Trying Unlawful Combatants at General Courts-Martial: Amending the UCMJ in Light of the Military Commissions Experience

• Author: Major E. John Gregory
• Pages: 03

TRYING UNLAWFUL COMBATANTS AT GENERAL COURTS-MARTIAL: AMENDING THE UCMJ IN LIGHT OF THE

MILITARY COMMISSIONS EXPERIENCE

MAJOR E. JOHN GREGORY*

1. Introduction

   On 17 December 2002, one U.S. servicemember drove a Soviet-style jeep in Kabul, Afghanistan while another U.S. servicemember sat in the passenger seat and an Afghan interpreter sat in the back. Suddenly, someone threw a hand grenade into the vehicle, seriously injuring the three occupants.1 Witnesses identified and Afghan police arrested Mr. Mohammed Jawad, an Afghan present at the time of the attack.2 No readily apparent clothing, insignia, or markings distinguished Mr. Jawad from other civilians milling about at the time of the attack. Over the next seven years, the United States unsuccessfully sought to try Mr. Jawad by military commission.3 More broadly, the United States in recent years

   has struggled with the prosecution of persons like Mr. Jawad, persons sometimes referred to as "unlawful combatants."4 Domestically, three potential fora exist to try such persons: federal civilian trials, military commissions, and courts-martial.5 As for the court-martial option, this article demonstrates that the current framework for jurisdiction over unlawful combatants, in relying on the law of war (LOW), presents substantial impediments to the prosecution of someone like Mr. Jawad. Congress could overcome these shortcomings by making unlawful

   combatants expressly subject to the Uniform Code of Military Justice (UCMJ) under Article 2, UCMJ.6

   This article narrowly focuses on court-martial jurisdiction over someone like Mr. Jawad, a classic "battlefield detainee," detained for hostile acts committed on or near the field of battle against U.S. or coalition forces. By contrast, it does not address court-martial jurisdiction over persons who provide support to terrorism or whose actions are more remote than the direct participation in hostilities standard.7 For example, the proposal suggested in this article would likely not pertain to the defendant in the well-known Hamdan decision because his actions appear too remote.8 Further, this article focuses on the technical improvement of one aspect of jurisdiction already extant under the UCMJ, not the expansion of jurisdiction. It does not propose a replacement for military commissions or civilian trials and retains a neutral position on the wisdom of using courts-martial, civilian trials, or military commissions to try unlawful combatants.

   To demonstrate the value of amending Article 2 to include unlawful combatants, this article first relies on the LOW to examine the current framework for court-martial jurisdiction over unlawful combatants. Next, this article reveals the superfluous nature of the current requirement for practitioners before courts-martial convened under the current Clause 2 to make a finding under the LOW to establish in personam jurisdiction,9 an analysis that is mandated by neither the LOW nor the Constitution. Third, this article applies lessons from Jawad and Hamdan, two recent military commissions cases, one of which reached the Supreme Court. These cases reveal the impediments to achieving court-martial subject matter jurisdiction over unlawful combatants. Primarily, these difficulties arise from the distinction between general

   criminal activity and LOW violations. Finally, this article provides a narrow definition for the term "unlawful combatant" under the UCMJ, which focuses on an accused's direct participation in hostilities.

   The appendices to this article compare the Jawad facts under the different fora and jurisdictional frameworks, discussed. While Appendix A provides the relevant charges from the Jawad Commission, Appendix B offers hypothetical court-martial charges based on Jawad's same factual scenario, but under the current framework for court-martial jurisdiction. After providing language to amend the Manual for Courts Martial (MCM) to implement the proposed jurisdictional framework, Appendix C articulates new charges under the proposed jurisdictional framework.

