           UNITED STATES, Appellee and Cross-Appellant

                                         v.

               Michael C. MCPHERSON, Senior Airman
          U.S. Air Force, Appellant and Cross-Appellee

                        Nos. 14-0348 and 14-5002

                          Crim. App. No. S32068

       United States Court of Appeals for the Armed Forces

                            Argued June 4, 2014

                         Decided August 21, 2014

STUCKY, J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. BAKER, C.J., filed a
separate opinion concurring in part and dissenting in part.


                                     Counsel


For Appellant and Cross-Appellee:             Captain Thomas A. Smith
(argued); Major Zaven T. Saroyan.


For Appellee and Cross-Appellant: Major Daniel J. Breen
(argued); Lieutenant Colonel C. Taylor Smith and Gerald R.
Bruce, Esq. (on brief).


Military Judge:    W. Shane Cohen




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     Judge STUCKY delivered the opinion of the Court.

     Article 12 of the Uniform Code of Military Justice (UCMJ)

provides that:    “No member of the armed forces may be placed in

confinement in immediate association with enemy prisoners or

other foreign nationals not members of the armed forces.”

10 U.S.C. § 812 (2012).   The Judge Advocate General of the Air

Force certified to this Court the question of whether Article

12, UCMJ, applies to members of the armed forces confined in a

state or federal facility within the continental limits of the

United States.1   We also granted Senior Airman (SrA) McPherson’s

petition asking whether a confinee must exhaust administrative

remedies before being entitled to relief under Article 12.

Because Article 12 is clear on its face, we hold that it applies

to military members confined in civilian state or federal

facilities in the United States.       We further hold that under

Article 12, a confinee must exhaust his administrative remedies

prior to judicial intervention.




1
  The certified issue is the same as the issue we specified for
the United States Air Force Court of Criminal Appeals to
consider on remand in United States v. Wilson, 72 M.J. 447
(C.A.A.F. 2013) (summary disposition). In that case, the lower
court held that Article 12, UCMJ, does apply in such
circumstances. United States v. Wilson, 73 M.J. 529, 531, 533
(A.F. Ct. Crim. App. 2014). The Air Force Judge Advocate
General certified the same issue to this Court in both cases,
and we considered them together.

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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


                              I.    Posture

     A military judge sitting as a special court-martial

convicted SrA McPherson, pursuant to his pleas, of being absent

without leave and distributing drugs.         Articles 86 and 112a,

UCMJ, 10 U.S.C. §§ 886, 912a (2012).        The military judge also

convicted him, contrary to his pleas, of fraudulent enlistment;

another specification of being absent without leave; making a

false official statement; wrongfully possessing and using drugs;

and incapacitating himself for the performance of duties.

Articles 83, 86, 107, 112a, and 134, UCMJ, 10 U.S.C. §§ 883,

886, 907, 912a, 934 (2012).    The convening authority approved

the sentence that the military judge adjudged:        a bad-conduct

discharge, confinement for eight months, reduction to the lowest

enlisted grade, and a reprimand.         The United States Air Force

Court of Criminal Appeals (CCA) affirmed.        United States v.

McPherson, 72 M.J. 862 (A.F. Ct. Crim. App. 2013)

(reconsideration and reconsideration en banc denied on Jan. 6,

2014).

                         II.       Background

     After his conviction and sentence, SrA McPherson was

initially confined for fifteen days at the Elmore County

Detention Facility in Idaho.       Id. at 869.    SrA McPherson alleged

to the CCA and before this Court that “for eight of those days,

he was housed in an open bay with a foreign national known only


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


as ‘The Mexican,’ who was awaiting deportation hearings.”    Id.

SrA McPherson and “The Mexican” played card games together every

night while in confinement.   Id.

     SrA McPherson did not seek clemency from the convening

authority for being confined in immediate association with an

alleged foreign national, nor did he notify anyone at the

confinement facility or in his chain of command, even after he

was transferred to the Naval Consolidated Brig Miramar.    Id.     He

first raised the issue in his appeal to the CCA.    Id.

     In its decision, the CCA did not specifically address

whether Article 12, UCMJ, applies to military members confined

in a state or federal facility within the United States.

Rather, it evaluated whether relief for an alleged Article 12

violation is available where a confinee did not exhaust

administrative remedies.    Id. at 867-70.   The CCA found “no

‘unusual or egregious circumstance’ to excuse [SrA McPherson’s]

failure to pursue available administrative remedies,” and

declined to grant relief.   Id.

