Courts-Martial for Contractors: U.S. v. Ali and the Path to the Supreme Court

A couple of years ago, I blogged about a habeas petition seeking collaterally to bar the trial by court-martial of a civilian contractor for his alleged role in destroying by arson a Predator drone in Iraq. The government dropped that case, and so the habeas petition went away...

But the underlying issue--the constitutionality of a 2006 amendment to the Uniform Code of Military Justice that authorizes the trial by court-martial of "persons serving with or accompanying an armed force in the field" during a "contingency operation" (in addition to the preexisting jurisdiction during "a time of declared war")--is back again, thanks to the federal government's trial by court-martial of Alaa Mohammad Ali (a civilian contractor) for offenses committed in Iraq. Ali pled guilty while preserving his right to appeal of the constitutionality of the military's assertion of jurisdiction. In July, the Army Court of Criminal Appeals (ACCA) affirmed, resting on the conclusion that:

[W]e can discern no manner in which the exercise of military jurisdiction over a non-U.S. citizen who knowingly accepted employment supporting U.S. forces in a combat zone during a declared contingency operation would be fundamentally hostile to either military or civilian due process, nor have we found any Supreme Court precedent that specifically precludes the exercise of such jurisdiction.

My own view is that the ACCA's opinion is dancing on the head of a series of pins given the Supreme Court's near-total repudiation of military jurisdiction over non-servicemembers in a host of decisions culminating with the January 18, 1960 trilogy--Kinsella v. United States ex rel. Singleton, Grisham v. Hagen, and McElroy v. United States ex rel. Guagliardo. That doesn't mean, of course, that this Supreme Court will feel the same way; only that I suspect this case is headed that way, and in a hurry...

Of course, the Court of Appeals for the Armed Forces would have to grant review first, since the Supreme Court lacks certiorari jurisdiction over the military courts in cases in which CAAF denies review, but one constitutional problem at a time!