After nearly five years “on the books,” the highest military court in the United States will review the constitutionality of an amendment to the Uniform Code of Military Justice (UCMJ) that potentially made every provision of the UCMJ applicable to civilian contractor employees “serving with or accompanying an armed force in the field.”[i]  On Friday, November 18, 2011, the United States Court of Appeals for the Armed Forces (CAAF) granted review of an Army Court of Criminal Appeals decision to answer two questions that will test the US military’s court-martial jurisdiction over Alaa Mohammad Ali, who was a US government contractor employee working in Iraq at the time he was charged.[ii] The specific questions the CAAF will consider are (1) 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 and (2) whether the court-martial had jurisdiction over appellant pursuant to UCMJ, Article 2(a)(10).

While the case will only address questions raised regarding Mr. Ali’s status, the decision has the potential to affect the validity of UCMJ jurisdiction over all civilians accompanying US armed forces as part of the current contingency operations and the validity of various Department of Defense (DoD) procurement regulations addressing civilian UCMJ jurisdiction.  The case is important because of the limited judicial review available in military justice actions.   For example, it took nearly three years for Mr. Ali’s appeal to reach the CAAF due to various procedural and jurisdictional hurdles.  In fact, Mr. Ali had to rely on the discretion of the Army Judge Advocate General to send his case to the court system for review, which he did on March 31, 2010, long after Mr. Ali’s sentence was completed.  Roughly a year later the Army Court of Criminal Appeals took the case for oral argument on the same constitutional issues the CAAF is now considering, but promptly rejected them in United States v. Ali, 70 M.J. 514 (A. Ct. Crim. App. 2011). 

Mr. Ali’s court-martial was the first under the amended civilian jurisdiction provisions; however, since then military commanders have attempted on several occasions to use their UCMJ power to detain and charge civilian contractor employees.  These attempts to assert  UCMJ jurisdiction extended to acts far outside of Iraq or Afghanistan and included a case involving alleged misconduct committed while a civilian contractor employee was working in Kuwait.  In two of the cases Steptoe & Johnson LLP represented the contractor employee in US District Court habeas actions challenging the constitutionality of the military’s exercise of UCMJ jurisdiction.  But the military abandoned its UCMJ-based action or agreed not to pursue UCMJ charges against the employee before the courts could rule on those habeas petitions.  Thus, in the nearly five years since the amendment took effect, no court with civilian judges had an opportunity to review the amendments or the scope of civilian UCMJ jurisdiction.  The CAAF’s decision in Ali will be the first such review, though possibly not the last because the losing party at CAAF has the right to petition for review at the US Supreme Court.

Meanwhile, relying in part on its expanded UCMJ authority, the US government has imposed new reporting and compliance requirements on DoD contractors operating abroad.  For example, pursuant to a congressional mandate, DoD Class Deviations 2009-O0014 and 2010-O0014 created an entire reporting system around a requirement to report alleged offenses under the UCMJ, and other statutes, by or against contractor personnel in Iraq or Afghanistan.  Various organizations commented on the Class Deviation and raised issues concerning the burden imposed by the regulation.[iii]  The comments also noted that the new regulation was not supported by DoD guidance regarding how to apply the UCMJ to civilians and potentially raised Fifth Amendment issues due to the broad self-reporting requirements in the Class Deviation.  But, to date, no party has challenged DoD’s authority to issue regulations based on its civilian UCMJ power. 

That may change with the CAAF’s decision in the Ali case.  In addition to deciding the larger constitutional questions, the decision could potentially create questions about the validity of a reporting requirement for contractors if the offenses that must be reported may not constitutionally be applied to their employees.  Thus, DoD contractors with employees in Iraq, Afghanistan, or elsewhere in the US Central Command area of operations, should keep abreast of the case and whether the court limits or strikes down the amendment creating civilian UCMJ jurisdiction during the current contingency operations.