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					       CRIMINAL PROSECUTION OF                          options are particularly appealing. For example,
       CIVILIAN CONTRACTORS BY                          there is always the option of arranging for the
           MILITARY COURTS                              offender simply to be expelled. This is
                                                        effectively what we did in Vietnam by seeing to
                                                        it that residence permission was withdrawn,
         (50 S. Tex. L. Rev. 845 [2009])                although obviously mere expulsion is not a
                                                        satisfactory substitute for criminal sanctions,
              Eugene R. Fidell FNa1                     especially in cases of serious criminality. This
                                                        objection is met by relying on the local court
                                                        systems, but until the Iraqi and Afghan court
     As those who have been involved in the             systems inspire greater *846 confidence, it is
planning for this Symposium will recall, the            hard to be enthusiastic about remitting American
original title for my remarks was to have been          citizens and residents to their processes.
“The High Ground and the National Narrative.”
Certainly a nice, narrow topic. Little did I know            An alternative is to employ the civilian
that, thanks to Hurricane Ike, the phrase “high         federal courts in the circumstances permitted by
ground” might have a different connotation by           the Military Extraterritorial Jurisdiction Act of
the time this event actually occurred. Be that as       2000 (“MEJA”) 2 or where the situs of the
it may, my topic will in fact be the use of courts-     offense happens to fall within the special
martial to prosecute crime by civilian                  maritime and territorial jurisdiction, which was
contractors. While not as lofty as the original         expanded in 2001. 3 Trials under MEJA and the
plan, it's an important topic and probably one          special maritime and territorial jurisdiction are
with somewhat greater current application. I'm          conducted back here, rather than at the foreign
saving the national narrative for another               location. It might be objected that those
occasion.                                               mechanisms are unworkable for that very
                                                        reason, since it may be difficult to persuade
     As we all know, the sizable American               essential non-U.S. witnesses to come here for
presence in Iraq and Afghanistan is not limited         the purpose of grand jury testimony or trial. Not
to military personnel. A host of others are there       much use has been made of MEJA thus far,
on our behalf in one capacity or another.               although that may be changing.
Examples include foreign service personnel,
civilian contractors of the Defense Department               For example, less than a month ago, a
and other federal agencies, 1 and journalists.          discharged sergeant in the Marine Corps was
Some of these may not be United States citizens         prosecuted under MEJA on charges of killing
or permanent residents.                                 two detainees during Operation Phantom Fury
                                                        (who comes up with these names?) in Fallujah,
    A certain amount of criminal misconduct is          Iraq, in 2004 and directing subordinates to kill
to be expected in any workforce of this size. The       two others. 4 According to news reports, the
question is how to deal with it. None of the            prosecution in United States v. Nazario could
                                                        2
FNa1
     Florence Rogatz Visiting Lecturer in Law, Yale         18 U.S.C. § 3261 (2006).
Law School; President, National Institute of Military   3
                                                            See 18 U.S.C. § 7(9) (2006).
Justice.                                                4
1
                                                          See Mark Walker, “Acquitted Former Marine
  The Congressional Budget Office has estimated that    Recalls Fear in Fallujah, N. County Times,” Aug. 31,
“at least 190,000 contractor personnel work in the      2008, http://www.nctimes.com/articles/2008/08/31/
Iraq theater on contracts funded by the United          military /z14d7e9a8cddf9bfa882574b3001ac079.txt.
States.” Cong. Budget Office, Contractors' Support of
U.S. Operations in Iraq 8 (2008).
