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.

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.

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

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

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: Background, Legal Status, and Other Issues, CRS-7 to 8 (RL32419 August 25, 1008, by Jennifer K. Elsea, et al.). Text at: http://www.fas.org/sgp/crs/natsec/RL32419.pdf (last visited on 4 April 2013) [hereinafter CRS Report RL32419, Private Security Contractors in Iraq.] The Congressional Research Center (CRS) is an arm of the Library of Congress that ―works exclusively for the United States Congress‖ providing bipartisan research and analysis on legal and policy issues. According to the CRS website, ―CRS experts assist at every stage of the legislative process — from the early considerations that precede bill drafting, through committee hearings and floor debate, to the oversight of enacted laws and various agency activities.‖ http://www.loc.gov/crsinfo/about/, last visited 20 May 2013.

Square, a traffic circle located just outside the International ―Green‖ Zone6 in downtown

Baghdad. 7 Raven 23 was ordered to secure an escape route for State Department personnel who were meeting with Iraqi officials when explosions were set off near their meeting location.8

Within 15 minutes of Raven 23 entering Nisur Square, ―heavy gunfire erupted‖ leaving 14 Iraqi civilians dead and 20 wounded.9 Although the men claimed that they fired their weapons in self-defense after coming under attack by insurgents, 10 an investigation headed by the U.S. government11 concluded that ―the guards used deadly force without justification.‖12

The men were interviewed by the State Department‘s Diplomatic Security Service

(DSS) 13 within ―hours‖ of the shooting, the contents of which DSS then memorialized into two ―Memorandum Reports of Interviews.‖ 14 The interviews were conducted in accordance with the State Department‘s policy requiring ―all Blackwater personnel‖

6 ―The International Zone (formerly known as the Green Zone) is the heavily guarded diplomatic/government area of closed-off streets in central Baghdad where US occupation authorities live and work. The Green Zone in the central city includes the main palaces of former President Saddam Hussein. The area houses the civilian ruling authority run by the Americans and British and the offices of major US consulting companies.‖ http://www.globalsecurity.org/military/world/iraq/baghdad-green- zone.htm, last visited 3 June 2013. 7 Slough, 677 F.Supp.2d at 116. 8 Slough, 677 F.Supp.2d at 116. 9 Ryan Devereaux, Blackwater guards lose bid to appeal charges in Iraqi civilian shooting case, The Guardian, 5 June 2012, http://www.guardian.co.uk/world/2012/jun/05/blackwater-guards-lose-appeal-iraq- shooting, last visited on 4 April 2013. (The number of Iraqis killed or wounded varies, depending on the source of the report.) See also Slough, 677 F.Supp.2d at 116. See also CRS Report RL32419, Private Security Contractors in Iraq at CRS-12. 10 Slough, 677 F.Supp.2d at 116. 11 The investigation consisted of physical evidence and eyewitness interviews collected by Iraqi Forces, the U.S. Military, and the FBI along with information obtained by the State Department based on the interviews and sworn statements provided by the defendants. Slough, 677 F.Supp.2d at 121-26. 12 Ryan Devereaux, Blackwater guards lose bid to appeal charges in Iraqi civilian shooting case, The Guardian, 5 June 2012; see also Slough, 677 F.Supp.2d at 116-17. 13 The U.S. Department of State‘s Diplomatic Security Service (DSS) is a global law enforcement agency charged with ―protecting the integrity of U.S. passport and visas.‖ DSS special agents also have the authority to conduct investigations of ―crimes that occur overseas on U.S. Government property.‖ http://www.state.gov/documents/organization/21580.pdf, last visited 3 June 2013. 14 Slough, 677 F.Supp.2d at 117.

2 involved in any shooting incidents to report for debriefings by State Department officials.15 After the debriefing, any Blackwater employee who ―discharged his weapon‖ was given a form on which they were to provide sworn statements. 16 The form, referred to as a ―Hunter Memorandum,‖17 contained an admonishment that ―an employee must make a statement or face termination but that any statement so made cannot be used in a subsequent criminal prosecution.‖ 18 The form was familiar to all of the men since they had all been involved in previous shooting incidents, after which they had filled out and submitted their sworn statements on the Hunter Memorandum.19 Thus, on 18 September

2007, the men submitted their sworn statements on the memorandum form, expanding on the oral statements they had given during the 16 September 2007 interview to DSS personnel. 20 These statements, which the government later ―conceded were compelled,‖ were then ―leaked to the media and disseminated globally in news reports.‖ 21 Over the next several weeks, DSS agents interviewed the men several more times regarding the

―specific details‖ of their actions at Nisur Square. 22

In December 2008, the Department of Justice charged the men with voluntary manslaughter and firearms violations arising out of the shooting.23 On 31 December

2009, the District Court Judge, Ricardo M. Urbina, dismissed the indictment against all

15 Slough, 677 F.Supp.2d at 118. 16 Slough, 677 F.Supp.2d at 118. 17 The Hunter Memorandum is so named for Regional Security Officer Mark Hunter, the author of the State Department policy setting forth the reporting procedures for incidents involving the on-duty discharge of firearms. Slough, 677 F.Supp.2d at 118. 18 Slough, 677 F.Supp.2d at 118. 19 Slough, 677 F.Supp.2d at 118-119. 20 Slough, 677 F.Supp.2d at 119. 21 Slough, 677 F.Supp.2d at 120. 22 Slough, 677 F.Supp.2d at 119-20. 23 Slough, 677 F.Supp.2d at 128.

3 five men due to evidentiary infirmities.24 The government had used information obtained from the interviews and the statements the men had given in connection with the shooting as part of the ―evidence‖ upon which the charges were based. This was done in contravention of the language of the Hunter Memorandum. 25 Further, because the men were required to provide an account of the incident or face termination, Judge Urbina determined, and the government conceded, that the statements were compelled. The judge also ruled that the statements‘ wide dissemination to the public had tainted the testimony of many of the other government witnesses.26

The government appealed the district court‘s dismissal. On 22 April 2011, the

U.S. Court of Appeals for the District of Columbia vacated the dismissal and remanded the case for further inquiry into the evidence as to each particular defendant.27 On 19

July 2011, the Supreme Court declined to review the Court of Appeals‘ ruling28 which enabled the prosecution to continue. The men have yet to be prosecuted.29

The Nisur Square case became instant fodder for both the U.S. and Iraqi media30 and human rights organizations claimed it was evidence of the U.S. Government ignoring well established laws of war and international laws on human rights. Countless articles were written, citing various sources offering differing viewpoints of what actually

24 Slough, 677 F.Supp.2d at 166. 25 Slough, 677 F.Supp.2d at 116. 26 Slough, 677 F.Supp.2d at 116. 27 United States v. Slough, 641 F.3d 544, 554-555 (D.C. Cir. 2011), cert. denied, 132 S.Ct. 2710 (2012). 28 Ryan Devereaux, Blackwater guards lose bid to appeal charges in Iraqi civilian shooting case, The Guardian, 5 June 2012; see also United States v. Slough, 641 F.3d 544. 29 157 CONG. REC. S3500 (daily ed. June 6, 2011)(remarks of Sen. Leahy)(―Efforts to prosecute those responsible for these [Nisur Square] shootings have been fraught with difficulties, and our ability to hold the wrongdoers in this case accountable remains in doubt.‖) 30 Slough, 641 F.3d at 548.

4 happened. The fact remained, though, that armed American civilians killed dozens of allegedly innocent Iraqi civilians and have yet to be held accountable.

Embarrassment to the United States

[T]he inability of U.S. authorities to adequately respond to serious misconduct within the civilian component of the U.S. Armed Forces, presents the strong potential for embarrassment in the international community, increases the possibility of hostility in the host nation‘s local community where our forces are stationed, and threatens relationships with our allies.31

Nisur Square was not the first incident involving Iraqi civilian deaths at the hands of American civilian contractors, nor would it be the last. However, it brought to the forefront the U.S. Government‘s ability and willingness, or lack thereof, to hold civilians liable for their criminal conduct overseas. ―In a broader foreign policy context, the State

Department‘s alleged protection of Blackwater as…[they] kill Iraqis with impunity makes it difficult to advocate for such issues as the importance of the rule of law and human rights as U.S. foreign policy objectives.‖32

The apparent callousness with which civilians are killed or wounded by ―those associated with the United States‖ give credence to the ―allegations of human rights violations‖ which ―affect both the perception of the United States as a country respectful of human rights as well as the international environment in which the United States works to advance its foreign policy objectives.‖33 The use of deadly force by civilian contractors resulting in the death of dozens of Iraqi civilians, along with ―the State

Department‘s alleged lack of concern about accountability…have undermined U.S.

