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Monday, November 21, 2011

The Military Jurisdiction Case of the Century Gets One Step Closer...

About six weeks ago, I blogged about the Army Court of Criminal Appeals' July decision in United States v. Ali, upholding (for the first time) the constitutionality of the 2006 amendment to Article 2(a)(10) of the Uniform Code of Military Justice, which authorizes the trial by court-martial of civilian contractors accompanying armed forces in the field during "contingency operations." As I wrote then (and have described in print elsewhere), there's a fairly powerful line of Supreme Court cases suggesting a bright constitutional line (at least other than during times of declared war) between military jurisdiction over servicemembers and military jurisdiction over civilians, no matter what their affiliation with the military happens to be. The current Court certainly may not be inclined to hew to that line (indeed, the relevant precedents are all at least a half-century old), but given the extent to which the role of contractors in contingency operations only continues to grow, it's a close (and important) enough question that it seems likely to grab the Justices' attention...

Indeed, the biggest obstacle to the Supreme Court eventually resolving this issue was the Court of Appeals for the Armed Forces (CAAF), which had the discretion not to review the ACCA's decision. And under 28 U.S.C. 1259(4), the Supreme Court lacks certiorari jurisdiction over a decision by CAAF not to review a particular case. So if CAAF denied review, the only remaining option would have been for Ali collaterally to attack his conviction in a habeas petition in federal district court.

That obstacle is now out of the way. With a big hat tip to CAAFlog, it appears that CAAF last Friday granted review in Ali, and the first of three issues presented is the constitutional elephant in the room, i.e., "[W]hether the military judge erred in ruling that the court had jurisdiction to try [Ali] and thereby violated the Due Process Clause of the Fifth and Sixth Amendments by refusing to dismiss the charges and specifications." It's hard to predict how CAAF will rule on this question, but either way it will be worth watching--both in its own right and as a preview of the distinctly possible Supreme Court review to follow.

Posted by Steve Vladeck on November 21, 2011 at 06:48 PM in Constitutional thoughts, Steve Vladeck | Permalink

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