Sunday, April 27, 2008

Fascinating 1997 Memo on Amending Art. 2(a)(10)

I stumbled over this last night, and what a night of reading it was. This 1997 memo from the Overseas Jurisdiction Advisory Committee (OJAC) of the DoD General Counsel's Office is a fascinating piece of history on the first proposed amendment to Art. 2(a)(10), which until tonight I never knew existed. The memo's authors included many uniformed judge advocates that our readers will know, including, Brig. Gen. John Cooke, USA, CAPT Richard Schiff, USN, Col. Charles Trant, USA, and then Col. Robert E. Reed, USA.

The bottom line recommendation of the committee was to amend Art. 2(a)(10) to include civilians under the UCMJ in times of declared contingency operations. Where have I seen that?

But, the devil is in the details. The Committee had the following to say about which contingency operations and personnel should fall within their proposed amendment:

The committee believes that creation of a "contingency operation'' by operation of law under section 101(a) (13) (B) is not sufficiently precise to limit application of new Article 2(a) (13) to the areas affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee's recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article 2(a) (13). This will permit the Secretary the flexibility to include civilians participating in the contingency operation in the place that is the objective of the contingency operation, and also those directly supporting the contingency operation in other nearby places. However, this provision will also protect civilians at installations far removed from the site of the contingency operation, even though their work may have some connection to that operation.
In case you were wondering, the current conflicts in Iraq and Afghanistan fall under 10 U.S.C. 101(a)(13)(B). See Major Karl Kuhn, Field Manual (FM) 3-100.21, Contractors on the Battlefield, Supersedes FM 100-21, Army Lawyer, at 137 (Jan. 2004). Interestingly, one rationale for this distinction was taken from an article by Major Susan Gibson titled "Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem." The Committee wrote:
Major Gibson emphasizes that the exercise of military jurisdiction in [only 10 USC 101(a)(13)(A) contingency operations] would be limited in scope and time: few civilians would be covered and contingency operations are, by definition, of limited duration.
The Memo contains lots of other great perspectives about contractors on the battlefield. I'll post anything else that I find of interest. How did I miss this before?

4 comments:

No Man said...

Noticed some grammar errors, I'll fix after tee ball today

John O'Connor said...

"Noticed some grammar errors, I'll fix after tee ball today."

With hard work, No Man, I'm sure you'll make it to "coach pitch" baseball someday. Keep your head up. And remember, you have to tag up on fly balls.

No Man said...

Tag up on fly balls, I get to run all the bases every time I hit and the ball makes it to first base only about 10% of the time.

Found some more interesting stuff in the memo. Here are some exceprts from the OJAC's review of British treatment of civilians accompanying UK forces:

According to the United Kingdom's Ministry of Defence, there is little opposition in Parliament or in the British public to the exercise of military jurisdiction over civilians. The greater focus appears to be on negotiating with host countries to obtain British jurisdiction over its nationals rather than leaving them subject to the host country's jurisdiction.
From 1994-1995, U.K. Army and Air Force courts-martial tried nine
civilians for offenses ranging from disorderly conduct to murder.
In the same period Army and Air Force SCCs tried 52 civilians for
assault, theft, burglary, and drug and traffic offenses.

1997 Memo at 31-32. SCC stands for Standing Civilian Court, something that I think might fit well with some of the reform proposals floating around in the CAAFlog comments. Not sure if I am there yet.

No Man said...

I think the OJAC Cmte's own listing of contingency operations (which include Rwanda and haitian humanitarian assistance) runs counter to a point they make:

In the Reid v. Covert
line of cases, the Supreme Court held that trials of DoD
civilians by courts-martial were not constitutional. However,
these holdings stand only for the proposition that, during peacetime, civilians do not fall within the scope of Congress'
power over the armed forces. Contingency operations contemplate the potential of armed ostilities, a condition that also falls outside the scope of these holdings.

1997 Memo at 47. I also really like the safeguards the memo recommends to limit the reach of UCMJ civilian jurisdiction that are not present in the current Art. 2(a)(10) amendment:

The Committee intends that such a
provision not be construed to cover all civilians accompanying
the forces in overseas locations just because there is a contingency operation somewhere in the world. For this reason the committee recommendation includes two safeguards. First, the
committee recommends that only a "contingency operation,"
expressly designated as such by the Secretary of Defense under
section 101(a)(13)(A), should serve to attach court-martial jurisdiction under the proposed new Article 2(a) (13).
committee believes that creation of a "contingency operation'' by
operation of law under section 101(a) (13) (B) is not sufficiently
precise to limit application of new Article 2(a) (13) to the areas
affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee's recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article 2(a)(13). This will permit the Secretary the flexibility to
include civilians participating in the contingency operation in
the place that is the objective of the contingency operation, and
also those directly supporting the contingency operation in other
nearby places. However, this provision will also protect
civilians at installations far removed from the site of the
contingency operation, even though their work may have some
connection to that operation.

1997 Memo 52-53. Interestingly the OJAC Cmte says later in the article that their constitutional analysis is premised on a limited jurisdictional grant to only 101(a)(13)(A) contingency operations and the other safeguards (some of which, but defintiely not all, were enacted in SecDef's Mar. 10, 2008 memo).

A thorough and well written memo. Well worth the read for Art. 2(a)(10) buffs, a small crowd so I won't worry about the link overwhelming the fas.org site.