     On December 9, 2013, the Government filed a motion for

reconsideration and reconsideration en banc, alleging that, by

employing an exhaustion of remedies analysis, the CCA had

“implicitly establishe[d] as a matter of law in the Air Force

that Article 12 applies to civilian confinement facilities.”

The CCA summarily denied the motion on January 6, 2014.    The


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


case is now before us on the Judge Advocate General’s

certification.

                      III.   Certified Issue

     “Interpreting Article 12, UCMJ, is an issue of statutory

interpretation, which we review de novo.”   United States v.

Wise, 64 M.J. 468, 473 (C.A.A.F. 2007).

     As in all statutory construction cases, we begin with
     the language of the statute. The first step is to
     determine whether the language at issue has a plain
     and unambiguous meaning with regard to the particular
     dispute in the case. The inquiry ceases if the
     statutory language is unambiguous and the statutory
     scheme is coherent and consistent.

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002)

(citations and internal quotation marks omitted).   Whether the

statutory language is ambiguous is determined “by reference to

the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

     Here, the text of Article 12 is plain on its face:      “No

member of the armed forces may be placed in confinement in

immediate association with enemy prisoners or other foreign

nationals not members of the armed forces.”    There is no

geographic limitation by its terms, so this Court will not read

any such limitation into the plain language of the statute.

Rather, we “must presume that a legislature says in a statute

what it means and means in a statute what it says there.”


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992).

Article 12 applies to military members in state or federal

confinement facilities without geographic limitation.    “When the

words of a statute are unambiguous, then, this first canon is

also the last:    judicial inquiry is complete.”   Id. at 254

(citations and internal quotation marks omitted).

     The Government claims that Article 12 conflicts with

Article 58, UCMJ, 10 U.S.C. § 858 (2012), necessitating

additional statutory interpretation.   Article 58 provides:

     [A] sentence of confinement adjudged by a court-
     martial . . . may be carried into execution by
     confinement in any place of confinement under the
     control of any of the armed forces or in any penal or
     correctional institution under the control of the
     United States, or which the United States may be
     allowed to use. Persons so confined in a penal or
     correctional institution not under the control of one
     of the armed forces are subject to the same discipline
     and treatment as persons confined or committed by the
     courts of the United States . . . .

Emphasis added.

     “‘When a statute is a part of a larger Act . . . the

starting point for ascertaining legislative intent is to look to

other sections of the Act in pari materia with the statute under

review.’”   United States v. Diaz, 69 M.J. 127, 133 (C.A.A.F.

2010) (alteration in original) (quoting United States v.

McGuinness, 35 M.J. 149, 153 (C.M.A. 1992)); see also United

Sav. Ass’n v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S.

365, 371 (1988) (stating that statutory construction is a


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


“holistic endeavor”).   Both Article 12 and Article 58 address

treatment of military members in confinement:   Article 58

requires all confinees to be treated the same, and Article 12

requires that no military member may be confined in immediate

association with a foreign national.   Arguing that Article 58’s

“same treatment” provision is more specific than Article 12, the

Government asks us to apply the rule of statutory interpretation

that, “[w]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act,” Congress “intentionally and purposely” intended “the

disparate inclusion or exclusion.”   Bates v. United States, 522

U.S. 23, 29–30 (1997) (quoting Russello v. United States, 464

U.S. 16, 23 (1983)) (internal quotation marks omitted).    The

Government argues this rule means that the specificity of

Article 58 must apply to Article 12 too.

     But Article 58 is not more specific than Article 12, nor

are the two statutes in conflict.    Military confinees can -- and

must -- receive treatment equal to civilians confined in the

same institution, while being confined separately from foreign

nationals.   This Court has no license to generate a statutory

conflict where none exists or to construe statutes in a way that

“undercut[s] the clearly expressed intent of Congress.”    United

States v. Bartlett, 66 M.J. 426, 428 (C.A.A.F. 2008).     Article

12 and Article 58 were passed at the same time, and read in pari


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


materia, they both apply without conflict to military members

confined in state or federal institutions in the United States.2

     The Government responds that this holding generates “absurd

results” for confinement conditions.      See, e.g., Wilson, 73 M.J.

at 534 (noting that the appellant was placed in solitary

confinement to avoid a violation of Article 12 because the

county jail where he was confined “ha[d] no system of

identifying foreign nationals”).       A confinee subject to solitary

confinement in these circumstances might then raise a claim of a

violation of Article 55, UCMJ, 10 U.S.C. § 855 (2012)

(prohibiting cruel or unusual punishment).

