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Published by The Lawfare Institute
As I noted yesterday, the highest court in the U.S. military justice system—the Article I Court of Appeals for the Armed Forces (“CAAF”), a circuit-level court with mostly discretionary jurisdiction over each of the service branch courts of criminal appeals—issued the most significant ruling on the scope of U.S. military jurisdiction in the past 25 years. In its unanimous decision in United States v. Ali, CAAF upheld a Lindsay Graham-sponsored 2006 amendment to the federal military code (the Uniform Code of Military Justice, or UCMJ) that authorizes the trial by court-martial of “persons serving with or accompanying an armed force in the field,” including civilian contractors, during a “contingency operation”--a fairly sweeping statutory term that encompasses most overseas (and some domestic) military deployments. [Before 2006, such trials were authorized only during a "time of declared war."] But the court’s actual holding, importantly, is limited to a very small subset of persons, namely military contractors who are not U.S. citizens but who are citizens of the host nation, such that they are not eligible for prosecution in an Article III court pursuant to the Military Extraterritorial Jurisdiction Act (MEJA). The CAAF’s nominal unanimity as to the result belies the profound flaws with Judge Erdmann's majority opinion--which, among other things, is yet another example of some court of appeals judges refusing to take the Supreme Court’s decision in Boumediene seriously, embracing instead extreme arguments that not even the Executive Branch has advanced. The far more analytically coherent and defensible justifications for the result can be found in the concurring opinions authored by Chief Judge Baker and Judge Effron—opinions that nevertheless raise some troubling questions of their own. I. The Majority Opinion The heart of Judge Erdmann’s opinion for the majority upholding Article 2(a)(10) is the proposition that the Fifth and Sixth Amendments categorically do not apply to non-citizens with no voluntary connection to the United States when they have not “come within the territory of the United States and developed substantial connections with this country.” Thus, he argues, there is no constitutional bar to trying someone like Ali--a dual citizen of Iraq and Canada--for offenses committed while working as a U.S. civilian contractor in Iraq. To its credit, the government never advanced such a categorical and sweeping argument, probably because, inter alia, it suffers from three distinct—but equally fundamental—flaws: First, this argument, which is predicated on Johnson v. Eisentrager and United States v. Verdugo-Urquidez and their apparent repudiation of any extraterritorial constitutional rights for non-citizens, repeats a mistake I’ve previously criticized the D.C. Circuit for making in the Guantánamo cases: It completely fails to consider whether Boumediene alters the analysis courts should undertake in assessing the extraterritorial scope of specific constitutional provisions. Indeed, the majority cites Boumediene exactly once—and in a fairly desultory footnote, to boot. Thus, even if one reaches the same answer as the Ali majority as to extraterritorial application after Boumediene, it cannot be gainsaid that Boumediene changes the analysis courts must use to get there... Second, if, notwithstanding Boumediene, Eisentrager and Verdugo-Urquidez still have the exact meaning the Ali majority gives to them, the opinion unjustifiably discounts Ali’s one very important voluntary connection to the United States--his employment by a U.S. contractor. Although that may not strike the reader as a particularly strong connection, consider that, in prosecutions brought under MEJA, the government has argued that just such a contact provides the constitutional basis for asserting jurisdiction over criminal offenses committed by non-citizens against non-citizens overseas. The Ali court never grapples with the apparent inconsistency of allowing such a contact to justify the assertion of jurisdiction in the context of MEJA, while being insufficient to justify constitutional protections here. Indeed, if the Ali majority is correct, it must necessarily follow that non-citizen defendants in such MEJA prosecutions--even in Article III courts--have no Fifth and Sixth Amendment rights, either! (This is to say nothing of a point made by Chief Judge Baker in his Ali concurrence--that the same logic would also deprive those non-citizens serving in the military of Fifth and Sixth Amendment rights whenever they are court-martialed for offenses committed outside the territorial United States, and would therefore call into question the countless cases in which military courts have entertained constitutional arguments arising out of such courts-martial.) Instead, the majority opinion simply asserts—with no citation of authority and no explanation—that “[n]either Ali’s brief predeployment training at Fort Benning, Georgia, nor his employment with a United States corporation outside the United States constitutes a ‘substantial connection’ with the United States as envisioned in Verdugo-Urquidez.” Chief Judge Baker’s concurrence correctly takes the majority to task, both for effectively ignoring Boumediene, and for failing to credit Ali’s “substantial connection” with the United States, a connection that, as Judge Baker explains, is sufficient to trigger application of the Fifth and Sixth Amendnents. Third, even if, notwithstanding these first two points, the majority were correct that Ali is not protected by the Fifth and Sixth Amendments (again, this strikes me as nuts), that’s still only half the inquiry. As I’ve explained in nauseating detail before, and as Chief Judge Baker quite cogently explains in his concurrence, courts have to resolve two questions in cases like these: separate from whether the jury-trial rights of the Fifth and Sixth Amendments bar the assertion of military jurisdiction, there is also the question of whether Congress has the Article I power to submit the case to military jurisdiction in the first place despite the strong constitutional directive in Article III