Tuesday, September 23, 2008

Civilian Court-Martial Appeal Challenging the Constitutionality of Art. 2(a)(10), UCMJ

Ask and ye shall receive. Here is the writ appeal petition filed on 18 Sep 08 by Mr. Ali challenging UCMJ jurisdiction in his case. See our prior coverage here. Mr. Ali is challenging jurisdiction on a number of fronts. Some are expected, that Congress exceeded its authority in amending Art. 2(a)(10) and permitting his court-martial, and others are not, arguing that because no implementing regulations are in place the Court does not have jurisdiction. I'll post more substantive analysis later. Enjoy!


Cloudesley Shovell said...

Mr. Ali would have been on much firmer footing, from an appellate jurisdiction viewpoint, had his counsel filed the writ of prohibition at ACCA before announcement of sentence, rather than after, thus preserving the "potential appellate jurisdiction" argument, but since Mr. Ali had a deal for time served, I can see where he would have wanted to plead guilty, get out of confinement, and get the heck away from the US military, and presumably back to Canada, rather than sit in pretrial confinement in Iraq while the appellate courts debated his case for the next year or two.

Army DAD has made many good arguments. Putting aside all the Denedo-type arguments about whether CAAF and ACCA ought to have writ jurisdiction, on the merits, Mr. Ali should prevail.

r.friedman said...

Sorry to post off-topic, but I am looking for some help and expect people reading this item might be able to do so.
During the Mexican War, President Polk wanted to appoint an overall commander, but Congress refused to create such an office. It did create additional top-level generalships, and Polk's candidate to be overall commander agreed to accept one provided he could be in charge. Polk and his cabinet agreed that, under the Articles of War, Polk did not have power to appoint a junior general to command a more senior one, at least so long as the senior ones remained in the theater.
Could someone please explain how this practice arose, whether it is still in effect, and if not, how it came to be changed? I dimly recall such a practice existed in the Chilean military of Allende's time and maybe the Guatemalan military in the 90s.
Please respond off-line to r[dot]friedman[at]mindspring[dot]com. Thanks.