VIEWS: 4 PAGES: 9 POSTED ON: 8/13/2011
MEMORANDUM TO: ABA Battlespace Committee Working Group, Battlespace and Contingency Procurements Committee FROM: Cooley Godward Kronish LLP DATE: August 29, 2007 RE: UCMJ Jurisdiction Over Civilians: Implementation Issues -- Supplement to June 8, 2007 DoD Analysis of Prosecution of Civilians Accompanying the Armed Forces in the Field by Courts-Martial On June, 8, 2007, the Department of Defense’s Office of General Counsel delivered a presentation to the ABA Battlespace and Contingency Procurements Subcommittee. The presentation, entitled Developments in UCMJ Jurisdiction, Potential Impact of 2006 Amendment to UCMJ Article 802(a)(10), provided an executive summary of DoD’s plan to limit the potential impact of the 2006 Amendment by issuing a SecDef Action Memorandum withholding military commanders’ authority to act in certain contexts. The following memorandum is intended to identify some implementation issues not addressed in DoD’s June 8, 2007, presentation and to consider how these issues may ultimately be resolved. I. Will the extension of UCMJ jurisdiction to civilians accompanying the force include an entitlement to military defense counsel? Yes, under the current controlling law, the extension of UCMJ jurisdiction to civilians accompanying the force creates an automatic entitlement to military defense counsel. Article 27 of the UCMJ requires that “[t]rial counsel and defense counsel […] be detailed for each general and special court-martial.”1 Rule 506 of the Manual for Courts-Martial states that the “accused has the right to be represented before a general or special court-martial by civilian counsel if provided at no expense to the Government, and either by the military counsel detailed under Article 27 or military counsel of the accused’s own selection, if reasonably available.”2 This entitlement to military defense counsel is unlikely to change. Civilian attorneys would face inordinate difficulties in representing civilians accused in deployed environments. Impediments to effective representation include restricted access to secure enclaves, personal security threats, scarcity of food and lodging, and restrictions on intra-theater transportation. However, since the costs associated with providing military counsel are significant, the government might insist that future contracts include a provision requiring companies to indemnify the military for any legal representation provided to employees accused under the UCMJ. ____________________________________ 1 10 U.S.C. § 827 (UCMJ Art. 27). 2 Rule 506, Manual for Courts-Martial, United States (2005 Edition). THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 1 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. II. In what ways will the UCMJ sentencing provisions have to be modified in order to accommodate courts-martial of civilians? Rule 1003 delineates the types of punishments that may be adjudged when a person is found guilty of a court-martial offense. The general scope of Rule 1003 is broad enough to accommodate courts-martial of civilians.3 Many punishments under the Rule, however, are either expressly limited to particular classes of military defendants or are beyond the government’s power to impose on contractors. For example, sentences of hard labor without confinement,4 reduction in pay grade,5 and dishonorable discharge,6 are all expressly limited to enlisted members under Rule 1003. Sentences directing a pay grade reduction, punitive discharge, or forfeitures of pay and allowances,7 likely cannot be adjudged against civilian contractors whose compensation and career advancement are beyond the government’s control. The following sentences can probably be adjudged against civilians under the current rule without modification or further agency interpretation: reprimands,8 fines,9 restriction to specified limits,10 confinement,11 and death.12 The remaining UCMJ sentencing provisions should be modified or clarified in order to coherently address the conviction of civilian defendants. III. Will this extension of UCMJ jurisdiction mean that a civilian contractor subject to the UCMJ can be compelled to attend a court martial as a witness? Rule 703, in its current form, makes civilians who are susceptible to the subpoena power of the United States subject to compulsory testimony as court-martial witnesses.13 A subpoena may not, however, be used to compel a civilian to travel outside the United States and its ____________________________________ 3 Subject to certain limitations, “the punishments authorized in [Rule 1003] may be adjudged in the case of any person found guilty of an offense by court-martial.” Rule 1003(a), Manual for Courts-Martial, United States (2005 Edition) (emphasis added). 4 “Hard labor without confinement may be adjudged only in the cases of enlisted members.” Rule 1003(b)(6), Manual for Courts-Martial, United States (2005 Edition). 5 “[A] court-martial may sentence an enlisted member to be reduced to the lowest or any intermediate pay grade.” Rule 1003(b)(4), Manual for Courts-Martial, United States (2005 Edition). 6 “A dishonorable discharge applies only to enlisted persons and warrant officers who are not commissioned.” Rule 1003(b)(8)(B), Manual for Courts-Martial, United States (2005 Edition). 7 “A forfeiture deprives the accused of the amount of pay (and allowances) specified as it accrues. Forfeitures accrue to the United States.” Rule 1003(b)(2), Discussion, Manual for Courts-Martial, United States (2005 Edition). 