Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force


Must Crimes on the Battlefield Be Tried By Courts Martial?

The New York Times reports that a federal court is questioning the prosecution of a former Marine in federal district court for a shotting that occured while the Marine was serving in Iraq:

The decision to charge him — in the civilian system after he had left the military, for a crime that he is accused of committing while on active duty — has led to a heated legal dispute, with his lawyers arguing that the delay violated his due process rights and a judge questioning the government’s tactics.

“I want to understand why defendant was not court-martialed for a theater-of-war shooting that he admitted within days of its occurrence,” the judge, Colleen McMahon of Federal District Court, wrote this month in an opinion in which she described the case as troubling.

She noted that Congress, in passing a 2000 statute that allowed for the prosecution of former military personnel, among others, in civilian federal courts, made it clear that “active-duty service personnel should be tried by court-martial, not in civilian courts.”

Citing the “unprecedented nature” of the prosecution, Judge McMahon said that she would hold a hearing in October to determine “why it has taken five years for his case to wend its way from an Iraqi battlefield to a Manhattan courtroom.”

Eugene Fidell, for one, is not persuaded:

Eugene R. Fidell, who teaches military justice at Yale Law School, said that he disagreed with the judge’s reading of the 2000 statute, and that Congress did not require military prosecutions in cases like Mr. Santiago’s. He said he doubted that the delay was the result of manipulation “or that the Marines somehow gamed the system.”

Read it all here.  The case is being prosecuted under the Military Extraterritorial Jurisdiction Act, and the Judge is concerned that Congress expressly barred prosecution when UCMJ prosecution is available  in 18 U.S.C.§ 3261(d).    Okay, JAGS--what do you think?

Charles A. Blanchard
General Counsel
United States Air Force

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