Friday, November 07, 2008

CAAF denies court-martialed civilian's writ appeal

CAAF has denied the writ appeal in Ali v. Austin, which we previously discussed here, here, and here. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69. But barring such a move, the first civilian convicted by a U.S. court-martial since the Vietnam war will have no right to a judicial direct appeal.

The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years' annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won't qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?

The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I'm right about that, perhaps the next Congress will correct this oversight.


Dew_Process said...

This makes sense ONLY in the context that it was a guilty plea. The Army TJAG would be advised to make a referral to ACCA to preclude the bizarre habeas that'll be forthcoming otherwise.

The irony being that a "civilian" has LESS rights under the UCMJ than a military member. Administrative Review in the Office of TJAG under Article 69, is hardly the same as judicial review.

DISCLOSURE: I had some involvement with this case before the plea deal was struck.

Anonymous said...

The accused should go to Seattle and file in District Court. They hear anything there.

Anonymous said...

Anon 838: I suspect you meant Tacoma, as that's where Watada was heard. But, you have a problem with Habeas Corpus??

Anonymous said...

No, no problem with habeas corpus (which as a general rule is not capitalized). And the Western District covers both Seattle and Tacoma. So when I said Seattle I meant Seattle. Otherwise, take it for the tongue in cheek reference that it was.

John O'Connor said...

Unless I am missing something, I don't see how a civilian has less appellate rights than a servicemember. The civilian has exactly the same appellate rights as a similarly situated servidemember -- one with the stigma of a federal conviction but WITHOUT the separate stigma of a punitive discharge: if approved confinement is for a year or more, CCA has automatic review.

To answer Dwight's question, I can think of one reason why it makes sense to deny judicial appellate review to a civilian accused on the same basis as a servicemember with the same sentence (no puniive discharge, confinement for less than a year): retrials are particulary costly to the military, not just in terms of an intangible effect on good order and discipline, but also in opportunity costs involved in diverting witnesses and members to a second court-martial. One of my favorite people (wink) raised that very issue recently in the Akron Law Review.

Given that the law is pretty clear that, even in the civilian context, there is no constitutional right to appeal, I'd think a habeas petition would be an uphill battle, but I've been surprised before.

Dew_Process said...

I agree with your comments that there is no constitutional right to appeal and that facially, civilians have the "same" rights under Articles 66/69. The issue of disparate treatment - to use a civil analogy - is the "loss of chance" concept, i.e., the concept of "restoration" under Art. 75, being most notable.

There are some significant jurisdictional and Due Process issues in Ali - a Canadian, he was hired by a contractor, so he was not a civilian employee of the USG. The prosecution alleged that he was subject to the UCMJ [why they didn't use MEJA to prosecute him is not at all clear], but nothing in his employment contract gave him any notice of that, especially a contract entered into in Canada.

If he was subject to the UCMJ, how/where is his chain of command, if he quits, can he be prosecuted for being AWOL? Service-discrediting conduct or not saluting an officer? How do you deal with his pay / forfeitures?

The provision in Art. 69(b) RE: "lack of jurisdiction" should be the basis for a referral to ACCA. The "lack of jurisdiction" is the one, universally accepted basis for habeas relief in federal courts over courts-martial convictions.

Why not give the military courts a crack at refining the law - they can ignore it of course as in Watada - but, if the military provided a forum for full litigation of the jurisdictional issue, to include review by CAAF, it could conceivably lessen the chance that a federal district court decides to intervene.

Mike "No Man" Navarre said...


As one commenter once mentioned to me in response to a poor post, MEJA can't apply in the Ali case because the accused was a duel Canadian-Iraqi national. MEJA excludes host nation nationals. Thus, other than turning him over to the Iraqis, UCMJ was really the only option in this case. This is also probably why it is the only civilian UCMJ case we have seen, relatively serious misconduct, sui generis facts, but would otherwise escape criminal jurisdiciton.

And I could not agree more with the bottom line in the JO'C post, barring JAG intervention, a habeas petition is a long shot considering the guilty plea (though I haven't seen the PTA so it may leave open this possibility---and come to thin of it the G did not mention that in their brief so it may have). In any event, a military justice system habeas writ would be my first choice as counsel, which I am not. Distant second would be a federal habeas petition because likely jurisdictional home of the case is . . . DC Circuit. We know how that circuit loves habeas petitions.

John O'Connor said...

This is probably a completely stupid question that many on this board will know about reflexively, but what's the theory for habeas on a guy who's not in custody. There's no "body" for the government to produce.

I suppose a claims court suit is a possibility, but I can't think they'd be very sympathetic to a claim that is basically just a straightforward appellate review in a case where Congress didn't allow appellate review.

Oh, and to make a minor comment on Navarre's post. I didn't say that there was no basis in Ali's case for a collateral attack, or at least I didn't mean to. I don't know hat went on in the court-martial to express a view on that. What I mant to say was that I didn't see a constitutional issue with Ali being denied the right to appellate review. If there's some other basis, and a court with jurisdiction to hear it, well best of luck to him (or maybe not).