not produce the bodies or even the names of the            Let me take the international human rights
decedents, and there was no physical evidence. 5      aspect first. According to Principle No. 5
Active duty Marines who were witnesses                (jurisdiction of military courts to try civilians) of
refused to testify and were jailed for contempt. 6    the current working draft of the U.N. Draft
Not surprisingly, the civilian jury acquitted. 7      Principles Governing the Administration of
This was the first time a battlefield case            Justice Through Military Tribunals, “[m]ilitary
involving a former service member had been            courts should, in principle, have no jurisdiction
tried in district court under MEJA. 8                 to try civilians. In all circumstances, the State
Interestingly, one of Sergeant Nazario's              shall ensure that civilians accused of a criminal
attorneys has stated that he and his co-counsel       offence of any nature are tried by civilian
are considering whether to ask Congress to            courts.” 12
amend MEJA so that such a case could only be
                                                           Article 14(1) of the International Covenant
tried in a court-martial. 9 They had argued
                                                      on Civil and Political Rights (“ICCPR”) states:
without success that MEJA was not intended to
                                                      “In the determination of any criminal charge
cover combat action. 10
                                                      against him, or of his rights and obligations in a
      *847 Another option is to refer misconduct      suit at law, everyone shall be entitled to a fair
by the various categories of nonmilitary              and public hearing by a competent, independent
personnel previously mentioned to military            and impartial tribunal established by law.” 13
courts – specifically, to courts-martial              There is no explicit reference to military courts,
established under the Uniform Code of Military        but the current official gloss – paragraph 22 of
Justice (“UCMJ”). 11 That is what I will focus on     General Comment 32 on the ICCPR – which
today.                                                takes a harder line than the earlier General
                                                      Comment 13, 14 provides:
    The use of military courts to try civilians is
a highly controversial proposition, both as a
matter of settled international human rights law
and in light of prevailing constitutional doctrine
in our country. Who may be tried by a military        12
                                                         U.N. Econ. & Soc. Council [ECOSOC], Comm'n
court is one of the great fault lines, and the        on Human Rights, Civil and Political Rights,
answer can tell much about the country whose          Including the Question of Independence of the
legal system is under examination.                    Judiciary, Administration of Justice, Impunity, Draft
                                                      Principles Governing the Administration of Justice
                                                      through Military Tribunals 10, U.N. Doc.
5                                                     E/CN.4/2006/58 (Jan. 13, 2006) (prepared by
  Mark Walker, “Marine Not Guilty in Fallujah         Emmanuel Decaux) [hereinafter Draft Principles].
Slayings,” N. County Times, Aug. 28, 2008, http://
                                                      13
www.nctimes.com/articles/2008/08/28/military/z775        International Covenant on Civil and Political
69cb429374429882574b3005f8495.txt.                    Rights, art. 14, Dec. 16, 1966, 999 U.N.T.S. 171
6                                                     [hereinafter ICCPR].
    Id.
                                                      14
7                                                       See Dan E. Stigall, An Unnecessary Convenience:
    Id.                                               The Assertion of the Uniform Code of Military
8
    See id.                                           Justice (“UCMJ”) over Civilians and the
9
                                                      Implications of International Human Rights Law, 17
    Walker, supra note 4.                             Cardozo J. Int'l & Comp. L. 59, 81 (2009); see also
10
 See Order Denying Defendant's Motion to Dismiss,     Sangeeta Shah, The Human Rights Committee and
United States v. Nazario, No. 07-127-SGL (C.D. Cal.   Military Trials of Civilians: Madani v. Algeria, 8
Apr. 28, 2008).                                       Hum. Rts. L. Rev. 139, 144-46 (2008).
11
     10 U.S.C. § 801 (2006).
     The [Human Rights] Committee                   civilians. 16
     notes the existence, in many
                                                         On the other hand, there is a recognition in
     countries, of military or special
                                                    the U.N. Draft Principles that “persons” who are
     courts which try civilians. While the
                                                    merely “treated as military personnel” may be
     Covenant does not prohibit the trial
                                                    subjected to trial by military court. 17 Thus,
     of civilians in military or special
                                                    paragraph 31 under Principle No. 8 cautions that
     courts, it requires that such trials are
                                                    “thought needs to be given to the situation of
     in full conformity with the
                                                    military and assimilated personnel, including
     requirements of article 14 and that
                                                    civilian police taking part in peacekeeping
     its *848 guarantees cannot be
                                                    operations and paramilitaries or private
     limited or modified because of the
                                                    contractors taking part in international
     military or special character of the
                                                    occupation arrangements.” 18 Given the scale of
     court concerned. The Committee
                                                    the civilian United States workforce in Iraq, it is
     also notes that the trial of civilians
                                                    surprising that greater attention has not been
     in military or special courts may
                                                    paid to what could prove to be an enormous
     raise serious problems as far as the
                                                    loophole if, as paragraph 31 implies, civilians
     equitable, impartial and independent
                                                    involved in occupation activities are exempt
     administration      of     justice    is
                                                    from the broad and deep antipathy to the use of
     concerned. Therefore, it is important
                                                    military courts to prosecute civilians.