8 Rule 1003(b)(1), Manual for Courts-Martial, United States (2005 Edition). 9 Rule 1003(b)(3), Manual for Courts-Martial, United States (2005 Edition). 10 Rule 1003(b)(5), Manual for Courts-Martial, United States (2005 Edition). 11 Rule 1003(b)(7), Manual for Courts-Martial, United States (2005 Edition). 12 Rule 1003(b)(9), Manual for Courts-Martial, United States (2005 Edition). 13 “The presence of witnesses not on active duty may be obtained by subpoena.” Rule 703(e)(2)(A), Manual for Courts-Martial, United States (2005 Edition). THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 2 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. territories.14 The subject of any subpoena must also be subject to United States jurisdiction.15 Although the subpoena power does not extend outside the United States and its possessions, the current rule includes several other potential ways to compel the testimony of contractors and civilians serving with the military in deployed environments: First, civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in courts-martial as an incident of their employment.16 Second, the presence of foreign nationals serving with the military overseas may be obtained through cooperation of the host nation pursuant to existing agreements or principles of international law.17 Third, in the case of “occupied enemy territory,” the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory.18 Finally, contractors can probably be required to testify as witnesses under the provisions of the Defense Federal Acquisition Regulation Supplements (DFARS), which now make contractors subject to the instructions and directions of a combatant commander.19 The possibility that civilians subject to the UCMJ might be compelled to appear as witnesses at courts-martial also raises a question with respect to the authority of the government to punish a civilian for refusing to testify or to answer particular questions while testifying. It appears that civilians so refusing could be charged under Article 134 (Testify: wrongful refusal) and incur a sentence of up to five years confinement.20 IV. How might the procedural Rules for Courts-Martial concerning referral of charges and automatic appeal need to be modified to accommodate this extension of jurisdiction? Current procedural rules associated with the administration of military justice should be able to accommodate civilian defendants without major overhaul. As for referral of charges, the current Rules provide that any military authority who receives a report of an offense “shall forward as soon as practicable the report and any accompanying information to the immediate ____________________________________ 14 Rule 703(e)(2)(A), Discussion, Manual for Courts-Martial, United States (2005 Edition). 15 Id. 16 Id. 17 Id.; See Rule 703(e)(2)(E)(ii), Manual for Courts-Martial, United States (2005 Edition). 18 Rule 703(e)(2)(E)(iii), Manual for Courts-Martial, United States (2005 Edition). 19 DoD contractors must comply with “[o]rders, directives, and instructions issued by the Combatant Commander, including those relating to force protection, security, health, safety, or relations and interaction with local nationals.” DFARS 252.225-7040(d)(4). 20 See Article 134—(Testify: wrongful refusal), UCMJ (“(b) Elements. (1) That the accused was in the presence of a court-martial […] at which a certain person was presiding; (2) That the said person presiding directed the accused to qualify as a witness or, having so qualified, to answer a certain question; (3) That the accused refused to qualify as a witness or answer said question; (4) That the refusal was wrongful; and (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed force”). THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 3 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. commander of the suspect.”21 In the case of a civilian, the immediate commander could be a military commander in the chain of command that employs the civilian. Based on DoD’s June 8, 2007, presentation, it appears likely that only general courts- martial will be convened against civilian defendants. A general court-martial is the venue that provides the most robust procedural protections, and is the form of military justice proceeding that most resembles a civilian criminal trial. On the question of automatic appeals, the current Rules already include a provision by which certain classes of dispositions must automatically be submitted for appellate review.22 Due to the potential sensitivity of trying civilians using the military justice apparatus, Rule 1201 could be extended to bring civilian convictions within its application (making any sentencing of a civilian a disposition which warrants automatic appellate review). V. Consistent with the directions to be promulgated in the SecDef Action Memorandum, with what specific types of offenses are civilian contractors likely to be charged? In today’s deployed environments, any misconduct by persons accompany the force can have the same negative repercussions for the force (and for broader American interests in the region) as misconduct by uniformed forces. Commanders may, therefore, employ the UCMJ’s expanded jurisdictional reach to hold civilians accompanying the force to the same fundamental standards of conduct as their uniformed counterparts. The list that follows is by no means exhaustive, but gives a sense of the broad variety of punitive articles under which commanders might charge civilians: Article 92 (Failure to Obey an Order or Regulation). 