     The methods by which civilian facilities may enforce

Article 12 are matters of policy and are not before this Court.

Since solitary confinement is certainly not the sole method for

implementing the requirements of the statute, the plain language

of Article 12 does not dictate absurd results.      Any such

decisions come from fiscal decisions made by the military

departments, not from the operation of the statute.



2
  We therefore disagree with the United States Court of Appeals
for the District of Columbia Circuit, which held that “Article
58 trumps Article 12.” Webber v. Bureau of Prisons, No. 02-
5113, 2002 U.S. App. LEXIS 18796, at *2, 2002 WL 31045957, at *1
(D.C. Cir. Sept. 12, 2002) (per curiam). The D.C. Circuit found
no precedential value in this opinion, however, and it has no
precedential authority for this Court either. See Circuit Rules
of the United States Court of Appeals for the District of
Columbia, Circuit Rule 36(e)(2).

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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


                         IV.   Granted Issue

     In his petition, SrA McPherson argues that the CCA erred in

holding that a confinee must exhaust administrative remedies

before receiving any relief for a violation of Article 12, UCMJ.3

We disagree and affirm the holding of the court below.

     The CCA relied on Wise, 64 M.J. at 471, to hold that

exhaustion of administrative remedies is a prerequisite to

relief under Article 12.   McPherson, 72 M.J. at 869.    In Wise,

this Court addressed an appellant’s claim of being confined with

enemy prisoners of war in Iraq in violation of both Article 12

and Article 55, UCMJ.   64 M.J. at 470.   The Court observed that

a prisoner must exhaust administrative remedies in his detention

facility before he can “invok[e] judicial intervention to

redress concerns regarding post-trial confinement conditions,”

absent “some unusual or egregious circumstance.”   Id. at 469,

471 (citing United States v. White, 54 M.J. 469, 472 (C.A.A.F.

2001); United States v. Miller, 46 M.J. 248, 250 (C.A.A.F.

1997)).    The Court’s analysis, though, was in an Article 55

context.   Both White and Miller are Article 55 cases; neither

mentions Article 12.    While the Wise Court did mention and

analyze Article 12 elsewhere in the opinion, we did not clarify


3
  SrA McPherson asserts that there is a split among service
courts on this issue. However, he cites no cases from the other
services in support of this point and it appears that none of
the other service courts has even addressed it.

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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF

whether the exhaustion-of-administrative-remedies analysis

sprang from Article 12 or solely from Article 55.    We now hold

that a confinee must exhaust administrative remedies before

judicial intervention for an Article 12 violation claim.

     Article 12 regulates confinement conditions in a manner

similar to Article 55’s limitations on permissible confinement

conditions.   See United States v. Pena, 64 M.J. 259, 265

(C.A.A.F. 2007) (taking note of Article 12’s requirements in the

context of discussing Article 55’s prohibition of “cruel or

unusual punishment”); United States v. Ellsey, 16 C.M.A. 455,

458, 37 C.M.R. 75, 78 (1966) (listing Article 12’s provisions

among the requirements for confinement conditions); cf. United

States v. Palmiter, 20 M.J. 90, 96 (C.M.A. 1985) (indicating

that Article 12 is applicable to pretrial confinement, and

“commingling” under Article 12 is not punishment in and of

itself).

     Article 55 requires exhaustion of administrative remedies.

United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993) (“While

Article 55 . . . prohibits [cruel or unusual] punishment, and

under appropriate conditions we might exercise our power to

issue an extraordinary writ, a prisoner must seek administrative

relief prior to invoking judicial intervention.”).   Consistent

with Wise, we find that this exhaustion-of-remedies requirement

is applicable under Article 12 as well.


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF

     There are practical and policy reasons to apply this

requirement to Article 12 relief.      This administrative

exhaustion requirement furthers two related goals:     (1) the

“resolution of grievances at the lowest possible level” with

“prompt amelioration” of the complaint while the prisoner

suffers the condition, and (2) the development of an adequate

record to aid appellate review.    Wise, 64 M.J. at 471 (citing

Miller, 46 M.J. at 250).

     This case demonstrates why these goals are so important.

SrA McPherson did not raise this issue to local confinement

officials or to anyone in his chain of command.     See id. at 472.

