Court-martial Jurisdiction Under Amended Article 2(a)(10), UCMJ
1. The 2007 National Defense Authorization Act amended Article 2(a)(10) as follows:
a) OLD: In time of war, persons serving with or accompanying an armed force in the field.
b) NEW: In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.
2. “Contingency Operation,” 10 U.S.C. Sec. 101(a)(13): The term “contingency operation” means a military operation that-
a) is designated by the SECDEF 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.
c) Current operations in Afghanistan and Iraq clearly meet the definition of “contingency operation” above.
3. The only significant guidance to date on implementation of the amended Article 2(a)(10), UCMJ, is contained in a SECDEF Memorandum dated 10 March 2008. This memo reserves the authority to prefer charges or initiate NJP against a civilian to the GCMCA level, however each case must be sent up to SECDEF and over to DOJ first, for a decision on whether to prosecute under the MEJA rather than under the UCMJ. See Memorandum from the Secretary of Defense to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretaries of Defense and Commanders of the Combatant Commands, subject: UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or 55-16 Military Extraterritorial Jurisdiction Act (MEJA) Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations (10 Mar. 2008).
4. There has been one civilian tried by court-martial using Article 2(a)(10) jurisdiction. In United States v. Ali, the accused, a Canadian/Iraqi citizen, pled guilty to three specifications involving possessing, hiding, and lying about a knife (the original charge was aggravated assault for stabbing another interpreter in the chest), and was sentenced to five months confinement (time already served in PTC). His case did not receive automatic review by the Army Court of Appeals because it was subjurisdictional. On 31 March 2010 The Judge Advocate General of the Army directed the Army Court of Criminal Appeals to review the case of United States v. Ali pursuant Article 69(d), UCMJ. TJAG requested that the court give attention to two issues: a) Whether the court-martial had jurisdiction over the accused pursuant to Article 2(a)(10), UCMJ; and b) Whether the court-martial had subject matter jurisdiction over the offenses. First, the Court held that appellant and his conduct fit within the statutory jurisdictional framework of the UCMJ. The Court found the offense and trial occurred during a “contingency operation,” finding that the offense and court-martial occurred during Operation Iraqi Freedom, a military operation that meets the definition of “contingency operation. The Court also found that appellant served “with or accompanied and armed force, finding that appellant had moved with a military operation and his presence was not merely incidental but directly connected with or dependent upon the activities of the armed force or its personnel. Specifically, appellant had moved by military aircraft into and throughout Iraq, he lived in a combat outpost with the 117th MP Company and depended on the Soldiers for protection and logistical support. He served side-by-side as they performed their daily military missions. Appellant’s duty was critical to the mission as the squad could not accomplish its mission without him. In addition, the Court found appellant was “in the field,” finding he had served in a combat zone and worked in a combat outpost in an area fighting against enemy insurgent groups. Appellant and the troops were under constant threat and, because of his critical role, he was subject to being personally targeted by the enemy. (It is unclear how determinative these facts were to the jurisdiction outcome, e.g. if he had arrived on a chartered aircraft or did not move around theater, but just remained at one location, thus not dependent on the military for transportation. Additionally, if he had only cleaned latrines, would that have made him “merely incidental”? Finally, if being in a combat zone is all that is required, why does the court go on to list additional factors such as combat in the area. This makes it seem like the prudent prosecutor should document any enemy action in the area to include any indirect fire.) Second, the Court held that appellant’s court-martial had both personal and subject matter jurisdiction over appellant. In doing so, the Court recognized the long history in which military jurisdiction has been applied in narrow circumstances over civilians when necessary for commanders to maintain good order and discipline in the battlefield. In addition, the Court distinguished this case from other unsuccessful efforts to extend UCMJ jurisdiction over civilians because the appellant’s offenses and court-martial occurred (1) during a time of actual hostilities and (2) in a location where actual hostilities were taking place. The Court also noted that jurisdiction of military courts and the broad authority of commanders in the battlefield over civilians has been authorized in areas of actual fighting.
Reid v. Covert, 354 U.S. 1, 33 (1957). Article 2(a)(10), UCMJ is specifically drafted to limit military jurisdiction over civilians by requiring either a formal declaration of war by Congress or to the existence of “contingency operations” as defined by section 101(a)(13), Title 10. Moreover, jurisdiction over civilians is limited to only those civilians who are “serving with or accompanying an armed force” and that the civilian be “in the field.” (Practitioner’s note: It would seem that the commander would lose jurisdiction of this case by transferring it to the rear or the cessation of hostilities. Potentially, even transferring the case to a peaceful portion of Iraq would be fatal to the case.)
In July of 2012 CAAF released its decision which was based on review two issues where Ali renewed his earlier arguments: 1) he does not fall within the provisions of 2(a)(10) and 2) exercising jurisdiction over him violated his Fifth and Sixth Amendment rights. CAAF ruled that the court-martial had jurisdiction over Ali under the provisions of Article 2(a)(10), and that the application of 2(a)(10) to Ali did not violate the Constitution “under the circumstances of this case.”
The last six words of the above sentence seem to indicate that this result may be quite narrow and limited to the facts of this particular case. First, looking to the issue of jurisdiction under 2(a)(10), the Ali opinion reminds us that there are three prerequisites that must be met for courts-martial jurisdiction to vest: 1) jurisdiction over the offense, 2) jurisdiction over the accused, and 3) a properly convened and composed court-martial.
The court stated that Ali does not contest the finding that Operation Iraqi Freedom was a contingency operation. Ali’s argument centered on the second prong of the jurisdiction test where he argued that the terms “accompanying” and “serving with” are not defined in the MCM, Art. 2, or case law; thus ambiguous. Ali urged the court to look to the Military Extraterritorial Jurisdiction Act (MEJA) and the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), as both MEJA and the NATO SOFA define those terms and exclude host country nationals from their jurisdiction. However, the court noted that the phrase “persons serving with or accompanying an armed force” was addressed in U.S. v. Burney, 6 C.M.A. 776. “The test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel.”
Additionally, the court pointed out that an accused may be considered to be accompanying or serving with an armed force even though he is not directly employed by that armed force or the Government, “but instead works for a contractor engaged on a military project.” Thus the court looked to the facts to determine if Ali was “serving with” or “accompanying the force.” What those facts revealed was that Ali was “virtually indistinguishable from the troops serving in 1st Squad and he faced the same daily routines and threats as they did.” Ali was fully embedded with his unit, he wore a “U.S. Army Tape” and unit patch on his uniform, as well as body armor and a helmet. He lived in a combat outpost, and received mission orders from the squad leader, to whom, for operational purposes, he also reported. As such, Ali was both serving with and accompanying the force in the field. Additionally, the court found that in the least, Ali continued to accompany the force while awaiting trial thereby satisfying the second prong of the three part jurisdiction test.
Turning to the Constitutional claims made by Ali, the court summed up the issue by saying that “Ali must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of the this case, these protections were violated when he was subjected to military jurisdiction.” The bottom line here is that since Ali, a noncitizen, lacked, and never developed, “substantial connections” with the United States, and no precedent exists that mandates conferring upon him Fifth and Sixth Amendment rights. The court further stated that “whatever rights Appellant had were met through the court-martial process.”