31 H.R. REP. NO. 106-778, MEJA 2000. 32 CRS Report RL32419, Private Security Contractors in Iraq at CRS-12. 33 CRS Report RL32419, Private Security Contractors in Iraq at CRS-13.

5 foreign policy and specifically U.S. standing in Iraq.‖34 According to an Iraqi Interior

Ministry Official, ―Iraqis do not know them as Blackwater or other PSCs [private security contrators] but only as Americans.‖35

Nisur Square and other incidents like it demonstrate the necessity of a mechanism to ensure accountability over the conduct of all civilians in deployed environments, regardless of the government agency for whom they work. This paper proposes that military jurisdiction over all civilian personnel, whether they are federal civilian employees or civilian contractors,36 who accompany the Armed Forces into a combat zone is a valid means to assure compliance with international and domestic law obligations. The authority under which civilians who accompany the armed forces into combat should be placed under military control is Article 2(a)(10) of the UCMJ, which states that ―[i]n time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field‖ are subject to the military‘s jurisdiction. 37

One of the methods by which this Article can be effectively revived is through a statutory amendment to the definition of a member of the armed forces as any federal civilian employee assigned to, and serving with, the armed forces in the field. 38

34 CRS Report RL32419, Private Security Contractors in Iraq at CRS-13 (citations omitted). 35 CRS Report RL32419, Private Security Contractors in Iraq at CRS-13 (citations omitted). 36 The topic of jurisdiction over civilian contract personnel, though relevant to this thesis, is a tangential issue that is necessarily discussed in the paper. The scope of the thesis is limited to the argument that all federal civilian employees, e.g those who work for the Department of Defense, the Department of State, NOAA, etc., who deploy to areas such as Iraq or Afghanistan, should fall within the sphere of the military‘s authority. 37 10 U.S.C.A. § 802, Article 2 (2009) 38 Congress has already designated the employees of some federal agencies as subject to military jurisdiction in Article 2(a)(8) of the UCMJ, which provides that ―Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.‖ 10 U.S.C.A. § 802, Article 2(a)(8) (2009).

Pseudo-Combatants

Although the subject of accountability for civilian misconduct generally centers on crimes committed by contractors, federal civilian employees who engage in misconduct are likewise beyond the reach of the military. Moreover, the perceived reluctance of federal agencies to take any action when their employees engage in misconduct, such as the Department of State‘s apparent ―protection of Blackwater as its employees,‖39 presents a larger problem for the deployment of civilians into combat zones. The lack of a resolution in the Nisur Square incident reinforces the perception that

American civilians in combat zones believe they are ―above the law.‖ This mentality presents even broader concerns than just accountability issues by the U.S. government because it brings into question their protected status under the Geneva Conventions.40

39 CRS Report RL32419, Private Security Contractors in Iraq at CRS-13. 40 http://www.redcross.lv/en/conventions.htm. The Geneva Convention of 1864 established the first set of humanitarian laws governing the treatment of the wounded and the sick after a conflict. It began with a concept borne from the travels of a merchant named Henry Dunant who, after witnessing the atrocities of war, developed the idea of peacetime volunteers who would assist the combatants from both sides. The volunteers would, themselves, need protection from the dangers of war and would thus need to be internationally recognized and protected. Thus was born the International Committee of the Red Cross and, with it, a treaty between 12 nations known as the ―Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.‖ This first agreement contained ten articles and ―was the first treaty of international humanitarian law.‖ The First Hague Conference took place in 1899 in the Netherlands, where the treaty was expanded to apply to action at sea as well as on land, laying the groundwork for later development of the law of the sea. (At the Second convention, the treaty was amended to address treatment of not only the wounded and the sick, but also shipwrecked members of the armed forces as well as shipwreck victims. Currently, the law of the sea requires that a nation provide assistance to any ship emitting an SOS signal.) In 1904 at the Second Hague Conference, the treaty was again expanded, this time to include other categories of protected persons, such as prisoners of war. The terms of the treaty continued to be developed and refined well into the 20th Century. After World War II, the provision for the protection of civilians during wartime was included and the Geneva Convention of 1949 established the body of law governing the treatment of combatants and civilians that exists today. In 1977, two Additional Protocols were added, expanding the terms of the treaties further (http://www.ppu.org.uk/learn/texts/doc_geneva_con.html). Collectively, the treaties ratified at each conference and the Additional Protocols, are called the Geneva Convention of 1964, though they are broken down into four different parts. The First Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces and Field, the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, the Third Geneva Convention,

Under the Fourth Geneva Convention, civilians are ―persons who do not participate in hostilities‖ 41 and are afforded protections that members of the Armed

Forces, considered combatants, are not. 42 However, federal agencies physically present in dangerous areas, such as Iraq and Afghanistan, often hire their own private and armed security guards who act very much like military personnel. Given that their actions are not always done in self-defense, however, there is a very real concern that they, and by extension the federal civilian agency that hired them to act as pseudo-combatants, lose their protected status. Though that issue is beyond the scope of this paper, it does present another compelling reason to bring all civilians in combat zones within the control of the

U.S. military.

Because federal civilian employees are not subject to military control, it is difficult to argue that the contractors they hire should be similarly subject to the same control, despite the fact that, under international law, ―contractors and other civilians working with the military are civilian non-combatants whose conduct may be attributable to the United States.‖ 43 Accountability for deployed civilian misconduct would therefore remain essentially nonexistent, in contravention of international law obligations. 44

Relative to the Treatment of Prisoners of War, and the Fourth Geneva Convention, Relative to the Protection of Civilian Persons in Time of War. 41 This generally refers to members of the civilian population, or non-military personnel, though it also includes members of the armed forces who have laid down their arms or who are wounded. 42 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Article 3(1). http://www.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5, last visited 3 June 2013. 43 CRS Report RL32419, Private Security Contractors in Iraq at CRS-14 at n.51 (citing AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Vol II (1987), § 901, comment a. ―Principles of State responsibility require a State in breach of an obligation to another State or international organization, without justification or excuse under international law, to terminate the violation and provide redress.‖). 44 CRS Report RL32419, Private Security Contractors in Iraq at CRS-14 at n.51 (citing AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Vol II (1987), § 207. ―Conduct that violates international obligations is attributable to a State if it is committed by

The argument for the revival of Article 2(a)(10), UCMJ, 45 which places any civilian accompanying the armed forces in the field under military jurisdiction, would not blur the lines between the military and civilian population, because the language of the article specifically limits jurisdiction to those civilians who ―accompany‖ the armed forces ―in the field.‖ Thus the line of cases protecting civilians in overseas locations, where no active combat occurs, from military jurisdiction would remain undisturbed.

In laying out this argument, this thesis will discuss the different types of civilians who may ―deploy‖ with the military into a combat zone, and provide an overview of the history of military justice, beginning with the Articles of War through the establishment of the Uniform Code of Military Justice. It will follow the pendulum swing of court decisions from almost absolute deference to the military‘s need to regulate its civilian population to the complete erosion of that authority, leaving a gap in the jurisdiction of civilians physically located outside of the United States. This paper will also discuss the various options posed to cover the gap, including Congress‘ passage of the Military

Extraterritorial Jurisdiction Act and the introduction of the Civilian Extraterritorial

Jurisdiction Act, and the shortfalls of the various propositions.

This thesis will conclude with an analysis of why the umbrella of military authority should include all civilians that accompany the military into a combat zone and that the existing mechanism established by Article 2(a) of the UCMJ is the most appropriate way to accomplish this.

the government of the State or any of its political subdivisions, or by any official, employee, or agent operating within the scope of authority of any of these governments, or under color of such authority.‖) 45 10 U.S.C.A. § 802 (2009).

Background

Contemporary military operations, often captioned as contingency operations46 such as the conflicts in Iraq and Afghanistan,47 have raised unique jurisdictional issues that the framers of the United States Constitution could not have envisioned. The presence of military personnel in Iraq and Afghanistan for the past 10 years has resulted in the U.S. establishing small military communities, referred to as military installations,48 in often hostile territory from where missions may be planned and carried out; communities where members of the armed forces reside for anywhere from six to 18 months. The communities range in size depending on the location, but nearly all attempt to provide the basic comforts that can be found on a military installation in the United

States or overseas in Germany, South Korea, the United Kingdom, Italy, and Japan— such as small convenience stores where everyday items may be purchased, dining and laundry facilities, as well as sleeping accommodations.