     to take all necessary measures to
     ensure that such trials take place                  Now let me turn to domestic legal
     under conditions which genuinely               considerations. Congress has long attempted to
     afford the full guarantees stipulated          subject a variety of categories of persons to
     in article 14. Trials of civilians by          military justice. Some of its efforts have run into
     military or special courts should be           constitutional obstacles. For *849 example, in
     exceptional, i.e. limited to cases             the 1950s and 1960s, the Supreme Court held
     where the State party can show that            unconstitutional provisions of the then-new
     resorting to such trials is necessary          UCMJ that were used to prosecute former GIs 19
     and justified by objective and                 as well as military dependents 20 and other
     serious reasons, and where with                categories of civilians. The rationale was that
     regard to the specific class of                courts-martial denied these civilians a variety of
     individuals and offences at issue the          constitutional rights that all of us enjoy in
     regular civilian courts are unable to          federal criminal cases, such as indictment by
     undertake the trials. 15                       grand jury, trial by a jury of peers, jury size and
                                                    unanimity, and trial before an Article III judge
     The jurisprudence of the European Court of
Human Rights, the Inter-American Court, the
Inter-American Commission on Human Rights,          16
                                                       See Human Rights Council, Civil and Political
and the African Commission on Human and             Rights, Including the Questions of Independence of
Peoples' Rights is unanimous with respect to        the Judiciary, Administration of Justice, Impunity, PP
military courts' lack of jurisdiction to try        18-29, U.N. Doc. A/61/384 (Sep. 12, 2006).
                                                    17
                                                         Draft Principles, supra note 12, at 13.
15
  Human Rights Comm., General Comment No. 32:       18
                                                         Id.
Article 14: Right to Equality before Courts and
                                                    19
Tribunals and to a Fair Trial, P 22, U.N. Doc.         United States ex rel. Toth v. Quarles, 350 U.S. 11,
CCPR/C/GC/32 (Aug. 23, 2007) (footnotes omitted).   13-14, 21-23 (1955).
                                                    20
                                                         Reid v. Covert, 354 U.S. 1, 23, 40-41 (1957).
with life tenure. 21 Of note, these were not cases        knowledge, no military commander or
that arose in a battlefield or shooting-war               prosecutor ever sought to test whether Averette
environment.                                              was still good law. Query: Would it have been--
                                                          would it today be--unethical to bring a test case
     One provision in the UCMJ purported to
                                                          in the teeth of settled law? Could a *850
extend court-martial jurisdiction “[i]n time of
                                                          responsible military prosecutor claim a plausible
war, [to] persons serving with or accompanying
                                                          basis for believing a different outcome would
an armed force in the field.” 22 It seemed suitable
                                                          occur today given intervening changes in the
for the prosecution of civilian contractors in
                                                          military justice system absent some signal from
Vietnam, but in 1970, the Court of Military
                                                          the Court of Appeals that Averette had been
Appeals, as it was then called, held in United
                                                          eroded? I imagine not. In any event, it has not
States v. Averette 23 that the provision could
                                                          happened.
