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Ms. Hamaguchi concludes that the exercise of court-martial jurisdiction over civilian contractors in contingency operations will likely be upheld as constitutional:
[T]he section 552 amendment to 10 U.S.C. § 802(a)(10) faces major constitutional barriers but may nonetheless pass muster when applying the framework established in [Reid v. Covert, 354 U.S. 1 (1957)]. Undoubtedly, despite major improvements to the UCMJ and the greater rights it often affords, the remaining due process concerns regarding jury composition and military-specific offenses are extremely significant. Nevertheless, as dicta in Reid suggest, Congress's power under Article I, Section 8 may warrant application of the UCMJ in contingency operations. At the very least, it keeps the door open. Unlike 10 U.S.C. § 802(a)(11), which was found to be unconstitutional in Reid, the amendment to § 802(a)(10) is narrowly focused on declared wars and contingency operations, which fall under Congress's Article I, Section 8 authority. If the power to subject civilians accompanying the force to the UCMJ was inherent in Congress's authority to declare war prior to section 552, then it follows that Congress should be able to subject civilians to the UCMJ in war-like contingency operations without having to actually declare war. Section 552 aims to do just that.Id. at 1065-66.
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4 comments:
I am a believer that Congress has quite broad constitutional powers to subject civilians to trial by court-martial for offenses committed in the field during what is for all practical purposes a war, whether declared or not. But if you look at the types of activities that have been designated as "contingency operations" over the last twenty years, I have a hard time seeing the Supreme Court upholding court-martial jurisdiction over civilians for some of them.
JOC best me to the punch on that response. Since we have seen a slew of articles saying A OK to the new amendment, I am writing one saying not A OK. While me saying I am writing an article is about like a political candidate saying they are going to cut spending, this time I mean it. Not only are some contingency operations not like war, but the problem with many contingency operations is they are indefinite and have no end in sight, I can't think of any good examples off hand but I am sure I will find two by the time I get the article in draft. While the Overseas Jurisdiction Cmte in 1997 previewed my thesis, I will try to get the heart of the argument out to CAAFlog readers. Now to find an unwitting journal to publish my rants.
What operations these days count as "contingency operations"? Is there an official list somewhere?
JO'C,
Can we test your thesis with some original intent?
Whiskey rebellion? War of 1812? Civil war? Draft protests? Japanese intern camps? Merchant ship misbehavior?
Some or all of these incidents must have involved naughty civilians. Were any court-martialed?
Congress also has a sergeant at arms and a jail. Not used since (I think) the 20's. Maybe Congress will arrest Karl Rove for contempt and we will discover how muscular Congress feels about its powers.
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