Where military communities spring up, the rule of law and discipline must follow. 49 Military laws and regulations are necessary for the proper governance of

46 10 U.S.C. §101(a)(13) (2013) defines a ―contingency operation‖ as a military operation that: (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed services…during a war or during a national emergency declared by the President or Congress. Thus, contingency operations encompass ―show-of-force operations, interventions, limited strikes, noncombatant evacuation operations, no-fly zone enforcement, peace enforcement, maritime sanctions enforcement, counterterrorism operations, peacekeeping, humanitarian assistance, and disaster relief‖ but are generally linked to combat operations that fall short of war, such as the operations in Iraq and Afghanistan. http://www.globalsecurity.org/military/ops/ssc.htm, last visited 30 May 2013. 47 There was never a formal declaration of war from Congress for either conflict. 48 ―The term ‗military installation‘ means a base, camp, post, station, yard, center, homeport facility or any ship, or any other activity under the jurisdiction of a department, agency, or other instrumentality of the Department of Defense, including a leased facility…‖ http://www.globalsecurity.org/military/facility/intro.htm, last visited 30 May 2013. 49 MANUAL FOR COURTS-MARTIAL UNITED STATES, R.C.M. 201(a)(2) (2012) (―The code applies in all places.‖) Available at http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf [hereinafter MCM].

10 military establishments. The maintenance of good order and discipline depend on the existence of these authorities so that armed military personnel do not wreak havoc on the local community. Allowing such mayhem not only violates the Law of War, but also endangers members of the military and, in turn, the civilians that live within those communities. Ultimately, this risk is spread to the American public at large, since all members of the military community, whether active duty or civilian, are considered representatives of the United States.

The Uniform Code of Military Justice‘s preamble describes different situations in which military jurisdiction exists:

(1) A government in the exercise of that branch of the municipal law which regulates its military establishment. (Military law). (2) A government temporarily governing the civil population within its territory or a portion of its territory through its military forces as necessity may require. (Martial law). (3) A belligerent occupying enemy territory (Military government), (4) A government with respect to offenses against the law of war. 50

The various military installations that have formed in Iraq and Afghanistan are overseen by an installation commander responsible for the health, safety, and well-being of the people living within the fence line, especially since their presence in those countries is not necessarily welcomed. Their continued presence in a hostile environment effectively brings any Americans located in that territory within the meaning of paragraph (3) as belligerents occupying enemy territories, whereby military governance is appropriate.

Problems with military governments in combat zones arise when civilians are co- located with military personnel at these installations. Civilians have long maintained, and

50 MCM, Part I, para 2(a).

11 since the 1950‘s the courts have agreed, that they are not subject to military jurisdiction, regardless of the circumstances. In its full extension, this viewpoint is both dangerous and irresponsible, as it essentially allows civilians to accompany the military forces into combat zones without giving the commanding officers any tools to govern their actions to ensure the maintenance of good order and discipline.

The operations in Iraq and Afghanistan are not like any other conflicts in which the U.S. has been involved. Because the U.S. has not been involved in any declared wars since World War II, the decisions that have ruled unconstitutional the ability of a military force to mete out discipline to its civilian population have dealt mainly with civilians situated overseas in peaceful, U.S. friendly countries, albeit sometimes under the threat of war. To the extent that these cases have found that military courts can never be an appropriate avenue to try civilians, they should be reconsidered.

The Need for Civilians

At its present size, the U.S. military could not function without civilian contractors…The problem is that the civilians operate in a legal gray zone. There has been little effort at regulation, oversight, standardized training and a uniform code of conduct.51

Given the ―contingency‖ style war that the U.S. is now fighting, our semi- permanent presence in hostile environments will not likely abate. Moreover, continued financial restrictions on the U.S. government means that reliance on civilian personnel to augment military forces in deployed locations will continue to increase as well. Although civilian contractors make up a majority of military augmentees, the civilian population in

51 Geoffrey S. Corn, Unarmed but how Dangerous? Civilian Augmentees, the law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions, 2 J. NAT‘L SEC. L. & POL‘Y 257, n.1 (2008).

12 deployed locations is also comprised of large numbers of federal civilian employees from the Department of Defense, the Department of State and, to a lesser extent, various other federal agencies (such as the Department of Agriculture and the National Oceanic and

Atmospheric Adminsitration) as well. The three major categories of civilian personnel who may deploy in support of military operations are discussed below.

Department of Defense Civilians

―It is DoD policy to…rely on a mix of capable military members and DoD civilian employees to meet DoD global national security mission requirements.‖52 With their large contingent of DoD civilians deployed in support of the military operations in

Iraq and Afghanistan,53 the Department of the Army has made several civilian positions deployable. Employees in these positions are known as the ―DoD Civilian Expeditionary

Workforce.‖54 Members of this workforce are trained and equipped in the same manner as active duty personnel and are subject to deployments in support of a wide range of operations that include combat, contingencies, emergency, humanitarian, and disaster relief, among other things.55 They are also required to be trained in the laws and customs of war as well as international human rights laws. This satisfies the notice requirement that they are amenable to the laws of war relative to the deployment.

Civilians working for the Army in deployable positions are considered

Emergency-Essential (E-E) personnel. Civilians employed in E-E positions are required,

52 DEPARTMENT OF DEFENSE DIRECTIVE 1404.10, DOD CIVILIAN EXPEDITIONARY WORKFORCE, para 4.a, 23 January 2009 [hereinafter DODD 1404.10]. 53 The DoD employs over 800,000 civilian personnel worldwide, with over 222,000 of those positions under the U.S. Army. http://godefense.cpms.osd.mil/, last visited 3 June 2013. 54 DODD 1404.10, para 1.a. 55 DODD 1404.10, para 1.a.

13 when the need arises, to deploy and participate in contingency operations or perform temporary duty assignments overseas in order to ensure the success of any combat operation. 56 Because E-E positions require ―uninterrupted performance to provide immediate and continuing support for combat operations…‖ they cannot be fulfilled by military personnel.57 Thus civilians who apply for, and are subsequently hired into, E-E positions must sign a DoD Civilian Employees Overseas Emergency-Essential Position

Agreement58 as a condition of their employment.59 Employees in E-E positions who refuse to perform their duties pursuant to their positions at the outbreak of a military crisis will be required to perform their duties, though involuntarily, until they can be replaced and reassigned to a non-E-E position. 60 Unlike active duty personnel who cannot refuse a deployment, civilians face no disciplinary actions for refusal to adhere to their duty requirements.61

Non-DoD Civilians

Aside from the Department of Defense, the Department of State also frequently deploys their employees to areas of hostilities. Department of State personnel, much like military personnel, are also voluntarily stationed at various locations worldwide, depending on the needs of the government. However, unlike military personnel, DoS

56 U.S. DEP‘T OF THE ARMY REGULATION 690-11, USE AND MANAGEMENT OF CIVILIAN PERSONNEL IN SUPPORT OF MILITARY CONTINGENCY OPERATIONS, Section III, para 1-10 and Glossary, 26 May 2004 [hereinafter AR 690-11]. 57 AR 690-11, Glossary. 58 DD Form 2365 59 AR 690-11, Section III, para 1-10. 60 AR 690-11, Section III, para 1-10. 61 AR 690-11, Section III, para 1-10. ―The employee will be entitled to the benefits and protections of an E-E employee, but will be reassigned out of the position and assigned to a non-E-E position as soon as reasonably practicable under the circumstances.‖

14 employees are not automatically deployable and are only sent into areas of hostility if they so volunteer.

