Sunday, October 22, 2006

New UCMJ amendment

On the same day that President Bush signed the Military Commissions Act of 2006 into law, with considerably less fanfare he also signed the John Warner National Defense Authorization Act for Fiscal Year 2007, 109 P.L. 364; 120 Stat. 2083 (2006).

As usual, this year's authorization act tweaks the military justice system. Here are this year's provisions:

Subtitle E--Military Justice Matters


Not later than March 1, 2007, the Secretaries of the military departments shall prescribe regulations, or amend current regulations, in order to provide that members of the Armed Forces who are ordered to duty at locations overseas in an inactive duty for training status are subject to the jurisdiction of the Uniform Code of Military Justice, pursuant to the provisions of section 802(a)(3) of title 10, United States Code (article 2(a)(3) of the Uniform Code of Military Justice), continuously from the commencement of execution of such orders to the conclusion of such orders.


Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking "war" and inserting "declared war or a contingency operation".

The second section could be enormously significant. This is the old UCMJ provision: "(a) The following persons are subject to this chapter . . . (10) In time of war, persons serving with or accompanying an armed force in the field." That will now read, "(a) The following persons are subject to this chapter: (10) In time of declared war or a contigency operation, persons serving with or accompanying an armed force in the field."

This change allows court-martial jurisdiction to reach a great number of civilians who were not previously susceptible to court-martial jurisdiction. In a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970). Throughout U.S. history, we have fought only five declared wars (World War II, World War I, the Spanish-American War, the Mexican-American War, and the War of 1812). We have been engaged in a great many more contingency operations.

It will be interesting to see whether -- and, if so, how -- the military takes advantage of this major expansion of court-martial jurisdiction.

--Dwight Sullivan


gene fidell said...

Has Congress defined "contingency operation"?

If the armed forces were ever to use this new provision to court-martial a civilian, and CAAF were to deny review, there could be no review by certiorari in the Supreme Court. Another good reason, as if more were needed, to repeal the limitation in Article 67a(a)?

Dwight Sullivan said...

(13) The term "contingency operation" means a military operation that--
(A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

10 U.S.C. § 101

Dwight Sullivan said...

"As a result of the President's declaration of a continuing national emergency, operations in Afghanistan to combat terrorism (i.e., Operation Enduring Freedom) continue to be a contingency operation as defined by 10 U.S.C. § 101(a)(13)(B). Because the national emergency authority invoked by EO 13,223 also applies for operations in Iraq, Operation Iraqi Freedom is also a contingency operation."

Major Karl Kuhn, CONTRACT AND FISCAL LAW DEVELOPMENTS OF 2003--THE YEAR IN REVIEW: Special Topics: Deployment and Contingency Contracting, Army Law., Jan. 2004, at 134, 137 (internal footnote omitted).

Dwight Sullivan said...

Two more thoughts:

(1) regardless of whether this expanision of jurisdiction is a good idea, it's interesting that Congress took this rather drastic step without holding hearings on the issue.

(2) it's also interesting to note that this expansion of court-martial jurisdiction over civilians occurred at a time when, for a variety of reasons, both uniformed and civilian lawyers involved in the MILITARY COMMISSIONS debate were trumpeting the fairness of the COURT-MARTIAL system. Is it possible that Congress was, to at least some extent, influenced by those arguments in concluding that a court-martial is sufficiently fair to try a civilian contractor?

The JAG Hunter said...

I've used your blog on the new UCMJ amendment a couple of times as an integrated link here: JAG Hunter link:

Walt Fitzpatrick
The JAG Hunter:



No Man said...

Does this amendment weaken (or inadvertently call into question) the rationale of the Supreme Court in Parker v. Levy for differing treatment of accused's rights in courts-martial? What military necessity rationale can be put forth for differing treatment of individual rights for crimes potentially committed in such recent US contingency operations as: 1996, Dubrovnik, Croatia, search and rescue support for Secretary of Commerce Ron Brown T-43 crash; 1985, TWA Flight 847; 1991, Bangladesh (Southeast Asia), typhoon, Operation SEA ANGEL;
1983, Grenada (not to dismiss those that served in Grenada, they risked their lives, but it wasn't exactly a "war".) Some of these contingency operations were operations that did not require US military intervention, e.g. typhoon relief, but the miltiary was better equipped to do the job.

Jenny said...

Dwight, I'd like to talk with you about this for an article for Government Executive. Could you contact me at jmandel (at) govexec (dot) com?