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