How timely: New comment on expansion of court-martial jurisdiction over civilian contractors

The University of Toledo Law Review just published a student comment on the expanstion of court-martial jurisdiction over civilian contractors. Ian Kierpaul, Comment: The Mad Scramble of Congress, Lawyers, and Law Students after Abu Ghraib: The Rush to Bring Private Military Contractors to Justice, 39 U. Tol. L. Rev. 407 (2008).

Kierpaul is critical of the jurisdictional expansion: "The use of court-martial is now a reality and one that must be guarded against. The Founders thought it dangerous and it is questionable if a military panel is capable of effectively punishing private military contractors. Congress, however, because of the mad scramble, failed to adequately address those issues." Id. at 427.

He proposes a "two-pronged approach" to establishing a legal regime to govern civilians accompanying the military abroad. Id. at 438. "First, Congress should pass a law stating that any private military contractor that does business with the United States consents to the jurisdiction of U.S. law and courts." Id. at 438-39. "Second, Congress should pass a law requiring certain hiring, training, and operational standards before a private military contractor may qualify for a contract, thus creating a registration system." Id. at 439. He also suggests the "establishment of federal courts overseas along with a special prosecutor and FBI office." Id. at 440. He would also "require the levying of automatic fines against the company that employed" any private military contractor convicted of an offense. Id. at 441.

Apart from practicality concerns, Kierpaul's proposed solutions do not appear to address the question of jurisdiction over U.S. civilian employees abroad.

NYT article with additional details about military justice prosecution of civilian contractor

Here's a link to a New York Times article with additional information about the military justice prosecution of a civilian contractor in Iraq -- a story that this blog broke on Wednesday.

CAAF denies Army GAD's reconsideration petition in Lopez de Victoria

On Wednesday, CAAF denied the government's reconsideration petition in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). Filing a fruitless reconsideration petition is a military appellate government shop's traditional first step on the road to beseeching the SG to seek cert. By my calculations, a cert petition would be due on 1 July. If the SG is seriously contemplating filing a cert petition, he generally seeks an extension of the filing deadline. We will, of course, monitor the Supreme Court's web site for any signs of movement in Lopez de Victoria -- a case that seems far more certworthy than most.

Speaking of NMCCA . . .

We understand that on 11 April, NMCCA will invest a new Chief Judge: CAPT Bruce MacKenzie. Coincidentally (and I do mean coincidentally--a previous time when I used that term, it was misreported as suggesting a causal relationship), earlier this week in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008) (en banc), NMCCA en banc reversed a panel decision that had reversed a ruling by CAPT MacKenzie in which he denied a suppression motion while sitting as a trial judge.

NMCCA ordered to either decide case or explain delay in en banc reconsideration

On 16 November 2006, NMCCA issued a split opinion setting aside the findings and sentence in a general court-martial case due to the trial counsel's comment on the accused's silence. United States v. Abdirahman, No. NMCCA 200401082 (N-M. Ct. Crim. App. Nov. 16, 2006). Apparently the Government moved for en banc reconsideration and the court granted that motion. But now -- almost 17 months later -- NMCCA has yet to issue its opinion. Seaman Recruit Abdirahman's counsel sought an extraordinary writ from CAAF ordering NMCCA to withdraw its order granting en banc reconsideration or, in the alternative, decide the case within 45 days. The government responded by objecting to the withdrawal option but joining in the decide-within-45-days option.

CAAF has now responded with an order denying the portion of the petition for extraordinary relief seeking to quash the en banc reconsideration, but ordering "that the United States Navy-Marine Corps Court of Criminal Appeals shall either decide the case within 45 days or provide this Court with an explanation of the need for further consideration." Abdirahman v. United States, __ M.J. ___, No. 08-8008/NA (C.A.A.F. Apr. 3, 2008).

Col Murphy to be arraigned 14 April

Stars and Stripes reports here that Col Michael Murphy, an Air Force judge advocate accused of practicing law in the military despite having been disbarred, will be arraigned at Bolling Air Force Base on 14 April.

Update on Civilian UCMJ Proceeding

We have not received a torrent of inquiries or complaints about our post on the first ever preferred charges under the amended Art. 2(a)(10), however, we have decided to further redact the charge sheet. The nature of the case makes the issue a bit incendiary. Thus, while the link has not changed, here, the document you view has. It also looks more like a product of a professional redactor than my 4 year old and those big fat crayons---though he is coloring in the lines these days.

If anyone is interested in filing friend of the court briefs in the court martial, for the defense, you can contact Army DCAP by email here. Not sure who would coordinate government friend of the court briefs. If anyone from Army TCAP or the CA's legal office is reading, and wants to solicit friend of the court briefs, let us know and we will post the link.

The Paducah double booking continued

Please be sure to check out the comments to our previous post about the American Quilter's Society show disrupting the trial in United States v. Green, the federal capital case of the Mahmoudiya suspect who had been discharged. When I saw Bonnie B Quilter's entry, I naturally assumed that JO'C had a calendar malfunction and thought today was April Fool's Day. But, no, it seems that we have received a legitimate explanation from the Show Director of the upcoming Paducah quilt fest. Here is a link to her look at the quilt show/ murder trial scheduling conflict on her blog.

And Bonnie B, if you are still reading CAAFlog, thanks for the insight.

Army DAD files cert petition in Rhoades

Army DAD has filed a cert petition seeking review of United States v. Rhoades, 65 M.J. 393 (C.A.A.F. 2008). Rhoades v. United States, No. 07-1248. Here's the QP:

Whether the Court of Appeals for the Armed Forces properly held that a military judge, in granting a government motion to disqualify petitioner's civilian counsel on the basis of an alleged violation of the 18 U.S.C. § 207(a)(2), did not deny petitioner his Sixth Amendment right to civilian counsel of his choice.

This Amendment need not apply?

On Monday, in a response to a FOIA request by the American Civil Liberties Union, the Acting DoD General Counsel declassified a March 14, 2003 memorandum authored by then-Deputy Assistant Attorney General John C. Yoo (formerly of the Department of Justice Office of Legal Counsel and now a professor at Berkeley's Boalt Hall School of Law). Professor Yoo is well-known as a proponent of the "unitary executive" theory of Presidential power, and his memorandum addresses that theory in the context of the constraints, or lack of constraints, on the interrogation techniques that can be employed by Defense Department personnel when questioning persons deemed unlawful combatants.

As is the case with many legal documents, it's worth paying close attention to the footnotes. In particular, footnote 10 of the Yoo Memorandum contains a tantalizing reference to yet another memorandum, dated October 23, 2001, and summarizes its key conclusion thusly: in the context of the Global War on Terror,

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

(emphasis in original)

There are, of course, two questions that flow naturally from Professor Yoo's assertion: (1) how far does this doctrine extend, and (2) has anyone told CAAF?



The March 14, 2003 memorandum can be found online here: [PDF]