Friday, January 16, 2009

Breaking News: US Contractor Facing UCMJ Action Files Habeas Petition

A U.S. citizen currently restricted to Ali Base in Iraq by U.S. military officials, and poised to become the first civilian U.S. citizen charged under the UCMJ in nearly four decades, has filed a habeas corpus petition demanding to be released and allowed to return home immediately. Las Vegas resident Justin M. Price requested a writ of habeas corpus or a writ of mandamus from the U.S. District Court for the District of Columbia today. The petition asserts that the United States does not have the constitutional or statutory authority to subject civilians to trial by court-martial. Here is a link to the petition.

[Disclaimer: I am one of the counsel for Mr. Price with CAAFlog commenter John O'Connor--not sur ehow I missed this, but the original post forgot to mention our colleague Geoff Hengerer, who is also on the brief, but not part of the CAAFlog commentariat]
Posted by Mike "No Man" Navarre at 1:00 PM
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17 comments:

Dew_Process said...

Damn fine pleading, guys!

Fri Jan 16, 04:40:00 PM EST
Dew_Process said...

PS - Is your client still employed and getting paid? If not, that's another compelling reason that a) there's no "continuing" jurisdiction; and b) why habeas relief is crucial.

Fri Jan 16, 04:43:00 PM EST
John O'Connor said...

Thanks for the compliment. Let's just say that when you were quoting from McElroy last week, I didn't have to go far to get my hands on the case.

Our client remains employed and continues to support the mission.

Fri Jan 16, 05:03:00 PM EST
Cloudesley Shovell said...

Nice job. I'm looking forward to watching the progress of the case.

Just curious, any reason you didn't bring this petition up through AFCCA and CAAF?

Fri Jan 16, 05:31:00 PM EST
Mike "No Man" Navarre said...

Cloudesley:

Thanks. All things we considered. We'll all have to have a drink someday and discuss how things played out.

Fri Jan 16, 06:12:00 PM EST
Dew_Process said...

Cloudesley,
As I read the pleading [and agree] that when you're contesting the core jurisdiction of the military period over a civilian, there's no "exhaustion" issue requiring going to the military courts.

The converse - which the government is likely to argue, is that the "custodian" i.e., SecDef and the Commanders involved are subject to AF CCA and CAAF "habeas corpus" orders.

The analogy will be like federal habes involving State convictions where there hasn't been exhaustion, the court remands back to the State and retains jurisdiction pending resolution of the State issues within the State judiciary.

The more interesting sub-issue, is waiver. By the DoJ declining to exercise MEJA jurisdiction, and since DoJ "speaks" for the Sovereign, has that waived the jurisdictional issue?

Fri Jan 16, 06:22:00 PM EST
Dwight Sullivan said...

It would seem illogical for Mr. Price to go to AFCCA or CAAF. His argument is that the military can't try him. If he's right, then neither AFCCA nor CAAF has potential appellate jurisdiction over the case and, therefore, can't issue a writ.

Fri Jan 16, 06:56:00 PM EST
Anonymous said...

I'm curious as to how a contractor could ever really be sufficiently "subject to the authority" of a commanding officer so as to support the imposition of any form of pretrial restraint under RCM 304(b)(1)(And, in what real sense would a contractor even have a "commanding officer"?). Maybe the habeas could include a challenge to this, as well as the underlying exercise of jurisdiction.

Fri Jan 16, 07:04:00 PM EST
Dew_Process said...

Dwight - if you look at the "enemy combatant" habeas litigation, it all focused, not on the "civilian" status of the prisoners, but on the status of the "custodian."

Under a strict reading of Rumsfeld v. Padilla, 542 U.S. 426 (2004), I expect the Gov't to move to dismiss, claiming Gates isn't the proper respondent.

DISCLAIMER: I was involved in the Padilla litigation from the beginning of the habeas litigation up and down the SCOTUS ladder twice, and in the USDC criminal prosecution.