2. Identifying and Addressing Shortcomings in the Current

   Jurisdictional Framework

   A. Current Framework for Jurisdiction over Unlawful Combatants

   On its face, Article 18, UCMJ, already provides a wide grant of jurisdiction to try persons who violate the LOW by general court-martial. This article does not propose to narrow or expand this jurisdiction, but rather to clarify it and facilitate its use. There are two clauses contained in Article 18, referred to throughout this article as "Clause 1" and "Clause 2": "[Clause 1] [G]eneral courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter . . . . [Clause 2] General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."10 Clause 1 derives its meaning from Article 2, UCMJ, which defines "persons subject to this chapter." Cases charged under Clause 1

   rely on the punitive articles of the UCMJ11 as well as federal and state offenses under Article 134.12 Article 2 does not currently define unlawful combatants as "persons subject" to the UCMJ.13

   Whereas Clause 1 relies on those persons subject to the UCMJ under Article 2 for in personam jurisdiction (trial of this particular individual by military tribunal), Clause 2 sets forth plenary jurisdiction for "any person" (not just persons subject to "this chapter") whom the LOW would otherwise subject to trial by a military tribunal.14 Two conditions must exist for a court-martial to assert jurisdiction over an unlawful combatant: first, the LOW must permit in personam jurisdiction and second, the LOW must recognize the particular offense as an actionable violation (subject-matter jurisdiction).15

   B. Charging and Predictability under the Proposed Framework

   The proposed framework would greatly simplify prosecuting unlawful combatants at court-martial because the practitioner would be on the familiar ground of domestic law under Clause 1, rather than trying to discern the applicability of the LOW to a particular prosecution. If the UCMJ made unlawful combatants subject to the UCMJ, as this article argues it should, then the punitive articles and certain federal crimes under Article 134, UCMJ, such as the War Crimes Act,16 would apply. If Mr. Jawad were subject to the UCMJ, trial counsel could charge Article 80 (attempts), UCMJ, and Article 128 (assaults), UCMJ, without additional jurisdictional authority. Appendix C outlines this approach.17

   C. Eliminating the Anomaly between Lawful and Unlawful Combatants

   Just as this article proposes amending Article 2 to make unlawful combatants subject to the UCMJ, the Military Commissions Act of 2006 (MCA) amended Article 2 to make "lawful enemy combatants" subject to Clause 2 jurisdiction.18 This change created the current anomaly between the treatment under the UCMJ of persons who commit similar misconduct based on their status as lawful or unlawful combatants. To be sure, both groups were previously subject to Clause 2 jurisdiction.19

   But, based on the 2006 change, the advantages of prosecution under

   Clause 1 now accrue to a prosecution of a lawful combatant, but not an unlawful combatant.

   For a concrete example, consider the following hypothetical. In a U.S. contingency operation in the fictional country of Ahuristan, U.S. forces within the same operational environment face both lawful combatants, the Ahuristan Army (AA), and unlawful combatants, the Jihad Front (JF). At one point, a U.S. Soldier surrenders to an AA member who promptly and deliberately executes him. At the same time, one mile away, another U.S. Soldier surrenders to a member of the JF, who promptly and deliberately executes him. Later, the U.S. Army detains both the AA and JF members. Because Article 2 includes lawful combatants but not unlawful combatants, the AA member is subject to Clause 1 jurisdiction. The JF member, however, is only subject to Clause 2 jurisdiction. This article argues for amending Article 2 to include unlawful combatants, thus making both persons subject to Clause

   1. The ease with which Congress amended Article 2 to include lawful enemy combatants also underscores the facility of adding unlawful combatants to Article 2's scope.

3. In Personam Jurisdiction

   A. Overview

   This part justifies eliminating the the requirement to find in personam jurisdiction under the LOW as currently required by Clause 2. As explained in greater detail below, a practitioner seeking to charge an unlawful combatant under Clause 2 has to determine first whether the LOW would sanction the trial of the individual by "military tribunal."20

   This approach may have made sense at a time when the LOW arguably focused more on the class of individuals subject to trial by military tribunal rather than the underlying procedures of the tribunals themselves. Whatever its previous focus, the LOW now focuses on the underlying tribunal itself and requires a regularly constituted court respecting certain judicial guarantees.21 Over the course of fifty years, the United States has witnessed great changes in military justice and

   court-martial procedure. As a result, courts-martial today always meet the "regularly constituted" and "judicial guarantees" requirements under the LOW. Thus, with the types of combatants at issue in this article, there no longer exists a need to test whether a court-martial, under the LOW, properly has jurisdiction over any particular individual. This article thus proposes substituting a domestic definition of unlawful combatant under Rule for Courts-Martial (RCM) 109 for purposes of determining court-martial in personam jurisdiction. One potential objection to this proposal is that removing the LOW analysis from the individual case risks violating international law by subjecting someone not otherwise amenable to military trial...