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If the UCMJ Doesn't Fit, You Must Acquit

11/15/2010 01:36 pm ET | Updated May 25, 2011

Let's take another look at the applicability of the Uniform Code of Military Justice (UCMJ) to private military and security contractors.

In 2006 Congress took what was portrayed as an important step towards holding contractors accountable with section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007. This legislation amended Article 2(a)(10) of the UCMJ granting military jurisdiction over civilians accompanying armed forces during a "contingency operation" - essentially allowing the military to court-martial civilians deployed with U.S. military forces.

Lots of people hailed this step. But since then it has been recognized by many legal scholars and lawyers that it raises very serious constitutional questions, and a significant prosecution under this new law will likely result in a challenge that will reach the Supreme Court.

But wait, don't totally abandon hope yet. According to Matthew Dahl, who wrote the article ""Runaway Train: Controlling Crimes Committed by private Contractors Through Application of the Uniform Code of Military Justice"in the Spring 2010 issue of the Barry Law Review there are alternatives.

But first some background. Dahl notes that attempts to control crimes committed by civilians accompanying armed forces overseas has been a problem since the Supreme Court's decisions in Reid v. Covert and United States v. Averette. The Reid case involved an appeal by two wives of active duty servicemen that were found guilty, in court-martial proceedings, of killing their husbands. Both appealed the convictions arguing that court-martialing civilians was unconstitutional.

The Court in Reid found that the military court-martial system did not effectively protect the right to a trial by jury promised to civilians in Article III section 2 and the Sixth Amendment, and it also abridged the Fifth Amendment right to a grand jury. It also analyzed Article I section 8, clause 14 of the Constitution, which gives Congress the ability to make rules for regulation of the land and naval forces. The Court reasoned that the "land and naval forces" referred only to members of the armed services and not civilians accompanying armed forces. The government relied on the Constitution's
Necessary and Proper Clause to show that Congress could subject civilians to military law, but the Court countered by saying that the Necessary and Proper Clause could not trump the guarantees given to civilians by the Bill of Rights. The opinion recognized that lower federal courts had upheld civilian courts-martial before, but that those courts-martial were conducted under the government's "war powers" that arise during a time of active hostility. Because the wives' cases happened during peace-time that congressional authority did not exist; therefore, both of the courts-martial were struck down as unconstitutional.

Thirteen years after Reid, the U.S. Court of Military Appeals decided the case of United
States v. Averette. Averette arose during the Vietnam War when a civilian employee of the Army was caught stealing 36,000 batteries from the U.S. government. He was convicted by court-martial and appealed. In a short opinion, the U.S. Court of Military Appeals adopted a strict construction of the phrase "in time of war" finding that the phrase referred only to a congressionally declared war. Since the Vietnamese conflict was not a congressionally declared war, Averette's trial by court-martial was declared unconstitutional.

While the court's decision struck down the court-martial, the Averette opinion did make an interesting comment regarding the courts-martial of civilians, saying that Congress could use its legislative power to allow civilian courts-martial if it amended the Article 2(a)(10). While the opinion left this possibility open, it also offered a caveat by saying that it did not presume the constitutionality of civilian courts-martial should Congress decide to pass the legislation.

According to Dahl:

Taking Reid and Averette together, the real questions become: 1) if Congress changes Article 2(a)(10) to allow for civilian courts-martial during a time of something other than a congressionally declared war, will such a court-martial still be constitutional?; and 2) will the Court strike down any law permitting civilian courts-martial because it would automatically violate the rights that concerned the Court in Reid?

Bear in mind that crimes by civilians accompanying armed forces overseas was a concern long before the U.S. invades Afghanistan or Iraq. In fact the U.S. General Accounting
Office ("GAO") issued a report in 1979 detailing the dangers of the restricted jurisdiction over these civilians. The GAO reported that a series of Supreme Court cases from 1957 to 1960 eviscerated the United States' ability to prosecute crimes committed by civilian employees overseas. It reported further that, from 1960 to 1979, the United
States sent 343,000 civilian personnel and dependents overseas, but had no power to prosecute crimes committed by these people.

The Vietnam War was an excellent example of the inability of the United States to prosecute overseas crimes by U.S. civilian personnel. At the peak of the U.S. buildup in Vietnam, it is estimated that there were over 10,000 civilian government personnel and contractors present in the country. Due to an unclear agreement between the U.S. and Vietnam the question as to jurisdiction over criminal actions by civilian personnel became a major concern. Even though the agreement was unclear, U.S. military forces still had the option of court-martialing civilians that committed crimes in Vietnam. That option ended in 1970 when the Averette opinion was handed down. Since Vietnam was not a congressionally declared war, courts-martial of civilian personnel were no longer possible. Instead, the U.S. military was forced to adopt administrative sanctions (debarment), which merely removed an offending civilian's military privileges, taking away the civilian's ability to be employed in Vietnam.