During this time, though, he did learn of a process for filing

complaints and also complained to his first sergeant that he was

not receiving his prescription medications.     SrA McPherson did

not raise the Article 12 issue in his clemency submissions to

the convening authority, nor did he file a grievance with the

confinement facility or make an Article 138, UCMJ, 10 U.S.C. §

938 (2012), complaint.   Since SrA McPherson did not complain of

this condition until appeal, there are no details of his

confinement conditions for an appellate court to review:     we

know only that he alleges he was confined with a man he calls

“The Mexican” who said he was awaiting deportation proceedings.

“[T]he Air Force was unable to investigate the claims, make a

record of it for review, or have the opportunity to immediately


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF

correct the situation, as warranted.”       McPherson, 72 M.J. at

869.

       Wise is still good law.   To obtain relief for an Article 12

violation, a confinee must exhaust available administrative

remedies absent unusual or egregious circumstances.      In this

case, SrA McPherson concededly did not exhaust his

administrative remedies.   The CCA did not err in finding no

“unusual or egregious circumstance” to excuse his failure to

exhaust remedies.   Thus, SrA McPherson is not entitled to relief

under Article 12.

                            V.   Decision

       The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     BAKER, Chief Judge (concurring in part and dissenting in

part):

     I concur with the majority’s judgment that to obtain relief

for an Article 12, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 812 (2012), violation, a confinee must exhaust

administrative remedies absent unusual or egregious

circumstances.   As the Court in Wise stated, “[a] prisoner must

seek administrative relief prior to invoking judicial

intervention to redress concerns regarding post-trial

confinement conditions.”   United States v. Wise, 64 M.J. 468,

469 (C.A.A.F. 2007).   Exhaustion serves two purposes.    First, it

is intended to effect “prompt amelioration of a prisoner’s

conditions of confinement.”   Id. at 471.   Second, it allows

development of an adequate record for appellate review where the

confinement conditions are not redressed or the prisoner seeks

additional redress.    See United States v. Miller, 46 M.J. 248,

250 (C.A.A.F. 1997).

     I disagree, however, with the majority’s conclusion

regarding Article 12, UCMJ.   Read literally, Article 12, UCMJ,

conflicts with Article 58, UCMJ, 10 U.S.C. § 858 (2012).

Therefore, one must look beyond the text of Article 12, UCMJ, to

determine congressional intent.   That intent is clear:   on the

one hand, to prevent the confinement of servicemembers in

immediate association with enemy combatants and foreign
United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


nationals in military detention, and, on the other hand, to

permit the transfer of servicemembers to federal prisons in

order to facilitate their rehabilitation and promote discipline

in military confinement facilities.    As a result, the majority’s

literal application of the statutory text of Article 12, UCMJ,

produces a result demonstrably at odds with the intent of its

drafters and with Article 58, UCMJ.

     This case provides an opportunity to invoke almost every

canon of statutory construction known to Sutherland.    2A N.

Singer & S. Singer, Sutherland Statutes and Statutory

Construction (7th rev. ed. 2014).     Three principles should

decide this case.    First, where congressional intent is not

clear, look to legislative history.    Second, read the statutory

scheme as a whole.    Third, do not reach an absurd result.

Applying these principles, I would hold that the plain language

of Article 12, UCMJ, compels an absurd result when read in

conjunction with equally clear language of Article 58, UCMJ.

While Article 12, UCMJ, prohibits confinement of a servicemember

in immediate association with a foreign national, Article 58,

UCMJ, requires that a servicemember in civilian confinement

receive the same treatment as his or her civilian counterpart.

It also expressly -- by design and with intent -- enables the

military to transfer servicemembers to federal facilities to

serve their prison sentences.    The majority’s interpretation of


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


the law defeats this purpose in light of the number of foreign

nationals in the general U.S. prison population both at the time

of the passage of the UCMJ and today.