Civilians who volunteer for deployments must undergo special training to ensure that they are familiar with the type of environment into which they are entering. Part of the training requires integration with military members so that they can experience what life in a country such as Afghanistan will be like. Training includes practice in ―travel by military convoy or helicopter, and use of interpreters during scripted training events featuring Afghan role-players‖ 62 as well as briefings on ―U.S. counterinsurgency strategies and USAID‘s Tactical Conflict Assessment and Planning Framework.‖63

Contractors

By far the largest, and most controversial, group of civilian personnel employed in areas such as Iraq and Afghanistan are private contractors. While civilian contractors can perform jobs that are ―legally benign‖ and ―do not implicate the LOAC (Law of

Armed Conflict) in any meaningful way,‖64 some of the tasks performed by contractors, particularly those that normally make headline news, ―raise questions about whether the civilian is directly participating in hostilities.‖ 65

After General Dwight D. Eisenhower was elected President, he sought to reduce the size of the conventional military.66 Following the end of the Cold War, the active

62 http://careers.state.gov/ap-jobs/benefits#.UTkmb6IpySo, last visited 3 June 2013. 63 http://careers.state.gov/ap-jobs/benefits#.UTkmb6IpySo, last visited 3 June 2013. 64 Joshua P. Nauman, Civilians on the Battlefield: By Using U.S. Civilians in the War on Terror, Is the Pot Calling the Kettle Black? 91 NEB. L. REV. 459, 466 (2012). 65 Joshua P. Nauman, Civilians on the Battlefield: By Using U.S. Civilians in the War on Terror, Is the Pot Calling the Kettle Black? 91 NEB. L. REV. 459, 466 (2012). 66 Early on in his presidency, President Eisenhower proposed substantial defense spending reductions, while at the same time ensuring that a sizeable nuclear deterrent thwarted communist designs on Western Europe. His administration modified President Truman‘s policy of containing communism encapsulated in

15 duty force was reduced even further.67 This resulted in an increased reliance on civilian contractors to fill the support roles that were previously performed by active duty military personnel.68 Indeed, because they are capable of ―supplying immediate expertise and manpower much more rapidly than the military can grow subject matter experts,‖69 the trend toward ―civilianization of the battlefield‖70 is unlikely to abate.

Contractors are hired to work in a wide range of positions, from cooks in military dining facilities to interpreters to hired security personnel, in order to free up the ―limited military forces to perform combat missions.‖ 71 The latter category is the most controversial of their status. International law frowns upon the use of mercenaries.72

NSC-68 with NSC-162, continuing containment strategies, but with reduced numbers of conventional ground forces. Instead, President Eisenhower intended for the national defense to rely on air power and nuclear weapons, including tactical nuclear weapons from ground launched rocket and artillery systems. He also initiated a policy of massive retaliation with nuclear weaponry should the Soviet Union strike first. In turn, the military‘s leaders and the nation‘s intelligence functions believed heightened secrecy standards were essential. In 1953, the Armed Services numbered 3,403,000 personnel; President Eisenhower planned for this number to drop to 2,815,000 by 1957. For the most part, this plan impacted the Army and the Navy, but the planned reductions in conventional forces did not end conscription nor did it result in any plans to liberalize the military‘s disciplinary construct. With a greater reliance on nuclear weapons as part of the nation‘s defense strategy, the Department of Defense‘s leadership felt that discipline became more, rather than less, important. See e.g. RUSSELL F. WEIGLEY, THE AMERICAN WAY OF WAR: A HISTORY OF UNITED STATES MILITARY STRATEGY AND POLICY, 400-405 (Indiana University Press ed. 1977) (1973); DAVID A. NICHOLS, EISENHOWER 1956: THE PRESIDENT‘S YEAR OF CRISIS: SUEZ AND THE BRINK OF WAR, 49-50 (Simon and Schuster 2011); ROBERT A. DIVINE, EISENHOWER AND THE COLD WAR, 33-37 (Oxford University Press 1981). 67 Geoffrey S. Corn, Unarmed but how Dangerous? Civilian Augmentees, the law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions, 2 J. NAT‘L SEC. L. & POL‘Y 257, 257 (2008). 68 Geoffrey S. Corn, Unarmed but how Dangerous? Civilian Augmentees, the law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions, 2 J. NAT‘L SEC. L. & POL‘Y 257, 257 (2008). 69 Marc Lindemann, Civilian Contractors Under Military Law, PARAMETERS, U.S. ARMY WAR COLLEGE QUARTERLY, Autumn 2007, Vol. XXXVII, No. 3. 70 Geoffrey S. Corn, Unarmed but how Dangerous? Civilian Augmentees, the law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions, 2 J. NAT‘L SEC. L. & POL‘Y 257, 258 (2008). 71 Geoffrey S. Corn, Unarmed but how Dangerous? Civilian Augmentees, the law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions, 2 J. NAT‘L SEC. L. & POL‘Y 257, 257 (2008). 72 Resolution 44/34, The International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention.

Whether private military contractors fall into the mercenary category or another status has not yet been determined by law and is currently under challenge, but it is clear that armed contractors perform previously holistic military functions at a high price-tag.73

Beginning in 1946 with Duncan v. Kahanamoku, where the court struck down the conviction and sentence of two civilians by military tribunals,74 the military‘s ability to assert jurisdiction outside of the United States over civilians has declined. While the military establishment may tell civilian employees that they are subject to the rules instituted by the military commander, there is not much they can do to ensure those rules are followed. For instance, a commander may prohibit political activity on an installation, but the military has to rely on the Department of Justice to enforce the

73 See e.g. Ryan M. Scoville, Toward an Accountability-Based Definition of Mercenary, 37 GEO. J. INT'L L. 541 (2006); but see, Todd S. Millard, Overcoming Post-Colonial Myopia: A Call to Recognize and Regulate Private Military Companies, 176 MIL. L. REV. 1 (2003). 74 Duncan v. Kahanamoku, 327 U.S. 304 (1946). On 7 December 1941, after the Japanese attack on Pearl Harbor, the governor of Hawaii suspended the writ of Habeas corpus and, with permission from the President of the United States, placed the Hawaiian Territory under martial law. The civilian judicial system was shut down and military tribunals were established to try any civilians accused of violating any laws, whether they be laws of the U.S., the Hawaiian Territories, or military rules or regulations. Any sentence meted out by the military tribunal was immune from direct judicial review under the premise that ―military tribunals are not part of our judicial system.‖ Id. at 309. The two civilians, Harry E. White and Lloyd C. Duncan, were arrested in August 1942 and February 1944, respectively. White was charged with embezzling from another civilian while Duncan was charged with violating a military order for assaulting two Marines. Id. at 310. By the time of Duncan‘s arrest, the civilian courts were again allowed to function; however, the military still dictated the day to day lives of the civilian population. Finding no credence in the government‘s argument that ―conditions peculiar to Hawaii might imperatively demand extraordinarily speedy and effective measures in the event of actual or threatened invasion‖ as a reason why civilians in Hawaii should be afforded less Constitutional protections than inhabitants of the other 48 states, (318-19), the court found that the military had overstepped its authority when it used martial law, originally intended to ―authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion,‖ as a reason for the blanket supplanting of civilian courts by military tribunals. Id. at 616. The men‘s convictions were reversed and they were ordered released. In coming to this conclusion, however, the court did explicitly exclude from their decision ―…the well- established power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war.‖ Id. at 313-14.

17 prohibition. 75 Civilians who flout the laws and regulations pertinent to a deployed operation are subject to no more than a cessation of their employment in that country and a return to the United States. 76 As the Nisur Square incident illustrates, once back on

U.S. soil, the difficulty with holding civilians accountable for crimes committed overseas is evident. Despite working side by side to achieve the same or similar goals, civilian and military personnel are not held to the same standards.

Often, State Department personnel and, consequently, the contractors they employ, ―act as if they are above Iraqi law.‖77 This attitude stems from the fact that there is no real way to hold them accountable for their criminal conduct. The lack of disciplinary control over the federal civilian employees, people over whom the U.S. government has a direct employment relationship, makes it difficult to justify any attempts to assert control over contractors, people whose connection to the U.S. government flows through third parties.

Asserting military jurisdiction over all federal civilian employees who deploy to a combat zone in support of military operations, regardless of the government agency for whom they work, would allow the government to also assert jurisdiction over the civilian contractors employed by these agencies. This would effectively close the existing jurisdictional gap and resolve the problematic accountability issues. In fact, many military officials, concerned with security contractors being ―trigger happy and ―out-of-

75 See Albertini v. United Statess, 472 U.S. 675 (1985). James Albertini was a civilian who was barred from Hickam Air Force Base in 1972 for destroying government property (by pouring animal blood on several secret Air Force documents). In 1982, he re-entered the base during its annual Armed Forces Day open house and staged a protest. Military officials apprehended and escorted him off of the installation; he was later convicted by the Federal District Court of unlawfully entering the base in violation of the barment order. His First Amendment challenge was struck down by the Supreme Court, which held that ―[e]xclusion of holders of bar letters…promotes an important Government interest in assuring the security of military installations.‖ 76 H.R. REP. NO. 106-778, MEJA 2000. 77 CRS Report RL32419, Private Security Contractors in Iraq at CRS-14 at n.51.

