United States v. Brehm, No. 11-4755
Decided: August 10, 2012
Brehm appealed from the judgment of the United States District Court for the Eastern District of Virginia, challenging the jurisdictional basis for the indictment underlying his conviction. The Court of Appeals affirmed his conviction.
Brehm, a citizen of South Africa, pled guilty to a federal charge of assault resulting in serious bodily injury, under the condition that he be allowed to appeal the jurisdictional basis of the indictment. Brehm was indicted after he allegedly stabbed a British subject at Kandahar Airfield. At the time of the incident, both men were employed with private contractors supporting the NATO war effort in Afghanistan. On appeal, Brehm argued that the indictment underlying his conviction improperly relied on the Military Extraterritorial Jurisdiction Act (“MEJA”), in that MEJA cannot be constitutionally applied to him. Brehm further asserted that the government did not establish sufficient nexus between him and the U.S. to support the exercise of criminal jurisdiction, since, prior to his indictment, neither he nor the victim had every been in the U.S.
The Court of Appeals reviewed each of Brehm’s arguments in turn. First, the Court addressed Brehm’s argument that MEJA, while constitutionally valid on its face, could not constitutionally be applied to him. The Court noted that Article I, Section 8 of the Constitution grants Congress the express authority to “raise and support armies” and to “make all Laws which shall be necessary and proper” to adequately support the armed forces. Since Armies are expected to operate in foreign lands, MEJA specifically applies to “conduct outside of the United States” and, as such, reasonably anticipates application to foreign citizens. Furthermore, Brehm signed a “Foreign Service Employment Agreement” with his employer that provided that he understood and accepted that he may be subject to civilian criminal jurisdiction under MEJA because he was accompanying the U.S. Armed Forces outside of the U.S. As such, the Court held that MEJA was constitutional as applied to Brehm.
The Court then addressed Brehm’s argument that his prosecution violated Due Process, as the government failed to establish a sufficient nexus between him and the U.S. The Court stated that while Brehm did not target his conduct toward American soil or American commerce, his actions affected significant American interests at Kandahar Airfield — such as the preservation of law and order on the base, the maintenance of military-related discipline, and the reallocation of Department of Defense resources to confine Brehm and investigate the incident. As such, the Court felt that, even though Kandahar Airfield is not territory of the U.S., the American influence at Kandahar Airfield was so pervasive that it was a suitable proxy for due process purposes, such that imposing American criminal law there was not arbitrary. Additionally, the Court found no inherent unfairness in Brehm’s prosecution, noting that Brehm’s acknowledgement and acceptance of the warnings within his employment agreement regarding the criminal jurisdiction asserted by the U.S. constituted fair warning and notice that he could be subject to criminal prosecution in the U.S.
In summary, the Court of Appeals affirmed Brehm’s conviction in the lower court, finding that MEJA was constitutional as applied to his case, and that his prosecution comported with due process requirements.
– Kassandra Moore