Non-U.S.-Citizen/Non-U.S.-Resident Civilian Contractors Working Outside U.S. Don’t Have Fifth and Sixth Amendment Rights

So holds United States v. Ali (U.S. Ct. App. Armed Forces July 18, 2012), concluding that such a contractor could be tried by a court martial, even though he wasn’t a member of the armed forces. An excerpt (some paragraph breaks reshuffled):

Mr. Alaa Mohammad Ali, a foreign national working as a civilian contractor in Iraq, was convicted by a military judge sitting as a general court-martial of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921, 934 (2006). Ali was sentenced to five months of confinement….

We granted review to determine whether Ali falls within the scope of [Uniform Code of Military Justice] Article 2(a)(10) and, if so, whether this exercise of jurisdiction violates the Constitution. We hold that Ali falls within the scope of Article 2(a)(10) and that the congressional exercise of jurisdiction, as applied to Ali, a non-United States citizen Iraqi national, subject to court-martial outside the United States during a contingency operation, does not violate the Constitution.

Ali alleges that exercise of court-martial jurisdiction violated his rights under the Fifth and Sixth Amendments, citing the line of Supreme Court cases denying court-martial jurisdiction over civilians…. Ali highlights the Supreme Court’s concern, reflected in Covert, 354 U.S. at 37, that courts-martial do not provide an accused the same protections as civil courts, specifically “trial by jury before an independent judge after an indictment by a grand jury.” [But u]nlike Ali, the defendant in Covert was a United States citizen, and the Supreme Court’s concern reflected the impermissible denial of constitutional protections to “an American citizen when [she] was tried by the American Government in [a] foreign land[ ] for offenses committed there.” …

[We must] consider whether Ali, a foreign national being tried outside the United States for a crime committed outside the United States, enjoys the protections of the Fifth and Sixth Amendments which the Supreme Court was concerned with in Covert and [other cases]….

[The Supreme Court’s deicsion in] Verdugo–Urquidez … explained that “[past precedents] … establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” While there is no case law extending constitutional protections granted by the Fifth and Sixth Amendments to noncitizens who are tried overseas there is precedent to the contrary.See, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950) (rejecting the principle “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses”); United States v. Curtiss–Wright Export Corp., 299 U.S. 304 (1936) (“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens.”).

In holding that the Fourth Amendment was not applicable to a United States Government search of a home owned by a nonresident alien located outside the United States, Verdugo–Urquidez reiterated these principles in its discussion of Eisentrager, which is instructive as to the constitutional rights afforded to noncitizens outside the United States. In disposing of the Fourth Amendment claims which were raised in Verdugo–Urquidez, the Supreme Court discussed the Fifth Amendment claims that were raised in Eisentrager:

Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; “the alien … has been accorded a generous and ascending scale of rights as he increases his identity with our society.” But our rejection of extraterritorial application of the Fifth Amendment was emphatic:

“Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.”

If such is true of the Fifth Amendment, which speaks in the relatively universal term of “person,” it would seem even more true with respect to the Fourth Amendment, which applies only to “the people.”

At its core, Ali’s argument suggests that regardless of that fact that he is a nonresident who is not a citizen of the United States and regardless of where the offense took place or where he was tried, so long as he is subjected to judicial processes of the United States, the Fifth and Sixth Amendments apply because he is a “person” who stands “accused,” and is being tried by the United States. Once again, Eisentrager is instructive:

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.

Ali’s case is similar. The offenses giving rise to the charges against Ali took place outside the United States….

Thus we find no precedent, and the parties have not provided any law, which mandates granting a noncitizen Fifth and Sixth Amendment rights when they have not “come within the territory of the United States and developed substantial connections with this country.” Neither Ali’s brief predeployment training at Fort Benning, Georgia, nor his employment with a United States corporation outside the United States constitutes a “substantial connection” with the United States as envisioned in Verdugo–Urquidez. Ultimately, we are unwilling to extend constitutional protections granted by the Fifth and Sixth Amendments to a noncitizen who is neither present within the sovereign territory of the United States nor has established any substantial connections to the United States. Whatever rights Appellant had were met through the court-martial process.

We are mindful of the Supreme Court’s repeated refusals to extend court-martial jurisdiction over civilians and recognize the high court’s repeated caution against the application of military jurisdiction over anyone other than forces serving in active duty. Covert, 354 U.S. at 40 (“We should not break faith with this nation’s tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution.”); Toth, 350 U.S. at 22 (“There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.”). However, those cases are factually distinguishable because the defendants in those cases were United States citizens who indisputably enjoyed the protections of the Fifth and Sixth Amendments. See Covert, 354 U.S. at 32 (noting that like the defendant in Toth, the defendants were American citizens).