     The majority pretends otherwise.   Yet to comply with

Article 12, UCMJ, servicemembers are assigned to solitary

confinement in civilian confinement facilities, despite

otherwise complying with prison rules and regulations, because

the armed forces frequently use such facilities.   See, e.g.,

Joshua R. Traeger, The Confinement of Military Members in

Civilian Facilities, 39.1 A.F. Rep. 31, 33 (2012) (“[T]he use of

local confinement facilities (vice facilities on base) is

prevalent across the Air Force and, more specifically, Air

Combat Command (ACC).   An informal poll of ACC military justice

sections revealed that about fifty percent of ACC wings utilize

civilian confinement facilities for at least portions of their

confinement operations.”).   Given the approximately 350,000

foreign nationals incarcerated in local jails and state and

federal prisons, the majority, in neglecting to read the

statutory language in its proper context, now makes it virtually

impossible for the armed forces to make use of civilian

confinement facilities, thus “undercut[ting] the clearly

expressed intent of Congress in enacting” Article 58, UCMJ.

United States v. Bartlett, 66 M.J. 426, 428 (C.A.A.F. 2008).     By

in effect requiring servicemembers to be in solitary


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


confinement, the decision also directly undermines the

“rehabilitative” purpose of Article 58, UCMJ.

                           Discussion

     “In ascertaining the plain meaning of [a] statute, the

court must look to the particular statutory language at issue,

as well as the language and design of the statute as a whole.”

McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (internal

quotation marks and citation omitted); see also Crandon v.

United States, 494 U.S. 152, 158 (1990) (“In determining the

meaning of the statute, we look not only to the particular

statutory language, but to the design of the statute as a whole

and to its object and policy.”).       The Supreme Court has further

stated:

     In determining whether Congress has specifically
     addressed the question at issue, a reviewing court
     should not confine itself to examining a particular
     statutory provision in isolation. The meaning -- or
     ambiguity -- of certain words or phrases may only
     become evident when placed in context. It is a
     “fundamental canon of statutory construction that the
     words of a statute must be read in their context and
     with a view to their place in the overall statutory
     scheme.” A court must therefore interpret the statute
     “as a symmetrical and coherent regulatory scheme,” and
     “fit, if possible, all parts into an harmonious
     whole.”

Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 132-33 (2000) (citations omitted).      Supreme Court case

law makes clear that a court should resort to legislative

history if a literal reading of the statute would “impute[] to


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


Congress [a] contradictory and irrational purpose,” United

States v. Bryan, 339 U.S. 323, 338 (1950), “thwart the obvious

purpose of the statute,” In re Trans Alaska Pipeline Rate Cases,

436 U.S. 631, 643 (1978) (citation omitted), or lead to a result

“plainly at variance with the policy of the legislation as a

whole,” United States v. Am. Trucking Ass’ns, Inc., 310 U.S.

534, 543 (1940) (internal quotation marks and citation omitted).

By resorting to textualism, the majority opinion will distort

the design, object, and policy of the overall statutory scheme.

     The United States Court of Appeals for the District of

Columbia Circuit, the only other federal appeals court to

address the issue, concluded in a unanimous decision, that

Article 12, UCMJ, and Article 58, UCMJ, could not be harmonized.

Although no more than persuasive authority, the analysis is

compelling in its brevity and clarity.   The D.C. Circuit had no

difficulty applying the rules of statutory construction,

summarily declining to review a lower court’s dismissal of a

complaint similar to the present action.   Requiring only three

sentences, the court held:

     Article 58 of the Uniform Code of Military Justice
     states categorically that military prisoners housed in
     Bureau of Prisons facilities shall be subject to the
     same treatment as their civilian counterparts. It
     does not create an exception concerning confinement
     with foreign nationals, nor does Article 12 of the
     Code provide that its prohibition against such
     confinement survives Article 58’s same-treatment rule.
     Thus, by its terms, Article 58 trumps Article 12, and


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     the district court properly dismissed the complaint
     for failure to state a claim.

Webber v. Bureau of Prisons, No. 02-5113, 2002 U.S. App. LEXIS

18796, at *2, 2002 WL 31045957, at *1 (D.C. Cir. 2002)

(citations omitted).

     The legislative histories of Articles 12 and 58, UCMJ, make

obvious that the drafters, informed by the experience of the

Second World War, intended for Article 12, UCMJ, to shield

servicemembers from confinement with enemy prisoners of war and

for Article 58, UCMJ, to allow confinement of servicemembers in

federal prisons given their belief at the time in the civilian

criminal justice system’s superior expertise in providing

rehabilitative services.   There was no suggestion by Congress

preceding the passage of Article 58, UCMJ, that it would be

circumscribed by Article 12, UCMJ, surely a possibility likely

to have been discussed given the confinement at the time of

several thousand foreign nationals in U.S. civilian jails and

prisons.   See Dep’t of Justice, Bureau of Justice Statistics,

NCJ-102529, Historical Corrections Statistics in the United

States 1850-1984 tbl.3-31 (1986).    The result of the majority’s

interpretation of Article 12, UCMJ -- namely, that

servicemembers will continue to be placed in solitary

confinement in certain civilian facilities regardless of their

behavior -- is not the absurd result the drafters anticipated or



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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


desired given the rehabilitative purpose of Article 58, UCMJ.