The GAO report concluded that all criminal offenses, petty and serious, committed by U.S. civilian personnel overseas should be subjected to prosecution by U.S. authorities. After the GAO Report, Congress attempted to cure the jurisdictional gap, but the proposed legislation never garnered enough support to become law. And, with the Vietnam War over, the issue of what to do with U.S. civilian personnel deployed overseas faded into the background because there were no conflicts which required their services.

There the issue rested until after the end of the Cold War, which marked the latest uptick in using civilians as a significant part of deployed armed forces. In 1996, Congress created the Overseas Jurisdiction Advisory Committee ("OJAC") to take another look at this problem.

The OJAC considered options for applying criminal laws to the actions of civilians accompanying U.S. armed forces outside of the United States as a way to bridge the jurisdictional gap. It compiled a major report for Congress that analyzed the increasing use of civilians in armed conflicts and concluded that legislation was needed to control criminal activity by civilian personnel operating with U.S. armed forces. The conclusions of the OJAC would create the basis for the new amendment to Article 2(a)(10) that granted court-martial jurisdiction over civilians accompanying an armed force in a
contingency operation.

The OJAC recognized two existing gaps in jurisdiction over government civilian employees and contractors that accompanied armed forces overseas. The first gap was the lack of court-martial jurisdiction over crimes committed by civilians accompanying a U.S. armed force. The OJAC report stated it was imperative that the military be able to enforce the UCMJ over civilians because of the increasing integration of civilians into military operations.

Although it has been over four years since the UCMJ was modified by Congress there are still several problems. Dahl notes it is questionable whether Congress can pass a law that subjects contractors to power of a military court. The potential constitutional challenges that it faces are as follows:

There are two major Bill of Rights concerns with respect to the new Article 2(a)(10). The Fifth Amendment grants a criminal defendant the right to an indictment by a grand jury. If a contractor were prosecuted through the U.S. civilian justice system his case would be sent to a grand jury to determine whether there is enough evidence to move forward with the case. These proceedings are secret, and the accused and his attorney are not allowed to be present.

In contrast, the military justice system does not provide for the right to a civilian grand jury, but does provide for access to an analogous proceeding. As opposed to secretive civilian grand jury proceedings, the military justice system's grand jury equivalent allows for proceedings in which the accused and his counsel may be present, and the accused may cross-examine witnesses. This means that the military proceeding actually provides an accused person with more rights than a civilian grand jury. Given these expanded rights a court should have little trouble in finding that a court-martial provides sufficient Fifth Amendment protection to civilian contractors.

More contrast is found between civilian and military criminal processes when the Sixth Amendment is examined. Two issues exist with respect to the Sixth Amendment right to an impartial jury. First, the Manual for Courts-Martial only requires that the jury consist of five members. The Constitution does not require that a jury contain a certain amount of jurors, but the Supreme Court's decision in Ballew v. Georgia specifically held that a panel of five jurors was insufficient to meet the requirements of the Sixth Amendment. Furthermore, the military justice system does not require a unanimous verdict for a conviction. Again, unanimity is not a requirement for due process to be met, but when coupled with the military's lower numerical requirement for jurors, non-unanimous verdicts could potentially violate constitutional rights of civilian defendants.

The other Sixth Amendment concern is the composition of military juries. While civilian juries are chosen from diverse civilian populations in the district where the trial is to be held, military juries are chosen from active duty members of the military. Courts-martial do allow for a similar voir dire procedure, but this procedure may not be as effective when jurors are chosen from a more homogenized group than would be found in the civilian world. Another concern is that soldiers may harbor ill will towards civilian contractors leading to military juries being more likely to convict a defendant who is a contractor.

Of these two constitutional hurdles, the Sixth Amendment concerns present a greater obstacle than those of the Fifth Amendment. The Sixth Amendment confers what are considered "fundamental rights." Fundamental rights receive a great deal of protection from the courts and are rarely susceptible to government infringement. For this reason, the Sixth Amendment issue as to courts-martial, create the biggest threat to the new Article 2(a)(10). Furthermore, the Court's decision in Reid v. Covert seemed to be more concerned with Sixth Amendment violations than Fifth Amendment violations because courts-martial are less protective of Sixth Amendment rights.

If the new law granting court-martial jurisdiction over contractors is challenged under this fundamental rights theory the government will have to show a "compelling interest" for infringing on the Sixth Amendment. The government will have to convince a court that allowing for courts-martial of contractors is a vital interest achieved by the new law. In addition to a compelling interest the government will have to show that the new law is necessary to achieve its objective, which means it must show that it could not obtain its goal through less restrictive means.

