Wednesday, September 24, 2008

Ali CAAF Writ Appeal Add'l Thoughts -- Redux

On the occasion of the first civilian UCMJ case to come before CAAF, I must mention the timing of the writ appeal petition in Ali v. Austin (which, I will admit, was not on my mind until JO'C mentioned it) .

The writ appeal, which attempts to invoke CAAF's All Writs Act jurisdiction over a case that is pending Art. 69 review, comes while the Denedo cert. petition by the U.S. Solicitor General makes its way to SCOTUS for a fall conference---see our prior coverage here, here, and here. As our loyal readers both know, the question presented in Denedo is essentially whether CAAF has the power to review a writ, alleging ineffective assistance of counsel at trial, filed by a former service member after his court-martial has become final. In Denedo, there is no UCMJ provision addressing the power that CAAF asserted. Rather, in Denedo, CAAF premised its assertion of jurisdiction on the All Writs Act.

CAAF, in a 3-2 decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), recently held that the government could take an interlocutory appeal to CAAF when the the Gov't lost at CCA. In Lopez de Victoria, the statute at issue (Art. 62, UCMJ) addressed only CCA jurisdiction and was silent on CAAF jurisdiction.

Both CAAF decisions, Denedo and Lopez de Victoria, have been criticized by the Solicitor General for their expansion of CAAF jurisdiction, as we noted here, though only Denedo is before SCOTUS on petition for certiorari.

The argument for CAAF jurisdiction in Ali, it could be argued, is even weaker than the argument for CAAF jurisdiction in Denedo and Lopez de Victoria. At least in Lopez de Victoria the statute (Art. 62, UCMJ) expressly mentioned CCA's authority to review a government appeal. In Denedo the fact that no statute addressed the particular power CAAF was asserting added some credibility to the All Writs Act argument. However, in Ali, the statute at issue (Art. 69, UCMJ), in fact, expressly states that CCA and CAAF do not have jurisdiction over a case that has resulted in a sub-jurisdictional sentence (i.e. less than one year of confinement awarded in Mr. Ali's case). Of course, the argument could also be made that the case for jurisdiction is the same as in Denedo because no statute specifically addresses the type of appeal at issue in Ali, a writ of habeas corpus seeking limited review of jurisdictional issues in the case.

My point in all of this is not to vote for or against CAAF jurisdiction in Ali, but, rather, seeing as how the Ali brief only devoted a page (in Courier-12 font) to the jurisdictional issue, I wonder if CAAF will order supplemental briefing to address this issue and the Golden CAAF in the room, Clinton v. Goldsmith? And what about the legislative history of the 1989 changes to Art. 69, does it suggest military appellate court intervention in the process? Ali's brief cited McPhail, a 1976 CMA case that held CMA had jurisdiction over sub-jurisdictional cases under the All Writs Act. ACCA has more recently addressed the Art. 69 writ issue in Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998), but did not address the legislative history. The legislative history of the 1989 amendments to Art. 69, UCMJ seem to be more in line with Clinton v. Goldsmith than McPhail. See Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (noting congressional concern over extension of jurisdiction under the All Writs Act in cases like McPhail). How does the logic from Dew and McPhail fare post-Clinton v. Goldsmith? How do any of these cases fare post-Denedo if SCOTUS grants cert.? All issues worth a few more paragraphs.

As far as substantive issues, I throw this out to our readers: could CAAF, if they address the merits of Ali's first argument, resolve the case on narrow factual grounds? The opinion might look something like: (1) we accept Col. Winthrop's position that a civilian cannot constitutionally be made subject to UCMJ jurisdiction in time of peace (a position nominally supported by Reid v. Covert, 354 U.S. 1 (1957) and Kinsella v. Singleton, 361 U.S. 264 (1960)); (2) however, wars of today are not black and white; there is war, there is peace, and there is a whole lot in between that sure seems like war; but (3) where ever that line may fall between war and peace, what was going on in Iraq at the time of Mr. Ali's detention and court-martial was not war.

Just thoughts. Talk amongst yourselves.


Mike "No Man" Navarre said...
This comment has been removed by the author.
Cloudesley Shovell said...

In addition to the usual jurisdictional arguments, the government could also argue that any action on a writ would be premature since the Art. 69 review process is not yet complete, and Mr. Ali could prevail there. There is no need for immediate action since Mr. Ali is not in confinement, so there is no reason not to let the Article 69 review process run its course.

This is a "do the right thing" case. Once the Army JAG's Art. 69 review is complete, assuming the Army JAG concludes there was jurisdiction to try Mr. Ali, and finds that there is no other error, the Army JAG should immediately certify the case to ACCA for review under Art. 69(d) so that the jurisdictional issue can get a full and fair review in the appellate courts. After all, if the government was sure enough of jurisdiction to try Mr. Ali in the first place, the government should not fear a full appellate review of that determination.

I thought the appellant's argument regarding his status pretty compelling. If a servicemember is validly discharged before trial, it is clear the court-martial loses jurisdiction over him. So, if a civilian is fired by the contractor he was working for, is he still "serving with" or "accompanying" an armed force? I think not. If the accused were a civilian working directly for the US gov't and still pulling a paycheck at trial, then the argument for Art. 2(a)(10) jurisdiction is stronger. Mr. Ali is a Canadian and Iraqi dual citizen, whose only connection to an armed force in the field was through a contractor. Once that contractor fired him, that severed any link between him and the armed force, and severed any Art. 2(a)(10) jurisdiction, just as if he were a discharged servicemember.

John O'Connor said...

Three thoughts, sort of in reverse order.

1. As for Cloudesley's thought on the JAG certifying the case over to ACCA: If I were the JAG's advisor, I would tell him not to do that because it creates a "feeding the beast" problem. The military appellate courts already use the (in my mind disreputable) doctrine of "potential appellate jurisdiction" to give themselves jurisdiction over cases that have no real prospect of getting there via Article 66. I would be concerned that actually certifying cases over would give the appellate courts a token case to point to for the notion that cases (such as summary courts-martial) that cannot possibly meet the jurisdictional threshold are fair game for appellate court meddling because of the history of JAGs sending over such cases for review. The irony would be that the appellate courts' illegitimate expansion of their All Writs jurisdiction would lead me to advise against giving them review where it is plainly allowed (through a JAG certification), but that's where I would come out.

2. If there is going to be a fact-bound decision here, isn't the more likely result that the CAAF (if it gets past the illegitimate jurisdictional basis) holds that there might be "contingency operations" that don't allow for court-martial jurisdiction over civilians, but this isn't one of them? Going the way suggested by No Man holds an Act of Congress unconstitutional, so I don't think the scope of the holding is narrowed much if the idea is to limit the reach of the case and (possibly) avoid attracting SCOTUS attention.

3. My point to No Man on timing was that this is probably the absolute wrong time for a litigant to ask CAAF to fudge the jurisdictional issue, what with the SG having thrown down the gauntlet in the Denedo cert petition in arguing that CAAF is a court run wild.

Anonymous said...

Interesting -- so, if court-martial jurisdiction over a civilian contractor simply boils down to an employment status, why couldn't it be defeated simply by quitting?

Even if Art. 2 would give jurisdiction over the accused at the time the offense was committed, I don't read Art. 3 as giving "continuing" jurisdiction under these circumstances.

Mike "No Man" Navarre said...

I think the continuing jurisdcition and leaving jurisdiction in the hands of the accused and goivernment contractor makes for great stuff at CAAF. If CAAF gets to it, I think that argument is one of the weakest for the accused (at least from a practical perspective), but for the government one of the hardest to address from a legal [perspective.