Monday, March 31, 2008

Another Art. 2(a)(10), UCMJ Article

'Tis the season for Art. 2(a)(10) publications. This article, by Kara Sacilotto, a partner at Wiley Rein, is titled Jumping the (Un)Constitutional Gun" Constitutional Questions in the Application of the UCMJ to Contractors, 37 Pub. Contract. L. J. 179 (Winter 2008). I'll try to get a link to an electronic version from the ABA later today. This is another article published as a result of the 2007 ABA conference session on the application of the UCMJ to civilian contractors.

With another article comes No Man's continued stream of BZs for another good article on this topic, but again an issue with the conclusions in the article---which is not to say they are poorly reasoned, I just disagree. First, I should note that I wholeheartedly agree with her conclusion that MEJA is "arguably preferable for crimes committed overseas by civilian contractors," though I would omit the arguable. However, Ms. Sacilotto references SecDef's withholding memo that was still in draft at the time of her article and we discussed recently, memo available here. She states, "If DoD rejects the JSC's recommendations and permits application of the UCMJ for offenses committed within the United States, the Court may be more likely to find that Congress went too far."

My disagreement with that conclusion is with the assumed scope of SecDef's Art. 22, UCMJ withholding power. SecDef cannot restrict the class of persons upon which the UCMJ can be applied. SecDef can only withhold to itself commanders' ability to exercise that power. The ability to prosecute contractors "serving with or accompanying an armed force in the field" during "contingency operations" still resides in SecDef pursuant to the congressional grant in Art. 2(a)(10). Thus, if an attack on Art. 2(a)(10) as amended is a facial challenge, SecDef's withholding memorandum has no effect on the challenge. An as applied challenge, would also be unaffected by the memo because the memo only affects who may prosecute a particular individual, not if the individual may be prosecuted under the UCMJ.

I think that a decent argument can be made that the commonly understood, and generally accepted, meaning of the terms of the statute may be at odds with the construction that Ms. Sacilotto states would allow the courts to narrowly construe the statute to make it constitutionally acceptable. Since Congress, via Sen. Graham the drafter of the provision, was well aware of these definitions, one would think they would apply to the statute. But, I will let our readers draw their own conclusions about whether the terms of the statute can be constitutionally construed . . . and I just don't have time to pull all the research cited in the article (at 192-199, 210-12 and accompanying footnotes).

4 comments:

Anonymous said...

I agree. Military courts are the minor leagues, this type of litigation belongs in the majors.

anthony giardino said...

I think a valid argument could be made that there is no constitutional violation where a contractor could be found to have a military status based on the Solorio-McElroy-Grisham-Reid line of cases. In my law review note that was published last May (48 B.C. L. Rev. 699), I tried to briefly examine the validity of applying court-martial jurisdiction to a contractor in light of the existence of the MEJA on pp.718-720. An interesting question is how you define military status for the purposes of "falling within the term 'land and naval Forces'" for a contractor. Should there be some sort of totality test applied to contractors based on their specific circumstances? If contractors are part of today's total military force, is that sufficient to consider them as having a military status and thus within the reach of Art 2? The closest example of a contractor with a military status, in my mind, would probably be a DoD contractor who wears a uniform with 'DoD' insignia on the collar, who performs an inherently military activity, who reports to a military supervisor, and who billets with military personnel.

John O'Connor said...

Anthony:

I agree with you that there is a long history of court-martial jurisdiction over certain defined classes of civilians, such as navy paymasters, camp suttlers, and the like. I assume that will have some signficiance in the constitutional analysis, but the precise place where the line will be drawn by the courts is what will be the issue.

No Man said...

Anthony:

Your article was ctied by Ms. Sacilotto for that and other reasons, good on you.

I am not sure I am as ready to read contractors into the "land and Naval forces" provision because of contractors status under the Geneva Covnentions as non-combatants vs. combatants. I think the "land and Naval forces" category, though just a label, blurs the int'l law distinction and has the potential to cause mischief in other arenas such as the status of unlawful combatants, the status of private security contractors under the conventions and int'l law, and the requirements that would be imposed on DoD and other private security contractors if they were considered part of the "land and Naval forces."

I also think that the text of the UCMJ will be the first place that courts must look. The UCMJ gives some hint as to whom Congress meant to include within the UCMJ when serving with an armed force, see e.g. Art. 2(c). Military personnel law also has some very archane, but well established meanings for the term force as used in the context of regular and reserve forces.

In any event, I like your argument and I have to admit it is one of the more creative arguments arguments out there.