11/20/2010 09:04 pm ET Updated May 25, 2011

Focusing on The Untouchable Quasi-Military PMC

Let's return to an issue I have written about before; namely whether the change in 2007 to the U.S. military's Uniform Code of Military Justice, making it applicable to private military contractors (PMC), is workable. I have noted many times in the past that the jury is out as to whether it will be ultimately be found constitutional.

But that is not its only problem; at least according to the law journal article "The Untouchables: Private Military Contractors' Criminal Accountability under the UCMJ" by Katherin J. Chapman and published in the May 2010 issue of the Vanderbilt Law Review.

As many legal scholars have done Ms. Chapman starts with the 2007 killings of Iraqi in Baghdad by Blackwater contractors. She notes that Blackwater guards escaped criminal accountability for their actions. Such private citizens employed by the U.S. military in undeclared wars had fallen into a legal loophole, practically beyond the reach of criminal law. They had become "the Untouchables."

Referring to Peter Singer of the Brookings Institution whose 2003 book Corporate Warriors was the mother of all academic efforts to categorize PMC, she references his definition of military provider firms that focus on the tactical environment by running active combat operations. PMCs who come from military provider firms operate "at the forefront of the battlespace, by engaging in actual fighting . . . and/or direct command and control of field units." According to Chapman, "Such contractors, like those involved in Bloody Sunday, essentially act in a quasi-military capacity." That is a reasonable position; after all PMC are not military units.

Like everyone else, she finds that PMCs must be held accountable for their criminal actions, not merely to provide personal justice for those injured by their crimes, but also for the strategic objectives of organizing the U.S. military's available manpower effectively and retaining the support of citizens both domestic and abroad.

But, wait for it, here is where she gets really interesting:

At the same time, it is simply impractical to bring criminal sanctions against all PMCs for every possible crime that they might commit. Criminal sanctions against contractors should, at the very least, reach egregious crimes and should focus on quasi-military PMCs. Operating at the battlefront, quasi-military PMCs pose the greatest threat to the U.S. military's ability to control the contingency operation. Additionally, because they bear arms and wear uniforms like members of the U.S. military, the local populace is more likely to attribute their actions to the U.S. military. By providing justice for victims, criminal sanctions will further the strategic goal of winning the locals' support and trust during counterinsurgency efforts.

It is important to remember that Ms. Chapman believes that that the UCMJ presents the best option for holding quasi-military PMCs criminally accountable and that it is a better alternative than other potential sources of criminal law such as international law, host-nation law, and U.S. civilian law.

But she does offer some caveats to make the UCMJ be all that it can be with respect to PMC. She argues that the UCMJ can be applied constitutionally if three limitations exist: (1) its application must be stated expressly in the contractors' contracts; (2) it can only apply to quasi-military PMCs; and (3) it must, at least initially, be restricted to noncapital crimes with civilian analogues.

In making her case for the use of the UCMJ for PMC she writes:

The UCMJ should supply the criminal law for PMCs because it avoids the implementation pitfalls and unfairness presented by the other three potential sources. First, there would be little practical difficulty in securing evidence and witnesses for the proceedings. The investigative unit would already be on the scene because the military would be present in the area. For example, on Bloody Sunday, the military arrived at Nissour Square within twenty-five minutes. Similarly, there would be no concern over whether the courts are operating properly and without anti-American sentiment since the trials would occur in functioning U.S. military courts. Third, it is unlikely that there would be a lack of prosecutorial motivation because military personnel would want to ensure that contractors were held criminally accountable for strategic reasons. In modern counterinsurgency operations, much of the battle lies in winning over the local populace. For many of the inhabitants, PMCs are indistinguishable from the U.S. military, and their actions are attributed to U.S. forces. As the ones who bear the brunt of any local backlash, high-level military personnel would likely be diligent in bringing contractors who commit crimes to justice. Fourth, the UCMJ provides equitable benefits because it would apply equally to all quasi-military PMCs. That is, these PMCs would face the same criminal sanctions under the UCMJ regardless of their nationality, place of employment, or pay. Finally, for those soldiers who perform quintessentially military roles on the battlefield, it is logical to hold them to the same standards as those military personnel that they operate alongside. It would be inequitable and unfair to allow these contractors to escape criminal charges for their actions while holding their military companions criminally accountable.

In response to those who are concerned that the UCMJ be initially restricted to noncapital crimes with civilian analogues, thus potentially allowing PMC to get away with murder, Chapman writes:

Limiting the application of the UCMJ to noncapital crimes with civilian analogues, at least initially, avoids two potential problems. First, confining the applicable crimes to those that do not result in the death penalty would avoid Grisham's admonition against trying civilians by court-martial for capital crimes. Second, the inability to charge quasi-military PMCs with capital crimes would not seriously undermine the UCMJ as the most viable source of criminal law, given that many charges would still be available to bring justice to victims and to ensure the success of U.S. efforts to win over local communities. Recent history demonstrates that the UCMJ would be at least as substantively viable as MEJA even if it did not apply to capital crimes; here, recall that the Blackwater contractors involved in Bloody Sunday were only charged with manslaughter under MEJA.