11/02/2010 11:28 pm ET Updated May 25, 2011

Ahem: About That Great Change to the UCMJ

Was it only four years ago that people were applauding the change Congress made to the Uniform Code of Military Justice (UCMJ), as part of the FY 2007 National Defense Authorization Act?

The provision made a 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."

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."

Academics such as Peter Singer of the Brookings Institution were saying:

1) It's the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasis "potential" here, to finally bring some legal status and accountability to a business that has expanded well past the laws. The old system of hoping to apply extraterritorial civilian law to a military setting 9000 miles away wasn't working, so Congress took a new tack.

2) It gives officers in the field a new tool, that they have asked for a long time, to actually do something about contractor crimes. It also takes away an excuse that is often made to Congress as to why action is not have been taken against a contractor crime, i.e. that military has no authority over such civilians or only has a "coordinating" relationship with contractors in the field.

Lots of people have written enthusiastically about the change. Indeed, last month I cited a law journal article that praised the presumed benefits of the change.

But not all law journals think alike. Thus we turn to the winter 2009 issue of the New England Journal on Criminal and Civil Confinement. It published the article "Court-Martial Jurisdiction Over Civilians in Contingency Operations: A New Twist by Colonel R. Peter Masterton. He is Commander, U.S. Army Claims Service, Fort Meade, Maryland. At the time this article was written he was the Chief Circuit Judge, 5th Judicial Circuit, U.S. Army Trial Judiciary, Wuerzburg, Germany. In this role he tried Army courts-martial in Iraq and Afghanistan. So he has more hands on experience and credibility than most who write on this issue.

He starts off by noting that previously, military commanders had limited ability to prosecute civilians. They either had to be prosecuted by local courts in the combat theater or sent back to the United States to face trial in federal district court under the Military Extraterritorial Jurisdiction Act. Neither of these options have been widely used. Local courts may be nonexistent, and where they do exist, local prosecutors often have been reluctant to prosecute United States citizens. Sending civilians back to the United States for prosecution under the Military Extraterritorial Jurisdiction Act is a complex process that has been little used, except in particularly serious cases. This process resulted in a great disparity between the prosecution of service members and civilians in combat zones.

The new law was designed to remedy this disparity by making civilians and service members subject to the same military prosecutions. But Masterton notes, "Unfortunately, military court-martial procedures were developed for service members, not civilians. As a result, a number of issues will need to be addressed when civilians are tried by military courts-martial."

What are these issues? For starters, when Congress enacted the UCMJ, the primary purpose was to develop a fair system to prosecute service members for criminal acts. After enactment of the UCMJ, the President promulgated the Manual for Courts-Martial (MCM), an Executive Order that supplements the Code. The MCM provides a much more detailed set of procedural and substantive rules than those provided by Congress in the Uniform Code of Military Justice. According to Masterton:

Using the rules in the Uniform Code of Military Justice and the Manual for Courts-Martial to prosecute civilians raises a number of concerns. For example, civilians do not have military rank and may not have a military commander. As a result, some of the military criminal rules, designed with military rank and command-structure in mind, may be inappropriate when applied to civilians. Additionally, civilians traditionally have not faced the same penalties as service members for failing to follow orders, disrespect, and similar crimes.

Those, however, are hardly the only problems. Military offenses, both those defined by Congress and those enumerated by the President, fall into two general categories: (1) offenses that are common to most criminal justice systems, such as murder and rape, and (2) those that are specific to the military, such as desertion. Applying the former category of offenses to civilians raises few concerns. These offenses are similar or identical to those which civilians would face if prosecuted under civilian criminal codes Applying the latter category of military-specific crimes to civilians is more problematic.

Military-specific offenses fall into five categories: (1) absence from one's unit or place of duty; (2) disobedience; (3) disrespect; (4) misuse of position; and (5) wartime offenses, such as aiding the enemy and spying.

