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Minding the Gap Addressing Civilian Misconduct in Deployed Environments by Reviving Article 2, Uniform Code of Military Justice

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Minding the Gap Addressing Civilian Misconduct in Deployed Environments by Reviving Article 2, Uniform Code of Military Justice Minding the Gap Addressing Civilian Misconduct in Deployed Environments by Reviving Article 2, Uniform Code of Military Justice By Erin Lai B.A., December 2000, University of California, Los Angeles J.D., May 2004, University of California, Los Angeles School of Law A Thesis submitted to The Faculty of The George Washington University Law School in partial satisfaction of the requirements for the degree of Master of Laws August 31, 2013 Thesis directed by Charles B. Craver Freda H. Alverson Professor of Law Acknowledgments The author wishes to thank Professor Charles Craver for his steadying influence whenever panic set in; her husband, Kent H. Wheeler, who willingly and effortlessly played the role of Superdad to crazy daughter, Zora, so that she could focus on school, and without whose love and patience this thesis would not have happened; her parents and in-laws, whose support and encouragement meant more than they‘ll ever know; Lt Col J‘oel Santa Teresa, whose mentorship over the years helped make this possible, and last, but not least, Lt Col Joshua Kastenberg, who tirelessly served as a sounding board for the woes of the thesis writing process and whose guidance and friendship has been invaluable. ii Disclaimer Major Erin Lai serves in the U.S. Air Force Judge Advocate General‘s Corps. This paper was submitted in partial satisfaction of the requirements for the degree of Master of Laws in Labor and Employment Law at The George Washington University Law School. The views expressed in this paper are solely those of the author and do not reflect the official policy or position of the United States Air Force, Department of Defense or U.S. Government. iii Abstract Minding the Gap Addressing Civilian Misconduct in Deployed Environments By Reviving Article 2, Uniform Code of Military Justice The Department of Defense (DoD) and the Department of State (DoS) both have worldwide footprints; federal civilian employees from both departments and the civilian contractors they employ deploy to nearly every location that active duty personnel are found, including in combat zones. However, unlike members of the armed forces who answer to a single military commander for their actions and are subject to a uniform code of discipline—specifically, the Uniform Code of Military Justice (UCMJ)—DoD and DoS civilian employees and contractors are generally not subject to the administrative or disciplinary control of any person physically in country with the ability to subject them to any form of meaningful discipline. Although Article 2(a) of the UCMJ also contains provisions that provide authority for the military to govern the conduct of civilians who accompany the Armed Forces, these provisions have largely lain dormant. This paper posits that reviving Article 2(a)(10) of the UCMJ by placing all federal civilian employees who deploy to combat zones in support of military operations under military jurisdiction would go far in resolving the accountability issues that exist. If federal civilians are subject to military control, it would reasonably follow that the contractors they hire should be similarly subject to the same control. iv Table of Contents Introduction ......................................................................................................................... 1 Embarrassment to the United States................................................................................ 5 Pseudo-Combatants ......................................................................................................... 7 Background ....................................................................................................................... 10 The Need for Civilians .................................................................................................. 12 Department of Defense Civilians .............................................................................. 13 Non-DoD Civilians .................................................................................................... 14 Contractors................................................................................................................. 15 History............................................................................................................................... 19 The Articles of War ....................................................................................................... 19 Ex parte Milligan: ―Where peace exists the laws of peace must prevail.‖ .................. 22 ―Accompanying‖ military forces ―in the field‖ ............................................................. 26 A New Disciplinary Framework: The Uniform Code of Military Justice ........................ 31 Courts Martial ............................................................................................................... 33 Summary Court-Martial ............................................................................................ 33 Special Court-Martial ................................................................................................ 34 General Court-Martial ............................................................................................... 35 Court-Martial Process ................................................................................................... 36 Erosion of UCMJ Article 2 ............................................................................................... 39 The First Domino to Fall: United States ex rel Toth v. Quarles ................................... 41 The Crippling of Article 2(a)(10), UCMJ ..................................................................... 44 No Jurisdiction Over Dependents in Capital Cases: Reid v. Covert .......................... 44 Civilian Employees No Longer Subject to Jurisdiction: Grisham v. Hagan ............. 47 Capital Cases Eliminated: Kinsella v. United States ex rel Singleton ....................... 49 Options to Cover the Gap ................................................................................................. 51 The Incorporation of Civilian Employees into the Armed Forces ................................ 52 A Tiered System of Discipline ...................................................................................... 54 Military Extraterritorial Jurisdiction Act....................................................................... 57 MEJA Challenged...................................................................................................... 59 v Constitutional But Still Problematic .......................................................................... 65 Civilian Extraterritorial Jurisdiction Act ....................................................................... 66 Statutory Amendment ................................................................................................... 68 Current Law ...................................................................................................................... 77 United States v. Ali ........................................................................................................ 78 The Doctrine of Waiver................................................................................................. 87 Conclusion ........................................................................................................................ 90 vi Introduction The inability of the United States to appropriately pursue the interests of justice and hold its citizens criminally accountable for offenses committed overseas has undermined deterrence, lowered morale, and threatened good order and discipline in our military communities overseas.1 In September 2007, Paul Slough, Evan Liberty, Dustin Heard, Donald Ball, and Nicholas Slatten were employed by Blackwater Worldwide (Blackwater) 2 as security guards in Baghdad, Iraq.3 Blackwater, now known as Academi LLC,4 was a private military company that contracted to provide private security services for the U.S. government.5 On 16 September 2007, the five men were working on a Tactical Support Team, codenamed Raven 23, as back-up ―support fire‖ for other Blackwater personnel performing security detail in Baghdad when they received a call for assistance at Nisur 1 H.R. REP. NO. 106-778, at 10 (2000), MILITARY EXTRATERRITORIAL JURISDICTION ACT OF 2000. http://www.justice.gov/criminal/hrsp/docs/07-20-2000-meja-act.pdf, last visited 3 June 2013 [hereinafter H.R. REP. NO. 106-778, MEJA 2000]. 2 Founded in 1997 by Erik Prince and Al Clark, both former Navy SEALs, Blackwater was the largest security contractor for the U.S. Department of State. According to their website, Blackwater ceased their security operations in 2010. http://www.blackwaterusa.com/about-us/, last visited 13 May 2013. 3 United States v. Slough, 677 F.Supp.2d 112, 116 (D.D.C. 2009), vacated, 641 F.3d 544 (D.C. Cir. 2011), cert. denied, 132 S.Ct. 2710 (2012). 4 According to the Institute for Policy Studies website, Blackwater Worldwide changed its name to XE in February 2009 and then to Academi in December 2011. http://www.rightweb.irc- online.org/profile/Blackwater_Worldwide, last visited on 13 May 2013. 5 Blackwater was one of three private security companies hired by the Department of State in 2005 to provide security for its personnel. The other two were DynCorp International LLC, based in Falls Church, Virginia, and Triple Canopy, Inc., based in Herndon,Virginia; see also U.S. Congressional Research Service. Private Security Contractors in Iraq:
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