apply only in time of a declared war, and of
course our nation's last declaration of war                    The various gaps created by the Supreme
occurred in World War II. Averette was never              Court's 1950s and 1960s decisions and Averette
reviewed by the Supreme Court because, at the             persisted for decades. This led to a good deal of
time, there was no right to seek a writ of                scholarly commentary, but it would seem --
certiorari from the Supreme Court. Congress               shockingly--that our legislators do not read the
finally got around to rectifying that particular          law reviews, since nothing happened in
omission twenty-five years ago. 24 Whether                Congress. Finally, in 2000, the Second Circuit,
Averette was correctly decided is water over the          in the course of setting aside a conviction in a
dam, since Congress subsequently made other               particularly egregious case for lack of special
pertinent changes in Article 2 of the UCMJ. 25 I          maritime and territorial jurisdiction, directed its
would say, however, that it is not at all clear that      clerk to send a copy of its ruling to committees
the present Court of Appeals for the Armed                of the House and Senate. 27 This spurred
Forces would come out the same way if the                 Congress to action, resulting in passage of
same question were ever presented. 26 To my               MEJA, to which I have already referred. 28 It
                                                          took another six years for Congress to finally get
21
     See id. at 5-22; see also Toth, 350 U.S. at 15-19.   around to fixing the part of the UCMJ that was
22
                                                          at issue in Averette. The specific “fix” was to
     10 U.S.C. § 802(10) (2000) (amended 2006).           amend Article 2(a)(10) to cover not only those
23
     41 C.M.R. 363, 365 (1970).                           who serve with or accompany an armed force in
24                                                        the field in time of declared war but also those
  See Military Justice Act of 1983, Pub. L. No. 98-
209, sec. 10, 97 Stat. 1393, 1405-06 (codified at 28      who do so during a “contingency operation,” a
U.S.C. § 1259, 10 U.S.C. § 867a(a) (2006).                defined term 29 that covers the operations in Iraq
25
                                                          and Afghanistan. Here, as in the case of MEJA,
   John Warner National Defense Authorization Act         the Defense Department was slow in issuing
for Fiscal Year 2007, Pub. L. No. 109-364, sec. 552,
                                                          implementing instructions.
120 Stat. 2083, 2217 (2006) (codified at 10 U.S.C. §
802(a)(10)) (replacing “In time of war” with “In time            Secretary Gates issued a memorandum
of declared war or a contingency operation”).
26
   See generally Lawrence J. Schwarz, The Case for        long-standing legal precedent, and reliance on a
Court-Martial Jurisdiction over Civilians Under           Supreme Court case that has since been overruled).
Article 2(a)(10) of the Uniform Code of Military          27
                                                            United States v. Gatlin, 216 F.3d 207, 223 (2d Cir.
Justice, Army Law., Oct.-Nov. 2002, at 31, 34-35          2000).
(asserting arguments for challenging Averette's
                                                          28
definition of “in time of war,” such as inability to           See supra note 2 and accompanying text.
foresee the modern trend against congressional            29
                                                               10 U.S.C. § 101(a)(13) (2006).
declaration of war, poor reasoning, divergence from
setting forth the general framework early this                 What does “in the field” mean, or “serving
year, 30 but a good deal of the necessary fine-           with or accompanying”? 33 Are embedded
print guidance remains to be fleshed out. For             journalists covered? Non-DoD contractors? 34
example, which kinds of UCMJ offenses will be             CIA personnel? Non-U.S. citizens? Iraqi
prosecuted when committed by a civilian? 31               nationals? As Human Rights First has observed,
*851 Violations of Article 134, which among               “even if UCMJ jurisdiction is never exercised”
other things forbids conduct that is service-             over civilian contractors, the effectiveness of
discrediting or prejudicial to good order and             military coordination of private security
discipline? If so, isn't the vagueness concern            contractor activities in conflict zones “is likely
heightened, as Professor Corn has astutely                to be only enhanced by the existence of UCMJ
noted, because civilians will not have “the same          jurisdiction and the possibility of court-
degree of de facto notice” as uniformed                   martial.” 35
personnel of what conduct is prohibited? 32
                                                               Is the 2006 amendment to Article 2(a)(10)
                                                          constitutional? The cases from the 1950s and
30
                                                          1960s certainly seem to be good law, but none
  See generally Memorandum from Robert M. Gates,          of them involved battlefield crimes or fact
Sec'y of Def., Dep't of Def., to Sec'ys of the Military
                                                          patterns that resemble the kinds of incidents,
Dep'ts, Chairman of the Joint Chiefs of Staff, Under
Sec'ys of Def., and Commanders of the Combatant           often involving private security contractors,
Commands (March 10, 2008), available at                   which have figured so prominently in the news
http://www.nimj.com/documents/2a10.pdf (providing         from Iraq. Cases such as Reid v. Covert, 36
guidance to commanders on the use of their UCMJ           arising in non-battlefield contexts and involving
authority during contingency operations).
