More Article 2 analysis

The recent expansion of court-martial jurisdiction over civilians accompanying our forces in the field in contingency operations is generating a good deal of analysis. We recently noted a law review article questioning the constitutionality of this expanded court-martial jurisdiction. Now NIMJ has posted a link to a Congressional Research Service report called, "Private Security Contractors in Iraq: Background, Legal Status, and Other Issues" (July 11, 2007). Pages 20-24 of the report include an interesting analysis of the constitutionality of the recent change to Article 2 and how it should be interpreted.

The report notes that the amendment "is likely to be challenged on
constitutional grounds." Id. at 20. The report notes the Supreme Court's observation in Madsen v. Kinsella that in occupied areas, "the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with Army or not." Id. at 22 (quoting Madsen v. Kinsella, 343 U.S. 341, 35, & n.10 (1952)). The report's authors reason that "[i]f Madsen remains valid, if and for so long as the United States is considered an 'occupying power' in Iraq, it may be acceptable under the Constitution to subject DOD contractors there to military jurisdiction." CRS Report at 22.

The report also helpfully observes that the "phrase 'serving with or
accompanying' the forces was historically construed to require that the civilian's 'presence [must be] not merely incidental to, but directly connected with or dependent upon, the activities of the armed forces or their personnel.'" Id. at 23 (quoting United States v. Burney, 6 C.M.A. 776, 788, 21 C.M.R. 98, 110 (C.M.A. 1956)). "The phrase 'in the field' means serving 'in an area of actual fighting' at or near the 'battlefront' where 'actual hostilities are under way.'" Id. (quoting Reid v. Covert, 354 U.S. 1, 35 (1957)). "Whether an armed force is 'in the field' is 'determined by the activity in which it may be engaged at any particular time, not the locality where it is found.'" Id. (quoting Burney, 6 C.M.A. at 787, 21 C.M.R. at 109). The authors therefore conclude that "contractors will not be subject to military jurisdiction merely because of their employment in Iraq. They might, however, be subject to jurisdiction even if the conduct occurs outside of Iraq, so long as there is sufficient connection to military operations there." Id.