18 control cowboys who alienate[ ] the same Iraqis the military is trying to cultivate‖ would prefer that they be put under military control.78

History

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.79

The presence of civilians in combat zones and, with it, the need for a system of discipline that would enable a military commander to subject civilians accompanying his forces to military discipline predate the founding of the United

States.80 Historically, civilians were subject to the Articles of War, a disciplinary system adopted from the European military. The Articles of War in America eventually gave way to the Uniform Code of Military Justice, the disciplinary code upon which the American Armed Forces now relies.

The Articles of War

Colonel William Winthrop, referred to by Justice Felix Frankfurter as the

Blackstone of Military Law,81 referred to civilians that accompanied the military on the

78 CRS Report RL32419, Private Security Contractors in Iraq at CRS-14 at n.51. 79 Manual for Courts Martial, Part I, para 3, Page I-1 (2012) (http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf, last visited 12 April 2013) 80 ―George Washington hired civilians to haul the Continental Army‘s equipment; supply vendors followed the Union and Confederate armies during the Civil War.‖ Marc Lindemann, Civilian Contractors Under Military Law, PARAMETERS, U.S. ARMY WAR COLLEGE QUARTERLY, Autumn 2007, Vol. XXXVII, No. 3. 81 JOSHUA E. KASTENBERG, THE BLACKSTONE OF MILTIARY LAW: COLONEL WILLIAM WINTHROP, Preface (Scarecrow Press 2009).

19 battlefield as ―retainers to the camp‖82 and ―followers of the camp.‖83 These followers were subject ―not only to the orders made for government and discipline of the command to which they may be attached, but also to trial by court-martial for violations of the military code.‖84

The terms ―retainers to the camp‖ and ―followers of the camp,‖ used to describe civilians accompanying the armed forces until the adoption of the UCMJ in 1950, were derived from the Articles of War, established in 1775 by the Second Continental

Congress.85 The Articles were adapted from pre-existing British military codes and the

Massachusetts Articles, 86 explicitly providing for jurisdiction of civilians by the military.87

The military‘s reach was tempered with caution, however, with a careful line drawn between civil and martial law.88 Except in the case of civilian spies, jurisdiction over civilians was generally limited only to times of war and in areas where the civil courts were not functioning.89 Military jurisdiction over civilians has always been a delicate balancing act, weighing the need for ―discipline of the camps‖ and the

82 ―Retainers to the camp‖ are officer‘s servants. COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98 (1896). 83 ―Followers of the camp‖ include sutlers, sutlers‘ employees, newspaper correspondents, telegraph operators, and post-traders. COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98-99 (1896). 84 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98 (1896). 85 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 21 (1896). 86 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 22 (1896). The Massachusetts Articles were written in April 1775 and resembled the regulations in the British Articles. The Massachusetts Articles were considered by Col Winthrop to be ―the first American written code of military laws.‖ 87 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 86 (1896). ―By the articles of war and other statutes certain classes of persons are rendered, or declared to be, amenable to the jurisdiction of courts-martial, as follows: I. The Army of the United States…IV. Certain civilians subjected to military discipline in time of war; V. Certain other civilians.‖ 88 Ex parte Milligan, 71 U.S. 2, 48 (1866) 89 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 7, 102-103 (1896).

―government of armies in the field‖ against ―the rights of citizens in time of war.‖90 The terms ―times of war‖ and ―in the field‖ would later become important in court challenges to the military‘s authority; the concept of ―contingency operations,‖ as the conflicts in

Iraq and Afghanistan are known, did not yet exist, though one can draw a parallel of sorts to the Army‘s policing of the Western territories and Indian reservations after 1865.

Though the Articles went through several amendments, jurisdiction over civilians by the military remained a part of the regulations, regulations which existed when the

United States Constitution was adopted.91 In 1944, subject to military law under Article of War 2(d) were:

[A]ll retainers to the camp and all persons accompanying or serving with the Armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving the Armies of the United States in the field, both within and without the jurisdiction of the United States…92

Civilians ―accompanying the armed forces,‖ another concept that would become important in the jurisdiction battle, owed a ―correlative obligation of obedience‖ to the military in return for the protections that they enjoyed.93

90 Milligan, 71 U.S. at 22. 91 Article 32 of the 1775 Articles of War stated, in relevant part, ―[a]ll sutlers and retainers to a camp, and all persons whatsoever, serving with the continental army in the field, though not [e]nlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army.‖ Article 60 of the Article of War stated: ―All sutlers and retainers to the camp, and all persons whatsoever, serving with the armies of the United States n the field, though not enlisted soldiers, are to be subject to orders according to the rules and articles of war.‖ Milligan, 71 U.S. at 44. Article 63 of the Articles of War stated: ―All retainers to the camp, and all persons servicing with the armies of the United States in the field, though not enlisted soldiers, are subject to orders, according to the rules and discipline of war.‖ COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98 (1896). 92 Perlstein, 57 F.Supp. at 124. 93 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98 (1896).

Ex parte Milligan: “Where peace exists the laws of peace must prevail.”94

Military jurisdiction over civilians remains a difficult and troubling issue, most notably because prior to 1950 and, to some degree, to the present, there is an open question as to whether the Fifth Amendment applied to military trials. Although civilian presence within the military ―field‖ did not occur in large numbers in America until the

Civil War,95 the maintenance of morale and discipline within the armed forces, not to mention the security of the government, played a critical role in the determination that military jurisdiction over civilians was necessary. 96 As such, the Supreme Court generally did not intervene in military trials. 97 However, in 1866 the Supreme Court decided Ex parte Milligan, criticizing the use of martial law or martial authority against civilians, particularly in times of peace.

On 5 October 1864, Lamdin Milligan, a 20 year civilian resident of Indiana, was arrested by military forces and confined in a military prison under the order of Brevet

Major-General Hovey, the military commandant of the District of Indiana. 98 Milligan was accused of conspiring with a secret society known as the Order of American Knights or Sons of Liberty to overthrow the U.S. Government;99 ―holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; liberate prisoners of war; and resisting the draft ‗at a period of war and armed rebellion against the

94 Milligan, 71 U.S. at 140. 95 H.R. REP. NO. 106-778, MEJA 2000 96 COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 98 (1896). By the Civil War, the class of civilians accompanying the military had expanded, consisting largely of those who were employed in the service of the government (―civilian clerks, teamsters, laborers, hospital officials and attendants, veterinaries, interpreters, guides…men employed on transports and military railroads and as telegraph operations, etc.‖). Id. at 99. 97 See, Dynes v. Hoover, 61 U.S. 65 (1857); and Ex parte Vallandigham, 68 U.S. 243 (1863). 98 Milligan, 71 U.S. at 107. 99 Milligan, 71 U.S. at 6.

22 authority of the United States….‘‖ 100 He was tried and convicted by a military tribunal for conspiracy, aiding the enemy, inciting insurrection, ―disloyal practices,‖ and

―violations of the laws of war‖ and sentenced to death by hanging.101

Milligan was, in fact, guilty of the crimes with which he was charged. 102 But the issue before the court was whether the military had jurisdiction to try him, given that he was a civilian. Though Milligan had served in the Indiana militia in the Mexican-

American war, he had never been in the American military service as a soldier subject to the Articles of War after that conflict. He had no connection to the U.S. land and naval forces or any connection to the American militia during the Civil War, nor was he situated in any State in the U.S. that was considered ―engaged in rebellion‖ against the nation.103 Yet his sentence was approved by the President of the United States and his execution was scheduled for 19 May 1865. 104 However, on 10 May 1865, Milligan petitioned the Circuit Court of the United States for the District of Indiana objecting to the authority of the commission to try him. The court, consisting of a two judge panel, split on the issue of whether the military had jurisdiction.105

100 Milligan, 71 U.S. at 6. 101 Milligan, 71 U.S. at 6. 102 Milligan, 71 U.S. at 16. A number of Indiana residents had conspired to commit an armed insurrection on the eve the 1864 election in Indiana. Milligan, a prominent member of his state, having run for the office of governor (and lost) on the Democratic ticket in 1964, was among those individuals. He was not subtle about his beliefs in the principles espoused by the Sons of Liberty and its leader, Harris H. Dodd, having ―publicly disparaged Lincoln as having unconstitutionally usurped power.‖ A raid on Dodd‘s business revealed that the Sons of Liberty had been stockpiling arms and money in an attempt to raise an armed rebellion. This incident was what led to Dodd, along with other members of the Sons of Liberty, including Milligan, being brought to trial before a military commission. JOSHUA E. KASTENBERG, LAW IN WAR, WAR AS LAW: BRIGADIER GENERAL JOSEPH HOLT AND THE JUDGE ADVOCATE GENERAL'S DEPARTMENT IN THE CIVIL WAR AND EARLY RECONSTRUCTION, 1861-1865, 338-342 (Carolina Academic Press 2011). 103 Milligan, 71 U.S. at 107. 104 Milligan, 71 U.S. at 107. 105 Milligan, 71 U.S. at 108-109, 118.