31
     See Jonathan Finer, Recent Developments,             importance of good order and discipline and the
Holstering the Hired Guns: New Accountability             reputation of the armed forces. But the far more
Measures for Private Security Contractors, 33 Yale        tangential relationship between civilian augmentees
J. Int'l L. 259, 262 (2008) (urging stricter definition   and the armed forces does not lead to the same
of who is covered and addition of “a clause indicating    degree of de facto notice of the significance of these
that only crimes that have a parallel in civilian law     general interests and the potential consequence for
should be prosecuted”); see also Jennifer K. Elsea et     their compromise.
al., CRS Report RL32419, PRIVATE SECURITY                         Id.
CONTRACTORS IN IRAQ: BACKGROUND, LEGAL
                                                          33
STATUS, AND OTHER ISSUES 30 (2008) (“Other likely              See Kara M. Sacilotto, Jumping the
issues include whether civilian contractors may be        (Un)Constitutional Gun?: Constitutional Questions
prosecuted for military crimes, such as disrespect of     in the Application of the UCMJ to Contractors, 37
an officer or failure to obey a lawful command, or        Pub. Cont. L.J. 179, 192-94 (2008).
whether non-judicial punishment will be available to      34
                                                             See Major Jeffrey S. Thurnher, Drowning in
discipline contract employees.”); Draft Principles,
                                                          Blackwater: How Weak Accountability over Private
supra note 12, at 13 (“Military courts may try persons
                                                          Security Contractors Significantly Undermines
treated as military personnel for infractions strictly
                                                          Counterinsurgency Efforts, Army Law., Jul. 2008, at
related to their military status.”).
                                                          64, 77 & n.165.
32
  See Geoffrey S. Corn, Bringing Discipline to the        35
                                                              Human Rights First, PRIVATE SECURITY
Civilianization of the Battlefield: A Proposal for a
                                                          CONTRACTORS AT WAR: ENDING THE CULTURE OF
More Legitimate Approach to Resurrecting Military-
                                                          IMPUNITY 29 (2008).
Criminal Jurisdiction over Civilian Augmentees, 62
                                                          36
U. Miami L. Rev. 491, 525 (2008).                            354 U.S. 1 (1957) (holding that UCMJ court-
                                                          martial jurisdiction could not be constitutionally
Vagueness concerns regarding members of the armed
                                                          extended to civilian dependents of members of the
forces are mitigated because membership in the
                                                          armed forces overseas, in times of peace).
forces provides individuals sufficient notice of the
dependents rather than heavily-armed civilians        other things, what we would call obstruction of
who perform functions that, in another setting        justice. 43 The remarkable thing, to an American
might well be performed by Marines serving as         reader, is that the prosecution of Mrs. Muir
embassy guards, can plausibly be seen as              seems to have been thought entirely
inapposite.                                           unremarkable: counsel for one of the uniformed
                                                      accused has advised me that “no point was
     With this international and domestic
                                                      raised on her behalf as to jurisdiction.” 44
background in view, it may be worthwhile
cataloguing some instances in which civilians              For our part, the use of courts-martial to
have *852 nonetheless been prosecuted in recent       prosecute civilians continues to be all-but-
years before courts-martial. A few years ago the      unknown. To be sure, earlier this year, news
dependent son of an enlisted man stationed in         broke of a case in which, for the first time in
Germany was prosecuted for murder in a British        decades, a civilian was charged with an offense
Army court-martial. 37 The case went to the           under the UCMJ. 45 The case involved a charge
House of Lords, which upheld the conviction. 38       of stabbing. 46 Neither the victim nor the accused
Parliament being supreme and trial of                 was a U.S. *853 citizen. 47 The accused was a
dependents having been provided for by statute,       dual citizen of Iraq and Canada. 48 The case
their Lordships had little choice but to do so. 39    raises a host of issues, and while it remains to be
The European Court of Human Rights did not            seen whether the resulting conviction will
have to reach the question of court-martial           survive review, 49 it nonetheless illustrates the
jurisdiction over civilians, as it found the court-
                                                      43
martial invalid for other reasons under its                See id.
landmark decision in Findlay v. United                44
                                                        E-mail from Gilbert Blades to the author (Sept. 15,
Kingdom. 40 Nonetheless, it commented that            2008) (on file with author). In another case, a British
“[t]he power of military criminal justice should      soldier stationed in Germany and his German-citizen
not extend to civilians unless there [are]            wife were both charged in a court-martial with
compelling reasons justifying such a situation,       wounding a fellow soldier. The case is in suspense
and, if so only on a clear and foreseeable legal      pending possible proceedings in the German courts.
basis.” 41                                                       Id.
