Wednesday, March 12, 2008

SecDef Art. 2(a)(10) Withholding memo

Secretary of Defense Gates signed the much awaited memo withholding certain aspects of authority to exercise UCMJ jurisdiction over civilians serving with or accompanying US military forces, available at here. I think the memo is a balanced exercise of the jurisdictional grant that was dumped in DoD's lap by Reserve Judge Advocate Senator Lindsay Graham in late 2006.

Authority to assert UCMJ jurisdiction over subject civilians INCONUS (or acts that occurred INCONUS) is reserved to SecDef. Alleged illegal acts occurring OCONUS may only be acted upon by combatant commanders and their reporting GCMCAs. Other prudent limitations, including DoJ's right to short circuit prosecutions by informing DoD that it will exercise MEJA or any other jurisdiction over the case, are included in three attachments. Comment away because I need to catch a flight---so pardon any typos. So long from the Big Easy.

UPDATED: It was 2:15 EST so I went through security an hour early for my flight, so much for that GPS function. I've noticed some trouble with the link to the memo, appears the file size is too large. Trying to correct, but the Big Easy Int'l Airport web access is spotty. I'll try to upload a smaller file tomorrow.

UPDATE #2: Done. Finally got better service. the link should work now, try here too.


Anonymous said...

What exactly is the source of the authority to discipline contractors by non-judicial punishment?

Although Art. 15 has a passing reference to a CO's authority to NJP "other personnel of his command" (I think it's plainly just to distinguish them from "officers of his command"), it's not clear to me that the statute or its implementing regulations actually encompasses the NJP of civilians.

Does it necessarily follow that just because these are now persons "subject to the code" that they are now also subject to NJP?


Anonymous said...

With the Denedo decision so fresh in our minds, it brings up a related issue. You would have to accept Davis and Denedo in order to apply Art. 66 and 67 jurisdiction in the case of a civilian tried by court-martial, since there is no such thing as continuing personal jurisdiction -- you can't award a punitive discharge, and you can't keep the civilian on appellate leave until the appellate process was completed.

Anonymous said...

Why would this be the case, since in Averett, 19 U.S.C.M.A. 363 (1970), CMA reviewed Appellant's claim that the Vietnam war did not constitute "in time of war." If the civilian could petition CMA under the old Art. 2, I wonder why they couldn't under the current?