Moreover, in such gratuitous circumstances it may even conflict

with the Eighth Amendment and Article 13, UCMJ, 10 U.S.C. § 863

(2012).

     The majority asserts that “solitary confinement is

certainly not the sole method for implementing the requirements

of the statute.”    United States v. McPherson, __ M.J. __, __ (8)

(C.A.A.F. 2014).    However, this conclusion is not supported

unless one assumes the armed forces will build more prisons.

Never mind that Article 58, UCMJ, was intended to avoid that

necessity by permitting transfer of military prisoners to the

civilian criminal justice system.     Nor does the majority explain

how the same-treatment language and rehabilitative intent of

Article 58, UCMJ, can be accomplished through the placement of

military prisoners in solitary confinement as is clearly

required in many, if not all, facilities, given the number of

foreign nationals -- 350,000 -- currently confined in U.S.

prisons.   U.S. Gov’t Accountability Office, GAO-11-187, Criminal

Alien Statistics:    Information on Incarceration, Arrests, and

Costs (2011).   Solitary confinement, or segregated confinement,

is the only way to comply with Article 12, UCMJ, in most if not




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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF

all civilian facilities. 1   The majority has not demonstrated

otherwise.

     To be sure, Article 12, UCMJ, expressly prohibits

servicemembers from being “placed in confinement in immediate

association with enemy prisoners or other foreign nationals not

members of the armed forces.”    A literal reading of the article

has thus led a lower court to grant confinement credit to a

servicemember for several days’ detention in a cell next to that

of a Spanish-speaking inmate in North Dakota.    United States v.

Towhill, No. ACM 37695, 2012 CCA LEXIS 94, at *7-*8, 2003 WL

1059015, at *3 (A.F. Ct. Crim. App. Mar. 16, 2012)

(unpublished).   Such a result is entirely at odds with

Congress’s intent in enacting Article 12, UCMJ.    The legislative

history demonstrates the overriding purpose of Article 12, UCMJ,

was to prohibit confinement of a servicemember in the same cell

with a foreign national, particularly one engaged in military

service, in times of war.



1
  See Traeger, supra p. __ (3), at 33 (describing how the
admission of a single migrant worker to Cook County Jail,
Georgia, which is “approximately 2000 square feet in size, with
a bay-style general population area, a seventy-square-foot
segregation cell, a small gym, administrative offices and
minimal outdoor space,” requires that servicemembers be “moved
to the seventy-square-foot segregation cell” and “sometimes . .
. [when the] general population is filled with three to four
migrant workers . . . the tiny segregation cell houses one, two
or even three military members at a time (the third sleeping on
the floor)”).

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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     The precursor to Article 12, UCMJ, Article of War 16,

stated:

     No person subject to military law shall be confined
     with enemy prisoners or any other foreign nationals
     outside of the continental limits of the United States,
     nor shall any defendant awaiting trial be made subject
     to punishment or penalties other than confinement prior
     to sentence on charges against him.

Manual for Courts-Martial, U.S. Army app. 1 (1949 ed.) (MCM).

     By the time Congress voted to pass the Uniform Code of

Military Justice, in 1950, the text now codified as Article 12,

UCMJ, provided:   “No member of the armed forces of the United

States shall be placed in confinement in immediate association

with enemy prisoners or other foreign nationals not members of

the armed forces of the United States.”   Uniform Code of

Military Justice, ch. 169, art. 12, 64 Stat. 107, 112 (1950)

(current version at 10 U.S.C. § 812 (2012)).   The language

changed only insofar as “confined with” was replaced by “in

immediate association with” and “outside the continental limits

of the United States” was removed.   The commentary to Article

12, UCMJ, described the first revision as necessary to allow

confinement of prisoners of war in a brig on an American naval

vessel:

     A[rticle] [of] W[ar] 16 could be interpreted to
     prohibit the confinement of members of the armed
     forces in a brig or building which contains prisoners
     of war. Such construction would prohibit putting
     naval personnel in the brig of a ship if the brig
     contained prisoners from an enemy vessel. This


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     Article is intended to permit confinement in the same
     guardhouse or brig, but would require segregation.

