As Judge Stucky said during a question-and-answer session following oral argument at the University of Washington Law School yesterday, 99 percent of the cases CAAF hears involve active-duty service members who have been convicted at a court-martial; U.S. v. Ali, which concerns the court-martial of an Iraqi/Canadian interpreter serving with the Army in Iraq as an independent contractor, is part of the 1 percent that doesn’t. But as such, it was perhaps the most interesting, unique, and entertaining argument the Court will hear this term.
A packed house of law students, professors, judge advocates from the Pacific Northwest, and a few prominent others were treated to a very hot bench, as LTC Peter Kageleiry Jr., counsel for the appellant, was peppered with questions before he could even get to his opening.
The issues being argued were:
(I) Whether the, military judge erred in ruling that the court had jurisdiction to try appellant and thereby violated the due process clause of the fifth and, sixth amendments by refusing to dismiss the charges and specifications; and
(II) Whether the court-martial had jurisdiction over the appellant pursuant to Article 2 (a) (10), Uniform Code of Military Justice.
Both sides’ arguments were greeted with some skepticism by the judges. LTC Kageleiry asked the Court to apply the “Toth Doctrine” (United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)) to find that this court-martial did not have jurisdiction over the appellant, whom it claimed was not a member of the Armed Forces. But the judges questioned whether Toth applied noting that Toth involved a discharged American service member in the U.S., whereas this appellant was a non-citizen whose crimes occurred outside the U.S. And anyway, Art. 2(a)(10), UCMJ, which is at issue here, is different than Art. 2(a)(11). That led to a discussion about what constitutes “war,” and whether there is a limit to the least possible power argument. Counsel for appellant made the argument that the war powers clause was not in play because there was no declared war, which led to a colorfully sarcastic question (and probably the line of the argument) from Judge Stucky: “Well, what were we doing over there [in Iraq] then? And in Korea? Dancing down the primrose path?”
CPT Chad Fisher, the Government counsel, was grilled, for his part, on the Government’s decision to base its argument that jurisdiction to court-martial Mr. Ali was based solely on the “Make Rules” clause of the Constitution, while conceding that the “War Powers” clause should not be considered at all as a basis for court-martial jurisdiction. His argument was that, by nature of accompanying the Armed Forces in Iraq, the appellant virtually became a member of the land and naval forces. This drew questions from the judges designed to delineate the difference between being in the armed forces and merely accompanying them. This line of questioning culminated in Chief Judge Baker making the point that, if the Government had wanted Mr. Ali to be considered a member of the land and naval forces, it could easily have drafted a contract saying so. After all, he was there working for an independent contractor. The Government’s argument, while well-spoken and cogent, was hurt by the reluctance to use “war powers” as a viable means for jurisdiction, a point the judges went back to more than once.
The amicus argument, ably presented by U-Dub 3L student (and Coast Guard LT) Jeff Barnum, had no such problem. As such, Barnum’s well-crafted argument, which supported the Government, came across as most reasonable. Barnum, in fact, based his argument supporting jurisdiction on the war powers clause, stating that hostilities, whether contingency or otherwise, trigger the War Powers clause. He then identified a four-part test that he crafted for limiting this principle, arguing that Ali fell strongly within most of them.
1. Proximity to hostilities;
2. Civilian’s role within the military unit (e.g. appellant is a 10; Stephen Colbert would be a 0).
3. Extent to which offense impacts mission (e.g. writing a bad check = 0; sabotage = 10; Barnum estimated this fell in the middle)
4. Extent to which court-martial maintains good order and discipline on the field of battle .
On rebuttal, the appellant argued that this is a Government test case, but also admitted that, at this point, this case is unique; there are no others like it.
In the end, regardless of which way the Court falls, this has the feel of being that rare military case that may pique the interest of the U.S. Supreme Court. Therefore, CAAF’s opinion will no doubt generate much discussion and interest.