Let's look at what Masterton sees as problems. Start with being AWOL. True, punishing civilians for missing work is not new. U.S. Department of Defense civilian employees who are absent without leave can be administratively punished. DoD civilian employees can also be punished for failure to serve in support of combat operations. Certain positions within the Defense Department are designated as "emergency-essential," which means that they are required to ensure the success of combat operations or to support combat-essential systems. Civilians who hold these positions are required to continue performing their duties in the event of a crisis or war and may be required to deploy to a combat zone. Such employees normally sign an agreement specifying that they will continue to perform their duties in these situations. Failure to comply with these agreements can result in administrative punishment.

But, none of these administrative punishments are criminal in nature. Civilian employees who are absent without leave or who fail to comply with a deployment order may only be punished with written reprimands, suspensions, reductions and removal; there is no authority to confine such employees for these offenses. Applying military criminal offenses such as desertion, absence without leave, and missing movement to civilians, would be a major change in the law.

Then, there is disobedience. Crimes involving disobedience include a violation of a written order or regulation and failure to obey an order issued personally to an individual, either orally or in writing.

Civilians are currently subject to administrative discipline for disrespect to a supervisor. However, the authorized punishments only relate to pay and continued employment. Prosecuting civilians for the criminal offense of disrespect and subjecting them to confinement if convicted would be a major change in the law.

Ironically, subjecting contractors to the UCMJ may actually hinder prosecution according to Masterton. He notes:

The speedy trial rights of an accused are greater at a court-martial than in many civilian jurisdictions. An accused at a court-martial is guaranteed the right to a speedy trial under the Sixth Amendment of the United States Constitution, which is triggered when charges are preferred. Additionally, the accused is protected by the Due Process Clause of the Fifth Amendment against egregious tactical delays by the prosecution. There are two speedy trial rules that are unique to courts-martial. Under Rule for Courts-Martial 707, an accused must be brought to trial within 120 days of preferral of charges or imposition of certain types of pretrial restraint. Under Article 10 of the UCMJ and military case law, an accused in pretrial confinement must be brought to trial with "reasonable diligence."

Applying the military-specific speedy trial rules to civilians may be burdensome for military prosecutors. Problems determining a civilian's chain of command and sorting out the application of rank-specific procedural rules may make it difficult for prosecutors to process cases involving civilians as quickly as those involving service members. These problems may be exacerbated by the Secretary of Defense's requirement to notify the general court-martial convening authority and to coordinate with the Department of Justice before initiating a court-martial against a civilian.

Similarly, the discovery rights of an accused at a court-martial are greater than discovery rights in many civilian jurisdictions. As in all jurisdictions, the prosecutor is obligated to disclose exculpatory evidence. The Military Rules of Evidence also contain discovery requirements. Prior to arraignment, the prosecutor is required to disclose the contents of statements made by the accused that are relevant to the case, known to the prosecutor, and in the control of the armed forces. The prosecutor is also required to disclose evidence seized from the accused or believed to belong to the accused that it intends to offer at trial. In addition, the prosecutor must disclose prior identifications of the accused at a lineup or similar process that it intends to offer at trial. But, again, civilian contractors suffer in comparison to regular military:

Discovery in courts-martial involving civilians may be more difficult than those involving service members. Investigatory reports involving civilians may be prepared by civilian police agencies with little connection to the military. In addition, many of the witnesses involved in courts-martial of civilians are likely to be civilians themselves. Civilian defendants often work with other civilians who may have witnessed their misconduct or who may be able to testify about pertinent character traits. Some of these civilian witnesses may have little or no relationship to the United States armed forces. While the defense has equal access to witnesses and evidence, it may be difficult to interview civilian witnesses with little or no connection to the military, especially since witnesses have no obligation to submit to pretrial interviews.

None of this means that the UCMJ won't ultimately be a net benefit. Masterton thinks it eventually will. But he concludes:

There are a number of issues that need to be addressed when civilians are tried by court-martial. Attorneys and others involved in these trials should be trained on the unique aspects of civilian courts-martial. Because commanders play a central role in the military justice system, all civilians subject to court-martial jurisdiction should be assigned to a specific military command. Since many aspects of courts-martial depend on rank, a clear equivalency should be established between civilian pay and military rank.