The fundamental rights argument will be an onerous burden to overcome. Showing a compelling interest should be the less difficult of the two prongs. The government could try to make the argument that such action is necessary in order to win a war. As has been noted above, crimes by civilian contractors hurt the military's mission and make it substantially more difficult to accomplish, but a court may find this too tangential to allow intrusion on a fundamental right. A better argument could be that the compelling interest is in seeing criminals brought to justice and many criminal acts committed by contractors have thus far gone unpunished. Punishment of these criminals is more likely to be achieved through courts-martial because of the substantial obstacles facing civilian
prosecutions of criminals in conflict zones.

Showing that there is no other reasonable, less intrusive path will be more difficult because another path already exists in the form of the MEJA statute. The MEJA allows for prosecutions of these same contractors, but allows them to proceed through civilian prosecuting authorities in civilian courts with all of the normal constitutional protections. A counter-argument is that the MEJA has thus far been a virtual failure. Since its passage very few civilian criminals have actually been prosecuted, and the U.S. Attorney's offices responsible for carrying out the prosecutions seem reluctant to do so. Again, this is because of the financial and practical difficulties that are posed by prosecutions of crimes that happen in a war zone thousands of miles away. The government could make the argument that the only way justice can truly be achieved is by allowing military courts to conduct them, and the military is much more able to investigate the crimes and conduct the trials than the civilian justice system.

But Dahl notes that there are Supreme Court precedents that will allow legislation that substitutes traditional procedures with alternatives to be constitutional. Certain situations sometimes require civilians to have their usual protections modified. In Ex Parte Milligan, the Court recognized that the Writ of Habeas Corpus may be suspended. In the recent but related case of Boumediene v. Bush, the Court considered whether the Combatant Status Review Tribunals ("CSRTs") provided sufficient procedural protections for prisoners being held as enemy combatants.

In Boumediene, the Supreme Court found that the CSRTs of prisoners deemed "enemy combatants" did not provide procedural protections that comported with the constitution. These CSRTs are analogous to the courts-martial allowed by the new Article 2(a)(10) because they are military justice procedures used against individuals who are not formally connected to the military. The alleged procedural deficiencies of the CSRTs included: 1) the fact that the detainee was not allowed to have a lawyer assigned to his case; 2) the government's evidence at the CSRT was presumed to be valid; 3) the ability of the detainee to rebut the evidence was extremely limited; and 4) the appeals process was insufficient to cure these deficiencies. All of these factors led the Court to determine that the process afforded to these detainees failed to meet constitutional minimums. Although the Court found the CSRTs were not a sufficient alternative, it did not find that procedural alternatives would never suffice.

The Court could consider a court-martial to be a sufficient procedural alternative because court-martials provide an accused more rights than the CSRTs. To begin, the accused is entitled to counsel. Furthermore, court-martial proceedings protect the accused against unlawful searches and seizure, compelled self-incrimination, and allows for discovery of evidence. As stated above, the military grand jury equivalent lends itself to more protection for an accused than its civilian counterpart. Also, the military appellate process affords greater protection on appeal than civilian trials because every case is reviewed de novo, allowing for more scrutiny into the actions of the trial court. These significant differences between a military judicial process the Court found to be unconstitutional (the CSRTs) and courts-show that courts-can, and should, be deemed to be a sufficient alternative to civilian trials for those civilians that accompany armed forces overseas.

Dahl's conclusion is:

The ultimate goal is to serve the ends of justice. Unless the alternatives mentioned in this paper, or similar measures, are effectively implemented allowing for the courts-martial of contractors, the ends of justice will not be achieved. There has thus far been no indication from the contracting community that they wish to include contract provisions that will subject their employees to court-martial jurisdiction. Without cooperation from the contracting community, that alternative will not be realized. The MEJA is a promising alternative to court-martial jurisdiction in theory, but effectively putting it into practice has proven to be a problem. Relying on civilian prosecuting authorities to carry out prosecutions of crimes committed thousands of miles away has resulted in consequences for only a few criminal acts. The fact is that the burden on civilian prosecutors and courts here in the U.S. may be too overwhelming to allow for justice to be served via the MEJA statute. If this is true, then requiring the courts-martial of civilians is a necessary step in controlling contractor crime.

Without a viable alternative, courts-martial of contractors working with U.S. armed forces must be permitted because it allows for rapid response to crimes and more rapid judicial procedures. This increased reaction speed also allows for military commanders to more effectively control their operational area which helps maintain morale amongst those under their command. Due to the increased effectiveness and efficiency in carrying out justice allowed by the new Article 2(a)(10), it should be held to be a constitutionally sufficient procedural alternative to trials in civilian court.