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 This is effectively what we did in Vietnam by seeing to it that residence permission was withdrawn, (50 S. Tex.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 ) 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,  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).