See Uniform Code of Military Justice:    Hearings on H.R. 2498

Before a Subcomm. of the H. Comm. on Armed Servs., 81st Cong.

914 (1949), reprinted in Index and Legislative History, Uniform

Code of Military Justice (1950) (not separately paginated)

[hereinafter Legislative History].

     Thus the emphasis was entirely on avoiding confinement of

servicemembers with “enemy” prisoners.    The prominence of this

feature of the legislation was borne out in remarks by

legislators and staff members during a hearing before a

subcommittee of the House Committee on Armed Services.    A

professional staff member, Robert W. Smart, described that the

purpose of Article 12, UCMJ, was “to be sure that American boys

were not confined with prisoners of war or other enemy

nationals,” to which the vice chairman of the subcommittee,

Representative L. Mendel Rivers, replied, “[l]ike happened [sic]

during the war.”   Id.   Later Felix E. Larkin, an assistant

general counsel in the Department of Defense, elaborated on the

reason for the change:

          Now we have changed the wording and said --
     “No member shall be placed in confinement in immediate
     association --”

     because as it read it conceivably could cause a number
     of confinement difficulties.



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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     . . . The service might have a difficult time overseas
     if they could not confine a person with enemy prisoners
     in that they could not even keep them in the same jail.

          There may not be more than one jail or place of
     confinement within the area. Then they just could not
     restrain them or confine them at all.

          We thought we kept the sense of the present law
     but made it a little more flexible by saying “in
     immediate association” which in effect would mean you
     could keep them in the same jail by at least
     segregating them in different cells. It further was
     proposed for the Army, with no thought of the Navy --
     the Navy you can visualize might have a great
     difficulty aboard the ship when they captured an enemy
     vessel and took foreign nationals.

          Then they could not keep any offender of their own
     in the same brig on ship board. We have changed that.

Id. at 914-15.   The second revision striking the geographical

limitation was explained only to this extent, and not entirely

lucidly, also by Mr. Larkin:

     We have deleted, if you will notice, “outside the
     continental limits” and made it apply everyplace
     [sic], but prohibit incarceration in close association
     but not with [sic] because “with” has the connotation
     that you could not keep them in the same prison and
     there may be only one. They are the only differences
     between what is in the law now and this article.

Id. at 915.

     No one offered further justification for the modification.

No one posited or discussed the article’s application to

confinement of servicemembers in civilian facilities in the

United States.




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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     So too the legislative history of Article 58, UCMJ, which

was passed in conjunction with Article 12, UCMJ, suggests

Congress neither intended nor desired for servicemembers in

civilian confinement to be separated from foreign-born residents

of the United States, such as migrant workers, who are not

enemies of or hostile to the government.   Article 58(a), UCMJ,

provides:

     [A] sentence of confinement . . . may be carried into
     execution by confinement in any place of confinement
     under the control of any of the armed forces or in any
     penal or correctional institution under the control of
     any of the armed forces or in any penal or correctional
     institution under the control of the United States . .
     . . Persons so confined in a penal or correctional
     institution not under the control of one of the armed
     forces are subject to the same discipline and treatment
     as persons confined or committed by the courts of the
     United States or of the State, District of Columbia, or
     place in which the institution is situated.

     Article 58, UCMJ, derives from Article of War 42 and

Article for the Government of the Navy (A.G.N.) 7.   Article 58,

UCMJ, is broader than those articles in that it provides

authority for all branches of the armed forces to transfer a

servicemember to civilian confinement for any offense.   The

commentary described the reason for the modification:

     Subdivision (a) is derived from A.G.N. article 7 which
     permits the Navy to transfer court-martial prisoners
     to institutions under the control of the Department of
     Justice. The Navy has found this practice to be
     beneficial both to the service and to the prisoner.
     Both the Army and Navy officers in charge of
     correctional policies recommend the adoption of
     subdivision (a). It is the policy of the armed forces


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     to segregate youthful and rehabilitable prisoners from
     the hardened criminals and incorrigibles and to
     provide for the maximum rehabilitation of prisoners
     for the purpose of restoration to duty or successful
     adjustment in civil life. However, due to lack of
     facilities and personnel with long and continuous
     experience in the highly technical and specialized
     phases of penology, the armed forces have serious
     handicaps in dealing with prisoners with long civilian
     criminal records, criminal psychopaths, sex deviates,
     violent incorrigibles and other prisoners requiring
     special treatment. The Army in operating under A.W.
     42 has met with great difficulty in segregating the
     varied types of prisoners and in giving them
     specialized treatment. It is felt that the
     rehabilitation of prisoners who create special
     problems could be expedited by transferring them to
     the highly specialized institutions under control of
     the Department of Justice, which range from training
     schools and reformatories to major penitentiaries and
     provide for the treatment of prisoners according to
     their needs.