that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury.” This Article III protection of course predates the protections of the Bill of Rights, and establishes a structural limit on the federal power of criminal prosecution, without regard to whether the defendant in question has rights protected by the later-ratified constitutional amendments. And although Chief Judge Baker carefully considers this question and Judge Effron contends with it as well (see below), the majority pays it almost no heed whatsoever, other than an amorphous and unspecific reference to Congress's "war powers." In one very real sense, the majority’s opinion is exceedingly narrow: it only applies in the exceptionally rare cases in which non-citizen military contractors are court-martialed for offenses committed overseas—and even then, its holding by terms may well apply only when such prosecutions could not also be brought under MEJA (more on this below). But its narrowness is its only redeeming quality. The majority opinion is otherwise a careless, superficial, and poorly conceived answer to an important constitutional question based on arguments too unconvincing to be made by the federal government. Fortunately, the concurrences tried a little harder… II. Chief Judge Baker’s Concurrence In addition to criticizing the majority for some of the analytical shortcomings I've outlined above, Chief Judge Baker's opinion concurring in part and in the result takes the Article III/Article I question extremely seriously (as the majority should have). The Supreme Court has recognized a constitutional limit on the Article III requirement of jury trials in criminal cases in one important category of cases relevant here—namely, prosecutions against members of the U.S. armed forces themselves. The Court’s explanation in such cases has been that Article I’s specific grant to Congress of the power to “make Rules for the Government and Regulation of the land and naval Forces” establishes an implicit exception to the jury-trial guarantee of Article III, bolstered by the Fifth Amendment's textual exception for "cases arising in the land or naval forces." Congress’s Make Rules authority, however, is insufficient to justify the court-martial in this case, because Ali is not a member of the land or naval forces. Therefore the question at hand is whether any of Congress’s other Article I authorities—including its war powers generally and its Necessary and Proper Clause authority specifically—establish a ground for yet another exception to Article III. (The Court has also, for instance, recognized that Congress’s Define and Punish Clause power gives it the authority to prosecute enemy belligerents for violations of the international laws of war before a military commission and without a jury.) Chief Judge Baker engages with this difficult question directly, and taking a page from Boumediene, he argues that, "a functional approach should be taken when determining the narrow and extraordinary limits of court-martial jurisdiction over civilians," Chief Judge Baker focuses on the fact that Ali was in a zone of active combat operations at the time of the offense and that it would not be “feasible or practicable to suspend military operations to pursue the transfer of [military contractors in the field with U.S. forces] back to the United States for trial” whenever they commit criminal offenses -- especially relatively minor offenses -- during such operations. In other words, for Chief Judge Baker, it is not enough that Congress is acting pursuant to one of its Article I authorities (for it always does). There must also be a functional reason, reflected in those authorities, justifying the departure from the Article III norm, as there has been for members of the armed forces. And for Chief Judge Baker, it is the impracticability of trying defendants like Ali arrested in a combat theater in Article III courts that justifyies reading Congress’s collective war powers to allow it to provide for court-marital trial of at least some of the contractors covered by Article 2(a)(10). (And, as Chief Judge Baker explains, if Congress does have such an Article I power to avoid Article III's guarantee, it’s not that the Fifth and Sixth Amendments are categorically inapplicable; only that their guarantees of grand jury indictment and trial by petit jury are inapposite, as they are for U.S. armed forces.) As for the slippery slope that would potentially lead this logic to justify military trials for civilians within the United States, Chief Judge Baker concluded that, "While jurisdiction could, in theory, be exercised under Article 2(a)(10), UCMJ, in the context of domestic security operations within the continental United States, we do not face that situation here." Needless to say, I think Chief Judge Baker's concurrence comes much closer to the mark--and it certainly is far more convincing analytically and methodologically than the majority's approach. That said, his opinion raises two concerns worth flagging: First, Chief Judge Baker elides over what to me is one of the critical constitutional questions: If the distinction the Supreme Court historically has sought to draw between the permissible and impermissible assertion of military jurisdiction over civilians is the distinction between wartime and peacetime, much more needs to be said about why Iraq at the time of Ali's trial fell on the "wartime" side of this line (both for its own sake and to understand the inquiry going forward). Article 2(a)(10) refers only to a "contingency operation," which, though including the operations in Iraq, also encompasses a host of military deployments far short of active hostilities--including deployments within the territorial United States. In fairness, Chief Judge Baker’s functionalist reasoning only applies to a subset of what he terms “wartime” activities—namely, where the individual is accompanying U.S. forces in what he calls “combat operations.” He does not opine on whether Congress’s power to provide for court-martial in such cases would likewise justify application of Article 2(a)(10), even in "wartime," to a contractor who is not so closely tied to “combat operations.” But his reasoning would, if adopted, raise difficult line-drawing questions in that