23 This article is commonly used to prosecute soldiers who are in violation of a general order in deployed environments. Commanders may choose to subject civilians traveling with the force to the same general order strictures that the uniformed forces operate under. ____________________________________ 21 Rule 301 (b), Manual for Courts-Martial, United States (2005 Edition). 22 The Judge Advocate General shall refer to a Court of Criminal Appeals the record in each trial by court- martial: (1) In which the sentence, as approved, extends to death; or (2) In which— (A) The sentence, as approved, extends to dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad conduct discharge, or confinement for 1 year or longer; and (B) The accused has not waived or withdrawn appellate review. Rule 1201(a), Manual for Courts-Martial, United States (2005 Edition). 23 UCMJ Article 92 – Failure to obey order or regulation: “Any person subject to this chapter who – (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.” THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 4 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. Article 94 (Sedition).24 Sedition is not a uniquely military crime under the UCMJ; and it could be used in an effort to maintain good order and discipline against a civilian contractor who attempts to foment rebellion or insurrection among soldiers in a deployed environment. Article 103 (Captured or Abandoned Property). 25 Article 111 (Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel).26 Article 112a (Wrongful Use, Possession, etc., of Controlled Substances).27 Article 121 (Larceny and Wrongful Appropriation).28 Article 134 (Adultery).29 Article 134 (Disorderly Conduct, Drunkenness).30 Article 134 (Pandering and Prostitution).31 Additionally, given the expanding operational roles performed by civilians in combat environments, commanders might bring charges under the UCMJ’s uniquely operational “time- of-war” crimes. The legislative grant of military courts-martial jurisdiction over civilians accused of offenses unique to times of war, such as “aiding the enemy” and “spying,” dates as far back ____________________________________ 24 UCMJ Article 94—Mutiny and sedition: “Any person subject to this chapter who— (1) with intent to usurp or override lawful military authority, refuse, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.” 25 UCMJ Article 103—Captured or abandoned property (a) All persons subject to this chapter shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter who— (1) fails to carry out the duties prescribed in subsection ( a); (2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be punished as a court-martial may direct.” 26 Article 111, UCMJ. 27 Article 112(a), UCMJ. 28 Article 121, UCMJ. 29 Article 134—(Adultery), UCMJ. 30 Article 134—(Disorderly conduct, drunkenness), UCMJ. 31 Article 134—(Pandering and prostitution), UCMJ. THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 5 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. as 1775.32 Crimes that could be charged include Article 104 (Aiding the Enemy),33 Article 105 (Misconduct as a Prisoner), 34 Article 106 (Spying), 35 and Article 106a (Espionage). 36 None of these offenses are limited by their language to members of the Armed Forces. VI. How will court-martial panels be comprised for civilian defendants? The current SecDef Action Memorandum plan does not address the question of how military panels (the equivalent of juries) will be comprised for courts-martial of civilians; and the existing Rules for Courts-Martial do not provide guidance that adequately addresses potential UCMJ prosecutions of civilians. The members of a civilian jury are selected at random to represent a cross-section of the community. By contrast, the members of a court-martial panel are deliberately chosen by the commander who has exercised prosecutorial discretion to send the case to trial.37 This ____________________________________ 32 See William Winthrop, Military Law and Precedents, 102 note 20 at 629, 778-98 (2d ed. 1920) (indicating that Articles of War 27 and 28, proscribing aiding and communicating with the enemy, first appeared in 1775 and applied by their plain language to civilians as well as members of the military). 33 UCMJ Article 104—Aiding the enemy “Any person who— (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.” 34 UCMJ Article 105—Misconduct as a prisoner “Any person subject to this chapter who, while in the hands of the enemy in time of war— (1) for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct.” 35 UCMJ Article 106—Spies “Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death.” 36 Article 106a—Espionage (a)(1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of any offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptolinear information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct. (2) An entity referred to in paragraph (1) is— (A) a foreign government; (B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or (C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force. (3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photo line art negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.” 