Tuesday, June 30, 2009

Recent "Military" Justice (MEJA) - An Odd Twist on an "Old" Law

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ's summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.
As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit "the offense with one or more other defendants, at least one of whom is not subject to" the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I'd say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically "subject to the UCMJ." Who in these procurement fraud cases isn't subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don't know that such a metric has been borne out yet, though you would think in 3 years it would have. I'll get back to everyone with some stats later this week.

Second thought--not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that's not an issue. Also, the lead in portion of subsection (d) discusses "member of the Armed Forces subject to . . .," whereas the exception in (d)(2) omits the "member of the Armed Forces" language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.


John O'Connor said...

I have my doubts that any of the contractors serving in Afghanistan are subject to the UCMJ, even under the amendment to Article 2(a)(10), both as a matter of statutory construction and Constitutional law.

Mike "No Man" Navarre said...

I concur with Mr. O'Connor on the constitutional issue, but, as a statutory matter, I am guessing that the USG would contend Art. 2(a)(10) still applies in Afghanistan in light of the on going contingency operation there.

John O'Connor said...

Oh, I'm pretty sure the USG would say there is jurisdiction both constitutionally and statutorily.

The statutory basis would depend on the fact-specific question of whether these contractors qualify as being "in the field," which is a term of art with an historical meaning.

As a constitutional matter, I'm not sure you can subject contractors to trial by court-martial without overruling, at least in part, a series of Supreme Court decisions from 1955 to 1960.