defined by 10 U.S.C. § 101(a)(13) (emphasis added). That is, Congress effectively (if stealthily) overruled Averette, and purported to authorize the exercise of court-martial jurisdiction over civilian contractors or spouses/dependents of servicemembers accompanying the U.S. military “in the field” during a wide range of operations, including the hostilities in Iraq and Afghanistan.
Three weeks ago, CAAF granted review in United States v. Ali, the first case challenging the constitutionality of the 2006 amendment to the UCMJ. Ali, an interpreter who is a naturalized citizen of both Canada and Iraq, was working for L-3/Titan in Iraq in 2008 when he allegedly assaulted another interpreter. Initially charged with aggravated assault with a dangerous weapon, Ali eventually pled to three separate counts arising out of false statements he made to investigators. On conditional appeal, the Army Court of Criminal Appeals upheld the military’s assertion of jurisdiction. The ACCA distinguished Averette as follows:
the Court of Military Appeals clearly was concerned that the phrase “in time of war” would be susceptible to a broad interpretation which could lead to the exercise of military jurisdiction over civilians in a wide variety of situations in which the military might be engaged in some sort of hostilities short of actual war.
Under the current version of Article 2(a)(10), UCMJ, however, there is no such danger of the broad application of the UCMJ to civilians because Congress has chosen to specifically limit the exercise of military jurisdiction over civilians by requiring either a formal declaration of war by Congress or the existence of a “contingency operation,” as that term is narrowly defined by statute.
The problem with this logic is two-fold: First, the term “contingency operation” is not narrowly defined at all. Here’s what 10 U.S.C. § 101(a)(13) actually provides:
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, 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.
In other words, § 101(a)(13) seems to treat “contingency operation” as synonymous with “hostilities” or any other “national emergency” declared by the President or Congress, and so seems to raise the precise concern the CMA was worried about in Averette.
Second, even if one thought “contingency operation” was narrowly defined, the ACCA’s logic seems to rely on the notion that the CMA would have approved of the exercise of military jurisdiction over civilians during a declared war, and so the narrow expansion here is unexceptional. But as noted above, all the CMA held in Averette was that it was an open question when and under what circumstances civilians could be subjected to military jurisdiction during a declared war—not that it was clearly permissible.
To be sure, as a matter of first impression, I think it’s a close and tricky constitutional question; the Make Rules Clause of Article I only authorizes legislation concerning the “land and naval Forces,” but the Fifth Amendment excepts from the Grand Jury Clause “cases arising in the land or naval forces” (emphasis added), and so might sweep slightly broader. One might also argue that the Grand Jury Clause doesn’t apply to non-citizens overseas, although I don't think that's an obvious result. But if one thing is clear, it’s that the Supreme Court has fairly consistently rejected military jurisdiction over civilians during non-declared wars—Averette got that case law exactly right, and there have been no jurisprudential developments since then that call those cases into question. On the flip side, there's also the concern that, without court-martial jurisdiction, individuals like Ali would face no criminal sanction for crimes committed overseas, given that various security and/or status-of-force agreements bar the assertion of jurisdiction by the host country.
Ultimately, then, whether the CAAF will follow or sidestep Averette and the Supreme Court decisions on which it relies remains to be seen; either way, though, this case seems destined for the Supreme Court. As such, it should provide the Justices with an opportunity to revisit what the Constitution actually says about the limits on military jurisdiction--and outside the politically fraught context of Guantánamo, to boot.