U.S. v. Ali, 71 M.J. 256

First Principles: Jurisdiction: Generally

1. Article 2(a)(10), UCMJ, provides for UCMJ jurisdiction in time of declared war or contingency operation over persons serving with or accompanying an armed force in the field
2. jurisdiction is the power of a court to try and determine a case and to render a valid judgment
3. generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) jurisdiction over the accused, and (3) a properly convened and composed court-martial
4. general courts-martial have jurisdiction to try persons subject to the UCMJ for any offense made punishable by it; additionally, the UCMJ applies in all places; where appellant, a foreign national working as a civilian contractor in Iraq and serving with the Army in the field during a contingency operation, was charged with and convicted of misconduct punishable by the UCMJ, the court-martial had jurisdiction over the offenses
5. the court-martial’s jurisdiction over the offense alone is not sufficient to establish jurisdiction; the Constitution conditions the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused; thus, an inquiry into court-martial jurisdiction focuses on the person’s status, i.e., whether the person is subject to the UCMJ at the time of the offense; in this case, whether jurisdiction over the offense existed requires an analysis of the criteria found in Article 2(a)(10), UCMJ
6. with respect to whether a person is serving with or accompanying an armed force as provided in Article 2(a)(10), UCMJ, the test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel; also, an accused may be regarded as accompanying or serving with an armed force, even though he is not directly employed by such a force or the government, but, instead, works for a contractor engaged on a military project
7. with respect to whether a person is serving with or accompanying an armed force in the field as provided in Article 2(a)(10), UCMJ, the meaning of in the field means in an area of actual fighting
8. the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person; the only difference is that jurisdiction over the person depends on the person’s status as a person subject to the Code both at the time of the offense and at the time of trial
9. Congress’s war powers provided the constitutional source of authority and justification for Article 2(a)(10), UCMJ, which subjects persons serving with or accompanying an armed force in the field in time of declared war or contingency operation to military jurisdiction
10. while the Military Extraterritorial Jurisdiction Act extends to civilians employed by or accompanying the armed forces, which likely includes non-United States citizens, it does not extend to citizens of the host nation; as a result, because appellant was a citizen of the host nation of Iraq, there was no available Article III alternative forum under MEJA
11. appellant, a foreign national serving with and accompanying the US armed forces in the field as a civilian contractor during a contingency operation in Iraq, fell within the scope of Article 2(a)(10), UCMJ, and this congressional exercise of jurisdiction, as applied to him, subjected him to court-martial jurisdiction and did not violate the Constitution

First Principles: Jurisdiction: In Personam

1. Article 2(a)(10), UCMJ, provides for UCMJ jurisdiction in time of declared war or contingency operation over persons serving with or accompanying an armed force in the field
2. the court-martial’s jurisdiction over the offense alone is not sufficient to establish jurisdiction; the Constitution conditions the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused; thus, an inquiry into court-martial jurisdiction focuses on the person’s status, i.e., whether the person is subject to the UCMJ at the time of the offense; in this case, whether jurisdiction over the offense existed requires an analysis of the criteria found in Article 2(a)(10), UCMJ
3. with respect to whether a person is serving with or accompanying an armed force as provided in Article 2(a)(10), UCMJ, the test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel; also, an accused may be regarded as accompanying or serving with an armed force, even though he is not directly employed by such a force or the government, but, instead, works for a contractor engaged on a military project
4. appellant, a foreign national working as a civilian contractor in Iraq, was both serving with and accompanying the armed forces, as required to subject him to court-martial jurisdiction under Article 2(a)(10), UCMJ, where he was virtually indistinguishable from the US military police squad he was serving with and faced the same daily routines and threats as they did; specifically, he served as an interpreter for the squad on every mission the squad went on, he was not only an integral part of the team, but was a necessary part of the team, without whom the mission could not be accomplished, he wore a tape stating “U.S. Army” and the unit patch on his uniform, he wore body armor and a helmet like the soldiers, he lived in a combat outpost, he received mission orders from the squad leader/team chief and reported for operational purposes to the squad leader/team chief, and he faced daily threats from enemy insurgents
5. with respect to whether a person is serving with or accompanying an armed force in the field as provided in Article 2(a)(10), UCMJ, the meaning of in the field means in an area of actual fighting
6. appellant, a foreign national working as a civilian contractor in Iraq, was serving with or accompanying the armed forces in the field, as required to subject him to court-martial jurisdiction under Article 2(a)(10), UCMJ, where he served as an interpreter for a US military police squad, lived at a combat outpost, and conducted missions with the squad in an area where he faced attacks from enemy insurgents on a daily basis
7. the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person; the only difference is that jurisdiction over the person depends on the person’s status as a person subject to the Code both at the time of the offense and at the time of trial
8. even though appellant, a foreign national working as a civilian contractor in Iraq, was no longer serving with the armed forces after his civilian employment contract was terminated prior to trial, jurisdiction remained because he was still accompanying the force at the time of trial by the fact that he was confined awaiting trial

