"I (won't) follow you": the misguided, and dangerous, interpretation of constitutional extraterritoriality in United States v. Ali.

• Author: Chaput, Isaac D.

Not only is United States citizenship a "high privilege," it is a priceless treasure. For that citizenship is enriched beyond price by our goal of equal justice under law--equal justice not for citizens alone, but for all persons coming within the ambit of our power. (1)

TABLE OF CONTENTS INTRODUCTION I. JURISDICTION OVER MILITARY CONTRACTORS A. The Military Extraterritorial Jurisdiction Act and United States v. Brehm B. Filling the MEJA Gap: The 2006 Expansion of Court Martial Jurisdiction II. IS ALI JUSTIFIED? A. The Jurisprudential Backdrop 1. Extraterritoriality up to Boumediene v. Bush 2. Due Process as Applied to Non-Citizen Corporate Defendants B. The Ali Problem 1. Boumediene Should Not be Limited to the Suspension Clause 2. Congress and an Advisory Committee Contemplated Due Process Protections 3. Civilian Contractors and Enemy Combatants 4. Undermining the Foundational Principles Recognized in Reid III. LOOKING BEYOND ALI A. Who Will be Harmed by the Ali Rule? 1. Brehm-Type Defendants: Judge Effron's "Open Question" 2. Enemy Combatants in the War on Terror 3. Defendants in Other Extraterritorial Criminal Prosecutions B. Defining the Necessary Nexus Between the Defendant and the United States 1. The Nature of the Rights Test 2. The Any-Exercise Rule CONCLUSION INTRODUCTION

In recent decades, the United States has dramatically changed the way it conducts military operations. Civilians in small numbers have long accompanied the armed forces to war. (2) But civilian participation increased significantly in operations Desert Shield and Desert Storm (3) and remained elevated during the contingency operations in Somalia, Rwanda, Haiti, and the former Yugoslavia. (4) Civilians are now an essential constituent of our armed forces; as of 2007, the number of contractors in Iraq exceeded the number of troops. (5) With 180,000 contractors working in Iraq--and a comparable number in Afghanistan--they inevitably will commit crimes. (6) In order to maintain good relations with the "host country" and discipline within the armed forces, jurisdiction over those crimes must rest somewhere.

The inevitability of criminal activity required a judicial solution. (7) During the 1990s, the Department of Defense had insufficient solutions for civilian disciplinary issues. Often the United States did not have Status of Forces Agreements ("SOFAs") with the countries in which it was operating. (8) In other instances, the SOFA did not cover civilians. (9) This created a jurisdictional uncertainty that often left crimes unpunished--particularly crimes occurring on-base, where host nations were often hesitant to prosecute. (10) And because of the Supreme Court's interpretation of the Uniform Code of Military Justice ("UCMJ"), it was not possible to subject civilians to courts martial. (11)

In 1996, recognizing the substantial issues related to civilians accompanying the armed forces, Congress created a DOD and DOJ advisory committee to recommend possible solutions. (12) On the advisory committee's recommendation, Congress passed the Military Extraterritorial Jurisdiction Act ("MEJA") in 2000, which granted jurisdiction to U.S. district courts over most contractors and DOD civilian employees accompanying the armed forces overseas. (13)

But MEJA has a jurisdictional gap: it does not apply defendants who are citizens of or "ordinarily resident[s]" in the "host nation." (14) When MEJA was enacted, the UCMJ only allowed court-martial jurisdiction over civilians during times of war. (15) In 2006, in recognition of this issue, Congress expanded court-martial jurisdiction to include those defendants excluded from MEJA. (16) Yet very few defendants have been prosecuted in courts-martial under the expanded UCMJ jurisdiction. (17) Recent cases have highlighted the ongoing constitutional issues related to the exercise of jurisdiction over non-citizen military contractors working overseas. (18)

In United Slates v. Ali, an Iraqi-Canadian dual citizen was prosecuted in a court-martial, under the expanded UCMJ jurisdiction, for crimes arising out of an assault committed while accompanying the Army in Iraq. (19) On appeal, the Court of Appeals for the Armed Forces ruled that the exercise of jurisdiction over Ali was acceptable. (20) Ali also argued that trying him in a court-martial violated due process and his grand jury and jury rights. The court held that his constitutional claims were not cognizable because he did not have sufficient connections to the United States to qualify for any constitutional protections. (21) According to the Court of Appeals for the Armed Forces, Ali was sufficiently connected to the U.S. that he could be subject to criminal prosecution. But the court also held that Ali was insufficiently connected to be accorded constitutional protections during that prosecution--he was in "limbo, worse than hell." (22)