regard. Second, with regard to the implications of Chief Judge Baker's analysis, there's no reason whatsoever why it wouldn't apply with equal force to contractors who can be tried in an Article III court under MEJA, including U.S. citizen contractors, as well. And yet, there have been virtually no such cases brought in courts-martial because, as Judge Effron points out in his concurrence (more on that in a moment), the government has used MEJA--with varying degrees of success--to prosecute both citizen and non-citizen contractors for offenses committed overseas. Even if one accepts Chief Judge Baker's "functional" approach to the constitutionality of military jurisdiction in this context, doesn't the success of MEJA in virtually all other cases heavily undermine the argument that military jurisdiction is necessary in cases like these because the use of article III courts would be impracticable? III. Judge Effron’s Concurrence This is where Judge Effron's concurrence comes in. He, too, properly focuses upon the “is there an exception to Article III?” question, and he, too, would apply a sort of functionalist test. But his argument, in contrast to Chief Judge Baker’s, is that one should approach the constitutional question as turning upon the existence vel non of an Article III forum under the statutes Congress has enacted. In other words, to whatever extent military jurisdiction over civilians might raise constitutional concerns in cases in which civilian courts are available—and Judge Effron strongly suggests that he would have serious concerns in such a case--the same is not true in cases in which the government cannot pursue charges in a non-military court. This is such a case: Article III is not an option because MEJA has a textual exception for nationals of the "host" country, such as Ali. Judge Effron's analysis would thereby only tolerate military jurisdiction over civilian contractors in the vanishingly small set of cases in which the defendant is both (1) a non-citizen; and (2) a citizen of the country in which the offense took place. The problems with Judge Effron's approach are two-fold: (1) it's difficult to square with the Supreme Court's prior forays into this field, especially the Court's 1960 decision in McElroy v. United States ex rel. Guagliardo, which rejected the constitutionality of military jurisdiction over civilian contractors (during peacetime) even though no alternative forum was available; and (2) it gives Congress control over the answer to the constitutional question. Put another way, if Judge Effron is correct, then the Constitution authorizes military jurisdiction whenever Congress has failed to provide a civilian forum--and so Congress could expand the permissible constitutional scope of military jurisdiction--and contract the scope of Article III's jury-trial guarantee--merely by contracting the statutory scope of civilian jurisdiction (and Guagliardo was therefore wrongly decided). To me, that's a very difficult constitutional sell in the long-run, even if it would turn Ali into a this-train-only kind of decision... IV. Going Forward So what to take away from all of this? As the above should suggest, the majority's opinion would set a very dangerous precedent if taken seriously--for non-citizen servicemembers; for non-citizen criminal defendants under MEJA; even for non-citizen detainees at Guantanamo and elsewhere. Indeed, if the D.C. Circuit throws out the material support charge in the Hamdan case, that decision could quite easily create a circuit split with CAAF's decision in Ali, depending upon the former's reasoning. So if it comes down to whether the majority opinion should be allowed to stand, I think the answer is obvious (One First Street: hint hint!). The concurrences, however, complicate matters, for they suggest that, the majority's flaws notwithstanding, there are narrower grounds on which to affirm. Judge Effron's concurrence offers a very clean (if analytically problematic) way to leave Ali's conviction intact without reaching any messier constitutional questions. And Chief Judge Baker's concurrence provides the strongest hook for upholding this particular conviction to ameliorate at least the most obvious constitutional concerns, although the entire analytical foundation depends upon an assumption largely rebuffed by Judge Effron--that MEJA is an insufficient adjudicatory option even in those non-citizen contractor cases in which it applies. In other words, although I think Chief Judge Baker may come the closest to getting the law right, his application thereof may be based on an incorrect understanding of what's possible in practice... Finally, it's worth adding in the complicating factor of the Brehm case, discussed in detail by Judge Effron (and in this post of mine). Brehm is a MEJA case in which the government prosecuted a non-citizen for an offense against another non-citizen on a NATO base in Afghanistan. The defendant appealed his conviction to the Fourth Circuit on the ground that MEJA can't constitutionally be applied to him because of his lack of connection to the United States. If the Fourth Circuit agrees (the oral argument was in May), that could cut both ways: On the one hand, it would to some degree bolster both Chief Judge Baker's and Judge Effron's arguments, since MEJA would no longer be viable in at least many non-citizen contractor cases. On the other hand, the same constitutional problems on which such a decision would rest presumably also apply in cases like Ali... But if the Fourth Circuit affirms in Brehm (as, I suspect, they will), then to my mind, the case for cert. in Ali becomes that much stronger. Although the majority opinion shouldn't be allowed to stand no matter what, a circuit-level holding in Brehm that the Constitution in no way prevents Congress from opening the civilian courts to criminal offenses committed by non-citizen U.S. contractors overseas will be in a fair amount of tension with the rationale supporting Chief Judge Baker's concurrence. At that point, whatever you think the answer should be, one can certainly argue that it would behoove the Justices to sort everything out...
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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