First Principles: Jurisdiction: Subject Matter

1. general courts-martial have jurisdiction to try persons subject to the UCMJ for any offense made punishable by it; additionally, the UCMJ applies in all places; where appellant, a foreign national working as a civilian contractor in Iraq and serving with the Army in the field during a contingency operation, was charged with and convicted of misconduct punishable by the UCMJ, the court-martial had jurisdiction over the offenses
2. the status of the individual is the focus for determining both jurisdiction over the offense and jurisdiction over the person; the only difference is that jurisdiction over the person depends on the person’s status as a person subject to the Code both at the time of the offense and at the time of trial

First Principles: Constitutional Matters: Generally

1. appellant, a foreign national working as a civilian contractor in Iraq who was tried outside the United States during a contingency operation for a crime committed outside the United States, did not have a substantial connection with the United States that entitled him to Fifth and Sixth Amendment protections, although he received brief predeployment training in the United States and was employed by a United States corporation; noncitizen aliens outside of the United States are not afforded the protections of the Fifth and Sixth Amendments when they have not come within the territory of the United States and developed substantial connections with it
2. Congress has the power to declare war and to make rules for the government and regulation of the land and naval forces; these powers are separate and distinct sources of constitutional authority for congressional action; the necessary and proper clause cannot extend the scope of the power to make rules for the government and regulation of the land and naval forces

Core Criminal Law Subjects: Crimes: Art. 134 - Obstructing Justice Pre-2019 offenses

1. the erroneous failure to reference the terminal elements of clauses 1 or 2 of Article 134, UCMJ, prejudice to good order or discipline or service discrediting conduct, in the specification alleging obstruction of justice did not materially prejudice appellant’s substantial rights, where he pleaded guilty to the offense in accordance with a pretrial agreement, the military judge explained the elements of prejudice to good order and discipline and service discrediting conduct to him during the providence inquiry, and he admitted during this inquiry that his conduct was prejudicial to good order and discipline

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the erroneous failure to reference the terminal elements of clauses 1 or 2 of Article 134, UCMJ, prejudice to good order or discipline or service discrediting conduct, in the specification alleging obstruction of justice did not materially prejudice appellant’s substantial rights, where he pleaded guilty to the offense in accordance with a pretrial agreement, the military judge explained the elements of prejudice to good order and discipline and service discrediting conduct to him during the providence inquiry, and he admitted during this inquiry that his conduct was prejudicial to good order and discipline

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. jurisdiction is a legal question which an appellate court reviews de novo
2. the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo
3. where an appellant argues that a statute is unconstitutional as applied, an appellate court must conduct a fact-specific inquiry
4. to succeed in an as-applied challenge that the exercise of court-martial jurisdiction violated his rights under the Fifth and Sixth Amendments, appellant must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of this case, these protections were violated when he was subjected to military jurisdiction

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. MCM explanations of offenses are not binding on appellate courts, but are generally treated as persuasive authority