Thursday, July 19, 2007

Article 2 article

The Spring 2007 issue of the Journal of the National Association of Administrative Law Judiciary includes an article on the expansion of court-martial jurisdiction to civilians accompanying our forces in the field during contingency operations, as well as in time of war. Katherine Jackson, Not Quite A Civilian, Not Quite A Soldier: How Five Words Could Subject Civilian Contractors In Iraq And Afghanistan To Military Jurisdiction, 27 J. Nat'l Ass'n L. 255 (2007). The author concludes that the courts will likely strike down this expansion of court-martial jurisdiction:
The determination of whether the provision is constitutional depends on whether the Supreme Court determines either: 1) that civilian contractors are members of the "land or naval Forces" under the Constitution, or, 2) that contingency operations are so akin to war that the infringement on individual rights is justified by the circumstances. In light of precedent, neither of these outcomes seem likely.

Sorry, No Man -- I did a word search in the article, and "Apprendi" doesn't appear. So the article reaches only one of your two "interests."


Anonymous said...

For those interested, a prescient article from 2006 argues for expanded UCMJ jurisdiciton.

Now how do I get that article without a billing number . . . .

John O'Connor said...

I could imagine a "contingency operation" that is so far divorced from war that it exercising court-martial jurisdiction over a contractor might not pass constitutional muster. That said, there's a long history of courts-martial for civilians accompanying the armed forces in the field, and it seems to me that the Supreme Court (see Solorio) places great value on historical practice. In fact a number of the Supreme Court cases addressing courts-martial in the nineteenth and early-twentieth centuries involved Navy paymasters aboard ship, who were not in the service, caught with their hands in the cookie jar.