    Nor is Martin the only recent example of the      45
                                                         Michael R. Gordon, “U.S. Charges Contractor at
application of military justice to a civilian. In a   Iraq Post in Stabbing,” N.Y. Times, Apr. 5, 2008, at
general court-martial held at Osnabrück, one of       A6.
those accused was the civilian wife of a British      46
                                                        See Charge Sheet, United States v. Ali (Mar. 27,
Army corporal. 42 The charges involved, among         2008), available at http://www.nimj.org/documents/
37
                                                      RedactedContractorChargeSheet.pdf.
  Regina v. Martin, [1998] A.C. 917, 942 (H.L.        47
1997) (appeal taken from Courts-Martial App. Ct.).        See “Jurisdiction over Criminal Offenses by
38
                                                      American Civilians in Iraq and Afghanistan: Hearing
     Id. at 948.                                      Before the Subcomm. on Democracy and Human
39
     See id. at 923, 926, 942.                        Rights of the S. Comm. on Foreign Relations,
                                                      International Operations and Organizations,” 110th
40
  App. No. 22107/93, 24 Eur. H.R. Rep. 221, 239-41    Cong. 1-2 (2008) [hereinafter Hearing] (testimony of
(1997).                                               Eugene R. Fidell).
41
   Martin v. United Kingdom, App. No. 40426/98,       48
                                                           Gordon, supra note 45.
Eur. Ct. H.R P 44 (2006), available at                49
http://echr.coe.int/echr/en/hudoc.                       See Victor Hansen, “Military Jurisdiction over
                                                      Civilians: Opening a Can of Worms?,” Jurist, Apr. 9,
42
  Ruling on Abuse Submission, Regina v. Eydmann,      2008, http:// jurist.law.pitt.edu/forumy/2008/04/
General Court-Martial (U.K. June 29, 2007).           military-jurisdiction-over-civilians.php. Because the
need to ensure a workable system of criminal             the application of military justice
justice wherever our forces are called upon to           must be strictly reserved to active-
serve.                                                   duty military members, based on a
                                                         previous case wherein it noted that
     At times there may be a threshold issue as to
                                                         “when the proceedings against the
whether the accused even is a civilian. For
                                                         victim were started and heard, he
example, in Stevenson v. United States, the
                                                         was a retired military member, and
accused was a former service member who had
                                                         therefore, could not be tried by the
been permanently retired by reason of
                                                         military courts.” Chile, as a
disability. 50 The issue before the Court was
                                                         democratic State, must respect the
whether this was a proper exercise of court-
                                                         restrictive and exceptional scope of
martial jurisdiction under the UCMJ and the
                                                         military courts, and exclude the trial
Constitution. The National Institute of Military
                                                         of civilians from the jurisdiction
Justice and the National Veterans Legal Services
                                                         thereof.
Program made the following comments in an
amicus brief in support of the petition:                 *854 141. The Court considers that
                                                         Chile has not adopted the necessary
     4. The application of military
                                                         measures for Mr. Palamara-Iribarne
     justice to retired personnel is also
                                                         to be tried by ordinary courts, since
     contrary to prevailing international
                                                         as a civilian [she] did not have the
     human rights norms. For example,
                                                         military status required to be
     in Case of Palamara-Iribarne v.
