Regulating PMC (catch all)

[SethB]

Civilian Contractor Convicted at a Court Martial

June 23, 2008.

At a court-martial Sunday, Alaa “Alex” Mohammad Ali, a contractor serving as an interpreter with U.S. armed forces in Iraq, pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement.

Because he plead guilty this case won't advance through the judicial system, which means it may be some time before we know if the Supreme Court will allow civilians to be tried under the UCMJ. As I posted earlier this year, it had been illegal for a long time.

I guess we have to wait and see.

[jmm99]

at least, some of us think that is true.

In short, Reid v Covert has probably not withstood the positive changes in the military justice system since it was decided - and it was decided well before the era of PMCs (and PICs based on the changes at CIA and other agencies).

Here are some background sources on Section 552 (now Article 2(a)(10) of the UCMJ).

Congressional Research Service Summary
.....
Subtitle C - Military Justice and Related Matters
.....
Section 552 -
Applies UCMJ provisions to declared wars or contingency operations (currently, only "war").

http://www.govtrack.us/congress/bill...22&tab=summary

TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle F - Contracts in Iraq and Afghanistan

NDAA Section

SEC. 861. MEMORANDUM OF UNDERSTANDING ON MATTERS RELATING TO CONTRACTING.

(a) Memorandum of Understanding Required- The Secretary of Defense, the Secretary of State, and the Administrator of the United States Agency for International Development shall, not later than July 1, 2008, enter into a memorandum of understanding regarding matters relating to contracting for contracts in Iraq or Afghanistan.

(b) Matters Covered- The memorandum of understanding required by subsection (a) shall address, at a minimum, the following:
....
(6) Responsibility for the collection and referral to the appropriate Government agency of any information relating to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or chapter 212 of title 18, United States Code (commonly referred to as the Military Extraterritorial Jurisdiction Act), including a clarification of responsibilities under section 802(a)(10) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), as amended by section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364).

http://www.wifcon.com/dodauth8/dod08_861.htm

--------------------------------------
The updated MCM 2008 incorporates Section 552.

MANUAL FOR COURTS-MARTIAL UNITED STATES
(2008 EDITION)
....
(p. PREFACE-4)

Other UCMJ Articles contained in Appendix 2 of the MCM:

Article 2(a)(10) was amended to apply jurisdiction to persons serving with or accompanying an armed force in the field in time of declared war or contingency operation.
....
(p. A2-2)

§ 802. Art. 2. Persons subject to this chapter

(a) The following persons are subject to this chapter:
.....
(10) In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.

The Manuel does issue a caution in its discussion of RCM 202.

(MCM 2008 pp. II-13-14)

Rule 202. Persons subject to the jurisdiction of courts-martial

(a) In general. Courts-martial may try any person when authorized to do so under the code.
....
Discussion

(1) Authority under the code. Article 2 lists classes of persons who are subject to the code. These include .... and, under some circumstances, specified categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion).
.....
(3) Public Health Service and National Oceanic and Atmospheric Administration. Members of the Public Health Service and the National Oceanic and Atmospheric Administration become subject to the code when assigned to and serving with the armed forces.

(4) Limitations on jurisdiction over civilians. Courtmartial jurisdiction over civilians under the code is limited by judicial decisions . The exercise of jurisdiction under Article 2(a)(11) in peacetime has been held unconstitutional by the Supreme Court of the United States. Article 2(a)(10) has also been limited. Before initiating court-martial proceedings against a civilian, relevant statutes and decisions should be carefully examined.

The specific "civilian" provisions of § 802 (a) (8)-(12) are:

(p. A2-2)

§ 802. Art. 2. Persons subject to this chapter

(a) The following persons are subject to this chapter:
.....
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

-----------------------------------------------------
An excellent article, which presaged the 2007 amendment, is here.

AUTHOR: Colonel Kevan F. Jacobson
TITLE: Restoring UCMJ Jurisdiction over Civilian Employees during Armed Hostilities
FORMAT: Strategy Research Project
DATE: 15 March 2006
......
Abstract

Modern United States military operations have become increasingly reliant upon services provided by civilian employees of the Department of Defense, other federal employees, and contractors. The range of such services is remarkably diverse. Large numbers of civilians now accompany Armed Forces on virtually all deployments, including combat operations. In short, civilian personnel are key members of the modern military team. Their actions, like those of uniformed military members, may have profound effects upon national interests. While commanders are now heavily reliant upon civilian services, commanders have relatively little disciplinary authority over the conduct of deployed civilian personnel.

