Wednesday, January 24, 2007

Courts-martial for civilian contractors commentary continued

CAAFlog has had several posts concerning the recent amendment of Article 2 to provide court-martial jurisdiction for those accompanying our armed forces in the field in contingency operations, broadening the previous jurisdiction grant that applied only in times of declared war.

NIMJ Executive Director Kathleen Duignan now alerts us to a proposed bill that would seem to express Congress's sense that civilian contractors who are suspected of criminal conduct in contingency operations should be tried in U.S. district courts rather than courts-martial.

The bill, H.R. 369, goes by the rather ungainly title of the Transparency and Accountability in Security Contracting Act of 2007. The bill is sponsored by Representative David Price of North Carolina, a Democratic Assistant Whip. It has been sent to both the House Armed Services and House Judiciary Committees. Considering that one of the bill's 31 co-sponsors is House Judiciary Committee Chairman John Conyers, it should have fairly smooth sledding there.

Here's the relevant portion:

(b) SENSE OF CONGRESS REGARDING INVESTIGATION AND PROSECUTION OF ABUSES BY PRIVATE SECURITY CONTRACTORS.—It is the sense of Congress that—
(1) if there is probable cause to believe that an individual assigned to perform work under a covered contract has violated section 3261(a) of title 18, except in situations in which the individual is prosecuted under the Uniform Code of Military Justice or under other law, the Department of Defense should use the authority provided in section 3262 of title 18, United States Code, to arrest and detain that individual and transfer that individual to civilian authorities for prosecution; and
(2) the Secretary of Defense should issue guidance, as soon as possible after the date of the enactment of this Act, on how the amendment made by section 552 of the John Warner National Defense Authorization Act of 2007 (Public Law 109–364; 120 Stat. 2217) to section 802(a)(10) of title 10, United States Code (article 2(a)(10) of the Uniform Code of Military Justice), will be implemented.

--Dwight Sullivan

15 comments:

No Man said...
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No Man said...

Note that a key feature of the bill is that the sense of Congress is only expressed for "covered contracts," which are defined as private security cotnracts. See Sec 7 of the bill. With that limit, the bill makes no sense-pun intended. It says that the UCMJ should not be used for those government contractors that are most deeply embedded with US forces, private security forces. Meanwhile, there is no sense expressed that the UCMJ should not be used to punish the guy that prepares meals for US troops in the Green Zone or drives the US forces trash to a local landfill. Does that make any sense? The bill should be either broadened or narrowed so that it actually makes sense.

The part that definitely makes sense is the portion calling for immediate regulations to describe the effect of the change in Art. 2, UCMJ. The Joint Committtee on Military Justice cannot wait 2 years to review and make changes to the MCM to reflect this amendment. Swifter action is needed so that commanders in the field have some idea the discretion they will be afforded. This change is not like LWOP where the Manual can languish without changes for years and CAAF can say no harm no foul years later. See U.S. v. Ronghi, 60 MJ 83 (CAAF 2004).

John O'Connor said...

Why does everyone read this bill as favoring civilian prosecution over court-martial? As I read it, the bill simply says "Congress thinks that if the military has probable cause to believe a covered contractor violated MEJA, it should arrest him and deliver him to the U.S. so he can be tried in district court unless the military decides to court-martial him instead." I hardly read this provision as trying to protect contractor rights, but rather urging the military to ensure that bad boy contractors get prosecuted somewhere.

CAAFlog said...

John O'Connor makes a good point.

Marcus Fulton said...

They even kick DoD's ankles a little bit to get them to move on implimenting rules for court-martial of civilians.

egn said...

When I read the sense of Congress, I got the same sense as John O'Connor -- that this simply covered those instances when the civilian contractor is not being court-martialed.

I've been in an operational planning class all week, and when the discussion of contractors came up, there was some interest on the possible application of the UCMJ to wrongdoing civilians. The instructor, a retired Navy captain, wondered whether that jurisdictional reach had to written into their contracts. My sense is that it doesn't. Any thoughts?