United States v. Brehm (23) presented a similar, factual scenario but had a strikingly different legal outcome. There, a South African citizen was prosecuted in federal district court, under the Military Extraterritorial Jurisdiction Act, for an assault committed while accompanying the Air Force in Afghanistan. (24) Brehm pleaded guilty, while reserving the right to appeal the district court's refusal to dismiss for lack of personal jurisdiction. He argued that he, his victim, and his crime did not have a sufficient causal nexus to the United States and, therefore, prosecuting him violated the Fifth Amendment's Due Process Clause. (25) On appeal, the Fourth Circuit held that his employment created a causal nexus such that the prosecution comported with due process, to which he was (apparently) entitled. (26)

This Note will address whether employment by the United States, or a U.S. contractor, of "non-citizen, non-residents" (27) creates a sufficient connection with the United States such that the employees must be accorded constitutional protections during criminal prosecutions. (28) Part I of this Note will present the statutory background and give a brief history of the two main cases, Ali and Brehm. Part II will address the holding of the Court of Appeals for the Armed Forces in Ali in light of Supreme Court and circuit court jurisprudence, including Brehm. (29) Part III will discuss the potential effects should the majority decision in Ali persist or be applied beyond the narrow facts of that case, particularly examining possible applications by the other branches of government. (30) Part III will also discuss the possible tests for determining whether constitutional protections should extend to a particular defendant, and why a uniform rule that constitutional rights apply to any prosecution, termed here the "any-exercise rule," should be adopted. (31)

1. JURISDICTION OVER MILITARY CONTRACTORS

   1. The Military Extraterritorial Jurisdiction Act and United States v. Brehm

      Congress passed the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA") "to establish Federal jurisdiction over offenses committed outside the United States by persons employed by or accompanying the Armed Forces ... and for other purposes." (32) Persons subject to the Act include anyone "employed by or accompanying the Armed Forces outside the United States." The Act defines "employed by or accompanying" as "a civilian employee of the Department of Defense," a Department of Defense contractor (including a subcontractor), or as an employee of a Department of Defense contractor (including a subcontractor). (33) As of 2011, the Department of Justice had obtained seven convictions under MEJA. (34) Of these, four were contractors and three were Department of Defense employees or their dependents. (35)

      United States v. Brehm was one prosecution under MEJA. (36) Brehm, a South African national, was employed at Kandahar Airfield ("KAF") in Afghanistan by DynCorp International LLC, a U.S. military contractor. (37) While working at KAF, Brehm instigated an altercation with a U.K. citizen who was employed by a U.K. contractor. (38) The incident ended with Brehm stabbing and seriously wounding the other contractor. (39) After a phone hearing by a magistrate judge, Brehm was flown to Alexandria, Virginia for prosecution. (40) He pleaded guilty to assault resulting in serious bodily injury, reserving the right to appeal the district court's denial of his motion to dismiss for lack of jurisdiction. (41) On appeal, the Court of Appeals for the Fourth Circuit held that Brehm's connections to the United States were sufficient to sustain jurisdiction without violating his Fifth Amendment right to due process. (42)

   2. Filling the MEJA Gap: The 2006 Expansion of Court-Martial Jurisdiction

      Like Brehm, most civilian contractors are covered by MEJA. (43) But MEJA does not cover contractors who are citizens or ordinarily residents of the country in which the operation is occurring. (44) To fill this gap, Congress amended the Uniform Code of Military Justice ("UCMJ") in 2006 to expand court-martial jurisdiction over persons "serving with or accompanying an armed force in the field" to include contingency operations in addition to wartime. (45) There are numerous procedural differences between courts-martial and civilian criminal trials. (46) "A court-martial accused has no Fifth Amendment grand jury right, no Sixth Amendment jury right, no right to a jury of at least six members, and no right to a unanimous guilty verdict." (47) Accused in courts-martial also have no automatic right to appeal, except in limited circumstances. (48)

      Ali was the first, and apparently only, prosecution under the expanded UCMJ jurisdiction. (49) The underlying facts are strikingly similar to Brehm, but there are two important distinctions. First, Ali was a citizen of Canada and Iraq, and was working as a translator in Iraq." (50) As such, he was working in one of his home countries. (51) Second, Ali was prosecuted in a court-martial under the expanded UCMJ jurisdiction. (52)...