JOC and No Man - did you consider naming whoever "ordered" the restraint as a party? We made the argument in Padilla that Rumsfeld could "order" the release, but the Supremes didn't buy that. Admittedly, you've got a slightly different "petitioner," but that's not going to impede DoJ.

If you're interested in discussing this privately, let me know and I'll email you tomorrow.

Fri Jan 16, 07:47:00 PM EST
John O'Connor said...

Not sure it's a good idea to run through our deliberations about things we decided not to do on a public forum. You know where to find us.

Fri Jan 16, 08:02:00 PM EST
Cloudesley Shovell said...

No Man and J'OC--Beers on me, come on over to my hangout at Westminster!

Sat Jan 17, 12:02:00 AM EST
John O'Connor said...

Cloudesley:

I don't think we want to go where you hang out . . . if you know what I mean.

Sat Jan 17, 07:30:00 AM EST
Anonymous said...

I agree that the change to Article 2 was ill considered in that it was passed without sufficient study. However, those of us who have dealt with civilian misconduct overseas understand that MEJA did not solve the problem. It was designed to plug the jurisidictional gap for cases where the host nation did not have, or chose not to exercise, jurisdiction over crimes by civilians serving with or accompanying the force. However, DOJ will not use MEJA unless the case is a serious felony. This leaves a wide field of misconudct offensive to good order and discipline that does not rise to DOJ's high threshold.

Wed Jan 21, 09:09:00 PM EST
John O'Connor said...

Anon 2109:

If you follow that argument through isn't it basically saying that "the government has a clear need to be able to court-martial civilians because the government refuses to use the civilian court forum that is available to it"?

It seems to me that the government holds the keys to its jail cell.

Wed Jan 21, 09:19:00 PM EST
Anonymous said...

Your are using "Government" as one overarching entity which is legally correct but ignores the reality that DOJ and DOD are separate and distinct components with different priorities. I agree that the "Big G" is a single sovereign that encompasses Article I and Article III courts but pratically speaking DOD has no control over DOJ. If a commander has a civilian in an area under his control in ahostile fire area selling narcotics to servicemebers, that commander has a vested interested in criminal prosecution. Unless the accused is Pablo Escobar, DOJ is going to have bigger fish to fry. Accordingly, that offender, whose miconduct is a direct threat to G.O.D. escapes punishment. Per SECDEF, UCMJ jursidiction only lies if the DOJ refuses to take the case. I don't see this as forum shopping but different Gov agencies with different priorities. I am not saying I have the answer (perhaps creating a dedicated MEJA SAUSA office that will handle nickle and dime MEJA cases in District Court) but right now civilians accompanying the force still enjoy a legal no-mans land that can be detrimental to mission accomplishment.

That being said, now that K'tors are subject to primary Iraqi criminal jurisdiction, Article 2 may not look that bad. Knock on wood we never have to go down that road.

Wed Jan 21, 09:54:00 PM EST
Mike "No Man" Navarre said...

Anon Jan 21, 09:54:00 PM EST (and probably 2109):

Aren't you in part arguing that the statute passed doesn't allow DOJ to take enough cases (e.g. it only covers felonies)? That's asking for a legislative fix. If DOD wants DOJ to be able to prosecute misdemeanors, work with Congress and get it fixed. The SCOTUS rejected this argument about not having any statute that covered the misconduct in previous cases.

As for prosecutorial discretion, I think JO'C summs it up has articulated the issue above.

Thu Jan 22, 08:29:00 AM EST
Anonymous said...

What I am saying is DOJ declines almost every MEJA "felony" case sent to it because they are not felonious enough. The fix isn't necessarily expanding MEJA to misdemeanors, but rather to find something that covers the delta between civilian disciplinary crimes overseas offensive to G.O.D. that are not of concern to civlian prosecutors. I don't have the answer, but there is a need and while Article 2a10 may not be the solution, at least the issue is being discussed.

Fri Jan 23, 06:32:00 AM EST

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