                                                         deemed the perpetrator of a military
     Chile, the Inter-American Court of
                                                         criminal offense. The Court notes
     Human Rights, held that a retired
                                                         that, in Chile, establishing that a
     officer who was employed by the
                                                         person has military status is a
     Chilean Navy in a civilian capacity
                                                         complex task which requires the
     was not subject to trial by court-
                                                         interpretation of various provisions
     martial. The court found a violation
                                                         and regulations, which allowed the
     of, among other things, Article 8(1)
                                                         judicial authorities who applied
     of the American Convention on
                                                         them to make a broad interpretation
     Human Rights, commenting:
                                                         of the concept of “military” in order
     139. The Court has pointed out that                 to subject Mr. Palamara-Iribarne to
                                                         the military Courts.
sentence in Ali does not meet the jurisdictional         142. Such broad jurisdiction of
threshold for review in the military appellate courts,   military courts in Chile, which
the case will be reviewed only administratively          allows them to hear cases which
unless the Judge Advocate General of the Army            should be heard by civilian courts, is
elects to refer it to the Army Court of Criminal         not in line with Article 8(1) of the
Appeals. See 10 U.S.C. §§ 866(b), 869 (2006).            American Convention.
Judicial review of the JAG's decision is unavailable
under the Administrative Procedure Act. McKinney v.      The court ordered Chile to “align its
White, 291 F.3d 851, 856 (D.C. Cir. 2002).               domestic legal system to the
50
   Brief of Nat'l Inst. of Military Justice and Nat'l    international standards regarding
Veterans Legal Servs. Program as Amici Curiae in         criminal military jurisdiction within
Support of Petitioner at 2-3, Stevenson v. United        a reasonable period of time, so that
States, 129 S. Ct. 69 (2008) (No. 07-1397).              in case it considers the existence of
                                                         a military criminal jurisdiction to be
                                                         necessary, this must be restricted
       only to crimes committed by                          approach to disabled retirees for whom the
       military     personnel in active                     alternative is trial in a civilian American court of
                 51
       service.”                                            law.
     Stevenson is of more than academic interest.                Whenever criminal conduct escapes
One would think, for example, given the fact                punishment, the rule of law is defeated and
that many employees of private security                     public confidence in the administration of justice
companies are veterans, that some number of                 – indeed, public confidence in government – is
those employees are military retirees. Since the            eroded. Certainly there have been times during
UCMJ extends court-martial jurisdiction to                  the campaigns in Afghanistan and Iraq when a
retired regulars, 52 and questions of disabled              reasonable observer might wonder whether
retirees aside, one wonders whether any of the              impunity was being tolerated, either in light of
contractor personnel who have figured in high-              which cases are initiated and prosecuted to a
profile incidents in Iraq 53 might be subject to            conclusion or in respect of the ultimate outcome
court-martial jurisdiction on that basis.                   in terms of either conviction or acquittal. Our
                                                            current legal arrangements are undoubtedly
    Before leaving this aspect of the matter, it is
                                                            messy and uncertain from the perspective of a
worth recalling that there may be circumstances
                                                            lay person, and it is to be hoped that a better
in which a non-military person such as a
                                                            sense of order will emerge.
dependent or a civilian accompanying the forces
in the field might well prefer trial by court-                   Part of the current discomfort may be a
martial over an alternative forum, as Colonel               function simply of the failure of the Defense and
Michael R. Gibson of the Canadian Forces has                Justice Departments to explain to the American
noted. 54 Still, it is *855 difficult to extend that        people what the options are and why particular
                                                            options may or may not be available on the facts
51
                                                            of a given case. What is clear is that from both a
     Id. at 6-7 (citations omitted).                        domestic and an international standpoint, the use
52
     10 U.S.C. § 802(a)(4).                                 of courts-martial to prosecute crimes by persons
53                                                          other than military personnel is strongly
  See, e.g., Thurnher, supra note 34 (discussing the
Nisour Square incident).                                    disfavored. 55 Even with the intervening
54
                                                            improvements in military justice, the decisions
   Michael R. Gibson, International Human Rights            of the 1950s and 1960s rest on fundamental
Law and the Administration of Justice through               constitutional principles and are consonant with
Military Tribunals: Preserving Utility while
                                                            contemporary international human rights
Precluding Impunity, 4 J. Int'l L. & Int'l Rel. 1, 24, 28
(2008). In a pending capital murder case, a                 norms. 56 Reliance on the non-military alternative
discharged soldier contended that he had not been           forum provided by MEJA and the special
discharged lawfully and hence remained subject to           maritime and territorial jurisdiction therefore
the UCMJ (like his co-actors) rather than being             remains preferable, even where the accused may
subject to trial under MEJA. See United States v.           be entirely willing – even anxious – to subject
Green, No. 5:06-CR-19-R, 2008 WL 4000872, at *2             him- or herself to military trial as a condition of
(W.D. Ky. Aug. 26, 2008). The court rejected the
argument, effectively using Toth, as a sword, rather        martial jurisdiction is unconstitutional under Toth.
than a shield:
                                                                   Id. at *9.
