Court Upholds Conviction of Former Airborne Infantryman Against Separation of Powers Challenge

A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers.  The conviction stands.

The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq.  The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder).  The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military.  (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute.  You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")

Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things).  The Sixth Circuit disagreed.  It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch.  MEJA is no different than, say, any new criminal law that Congress might enact.

The ruling is utterly unremarkable and unsurprising.  But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld.  In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like.  As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens). 

The separation-of-powers concern in Vance, of course, was different than in Green.  The government argued in Vance that the courts' involvement in such matters intruded upon executive authority.  The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance).  A double standard?  You decide.  But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.

SDS

[Image: Francisco de Goya, Desastre de la Guerra, Wikimedia Commons]