37 See Article 25, UCMJ. THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 6 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. deliberate selection of panel members has withstood several judicial challenges. Courts have consistently concluded that the right of trial by jury guaranteed by the 6th Amendment to the Constitution of the United States is not applicable in a trial by military court-martial.38 From colonial times through World War II, courts-martial were composed only of military officers.39 Following widespread dissatisfaction with the administration of military justice during the World War II, Congress considered a variety of studies and proposals for change, including change in the composition of courts-martial panels.40 After numerous hearings and the consideration of competing proposals, Congress amended the Articles of War to permit defendants to specifically request a panel partially-composed of enlisted members. Even today, however, panels are comprised only of officers unless the defendant makes a specific request on the record and prior to trial for the inclusion of enlisted panel members.41 This history sheds no light on how a commander ought to appoint a panel to try a civilian. Specific guiding principles for the convening authority’s selection of panel members are contained in Rule 502. According to this Rule, “members detailed to a court-martial shall be those persons who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament.”42 The pool of potential panelists should not include “any person who is, in the same case, an accuser, witness, investigating officer, or counsel for any party; any person who, in the case of a new trial, other trial, or rehearing, was a member of any court-martial which previously heard the case; any person who is junior to the accused, unless this is unavoidable; an enlisted member from the same unit as the accused; and any person who is in arrest or confinement.”43 With possible exception of the “length of service” consideration, none of the qualifications and exclusions in the previous paragraph should necessarily exclude the detailing of civilians to panels. Moreover, the current Manual for Courts-Martial “Discussion” of Rule 501 already identifies certain non-military members as eligible for appointment to panels. The Manual permits “retired members of any Regular component” to serve, as well as National Oceanic and Atmospheric Administration (NOAA) and Public Health Service members when they are “assigned to and serving with an armed force.”44 Forthcoming DoD regulations should clarify whether any other categories of civilians may serve on court-martial panels pursuant to Rules 501 and 503. ____________________________________ 38 See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866); Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858); DeWar v. Hunter, 170 F.2d 993, 997 (10th Cir. 1948) (right of trial by jury guaranteed by 6th Amendment to the Constitution of the United States is not applicable in trial by military court-martial). 39 United States v. White, 21 USCMA 583, 584-585, 45 CMR 357, 358-359 (C.A.A.F. 1972) 40 See id.; S. Rep. No. 81-486, at 3-4 (1949). 41 See Rule 502(1)(C), Manual for Courts-Martial, United States (2005 Edition); Rule 503(a)(2), Manual for Courts-Martial, United States (2005 Edition). 42 See Rule 502(1), Manual for Courts-Martial, United States (2005 Edition). 43 See Rule 503(a)(1), Discussion, Manual for Courts-Martial, United States (2005 Edition). 44 See Rule 501(a)(1), Discussion, Manual for Courts-Martial, United States (2005 Edition). THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 7 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. VII. Should the SecDef Action Memorandum also withhold authority to prosecute foreign national civilian contractors? The June 8, 2007, DoD presentation indicates that the government “has questions still be to answered” about whether to use the planned SecDef Withhold Memo to withhold authority to prosecute foreign national contractors from the host country or third country nationals. The Withhold Memo should not limit UCMJ prosecutions to U.S. citizens. The ostensible purpose of the extension of UCMJ jurisdiction is to ensure good order and discipline, and to establish ultimate control and accountability for in-theater personnel in the combatant commanders.45 Limiting prosecutions to U.S. citizens would eviscerate this purpose because foreign national contractors constitute an overwhelming majority of the contractors accompanying U.S. forces overseas. For example, it is estimated that only 17% of the approximately 120,000 U.S. government contractors in Iraq are actually U.S. citizens.46 Prosecution of foreign national contractors under the UCMJ may, however, ultimately be limited by other agreements. For example, in each theater of operations, combatant commanders and their assigned Staff Judge Advocates will have to review existing Status of Forces Agreements or equivalent agreements for potential restrictions on the criminal prosecution of non-U.S. citizens. However, notwithstanding the potentially controlling restrictions on prosecution established in individual Status of Forces Agreements or the like,47 there is no obvious legal reason why foreign nationals ought not be subject to the same UCMJ jurisdiction rules as U.S. citizens. VIII. Will any forthcoming changes to court-martial procedures be subject to notice and comment? How can defendants obtain judicial review of revised court-martial procedures? The