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I think we may have scooped the world on this one, but the Army has charged a civilian contractor for the first time under the amended Art. 2(a)(10), UCMJ. The charge sheet is available here, brought to you by CAAFlog.com.
Based on the information I have, apparently DoD could not refer the case to DOJ because the contractor is a Canadian national and his victim was a non-US national. Though I don't know the details, it is curious that the offense was committed at Contingency Outpost 4 in Iraq, but Special Maritime and Territorial jurisdiction wasn't considered . . . or maybe it was.
Anyone else think that the exchanges between DoD and DoJ that are part of the preferral process under the new SecDef withholding memo, available here, are similar to Art. 34 advice and should be turned over to the defense--or at least to military justice bloggers?
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13 comments:
Great Scoop!
Too bad that the Navy's nanny-state software won't allow us to open the charge-sheet link on NMCI.
Here is the direct link to the charge sheet, http://www.caaflog.com-a.googlepages.com/RedactedContractorChargeSheet.pdf. If anyone operating on NMCI is reading, let us know if the direct link works. You can also go to www.caaflog.com.
Through NMCI, CAAFlog opens, but the direct link does not.
You'll be happy to know, however, that I can access: Ebay, Craigslist, and Perezhilton.
So I've got that going for me.
Great story! I move that we hereby rechristen CAAFlog as “Scoop Sullivan.” Eat your heart out David Simon!
Based on the units listed for the accuser and the JA that swore the accuser on the Charge Sheet, it appears to be a Marine unit, and not the Army, that initiated things. However, I think (and I could be wrong) that GCMCA will be CDR, MNC-I or MNF-I. Both of those are Army generals with Army SJAs. My guess is that the Marines vetted this with the Army GCMCA before they went forward.
I must say, I’ve seen contractors in Iraq get away with much worse, with their only punishment being a bar from theatre. The specification alleges assault with a dangerous weapon, and not assault in which grievous bodily harm is intentionally inflicted. Thus, the victim may not have sustained serious wounds.
I wonder if this contractor can attempt a collateral attack in a federal court, a la US v. Martinez. And if so, which district?
DB: Take a look at the SCM authority, think that's Army.
Regimental Combat Team 5 is a Marine unit. LtCol Bracknell is a Marine judge advocate.
And on page 2, the 2145th Garrison Support Unit is an Army reserve Military Police Unit
BZ to the No Man for breaking this story and BZ to our knowledgeable commentators for filling in the gaps!
Wasn't the main argument at the Supreme Court 2 weeks ago that the accused were held not by US forces but by MNF-I forces and as such beyond the reach of UD federal courts? Now if this contractor is being prosecuted by MNF-I forces it seems that it shouldn't be both ways but I may not have all the facts.
I notice there is no language alleging subject matter jurisdiction. They obviously couldn't allege the accused was "on active duty." I would have expected to see something on this in the specification.
I wonder if there might be a few interesting angles pertaining to subject matter jurisdiction in addition to the obvious issues of personal jurisdiction. Since Solario put an end to the requirement to plead elaborate facts necessary to establish subject matter jurisdiction, we've largely forgotten about subject matter jurisdiction as a distinct concept. What is required for subject matter jurisdiction in this case? Is it enough that the civilian was "serving with and accompanying the United States armed forces in the field?"
Based on the information I have, apparently DoD could not refer the case to DOJ because the contractor is a Canadian national and his victim was a non-US national. Though I don't know the details, it is curious that the offense was committed at Contingency Outpost 4 in Iraq, but Special Maritime and Territorial jurisdiction wasn't considered . . . or maybe it was.
If neither the accused nor the victim is a U.S. national, SMTJ doesn't apply overseas under 18 U.S.C. 7(9). MEJA, on the other hand, doesn't apply because the accused is a citizen of the host nation.
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