Regulating PMC (catch all)

[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.

[John T. Fishel]

in this area? I think we all agree that there is a problem with the accountability for contractors with regard to their behavior when they act outside the law (or are accused of so doing). Placing contractors who work for or in support of military ops under the UCMJ was IMO an important step. My concerns have to do with what's next. My recommendation - which you articulately questioned - was to designate a commander for all USG activities during a contingency which would bring contractors who work for State, like Blackwater, under the UCMJ roof. But, as you pointed out, there are still questions. Anyway, how might you solve the problem of accountability for "other people's" contractors?

Part of what I was suggesting you do (since I don't really want to do the legal research or read the lawyerly verbosity in many of your cites) was to digest for us the essence of what you found and then draw a few conclusions and recommendations as above.

Cheers

JohnT

[slapout9]

Anyway, how might you solve the problem of accountability for "other people's" contractors?

Cheers

JohnT

Hi John, I can tell you from personal experience inside the US (Alabama) as far as civil liablity the courts do not make any distinction between contractor and the person (Agency) who contracted them. They are considered to be part of the contracting angency. That is part of the Law of agency(jmm can better comment on that than me) which I never understood how groups like Blackwater could get around.