Regulating PMC (catch all)

[Granite_State]

Via Colonel Patrick Lang's blog:

"Jim" sent me this little gem. The MSM misses most important things and this is one of them. Under this Department of Defense directive, Secretary of Defense Robert Gates takes action to assure the extension of the authority of US military law over all civilians serving with or for US military forces.

The direcives provides authority for officers and NCOs to arrest and detain persons seen conducting a crime and for military authorities to pursue investigations that may lead to trial by general court martial.

The directive requires DoD to inform the US Department of Justice (DoJ) that it is proceeding against particular civilians. This provision exists to allow DoJ to take charge of the case involving civilians if it wishes. If DoJ declines then the military is authorized to proceed under its own legal system.

This would appear to settle the issue of how to deal with private armies of the "Blackwater" type in criminal matters. Comment from you lawyers? pl

http://turcopolier.typepad.com/sic_s...xtends-to.html

[SethB]

The question is whether a conviction obtained would withstand appeal to the Supreme Court.

See Reid v. Covert 345 US 1.

I am not a lawyer or student of the law, so I would welcome them to criticize my work.

Something I wrote a few years ago:

Attempts to apply the Uniform Code of Military Justice to those that aren’t members of the Armed Forces have traditionally failed. In Reid v. Covert, 345 US 1 (1957) the Supreme Court ruled that “courts of law alone are given power to try civilians for their offenses against the United States.” In that case, a civilian dependent was tried in front of a jury of Air Force officers for the murder of her husband, a member of the Air Force, on an Air Force base in England. Article 2 (11) of the UCMJ was invoked when charges were brought. It reads as follows:
The following persons are subject to this code:

(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States....

The Court countered with a quotation from Article III Section II of the US Constitution:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

And the Fifth and Sixth Amendments, respectively:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

The Court continued on to use these passages to rule that the military has no right to try a civilian, and that doing so is a violation of the defendants Constitutional rights. Relevant to the discussion is this passage:

There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces "in the field" during time of war. To the extent that these cases can be justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.

It is apparent that this interpretation would allow the military to try private security contractors under some conditions, namely, if the country were at war. Whether the current conflict in Iraq meets the definition of a war is something that would have to be determined by a US Court of Appeals, in the event that a contractor is prosecuted under the UCMJ.

[sandbag]

Well, there are two items of interest that apply:

1) The Federal Acquisition Regulation does tell contractors up front about circumstances of applicability in clause 222.225-7040, Contractor Personnel U.S. Armed Forces, etc. This is spelled out in the contract, so there shouldn't be much of a surprise.

2) CENTCOM's lawyers also have the deployed contracting officers putting a notification in contracts warning contractors about the applicability of MEJA.

(NOTE: For legal advice in your state, please consult a lawyer. Sandbag is NOT a lawyer, but knows a thing or two about contract law).

[Anthony Hoh]

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

[Ken White]

No Slack!!!

[MountainRunner]

I've never seen any grounding in reality in the discussion over applying UCMJ to contractors. My unanswered concerns:

• how does one adapt UCMJ punishments to civilians that are U.S. citizens? (see Seth's post) What if they are not U.S. citizens?
• how does one apply the rule of law to civilians through civilians when military lawyers have trouble assembling evidence from a battlefield (few cases will have the resources the Nissor Square incident 'enjoyed' and even then...)? Didn't Rep Price's bill enhancing MEJA to authorize the FBI to investigate crimes in theater pass?
• Are all commanders (and below) now aware which contracting officer 'owns' which contractor to fill his/her complaints? Few tracking of demerits has been done... (or merits to be fair)

Some other random thoughts:

As far as Fed Acq Regulations, FARs needs to be implemented fully and I'm not sure we've canceled or let expire all the contracts that bypassed FARs.

There's an implication in FARs that if you don't do the job correctly, you'll be fired and replaced by another vendor. How many times has that happened?

Have the contracts been been rewritten to make PMC produced reports gov't reports or are they still corporate property like Aegis's 200 pager compiled after the "Elvis Video"?

Do based commanders have any insight (or new authority for that matter) over contractors, or is it still informal and haphazard?

It will be interesting to see the first case play out.

[Tom Odom]

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

Oh my young NCO...

short answer: No

longer answer: you can try but will only get frustrated

The sleeves is an infantry thing, BTW

Tom

[sandbag]

You'd likely die of exhaustion if you take it on yourself, but yeah, you can do that. I'd rather have you go to Fort Belvoir and start with most of the personnel assigned there, first.

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

[Jedburgh]

DefenseLink, 6 Apr 08: Civilian Contractor Charged With Assault Under Military Law

.....Alaa “Alex” Mohammad Ali, an interpreter, is the first contractor to be charged under a 2006 amendment to the Uniform Code of Military Justice – Section 552 of the National Defense Authorization Act of Fiscal Year 2007, MNC-I officials said.

Ali, who holds Canadian and Iraqi citizenship, is accused of stabbing another contractor. Officials said he is presumed to be innocent of this offense until, and unless, he is proven guilty. He has been in confinement at Camp Victory, Iraq, since Feb. 29.....

[tpjkevin]

It would be interesting to see how this turn of events might pave the way for increased usage of PMCs on the ground, if there is sufficient trust that's nurtured in the long term..

[John T. Fishel]

does not apply to contractors hired by other USG agencies (e.g. State which hired Blackwater).