Saturday, April 05, 2008

How timely: New comment on expansion of court-martial jurisdiction over civilian contractors

The University of Toledo Law Review just published a student comment on the expanstion of court-martial jurisdiction over civilian contractors. Ian Kierpaul, Comment: The Mad Scramble of Congress, Lawyers, and Law Students after Abu Ghraib: The Rush to Bring Private Military Contractors to Justice, 39 U. Tol. L. Rev. 407 (2008).

Kierpaul is critical of the jurisdictional expansion: "The use of court-martial is now a reality and one that must be guarded against. The Founders thought it dangerous and it is questionable if a military panel is capable of effectively punishing private military contractors. Congress, however, because of the mad scramble, failed to adequately address those issues." Id. at 427.

He proposes a "two-pronged approach" to establishing a legal regime to govern civilians accompanying the military abroad. Id. at 438. "First, Congress should pass a law stating that any private military contractor that does business with the United States consents to the jurisdiction of U.S. law and courts." Id. at 438-39. "Second, Congress should pass a law requiring certain hiring, training, and operational standards before a private military contractor may qualify for a contract, thus creating a registration system." Id. at 439. He also suggests the "establishment of federal courts overseas along with a special prosecutor and FBI office." Id. at 440. He would also "require the levying of automatic fines against the company that employed" any private military contractor convicted of an offense. Id. at 441.

Apart from practicality concerns, Kierpaul's proposed solutions do not appear to address the question of jurisdiction over U.S. civilian employees abroad.
Posted by Dwight Sullivan at 10:54 AM
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1 comment:

John O'Connor said...

I had a case in state court in Toledo once, and I assume that there was probably a recent graduate of the University of Toledo School of Law who was clerking for our judge and advised the judge (erroneously in my view) that partial summary judgment should be entered against my client. I would like to think that I harbor no ill will toward the city of Toledo, its law school, or its law students; in fact, I have a perfectly fine fish sandwich when I was in town there.

That said, while student comments should not be held to the standard of articles written by professors or practicing lawyers, it does seem to me that a published student comment should demonstrate some level of intellectual rigor and sophistication above and beyond that required for a law school seminar paper. I don’t really see that in this comment. If I were to guess, I would suspect that the comment began as a fairly good seminar paper, but that during the editorial process certain flaws were identified, and other changes needed to be made to reflect changes in the law, and that there was an attempt to incorporate these new ideas while not revamping the entire comment, and so what you end up with is a mishmash of ideas that are in some places self-contradictory. A few of my basic critiques:

1. The comment is confused (and internally inconsistent) in discussing the jurisdictional state of play that existed at the time that the Abu Ghraib scandal broke. Perhaps the central historical thesis of the comment is that any crimes allegedly committed by contractors at Abu Ghraib prison were outside the criminal jurisdiction of U.S. courts, but the comment proceeds to contradict that premise in the next few paragraphs. On one hand, the author posits that there was no jurisdiction under the Torture Victims Protection Act because Abu Ghraib prison was part of the United States’ special maritime and territorial jurisdiction. But three paragraphs later, the author notes that the Patriot Act expanded the definition of special maritime and territorial jurisdiction in 2001, and the author goes on to note that the federal government in fact prosecuted a CIA contractor for offenses committed in Afghanistan based on the expanded scope of the special maritime and territorial jurisdiction, and further opined that the expansion would cover Abu Ghraib prison as well. Therefore, the author’s ultimate premise appears to be that the federal courts did have jurisdiction for offenses committed at Abu Ghraib, when the author earlier states in multiple places that remedial action occurred because no such jurisdiction existed.

2. The comment states that MEJA would not have covered contractor misconduct at Abu Ghraib because “[t]he Department of the Interior . . . employed the private contractors at Abu Ghraib.” Actually, the entity providing linguists at Abu Ghraib prison was operating under a Department of Defense contract, so contract status would provide no bar to prosecution of any of the civilian linguists identified as potentially engaging in misconduct at Abu Ghraib. This implicates a minor point, where the author asserts that the reason no criminal charges were brought against civilian contractors was a lack of jurisdiction. This is contradicted by the author’s own suggestion that Abu Ghraib was within the special maritime and territorial jurisdiction of the United States. It is also contradicted by the fact – missed by the author – that the linguists worked under a Defense Department contract. Indeed, public documents have identified lack of evidence as a major reason for the government not proceeding with respect to a number of referrals made to it.

3. The comment’s discussion of the issues related to court-martial jurisdiction over contractors is muddled, and this is where I think the author probably got wrong-footed by current events and probably made a heroic effort to avoid making large-scale changes to the comment. First, the author states that Reid v. Covert, 354 U.S. 1 (1957), left open the question whether civilians could be court-martialed in time of war. That might be true, but only with respect to civilians accompanying the armed forces in the field during time of war. Indeed, I think it’s safe to presume from Ex parte Milligan that the existence of war would not create court-martial jurisdiction over civilians generally. But this is a small point. The larger point is the comment seems to have been written with a view, expressed at page 414, that “[a]bsent a declaration of war, a court-martial lacks jurisdiction over civilians accompanying the military overseas.” The comment’s authority for that proposition is United States v. Averette, 19 U.S.C.M.A. 363 (1970). But Averette was legislatively overruled last year by the Graham Amendment, which allows court-martial jurisdiction over certain civilians during a contingency operation. In fact, the comment includes a long discussion of whether Averette is still good law in light of changing international practice regarding declaring war and other reasons, and then, in what reads a lot like an editor’s marginal note, basically says at footnote 206 to “never mind” about the preceding four pages of analysis because Congress legislatively overruled Averette. In reality, because the Graham Amendment completely changed the jurisdictional landscape, it seems that (through no fault of the author’s) a hammer was needed instead of a scalpel to make the necessary changes.

4. The comment posits at page 417 that the political question doctrine could preclude prosecution under MEJA because determining what type of conduct constitutes supporting the mission of a contingency operation is constitutionally committed to the President. I’m not sure I understand that argument. It would be the Executive branch bringing the prosecution, so I don’t really see inter-branch conflicts here that would trigger the political question doctrine. And the author cites only a couple of cases from civil litigation for the notion that the political question doctrine might preclude a criminal prosecution, without ever really explaining how this would be so.

I like student comments and notes; I really do. In fact, before military law became "sexy" in the past few years, a lot of the law review writing on military law came through student notes, and many have proven to be execllent resources. But this comment seems to miss several reasonably basic points, and fails to fully develop some of the other main points raised by the author, and certainly wasn't helped by the passage of the Graham Amendment in what was probably the final throes of the editing process. For CAAF-ophiles, I note that the author cites Sullivan in footnote 177.

DISCLAIMER: I should note that I am one of the counsel participating in some of the tort cases involving allegations of abuse by persons detained by the United States in Iraq. For that reason, I have tried to stay away from discussing the author’s treatment of civil litigation. My silence on that part of the comment should not be construed as agreement.

Mon Apr 07, 01:10:00 PM EDT

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