12/27/2011 10:24 am ET | Updated Feb 26, 2012

Why JAGs Won't Be Prosecuting PMCs

Although it was only about five years ago, it seems like almost yesterday that people concerned over the control and accountability of private military and security contractors operating in conflict zones were celebrating a change to U.S. law that was supposed to ensure that contractors operating in combat zones were now subject to the Uniform Code of Military Justice (UCMJ . Congress quietly made this change as part of the FY 2007 Military Authorization Act.

The amendment made a very small, but important change to Article 2 of the UCMJ. Under previous law, the UCMJ only applied to civilians in combat areas during periods of war declared by Congress.

Paragraph a (10) of Article 2 originally read, "(10) In time of war, persons serving with or accompanying an armed force in the field." This was a problem, given today's neutered legislative branch, when it comes to foreign policy, which rarely opposes a president's decision to go to war. This is because in a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war.

The new provision changes this paragraph to read: "In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field."

This change was greeted with much joy but not by me. As a veteran I was always skeptical that the courts would countenance putting civilians under military authority, especially given the Supreme Court's near-total repudiation of military jurisdiction over non-service members in a host of past decisions. My view is that if you are waiting for a future episode of JAG where military lawyers try a PMC don't hold your breath.

I've written as much in the past but given that I'm not a lawyer nobody cares what I think. That is entirely fair. So as an alternative let's look at an article published in the Tennessee Law Review last year. It is CONTRACTORS AND COURTS-MARTIAL by John F. O'Connor.

Since I am not a lawyer, I cite extensive from O'Connor's article. As his abstract notes:

In 2006, without recorded debate, Congress amended Article 2(a)(10) of the Uniform Code of Military Justice (UCMJ) in an attempt to create court-martial jurisdiction over certain contractors and other civilians serving with the military in the field. The military has court-martialed one civilian contractor pursuant to this amendment, and tried to court-martial three others, only to back down in the face of constitutional challenges brought in federal court. Congress's attempt to recreate court-martial jurisdiction over civilians-a practice that was dormant for nearly forty years-is likely unconstitutional. Existing Supreme Court precedent does not appear to sanction this newly created jurisdiction. Nor can Article 2(a)(10) be squared with historical practice, which limited the court-martial of civilians to conduct occurring in a theater of war when no civilian court forum was available. Because Congress has created a federal court forum to try offenses committed by civilians accompanying the military overseas, and the military has a practical means to return civilians to the United States for trial in federal court, the narrow circumstances that historically supported a limited number of civilian courts-martial no longer exist.

Why might a civilian court (my emphasis) have qualms over allowing the military to try civilians. I mean aside from the fact that a court-martial accused has no Fifth Amendment grand jury right, no Sixth Amendment jury right, no right to a jury of at least six members, and no right to a unanimous guilty verdict. Unlike a defendant in federal district court, who has an automatic right of appeal, a court-martial accused has a right to direct judicial review only if the approved sentence includes a punitive discharge from the service or confinement for one year or more.

Well, for starters there is historical precedent. Although, to be fair, though it is not well appreciated, for the first one hundred seventy-five years of the American Republic, it was well understood that courts-martial had jurisdiction to try certain defined classes of civilians. When the Continental Army adopted articles of war in 1775, it borrowed a provision from the British Articles of War n27 and rendered subject to military law "[a]ll suttlers [sic] and retailers to a camp, and all persons whatsoever, serving with the continental army in the field, though not inlisted [sic] soldiers." One year later, the colonial army reissued its Articles of War with no substantive change to this provision other than deleting the term "retailers" and replacing it with the term "retainers." A "sutler" was "[a] person who, as a business, follows an army, and sells provisions and liquor to the troops." The term "retainers to a camp" included officers' servants, and "[c]amp followers attending to the army but not in the public service," such as sutlers, newspaper correspondents, and telegraph operators.

Although Congress has amended the statutory language over the years the concept that courts-martial would have jurisdiction over specified civilians accompanying the military in the field has remained a part of military law to the present day.

But after the UCMJ was enacted in 1950, because subjecting civilians to trial by court-martial is an extraordinary exercise of jurisdiction, the various versions of this statute have been narrowly construed. Although the early versions of the statutory language did not expressly restrict court-martial jurisdiction over civilians to times of war, the Article has long been understood implicitly to include such a limitation, and the leading military legal commentators of the era expressed the view that any other construction would be constitutionally suspect.

And, notwithstanding the above, since the American Revolution the U.S. legal system the subjection of civilians to trial by court-martial appears to have been exceedingly rare prior to the Civil War, even though the United States fought the War of 1812, the Mexican War, and engaged in regular hostilities with Indian tribes. A more common practice in dealing with misbehaving civilian camp followers was to dismiss them from employment or expel them from the camp. Researchers identified only seven courts-martial of civilians by the United States Army between 1800 and 1860.

During both WWI and WWII there were many legal decisions upholding the Army's power to court-martial civilians. Many of these were rather pedestrian, with courts merely upholding courts-martial that were well within the long-understood boundaries of court-martial jurisdiction over civilians. And generally, after WWII and the enactment of the UCMJ the Supreme Court has generally rejected expanded court-martial jurisdiction over civilians.

But if the U.S. legal system allowed military jurisdiction over civilians in the past might it not do so again? O'Connor believes not:

Applying this historical practice to the modern American military, the circumstances that historically have been found sufficient to permit the court- martial of civilians largely do not exist today, and might never exist again. The historical prerequisites for the court-martial of civilians accompanying the military have been not only the civilian's presence in a theater of war, facing a hostile enemy force, but also the absence of an available civilian forum. In enacting MEJA, [Military Extraterritorial Jurisdiction Act] Congress has created a federal civilian forum for the trial of contractors and other civilians accompanying the military in the field. Of course, as prior Supreme Court decisions have observed, the fact that Congress admittedly has the power to create a federal civilian forum is probably enough to preclude court-martial jurisdiction, though the actual existence of such a forum only strengthens the point.

At least as important as an existing civilian forum, more recent United States military engagements have not involved the large campaign-style wars that characterized its nineteenth-century wars and both world wars, where an army was essentially an autonomous island, separated by logistical realities from friendly civil authority. More recent military engagements instead have involved United States control of the skies and waters, with regular rotations of military units and personnel, and regular administrative transportation between the United States and the theater of operations. In such a situation, there is not only an existing civilian forum for trying civilian contractors but also a reasonably available forum for such trials back in the United States. Thus, the changing nature of war, with more-readily-available transportation in and out of theater, has created an availability of civil jurisdiction that places the present-day court-martial of civilians on a far different footing than the narrow circumstances where the unavailability of civilian courts historically had been viewed as permitting the court-martial of civilians. These days, a federal court forum for trying a misbehaving civilian is but an administrative flight away.

O'Connor concludes thusly:

Regardless, there is little to suggest that a court-martial forum constitutionally may be forced on civilians accompanying the military overseas. Neither the Constitution's text, nor precedent, nor historical practice supports extension of court-martial jurisdiction over civilians on the modern battlefield, since regular administrative transportation typically exists to deliver personnel from the theater of war to the home front, where civilians can be tried in federal district court. That said, the United States survived thirty years from 1970 to 2000 with no practical way to prosecute most contractor misconduct occurring overseas, and has now survived a full forty years having conducted a single (dubious) court-martial of a civilian. The military similarly will survive being deprived of a court-martial power that it does not legitimately have, and which it went without for most of the past four decades.