The appeal was then taken up by the United States Supreme Court in December

1866. The court found that Milligan should have been ―delivered to the Circuit Court of

Indiana to be proceeded against according to law‖ 106 and that a ―guarantee of freedom was broken when Milligan was denied a trial by jury.‖ 107 They ruled Milligan‘s trial and sentence unlawful and ordered him released.108 In coming to this determination, the

Court carefully laid out the limitations imposed on the military insofar as its authority over the rights due to civilians and reiterated that the powers of the military flow from the

President and Congress which, in turn, derive their power from the Constitution.‖109

The concurring opinion in Milligan acknowledged that Congress is authorized by the Constitution to ―raise and support armies; provide and maintain a navy; to make rules for the government and regulation of the land and naval forces‖ and that, inherent in this power to make rules for the government of the Army and the Navy is the ―power to provide for trial and punishment by military courts without a jury.‖110 It further declared that none of the Amendments enumerated in the Bill of Rights abridged this power and

―cases arising in the land and naval forces…in time of war or public danger, are expressly excepted from the fifth amendment‖ right to a grand jury indictment.111 However, the

106 Milligan, 71 U.S. at 122. 107 Milligan, 71 U.S. at 122. 108 Milligan, 71 U.S. at 130-131. ―The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice.‖ Id. at 132. 109 Milligan, 71 U.S. at 137. 110 Milligan, 71 U.S. at 137. 111 Milligan, 71 U.S. at 137-138.

24 court reasserted the proposition that the wielding of this power was only legitimate in times of war. 112

Despite the Milligan ruling, subjecting civilians accompanying military forces to courts martial, even when there was no declared war,113 continued to be an accepted practice. This is evident by the number of cases upholding courts-martial convictions and sentences, from the ―Insular Cases,‖ 114 ―which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power,‖115 to In re Ross, 116 which stood for the contention that ―[t]he Constitution can have no operation in another country.‖ 117 However, it must be noted that Ross today is of dubious precedent because, as the Court would point out in 1956 in its holding in Reid v. Covert, discussed later, Ross appears to have been an imperial relic, which reflected a

112 Milligan, 71 U.S. at 140. 113 ―Judicial decisions before the [Uniform Code of Military Justice] had long recognized that a state of war may exist without a declaration of war.‖ MCM, Part II, App.21, R.C.M. 103(19), citing Bas. v. Tingy, 4 U.S. 37 (1800); Hamilton v. M‘Claughry, 136 F. 445 (10th Cir. 1905), further citations omitted. 114 The ―Insular Cases‖ involved several cases in the early 1900‘s from the U.S. territories of Puerto Rico, the Philippines, and Hawaii, collectively known as the ―Insular Cases‖ because they were overseen by the Bureau of Insular Affairs, whereby the Court found that only ―fundamental‖ constitutional rights are guaranteed to inhabitants of those territories.‖ United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990) 115 Verdugo-Urquidez, 494 U.S. at 268. This case involved a Mexican citizen arrested for transporting drugs into the United States. After his arrest by Drug Enforcement Agency officials, his residence in Mexico searched and his property seized. Since he was a Mexican resident, DEA officials worked with Mexican officials to conduct the search and seizure, rather than obtain a warrant in the United States. Verdugo-Urquidez‘ challenged the legality of the search and seizure but his challenge failed with the court finding that ―the Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.‖ 116 In re Ross, 140 U.S. 453 (1892). Ross was an American seaman on board a ship docked in the harbor of Japan was convicted by an American consular tribunal of murder. The Ross court explained that there was ―no law of congress compelling the master of a vessel to carry or transport him to any home port, when he can be turned over to a consular court having jurisdiction of similar offenses committed in the foreign country‖ and that Americans tried by a consular court does not have the constitutional right to a grand jury indictment and trial by jury. 117 In re Ross, 140 U.S. 464 (1892) and Reid v. Covert, 354 U.S. 1, 12 (1957).

25 counterpart to the British, French, and Russian Empires‘ foreign legal assertions of authority. 118

“Accompanying” military forces “in the field”

As late as 1943, courts continued to find military prosecution of civilians proper.

By 1944, the provision requiring the U.S. to be engaged in a war in order to trigger jurisdiction over civilians was no longer explicit. Nor was it even necessary that civilians be put on notice that they may be subject to disciplinary measures by the military, including trial by court-martial, for military jurisdiction to attach. So long as a civilian was ―accompanying‖ the armed forces ―in the field,‖ as defined by the courts in McCune v. Kilpatrick, In re Berue, and Perlstein v. United States, they fell within the military‘s disciplinary authority.

In McCune v. Kilpatrick, 119 the District Court for the District of Virginia found in the affirmative when determining the issue of whether a civilian cook employed by the military is subject to trial by court-martial for desertion. Although the District Court in

McCune‘s habeas120 hearing ruled that ―[a] court-martial, under the laws of the United

118 Reid v. Covert, 354 U.S. 1, 12 (1957). 119 McCune v. Kilpatrick, 53 F.Supp.80 (D.C.Va 1943). Lawrence McCune was a retired Army veteran hired by the U.S. government to serve as a cook on a Navy vessel. McCune had not been informed that acceptance of the position meant that he would be subject to military law. Shortly after he began working on the ship, he was informed that, in addition to preparing meals for the crew of the vessel per the terms of his contract, he would also have to provide meals for approximately 500 soldiers that would be boarding the vessel as well. McCune refused to do so and requested that he be discharged; when the Master of the ship refused because the ship was already leaving the dock, McCune gathered his belongings and threw them overboard, then followed suit. He was immediately arrested and charged with desertion by the U.S. Army. 120 Latin for ―you have the body.‖ A habeas corpus proceeding is a civil action by a confined person against the state agent holding the confinee in custody whereby the prisoner is brought before the court ―to determine if the person‘s imprisonment or detention is lawful‖ or to ―examine any extradition process used…and the jurisdiction f the court.‖ The Law Dictionary, Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. (H Information and Definitions from Black's Law Dictionary http://thelawdictionary.org/letter/h/#ixzz2UoEYfzOl, last visited 30 May 2013) and Cornell

States, is a court of special and limited jurisdiction‖ and ―[a] civilian is presumed not to be a person subject to military law,‖ 121 the judge nevertheless concluded that authority for military jurisdiction over certain categories of civilians could be found in the language of the Fifth Amendment, which provides that ―[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces…when in actual service in time of War or public danger,‖ as well as the Articles of War. 122

In re Berue and Perlstein v. United States allowed the military to assert jurisdiction over those civilians who were ―accompanying or serving‖ the Army on foreign territory under Article of War 2(d),123 the predecessor to today‘s Article 2 in the

UCMJ, giving teeth to the provision that was later codified by the UCMJ. Both Jacob

Berue and Samuel Perlstein challenged the military‘s authority to try them by court- martial on the premise that they were civilians on a naval vessel, and therefore not ―in the field‖ as required by the Second Article of War. They both also contested the assertion

University Law School, Legal Information Institute, http://www.law.cornell.edu/wex/habeas_corpus, last visited 30 May 2013. 121 McCune, 53 F.Supp. at 83. 122 McCune, 53 F.Supp. at 84 (emphasis added). Article 2 of the Articles of War, 10 U.S.C.A. § 1473, so far as it is relevant to the issue involved in this proceeding, provides: ‗The following persons are subject to these articles and shall be understood as included in the term ‗any person subject to military law,‘ or ‗persons subject to military law,‘ whenever used in these articles: Provided, That nothing contained in this chapter of this title except as specifically provided in article 2, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction unless otherwise specifically provided by law. * * * (d) All retainers to the camp and all persons accompanying or serving with the Armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the Armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles;" (Emphasis added.) Subparagraph (c) relates to officers and soldiers of the marine corps when detached for service with the armies of the United States. 123 In re Berue, 54 F.Supp. 252 (D.C.Ohio 1944); Perlstein v. United States, 57 F.Supp. 123 (D.C.Pa 1944). The year prior, the Virginia District Court had found in McCune v. Kilpatrick, 53 F.Supp.80 (D.C.Va 1943), that a civilian working on a Navy vessel fell within the meaning of a person ―accompanying or serving with the Armies of the United States in the field‖ under the Articles of War. See also, In re di Bartolo, 50 F.Supp. 929 (D.C.S.D.N.Y 1943).