This paper proposes extending Uniform Code of Military Justice jurisdiction to United States citizen civilian personnel accompanying United States Armed Forces outside the United States in theaters of armed hostilities. It reviews and analyzes existing statutory bases of jurisdiction over civilians and the case law which has interpreted it. It also analyzes relevant evolutions of military jurisdiction and criminal practice in recent decades which call into question older case law which restricts UCMJ jurisdiction over civilians accompanying the Armed Forces. Finally, it recommends how the law may be shaped to effectively re-establish UCMJ jurisdiction over deployed civilian personnel in combat environments.
.....
(pp.18-19)

The 25 years following the end of World War II witnessed significant Supreme Court litigation regarding the extent of courts-martial jurisdiction and a definite erosion of the authority of military courts to try civilians. When analyzed, however, the decisions of the Supreme Court reveal that the Constitutional foundation for the exercise of military jurisdiction over civilians accompanying the Armed Forces on the battlefield remains intact.

Congressional action to amend Article 2(a)(10) of the UCMJ to state that jurisdiction exists “during periods of armed hostilities” is necessary to re-establish the legislative basis for jurisdiction. Should Congress act, case law suggests a significant body of authority upon which the courts could sustain Congressional action.

http://www.strategicstudiesinstitute...es/ksil374.pdf

The guts of Jacobson's article - the erosion of the anti-UCMJ cases since Solorio v. United States, 483 U.S. 435 (1987) - are found at pp, 10-17.

Because of the expanded role of PMCs (whether engaged by DoD or other agencies, for that matter), the Congressional enactment of amended § 802 (a) (10) suggests that the test will hinge on the existence of an "armed conflict" and whether the contractor accompanies ("supports the mission of") the armed forces. That has already been recognized in The Military Extraterritorial Jurisdiction Act of 2000:

(Jacobson, p.11)

In pertinent part, such civilians include civilian employees of the Department of Defense (including nonappropriated fund instrumentality employees); Department of Defense civilian contractors, subcontractors, and their employees; and the civilian employees of other federal agencies or provisional authorities when serving in support of overseas Department of Defense missions. [98]

[98] 98 18 U.S.C. § 3267(1) (2000). As originally enacted, this provision did not include civilian employees of federal agencies or departments outside the Department of Defense. Public Law 108-375 ( 2005) (the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005) amended 18 U.S.C. § 3267(1) to extend MEJA jurisdiction to civilian employees of federal agencies and provisional authorities “…to the extent such employment relates to supporting the mission of the Department of Defense overseas.” As of this writing, this change is not reflected in the published text of the United States Code. The amendment is nevertheless operative.

Because SCOTUS cuts slack in favor of the Executive and Congress - when they act together and do not stomp on the essential jurisdiction of the Federal courts (such as habeas), the old cases (Toth and Reid, for example) seem a bit shaky today.

[John T. Fishel]

but the way I read them, Blackwater, escorting Embassy officials doing Embassy business, under contract to the State Department would be excluded. Big loophole that could be closed easily if the President would simply designate a single commaner whether military or the Ambassador.

[jmm99]

Big loopholes could abound in this legal area. For example, if the US ambassador were the "commander", a very basic issue is whether the UCMJ would apply at all to civilians under his "command" (UCMJ implies a military situation).

The general questions would be whether an armed conflict exists in the HN, whether US armed forces are involved in the conflict; and whether civilian contractors are supporting a military mission or a diplomatic mission. We also have to know:

1. The terms of the US-HN SOFA (if any) and any other relevant international agreements.

2. The terms of inter-agency co-operatrion in the HN.

3. The terms of the civilian contracts - e.g., an individual could waive constitutional rights (jury trial, etc.) and agree to be tried under the UCMJ - in cases where Art. 2(a)(10) provides a jurisdictional basis.

For a general overview see.