Manual for Courts-Martial consists of a series of executive orders issued by the President, and is therefore not subject to the standards for promulgation or judicial review ____________________________________ 45 There is no legislative history available on the amendment; however, Sen. Lindsay Graham (R-SC), the bill’s sponsor, offered the following explanation: “Right now, you have two different standards for people doing the same job, . . . This will bring uniformity to the commander’s ability to control the behavior of people representing our country.” Wash. Post. a.1 (Jan. 15, 2007). If foreign national contractors are not ultimately subject to the same provisions as U.S. citizen contractors, then the purpose of the amendment, as described by Sen. Graham, will be wholly frustrated – there will still be two sets of rules. 46 Remarks of Gary Mostek, Assistant Deputy Undersecretary of Defense for Program Support, Office of the Undersecretary of Defense for Acquisition, Technology and Logistics. House Armed Services Subcommittee on Oversight and Investigations Hearing on Iraqi Security Forces Contracting. April 25, 2007. 47 Status of Forces Agreements, though the most traditional means of reaching agreement as to criminal jurisdiction over foreigners deployed a host country, are not the only potentially limiting agreements. In Iraq, for example, Coalition Provisional Authority orders remain in effect until superseded. Currently, Iraqi courts do not have jurisdiction to prosecute contractors without the permission of the relevant member country of the Multi-National Forces in Iraq. Congressional Research Service Report RLS32419, Private Security Contractors in Iraq: Background, Legal Status, and Other issues, updated June 21, 2007, by Jennifer K. Elsea and Nina M. Serafino. THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 8 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL. provided by the Administrative Procedure Act ("APA").48 Moreover, the APA specifically excludes courts-martial and military commissions from the scope of reviewable "agency" action.49 The APA also excludes rulemakings (or the promulgation of regulations) relating to military and foreign affairs functions from notice and comment procedures.50 Judicial review of procedures included in the Manual for Courts-Martial is available through legal challenges to its provisions raised by the accused during the court-martial proceedings. The following is a list of potential successful bases for challenging the forthcoming rules regarding procedures for courts-martial of civilians: (1) Provisions of the Manual for Courts-Martial conflict with the UCMJ; (2) Provisions of the Manual for Courts-Martial conflict with a DOD or military service regulation; (3) Provisions of the Manual for Courts-Martial violate the accused's constitutional rights. Although there are other potential bases (e.g., the President promulgated the new provisions pursuant to an improper delegation, the provisions are arbitrary or capricious, the President lacked authority to promulgate the new provisions), the case law regarding the Manual for Courts-Martial makes clear that the President has broad authority to enact provisions of the manual through (a) the President's inherent power as Commander-in-Chief51 to issue orders that affect courts-martial and (b) the UCMJ. Indeed, Article 36 of the UCMJ specifically authorizes the President to create procedural and evidentiary rules for courts martial.52 Finally, although the ex post facto clause of the U.S. Constitution bars the retroactive application of new criminal legislation,53 the Court of Military Appeals has not always held that retroactive application of the MCM is a violation of the ex post facto clause.54 ____________________________________ 48 See Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) ("As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements. Although the President's actions may still be reviewed for constitutionality, we hold that they are not reviewable for abuse of discretion under the APA.") (citations omitted). 49 5 U.S.C. § 551(1)(F) & (G) ('agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include … (F) courts- martial and military commissions [or] (G) military authority exercised in the field in time of war or in occupied territory); See Roelofs v. Secretary of Air Force, 628 F.2d 594, 599 (D.C. Cir. 1980) (section 551 of the APA specifically excludes from its scope actions of courts-martial and military commissions). 50 5 U.S.C. § 553(a)(1) (“This section applies, according to the provisions thereof, except to the extent that there is involved--(1) a military or foreign affairs function of the United States"). 51 U.S. Const. art. 2, § 2. 52 See Article 36, UCMJ. 53 U.S. Const. art. 1, § 9. 54 See United States v. Hise, 42 C.M.R. 195, 197 (1970) (upholding an ex post fact challenge to the application of Manual for Courts-Martial, United States (1969 Edition)); contra United States v. Ramsey, 28 M.J. 370, 371 (CMA 1989) (rejecting ex post facto challenge to application of RCM 707(c)). THIS INFORMATION IS INTENDED AS A GENERAL DESCRIPTION OF THE LAW; IT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE NOR IS IT INTENDED TO CREATE AN 9 ATTORNEY-CLIENT RELATIONSHIP WITH COOLEY GODWARD KRONISH LLP. BEFORE TAKING ANY ACTION ON THIS INFORMATION YOU SHOULD SEEK PROFESSIONAL COUNSEL.
Pages to are hidden for
"MEMORANDUM"Please download to view full document