27 that they were ―accompanying or serving with the Armies of the United States‖ for the same reason.124 Both arguments failed.

In Berue, the District Court for the Southern District of Ohio had reaffirmed the previously established definition of ―in the field‖ expounded in Ex parte Gerlach,125 as referring to ―any place, whether on land or water, apart from permanent cantonments or fortifications, where military operations are being conducted.‖126 The court went on to establish that any location ―where the armed forces of belligerent nations meet in armed conflict as a matter of common occurrence, with consequent loss of life and property‖ falls within the meaning of ―in the field‖ for purposes of military jurisdiction.127 Notably absent from the court‘s construction of the term ―in the field‖ is the requirement that the

Nation be involved in a declared war (though at the time of the decision, the court had taken judicial notice of the fact that the U.S. was involved in WWII).

The Perlstein court defined ―persons accompanying or serving with‖ the Army as

―those who, though not enlisted, do work required in maintenance, supply, or transportation of an army.‖128 This allowed the U.S. to assert jurisdiction over those who would otherwise be ―subject to no restriction or laws because they were outside the territorial jurisdiction of the United States and also of the United States Army.‖129

Berue was a civilian contracted to work on a merchant vessel. Unbeknownst to

Berue, the vessel had earlier been assigned to the Army by the War Shipping

124 In re Berue, 54 F.Supp. 252 (D.C.Ohio 1944); Perlstein v. United States, 57 F.Supp. 123 (D.C.Pa 1944). 125 Ex parte Gerlach, 247 F. 616, 617 (1917). 126 Berue, 54 F.Supp. at 255. 127 Berue, 54 F.Supp. at 255. 128 Perlstein, 57 F.Supp. at 125. 129 Perlstein, 57 F.Supp. at 125.

Administration, placing it under the military‘s authority.130 The vessel was loaded with

Army cargo and set sail for Casablanca, Morocco. During this voyage, Berue was engaged in an altercation with ―certain officers and members of the crew‖ and was thereafter confined and tried by General Court-Martial131 for violating the 96th Article of

War.132

After his unsuccessful bid challenging his status as a person subject to the military‘s jurisdiction as conferred by the Articles of War, Berue, like McCune the year before, argued that the lack of notice that his employment on the vessel subjected him to military jurisdiction should have barred a court-martial. 133 The court here, like the

District Court in Virginia the year prior, dismissed this argument, concluding that

―consent cannot confer jurisdiction,‖ but the lack thereof of either consent or ―knowledge that such jurisdiction exists‖ does not bar jurisdiction.134 The court acknowledged that its finding that the issue of jurisdiction ―cannot rest upon knowledge or consent‖ but rather must be based on the facts and circumstances of a case135 might result in ―possibly two hundred thousand merchant seamen to military law‖ but stated that it was not the court‘s responsibility to ―reform the law as it is written.‖ 136

Perlstein, likewise, was a civilian contractor working as an assistant mechanical superintendent for the U.S. Army in Massawa, Eritrea, located on the Red Sea. Under the

130 Berue, 54 F.Supp. at 255. 131 A General Court-Martial is the highest form of military trial available under the Uniform Code of Military Justice. The description of the various types of courts-martial available and their limitations are discussed below. 132 Berue, 54 F.Supp. at 254. 133 McCune, 53 F.Supp. at 80. 134 Berue, 54 F.Supp. at 254. 135 Berue, 54 F.Supp. at 254. 136 Berue, 54 F.Supp. at 254. ―[S]ince Congress has by a single act subjected several million men of military age to military law, without their consent, and at $50 per month, it is not unconscionable to subject two hundred thousand more men engaged in the war effort at a much higher wage, to the same law.‖ Id.

29 terms of his contract, the Army would be responsible for his transportation back to the

United States if his employment was terminated due to dissatisfaction with his performance. In September 1942, the Army fired him. While on board the ship that was to return him back to the United States, Perlstein was accused of stealing jewelry and forging a receipt for the stolen items. He was arrested by the British Port Constable when the ship docked at Port Twefik and taken to Cairo, where he was confined and then brought before a General Court-Martial. The court-martial convicted him of the crimes of larceny and forgery and sentenced him to confinement with hard labor for 15 years. 137

The authority for his trial and conviction rested on his status as a person ―accompanying the Armies of the United States in the field in time of war.‖ 138

Perlstein argued that the army was not ―in the field‖ and that peace existed between the United States and Eritrea at the time his crime was committed, thus he did not fall within the Article of War‘s provision authorizing military jurisdiction over him.

According to Perlstein, he was a civilian in every sense and capacity, particularly since his employment with the Army had been terminated prior to the commission of his crimes. The court rejected Perlstein‘s arguments, finding that the army occupying Eritrea certainly was ―in the field,‖ as defined in previous court cases139 and, more importantly, that his ―accompaniment‖ of the military did not cease because his employment with the military ceased. In fact, it was because of his relationship with the Army that he was even present in the country. Thus, the court concluded that the court-martial had jurisdiction over Perlstein and dismissed his appeal.

137 Perlstein, 57 F.Supp. at 124. 138 Perlstein, 57 F.Supp. at 124. 139 Berue, 54 F.Supp. at 255.

A New Disciplinary Framework: The Uniform Code of Military Justice

Following complaints that commanders had too much disciplinary discretion under the Articles of War,140 and that the Navy continued to operate courts-martial under the same body of rules extant in the War of 1812, in 1950 the U.S. transitioned from a military system governed by the Articles of War to one that fell under the Uniform Code of Military Justice (UCMJ).141 Congress developed the UCMJ to provide a unifying rule of law to the various branches of the military, specifically enumerating what could be punished as well as who could be punished under military law.

Although the principal reason for the UCMJ was to create a single system of laws governing military discipline, another reason had to do with jurisdiction. In 1948, in Ex rel Hirshberg v. Cooke,142 the Court, in a decision authored by Justice Hugo Black, hinted that there was a statutory gap under the Naval Articles of War which permitted discharged sailors who re-entered the Navy to escape courts-martial jurisdiction for offenses committed during their prior enlistment. The UCMJ expanded jurisdiction to cover that gap, and extend into post-military service by creating a ―recall to duty‖ mechanism; moreover, the UCMJ adapted the provision from the Articles of War

140 David F. Forte, Mackubin Owens, Military Regulations, Essays on Article 1, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations, last visited on 2 April 2013. Punishments under the Articles of War were considered disproportionate to the crime—for instance, ―following a race riot in Houston in 1917, the military hastily executed thirteen black enlisted soldiers.‖ 141 David F. Forte, Mackubin Owens, Military Regulations, Essays on Article 1, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations, last visited 2 April 2013. This process began in 1945 with the formation of the Doolittle Board, headed by General James Doolittle. The board was suggested by Justice Felix Frankfurter to President Roosevelt and on it served two federal judges, Alexander Holtzoff from the District Court for Columbia and Morris Ames Soper from the Court of Appeals for the District of Columbia. See KEITH E. EILER, MOBILIZING AMERICA: ROBERT P. PATTERSON AND THE WAR EFFORT, 1940-1945 (Cornell University Press 1997). 142 United States ex rel Hirshberg v. Cooke, 336 U.S. 210 (1950).

31 governing the treatment of civilians accompanying the Armed Forces into its second

Article.