          From past experience, the services have found
     that the type of treatment suited for individuals does
     not depend on the type of offense or on the length of
     the sentence. Many of the prisoners who cause special
     problems in disciplinary barracks are those convicted
     of military offenses, such as a.w.o.l. or desertion.

Legislative History, supra pp. __ (9-10), at 1093-94.     The

legislative history also contains testimony by military

officials stating that a primary goal of Article 58, UCMJ, was

to facilitate the reentry of recalcitrant servicemembers into

the armed forces by providing them access to the rehabilitative

services of the civilian prison system.    According to the

statement of Colonel Lloyd R. Garrison, Chief of the Correction

Branch of the Adjutant General’s Office:




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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     We feel that rehabilitation in prisons, to get people
     back in civil life, able [sic] to make their own
     living, is extremely important.

          The populations of Army disciplinary barracks
     include prisoners of all types, ranging from youthful,
     impressionable first offenders to men with long
     civilian criminal records, criminal psychopaths, sex
     deviates, and violent incorrigibles. Adequate
     segregation for purposes of protecting young,
     impressionable offenders from detrimental influences
     and unwholesome contacts with the criminal types
     mentioned, and the operation of suitable
     rehabilitation programs to fit the varying needs of
     the individuals concerned cannot be accomplished in an
     institution in which all types are confined together.
     It is, therefore, considered desirable to provide for
     the confinement of different types of general
     prisoners in separate institutions having adequate
     facilities, trained personnel, and rehabilitation
     programs designed to meet the needs of the particular
     groups.

          The Department of the Army does not have the
     number and diversified types of confinement facilities
     under its jurisdiction to provide for completely
     adequate segregation, control, and rehabilitative
     treatment of general prisoners by type. Further,
     military personnel assigned to duty at Army
     disciplinary barracks are subject to frequent
     rotation, and do not have the opportunity to gain the
     maturity of experience and training in the highly
     specialized professional and technical work involved
     in the administration of major correctional
     institutions, and in the control and treatment of the
     types of offenders involved. It would not be
     economical or in keeping with the primary mission for
     the Department of the Army to operate the number and
     types of institutions and provide the trained
     personnel required to meet these needs.

          . . . .

          In addition, it is considered desirable that the
     Department of the Army have access to the specialized
     facilities of the Federal Prison System for the
     rehabilitative treatment of individual offenders where


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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


     transfer to such Federal institutions would result in
     benefit to the prisoner, such as transfer of medical
     and mental patients to the Medical Center for Federal
     prisoners, and transfer of some youthful offenders to
     the National Training School and Federal
     reformatories.

Id. at 1095.

     Similarly, Captain Maginnis, the counterpart to Colonel

Garrison in the Department of the Navy, testified:

          All that [Colonel Garrison] said about the
     facilities in Federal institutions for the treatment
     of these individuals who have committed felonies and
     who remain for long terms is true.

          In the naval service our personnel manning these
     institutions are men who enlisted in either the Navy
     or the Marine Corps as a career and to whom custodial
     work is not a chosen vocation. They do the best that
     they can, but we feel that the treatment the
     individual would obtain under Federal jurisdiction is
     much better when they are guided by those people who
     have that as their vocation and their life work.

Id. at 1106.   None of the debate surrounding Article 58, UCMJ,

contemplated that the “same discipline and treatment”

requirement would or should be curtailed by Article 12, UCMJ.

It does, however, make overwhelmingly clear that Congress sought

to provide to the armed forces an avenue for confining

servicemembers in civilian facilities and that that option was

not to be limited.   In ignoring this legislative history and the

modern context, the majority defeats the purpose of Article 58,

UCMJ, by preventing the armed forces from making use of civilian




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United States v. McPherson, Nos. 14-0348/AF & 14-5002/AF


confinement facilities as the drafters so clearly intended.   For

these reasons, I respectfully dissent.




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