CRS Report to Congress
Order Code RL33557
Peacekeeping and Related Stability Operations:
Issues of U.S. Military Involvement
Updated January 24, 2007

http://www.fas.org/sgp/crs/natsec/RL33557.pdf

Some of these intra-agency issues are covered in this 2003 manual (13+ MB at site below; there is a smaller .pdf file, 5+MB on my computer, which is somewhere on the Net)

FM 3-07 (FM 100-20)
Field Manual Headquarters
No. 3-07 Department of the Army
Washington, DC, 20 February 2003
Stability Operations and Support Operations

http://www.fas.org/irp/doddir/army/fm3-07.pdf

The various legal issues are addressed in the ongoing updates to the Operational Law Handbook (5+ MB) from the Judge Advocate General's Legal Center and School.

OPERATIONAL LAW HANDBOOK
(August 2006)
MAJ John Rawcliffe
CPT Jeannine Smith
Editors
JA 422
International and Operational Law Department
The Judge Advocate General's Legal Center and School
Charlottesville, Virginia 22903

http://www.fas.org/irp/doddir/army/law0806.pdf

and for 2007

OPERATIONAL LAW HANDBOOK
2007
MAJ John Rawcliffe
Editor
JA 422
International and Operational Law Department
The Judge Advocate General's Legal Center and School
Charlottesville, Virginia 22903

http://www.dtic.mil/cgi-bin/GetTRDoc...c=GetTRDoc.pdf

See, CHAPTER 7, CONTINGENCY CONTRACTOR PERSONNEL (CCP), starting at p. 127, with reference to Art. 2(a)(10) here (p. 140 - p 148 in .pdf file).

5. Uniform Code of Military Justice (UCMJ).

a. Retired military members who are also CCP are subject to the UCMJ. Art. 2(a)(4), UCMJ. DA policy provides that retired Soldiers subject to the UCMJ will not be tried for any offense by any courts-martial unless extraordinary circumstances are present. Prior to referral of courts-martial charges against retired Soldiers, approval will be obtained from Criminal Law Division, ATTN: DAJA–CL, Office of The Judge Advocate General, HQDA. AR 27-10, para. 5-2b(3).

b. Under the law for at least the past 30 years, contractors were only subject to the UCMJ in a congressionally declared war. During that time, there was never UCMJ jurisdiction over contractor personnel because there were no congressionally declared wars.

c. Congress amended the UCMJ in the National Defense Authorization Act for Fiscal Year 2007 (2007 NDAA). In the 2007 NDAA, Congress changed Article 2(a)(10), addressing UCMJ jurisdiction over civilians accompanying the Armed Forces, from “time of war” to “time of declared war or contingency operation.” This appears to subject contractors to the UCMJ in OIF/OEF; however, this change has not yet been implemented by DoD.

d. It is not clear whether this congressional attempt at expanding UCMJ jurisdiction over civilians in less-than congressionally declared war is constitutional. Prior congressional attempts at expanding UCMJ jurisdiction have been rejected by the Courts as unconstitutional.

So, there is a caution here as well.

For a huge collection of military law links, go here.

http://www.au.af.mil/au/awc/awcgate/awc-law.htm

For a study course for unit commanders, go here.

Muir S. Fairchild Research Information Center Support
MILITARY COMMANDER AND THE LAW

Military operations, from day-to-day activities to large-scale combat maneuvers, must operate in an increasingly legalistic world. Some may see this reality only in negative terms, but the law works in many ways; it enables as much as it restricts, it protects as well as punishes. Commanders at all levels need to follow the law while working towards their mission objectives, whether their goal is a zero defect aircraft, a disciplined squadron, or a defeated enemy. Through the use of The Military Commander and the Law and other materials, the course will provide an overview of the legal environment that faces the unit commander. Emphasis will be placed on the practical application of law in the military justice, administrative, and operations law arena, and the role of the JAG as supporting staff to the commander.

http://www.au.af.mil/au/aul/school/a...lcmdrlaw09.htm

[Ken White]

is totally boggled...

Thanks for all that.

[John T. Fishel]

You really have some good stuff there. Why don't you write it up as a blog piece or a SWJ article. Personally, I'd be interested in your recommendations.

Cheers

JohnT

[jmm99]

but, out-of-CONUS military contracts are well outside of my areas of "expertise".

Out of curiousity, John,

Personally, I'd be interested in your recommendations

recommendations as to what areas, questions, etc. ? Provide me an outline of your concerns.

PS: Ken - the mind of the parachuting lapin is never boggled - it merely says that as it calculates its next move.