Civilian prosecution scorecard.

The defense wins one.

Actually, yesterday I had the pleasure of being a semi-final judge for the National Security Law Moot Court Competition hosted at George Washington Univ. Law School. 23 teams from law schools around the country competed.

The two issues before the “U.S. Supreme Court” were:

The constitutionality of a civilian being prosecuted at court-martial under Article 2(a)(10), UCMJ, 10 U.S. Code 802(a)(10), and
The legality of a targeted killing of a warlord with suspected ties to Al Quaeda.

The Moot Court Board took liberal license with the Ali case tried in Iraq last year. The Moot facts had Mr. Civilian Contractor flying drones seeking intelligence. As a result of a mission, a “secret” meeting was discovered at which a warlord with suspected ties to Al Quaeda was located. The U.S. ground commander directed a bombing mission. Not believing the targeted killing legal, Mr. Civilian Contractor, contacted a “source” to warn the warlord. The result was of course an unsuccessful mission. Mr. Civilian Contractor was prosecuted and convicted under Article 104, UCMJ. “At trial” Mr. Civilian Contractor argued the constitutionality of Article 2(a)(1), and self-defense based on illegality of the targeted killing. (Actually I suspect in a real case the defense would have been based on R.C.M. 916(h). But let’s not quibble too much.)

In our “panel” vote we advanced the team from Fordham who were arguing for the United States. (Remember, the competition is based on performance, not the merits of the issues. So we ignored the fact that the counsel representing the United States didn’t know whether the U.S. Attorney had declined a MEJA based prosecution. Perhaps it was their agreement with me that analogy or comparison of the Article 32 to a grand jury is a false or worthless analogy or comparison.) In the finals, the team from Miami, representing the defense, won the argument by a 2-1 vote.

The final argument judges were District Court Judge Leon (think Boumediene), Solicitor General Garre (think 44th SG), and Judge Mark Harvey (think former ACCA judge, ALJ, Military Commissions [go to the attachment]).

None of the participants had military service in their background. So it was interesting to listen to their characterization of military justice both in argument and off the record. Clearly they cannot and shouldn’t be faulted for in-depth knowledge. It was the overall impressions that were noteworthy. Because of their preparation for the competition these students had taken a closer look at military justice than most law students. It may be simplistic, but their impression could be reduced to military justice being as comparable to justice as military music is to music — while practitioners may find change, some observers don’t see it?

It was noteworthy to see the interest of these young law students in significant issues of the day; each of them is to be congratulated on the effort they put in to understand and argue some very complex issues, issues that practitioners in real cases wrestle with.

At the end of the day the Miami team — for the defense — had the better argument on style and presentation, but also on the merits of the argument (as to the Article 2 issue). On the targeted killing issue the government team had the better argument on the merits, but less so on the style and presentation.