Blogging from the CAAF Conference: Art. 2(a)(10), UCMJ

No celebrity sightings at the CAAF Conference. However, there was an Art. 2(a)(10), UCMJ “citing” between 4 and 5 p.m. The last presenter of the day (the only one I saw) was DoD Assoc. Dep. General Counsel (MilJus and Personnel Policy) Robert E. Reed. Mr. Reed gave us the interesting, and somewhat longer, path that Congress took to get to the current revision to Art. 2(a)(10), UCMJ--adding civilians accompanying armed forces in the field during contingency operations to the list of persons subject to the UCMJ. The presentation included a synopsis of the offenses that Mr. Reed, and presumably DoD, view as not applicable to civilians now covered by the UCMJ, including fraternization and Gambling with subordinates in Art. 134—re-start those Preakness wagers in Iraq!

Most interesting were the list of policy issues put out by Mr. Reed that DoD is considering. DoD is considering three methods to “manage” UCMJ civilian jurisdiction: (1) reach an agreement with DOJ on DOJ’s right of first refusal in concurrent Military Extraterritorial Jurisdiction Act (MEJA)/Art. 2 jurisdiction cases; (2) amend the Manual to withhold commander authority to act against civilians; and (3) amend the manual or implement other guidance requiring transmission of civilian UCMJ cases to higher authority (presumably one with a uniformed lawyer and able to reach out to DOJ and others). Mr. Reed also commented on the unlikelihood that NJP can be applied to civilians under the UCMJ. While he did not dismiss the idea, he seemed doubtful of it being either realistically or legally implemented--I wasn't sure which.

Finally, an issue that Mr. Reed left unaddressed from his handouts at the presentation was the question of whether the term “in the field” applies to civilians stationed INCONUS supporting U.S. forces in contingency operations, as thousands are today. Mr. Reed seemed to think that the answer was yes, but he did not take a position on it. His definition of “in the field” was based exclusively on the relationship between the armed force to which the person was attached and the enemy. Presumably Mr. Reed was addressing those contractors that are stationed stateside and supporting troops in Iraq, or elsewhere, in areas such as IT or logistics.

Notably, Reed also mentioned that DoS/DOJ were considering the case of a Christmas eve killing in Baghdad’s Green Zone, reported by the Virginian Pilot here, and whether the contractor (a DoS contractor, not DoD) involved would be subject to prosecution under MEJA or other law. In a Feb. 8. hearing at the House Committee on Government Oversight, here, though overshadowed by the issue of the death of the 4 contractors in Fallujah, Congress asked the contractor's General Counsel about the prosecution, reported here. However, no information of substance was available. Mr. Reed revealed that the contractor had returned to the United States. I would think there would be constitutional hurdles to a US based prosecution of a civilian contractor under the UCMJ. What rationale would there be for depriving the civilian of his Sixth and Fifth Amendment rights when he was no longer on the battlefield/"in the field" and the case would have no direct effect on good order and discipline, particularly in light of the expanded MEJA jurisdiction that Mr. Reed highlighted that would presumably cover this contractor? For that matter, how could the US government constitutionally strip a person sitting within the jurisdiction of a US District Court of their rights under the Fifth and Sixth Amendments merely because their job supports/ed (past or present tense) someone "in the field?" We'll keep following the case.