If a court-martial had jurisdiction over Defendant
                                                            55
under the facts of this case to try Defendant for              See Draft Principles, supra note 12, at 10-11; see
murder, then there would be no limit to what offenses       also Reid v. Covert, 354 U.S. 1, 39 (1957); United
an otherwise validly discharge[d] soldier could be          States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955)
tried under if there were any irregularities in his         56
                                                                 See supra text accompanying notes 19-21.
discharge process. Such an expansion of court-
employment, and indeed, even where some co-            expand the reach of the special maritime and
actors are on active duty and therefore                territorial jurisdiction beyond what it did in
unquestionably      subject     to    court-martial    2001. 60 Finally, as I have suggested elsewhere, it
jurisdiction. Where the all-important line             could create a Director of Overseas Prosecutions
between military and civilian jurisdiction lies is     in the Department of Justice with authority to
a public decision to be decided as a matter of         determine whether offenses by U.S. citizens
constitutional sensibility, not a personal election    overseas should be prosecuted, and if so,
by the accused depending on his or her self-           whether that prosecution should occur in district
interested appraisal of how the choice may affect      court or, where applicable, a court-martial. 61
the outcome of the case.
                                                            What is apparent, I believe, is that the
      *856 This is not to say that Congress can        exercise of court-martial jurisdiction over
rest on its laurels. Understandably, it has been       civilians engages substantial questions of
particularly concerned with sexual assault             international and domestic law and policy. Such
allegations against U.S. citizens serving as           proceedings should be undertaken only as a last
government        contractors    in    Iraq    and     resort. Court-martial jurisdiction should be
Afghanistan. 57 Without taking a position as to        viewed as only one (controversial) part of a
the merit of any particular allegation, Congress       larger organic whole that includes MEJA and the
can take steps – on top of energetically               special maritime and territorial jurisdiction. If I
exercising its oversight and appropriations            may borrow from the arrangements surrounding
powers 58 – to ensure that offenses by U.S.            the International Criminal Court, perhaps it will
government contractors are prosecuted. It could        be useful to apply domestically a concept like
amend the definitional section of MEJA 59 to           complementarity, 62 so that Article 2(a)(10)
sweep in any U.S. citizen or green card holder         court-martial jurisdiction would be invoked
who is working overseas as an employee or              against “battle space *857 civilians” only if
contractor of any federal agency – not just those      civilian federal authorities are unwilling or
employed by or for the DoD. It could give              unable to bring to bear the civilian criminal
extraterritorial effect to more of Title 18 so that    process and sanctions for the administration of
sexual or other offenses committed outside the         which they are responsible.
country by U.S. citizens or green card holders
could be prosecuted in district court. It could

57
    See generally “Closing Legal Loopholes:
Prosecuting Sexual Assaults and Other Violent
Crimes Committed Overseas by American Civilians
in a Combat Environment: Hearing Before the
Subcomm. on International Operations and
Organizations, Democracy and Human Rights of the
S. Comm. on Foreign Relations,” 110th Cong.
(2008).
                                                       60
58                                                          See 18 U.S.C. § 7(9).
   See Kathleen A. Duignan, Civilians and Military
                                                       61
Law: An Unconstitutional Mix: Problems with                 Hearing, supra note 47, at 10.
Applying UCMJ to Contractors and its Effects           62
                                                           See generally William A. Schabas, AN
Internationally, J. Int'l Peace Operations, May-June
                                                       INTRODUCTION TO THE INTERNATIONAL CRIMINAL
2007, at 21, 21.
                                                       COURT 66-68 (2001) (discussing the concept of
59
     18 U.S.C. § 3267 (2006).                          complementarity and its possible applications).

				
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