Every day, many foreign nationals place their lives in danger for the benefit of the United States while serving with U.S. Armed Forces in hostile environments. In United States v. Ali, the U.S. Court of Appeals for the Armed Forces held that a combat interpreter did not have a substantial connection, as envisioned under United States v. Verdugo- Urquidez, with the United States to entitle the interpreter to Fifth and Sixth Amendment protections. Although the result is likely correct given that U.S. service members prosecuted under the Uniform Code of Military Justice (UCMJ) are not entitled to the specific protections which were requested by the interpreter, the Ali decision creates concerns as to how future courts may apply the substantial connection test.
Given the constraints the substantial connection test imposes within the military context, the practical emphasis of Boumediene v. Bush, and the interplay between the sufficient nexus and substantial connection tests, this Comment argues that military courts should utilize sufficient nexus factors, in addition to the Boumediene three-part test, when addressing whether foreign nationals are entitled to constitutional protections. Adopting this method would ensure that the connection emphasis of Verdugo-Urquidez is maintained, while also allowing foreign national contractors tried under the UCMJ to have a meaningful analysis into the extent of their connection with the United States.
Joe D. Montenegro,
Substantial Connection: The Intersectionof Extraterritorial Jurisdiction and Constitutional Protections for Foreign National Contractors Serving with or Accompanying U.S. Armed Forces,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol118/iss1/7