United States v. Warda, (2023)

I join the Court's well-reasoned opinion in full. I write separately simply to explore some practical aspects of this issue because of the high probability that similar cases will arise in the future.

In cases such as this one, a trial court is confronted with the need to delicately balance competing interests. On the one hand, victims of domestic violence have a vital interest in ensuring that their abusers do not gain access to their personal information—such as their current home address—which may be contained in government files. On the other hand, servicemembers who are accused of domestic violence have a vital interest in ensuring that they have access to information in government files that may significantly undermine the credibility of the complaining witness in the eyes of the trier of fact. As reflected below, I believe it is possible for a military judge to protect both of these interests simultaneously.

To be clear at the outset, only a limited subset of domestic violence cases is at issue here. Specifically, this opinion pertains solely to those cases where: (1) a servicemember is accused of committing sexual assault or other crimes of domestic violence against a spouse who is not a United States citizen and who is present in this country on a conditional resident Green Card; (2) the accused servicemember asserts that the complaining witness fabricated the charges in order to be able to remain in this country on the grounds that he or she is an abused spouse; (3) the complaining witness testifies during court-martial proceedings that he or she did not file with United States Citizenship and Immigration Services (USCIS) to remain in this country on the grounds that he or she was an abused spouse; (4) the accused has no reasonable means of verifying or refuting the complaining witness's testimony on this point other than by obtaining relevant information from USCIS; and (5) the accused files a timely motion with the trial court to obtain that information.

Particularly in those instances where there is no substantial independent evidence supporting the domestic violence allegations other than the complaining witness's testimony, the credibility of the complaining witness is of central importance to the case. Therefore, I suggest that the military judge order USCIS to file with the trial court—for in camera review under a protective order—the least intrusive document in the complaining witness's Alien File that would be responsive to the limited, binary question of whether or not the complaining witness sought to continue his or her presence in this country by claiming to be an abused spouse (i.e., by filing a Form I-918, Petition for U Nonimmigrant Status). If necessary, the military judge could then continue the proceedings to provide time for USCIS to respond, and thereafter if USCIS indicates that it is unable or unwilling to comply, abate the proceedings in accordance with Rule for Courts-Martial 703 until USCIS complies with the court order. 1 (In the alternative, the complaining witness and his or her special victim's counsel or victim's legal counsel could obtain the information from USCIS—preferably well in advance of trial to avoid unnecessary delay—and then provide the documentation to the military judge for in camera review. See 8 U.S.C. § 1367(b)(4) (2018).)

If the documentation obtained from USCIS supports the complaining witness's assertion that he or she did not file to remain in this country as an abused spouse, the military judge should simply inform the parties of this response and then seal the responsive documentation.

If, however, the documentation obtained from USCIS contradicts the complaining witness's sworn testimony on this important point, the military judge should then disclose to the parties only that limited portion of the submission that would permit the defense to sufficiently demonstrate to the trier of fact that the complaining witness has testified falsely. (In the alternative, the government could simply stipulate to the fact that USCIS has records indicating that, contrary to the complaining witness's testimony, the alleged victim filed a Form I-918, Petition for U Nonimmigrant Status.)

I believe that the approach outlined above could serve as an effective means of protecting the privacy rights of victims of domestic violence while at the same time protecting the constitutional rights of accused servicemembers.

FOOTNOTES

1.   In my view, USCIS is obligated to comply with such an order because of the limited nature of the disclosure, the beneficial effect of the military judge's protective order, and most importantly, because of the provision in the applicable statute specifically authorizing USCIS to disclose information “for a legitimate law enforcement purpose.” 8 U.S.C. § 1367(b)(2) (2018). Further, I believe that if USCIS fails to comply with such an order then this matter should be raised by military officials at high levels within the executive branch.

Chief Judge OHLSON, concurring

Chief Judge OHLSON, with whom Judge HARDY joins, concurring.