A Reid reminder.
Military.com reports U.S. Charges Son in Civilian Navy Staffer’s Killing in Bahrain. Bahrain declined prosecution; federal marshalls will bring him to the U.S. for prosecution in federal district court. Were this the early 1950’s it is possible he would be facing court-martial—that is until Reid v. Covert. In Reid v. Covert, 354 U.S. 1 (1956), the Supreme Court decided that it was unconstitutional to try at court-martial civilians accompanying the force overseas. Many years later, there had been a clamor about “dependents” and contractors escaping responsibility for crimes committed while accompanying their sponsor overseas.
A change to Article 2(a), UCMJ, was intended to fill in some of the blanks by extending jurisdiction to “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”
We know that Ali and a couple of other cases were the few prosecuted at court-martial. So we can assume a policy decision overcame what C.A.A.F. saw the law to be.
In United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012), the Court of Appeals for the Armed Forces affirmed the court-martial conviction of a non-U.S. citizen who was a citizen of the host nation. His petition to the Supreme Court for a writ of certiorari was denied, 569 U.S. 972 (2013). Prof. Steve Vladek, in an opinion piece on Lawfare takes issue with the Ali decision.
In its unanimous decision in United States v. Ali, C.A.A.F. 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 (M.E.J.A.).
The C.A.A.F.’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
The Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261, et seq., is the principal Federal statute used to prosecute certain U.S. Government employees, contractors, and their dependents who commit crimes overseas. As originally enacted, in 2000, M.E.J.A. applied only to certain narrow classes of individuals associated with the Department of Defense. In 2004, however, Congress amended M.E.J.A., expanding it to cover civilian employees and contractors (and their dependents) of agencies other than the Department of Defense, but only to the extent that the employee’s or contractor’s employment “relates to supporting the mission of the Department of Defense overseas.” Since M.E.J.A. was enacted, the Justice Department has successfully prosecuted numerous M.E.J.A. cases involving former Department of Defense employees or individuals accompanying them overseas.
Lanny A. Breuer, Asst. Atty. Gen., “HOLDING CRIMINALS ACCOUNTABLE: EXTENDING CRIMINAL JURISDICTION FOR GOVERNMENT CONTRACTORS AND EMPLOYEES ABROAD.” Before the Committee on the Judiciary, United States Senate, 25 May 2011.
As of 2 February 2012, more than fifty individuals have been prosecuted under M.E.J.A., including twenty-five contractors.8 All twenty-five of the contractor prosecutions have occurred since 2007. M.A.J. Aimee Bateman, A Military Practitioner’s Guide to the Military Extraterritorial Jurisdiction Act, ARMY LAWYER, Dec. 2012 at 4.
The Department of Justice Justice Manual walks you through M.E.J.A. as they interpret it.