John O'Connor said...

EGN:

I don't see why jurisdiction would need to be written into the contract itself. I'm subject to federal jurisdiction without having contracted for it, and I don't see why a contractor would have to agree to jurisdiction already conferred by Congress. To me, the more interesting question is what happens if the contract either states that the contractor is not subject to the UCMJ (which everyone would have accepted as true prior to the amendment), or where the contract lists the job responsibilities and tasks to be performed and there is an Article 92 prosecution for failure to obey an order to do something in addition to the tasks explicitly listed in the contract.

egn said...

I had a discussion with a Marine captain who cited the main problem as contractors refusing to follow ROE in Fallujah. As far as those contractors were concerned, the ROE didn't apply to them. That seems to be a potential issue -- how do you apply Article 92 to contractors, or can you? Are they subject to military orders? Are their contracts to be interpreted as lawful orders?

John O'Connor said...

ENG:

Re Article 92, I think it's helpful to distinguish between positive and negative orders. If a commander issues an order that says nobody in this camp will drink alcohol, leave the camp without a pass, or use lights after dark, etc., I doubt the peculiarities of a contract will create much difficulty in determining whether the order is lawful. But when a commander gives a positive command, requiring a contractor to actually DO something (as opposed to refraining from doing something), things get really murky. What if a commander tells a cook that he is going to take a shift standing guard likely all the soldiers? Or, what if a squad on patrol takes huge casualties and the squad leader tells a translator that he's going to carry supplies or one of the wounded.

Now my favorite, and one that might make the Constitution actually explode: What would happen if a commander tried to court-martial a civilian contractor for consensual sodomy?

Anonymous said...

In response to prior comments, even before commanders get to issues like consensual sodomy, the intial test may be how commanders deal with issues of free speech and individual rights in the context of insubordination and violation of standing general orders of the theater commander. I imagine those are the first issues that will come up, but they are in the same vein as the consensual sodomy issue - restricted rights of service members and military life in general vs. civilian rights. I believe there was a prior post on this site about the implications of this ammendment on the rationale for the entire MilJus system that the Supreme Court relied upon in Parker v. Levy. That rationale is exactly the issue discussed here.

CAAFlog said...

Am I the only one who thinks it is exceedingly unlikely that a military commander would actually send the case of a civilian contractor to a court-martial. While John O'Connor has convinced me that Congress hasn't put its thumb on the civilian prosecution side of the scale, I would imagine that most military commanders -- and their SJAs -- would find it politically undesirable to charge civilians themselves. It would be far cleaner to export that discretionary call to DOJ.

Should we have a new CAAFlog pool to predict when the first civilian accompanying the forces in a contingency area will be charged under the expanded Article 2?

John O'Connor said...

My prediction is that the amendment to Article 2 will mostly be used to impose lesser sanctions (minimal forfeitures or restriction) at NJP for minor offenses (like drinking when prohibited, etc.). Where you might see a court-martial is where a civilian contractor is a bad boy in conspiracy with a bunch of servicemembers. There, a commander might just say screw it, court-martial them all. This is particularly true if not court-martialing would mean that the contractor walks away while the soldiers get hammered (such as a serious "military" offense).

No Man said...

I concur that those pesky order offenses and an NJP, or a summary court-martial, will likely be the subject of the first test of the new Art. 2 power. I suspect a Marine commander will take that new power out for a spin sometime between Groundhog Day and Arbor Day. I'll even cough up a copy of a new book on the Korean War that I found on Amazon.com last night for whomever wins the pool.

gene fidell said...

I'm not at all sure NJP extends to civilians who are within Article 2(a)(10).

Anonymous said...

Given the Breadth of Sne graham's language, I wonder how one can believe that Art. 15, UCMJ does not apply to civilians? Until regulations otherwise say no, precedent tells us the UCMJ amendment is effecive now. Further, the language of Art. 15(b)(2) even suggests applicability to persons other than enlisted members of the service, it permits the commanding officer to impose NJP "upon other personnel of his command."