Article 2(10) of the UCMJ, the predecessor to today‘s Article 2(a)(10), UCMJ, specifically subjects to military jurisdiction persons serving with or accompanying an armed force in the field during a time of war;143 Article 2(11), UCMJ, the predecessor to today‘s Article 2(a)(11), UCMJ, subjects to military jurisdiction persons serving with, employed by, or accompanying the armed forces outside the United States; and Article

2(12),UCMJ, the predecessor to today‘s Article 2(a)(12), UCMJ, subjects to military jurisdiction persons located within any area leased or acquired for use by the United

States.144 Of the three, only Article 2(a)(10) limits jurisdiction to those who accompany

143 The language of this provision was later changed to a time of declared war or contingency operation. 10 U.S.C.A. § 802, Article 2(a)(10) (2009). 144 10 U.S.C.A. § 802, Article 2 (2009). (Emphasis added) The provision currently reads, in relevant part: Art. 2. Persons subject to this chapter (a) The following persons are subject to this chapter: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it. (2) Cadets, aviation cadets, and midshipmen. (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (4) Retired members of a regular component of the armed forces who are entitled to pay. (5) Retired members of a reserve component who are receiving hospitalization from an armed force. (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial. (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces. (9) Prisoners of war in custody of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field. (11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

32 the armed forces ―in the field‖; Articles 2(a)(11) and (12) are much broader and apply to overseas military installations in non-hostile locations.

Courts Martial

Because this paper recommends that all federal civilians who ―deploy‖ to combat zones should be subject to military jurisdiction, thus opening them up to trial by court- martial, it is important to understand the different types of courts-martial in the military and the process by which a court-martial is convened. In the military, there are three different types of courts-martial—a summary court-martial, a special court-martial, and a general court-martial.

Summary Court-Martial145

A summary court-martial is the lightest of the three; unlike a special or general court-martial, it does not require a judge nor is there an option for the defendant, referred to as the accused in a military court, to be tried before a panel of members (the equivalent of a jury)—it is tried before a summary court officer, who can be any officer that outranks the accused. 146 Commissioned officers cannot be tried by summary court-

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war. 145 ―The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure.‖ MCM, Chapter XIII, R.C.M. 1301(b). 146 ―Whenever practicable, a summary court-martial should be an officer whose grade is not below lieutenant of the Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps.‖ MCM, Chapter XIII, R.C.M. 1301(a).

33 martial. 147 Punishment is limited based on the accused‘s rank and the rank of the summary court officer and the accused cannot be discharged from the military through this process.148 Though an accused may be sentenced to confinement for as long as 45 days, a summary court-martial ―conviction,‖ because it is not handed down by a judge or jury, does not translate into any sort of record in the civilian world; it is therefore no more than administrative discipline in a court setting.

Special Court-Martial

A special court-martial is similar to a misdemeanor trial in the civilian sector, though it does not legally equate to a misdemeanor for federal reporting. An accused can choose to be tried before a panel of members, none of whom can be lower in rank than he is149 (the equivalent of a jury panel made up of a defendant‘s peers), or by military judge alone (the equivalent of a bench trial).150 If he chooses to be tried before a panel, the voir dire process is similar to federal criminal trials and the final make up of the panel can contain no fewer than three members. If the required quorum of at least three members has not been met, then the selection process must start over.151 The punishment is limited to a maximum of one year of confinement, a reduction to the lowest rank, and a bad conduct discharge.152 Because a Special Court-Martial cannot sentence a commissioned

147 MCM, Chapter XIII, R.C.M. 1301(c). 148 MCM, Chapter XIII, R.C.M. 1301(d). 149 MCM, R.C.M. 502. 150 MCM, R.C.M. 501(a)(2). 151 MCM, R.C.M. 501(a)(2). 152 MCM, R.C.M. 1003(b)(8)(C). A bad conduct discharge applies only to enlisted persons and may be adjudged by a general court- martial and by a special court-martial…is less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.

34 officer to confinement or a punitive discharge, only enlisted personnel are tried in this forum.153

General Court-Martial

A general court-martial is the highest form of trial that can take place in the military. This is the forum under which a civilian should be tried, if jurisdiction attached, since the process to get to a general court-martial is more rigorous than either a summary or special court and a general court-martial is the most similar to an Article III court.

Like a special court-martial, the accused is entitled to be tried before a panel of members that outrank him or he can choose to be tried by a military judge alone;154 unlike a special court-martial, however, the panel in a general court-martial must be composed of at least five members155 and there are no sentence limitations—the accused can be reduced in rank, can receive a dishonorable discharge,156 can receive any amount of jail time, and can even be sentenced to death if the crime warranted it. However, in capital cases, the panel must consist of at least 12 members157 and an extensive process of sentencing which comports to Ring v. Arizona’s dictates that juries, rather than judges, must adjudge the death penalty.

153 MCM, R.C.M. 1003(c)(2)(A)(ii) & (iv). 154 MCM, R.C.M. 501(a)(1)(A). 155 MCM, R.C.M. 501(a)(1)(A). 156 MCM, R.C.M. 1003(b)(8)(B) A dishonorable discharge applies only to enlisted persons and warrant officers who are not commissioned and may be adjudged only by a general court-martial. Regardless of the maximum punishment specified for an offense in…this Manual, a dishonorable discharge may be adjudged for any offense of which a warrant officer who is not commissioned has been found guilty. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment. 157 MCM, R.C.M. 501(a)(1)(B).

Court-Martial Process

The Manual for Courts Martial provides the rules under which commanders158 have the authority to discipline those who fall under their command. Commanders are given wide discretion in addressing criminal conduct that occurs within their jurisdiction, ranging from non-judicial punishment (administrative discipline) to a general court- martial.159

When a commander believes that the conduct of a person under his command warrants trial by court-martial, 160 he will make the charges known to that person, thereafter known as the accused. This process is known as ―preferral‖ of charges.161

Technically, anyone may prefer charges against an accused, though it is usually done by the accused‘s immediate commander.162 The person who orders the preferral of charges must sign an oath declaring that they have ―knowledge of or [have] investigated the matters set forth in the charges…‖ and that they are true in fact to the best of that person‘s knowledge and belief.163

Although charges should normally be preferred ―without unnecessary delay,‖164 complicated cases sometimes require longer investigations or more agency coordination than normal, which can cause a delay in the preferral of charges. This is important because, just like an indictment in the civilian world, 165 preferral triggers the speedy trial

158 MCM, R.C.M. 103(5). ―Commander means a commissioned officer in command or an officer in charge…‖ 159 MCM, R.C.M. 306(c). 160 MCM, R.C.M. 406. (Before making a decision on the disposition of any case, particularly with regard to general courts-martial, the commander with the authority to convene a court-martial will generally refer the case to the office of the staff judge advocate for consideration and advice.) 161 MCM, R.C.M. 307. 162 MCM, R.C.M. 307(a). 163 MCM, R.C.M. 307(b)(2). 164 MCM, R.C.M. 307(a). 165 18 U.S.C.A. § 3161 (2008).

36 clock; once charges are preferred, the government has 120 days to bring the case to trial.166

After preferral has taken place, the charges are then forwarded to a superior commander who will decide how to dispose of the case. Unlike with preferral where virtually any person can prefer charges, only a commander who is authorized to convene a court-martial may decide whether charges should be ―referred‖ to a court-martial and, if so, which type of court-martial.167

Referring a case to a summary or special court-martial requires only that the commander believes the crime warrants a trial by that particular court forum. Before a commander can refer charges to a general court-martial, however, he or she must hold a pretrial investigation required under Article 32 of the UCMJ, called an Article 32 hearing, to ―inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information on which to determine what disposition should be made of the case.‖168 The Article 32 hearing is similar to a grand jury indictment. The hearing gives the prosecution and defense an opportunity to present their case so that the commander can see whether or not there is sufficient evidence to go forward with a trial.

Both the government and the accused are represented by counsel.169 This hearing can also be used as a discovery tool for both parties.170

A commissioned officer with legal training or an officer in the grade of major or above is appointed to serve as the investigating officer.171 His or her job is to flesh out

166 MCM, R.C.M. 706. 167 MCM, R.C.M. 401(a) & 407. 168 MCM, R.C.M. 405. 169 MCM, R.C.M. 405(d)(2) & (3). 170 MCM, R.C.M. 405. 171 MCM, R.C.M. 405(d)(1) Discussion.

37 the charges alleged against the accused and make a recommendation to the commander as to whether the charges should move forward to a general court-martial, should be reduced to a special court-martial, or should be disposed of in some other manner.172 Only after the commander has received the report from the hearing along with any objections the accused may have to the way the investigation was conducted does he or she make the final determination on the disposition of the case.173

Military courts, particularly general courts-martial, very carefully preserve the due process rights of an accused. 174 Most importantly, at all stages of the process, including in cases where the commander decides that administrative discipline is appropriate, the accused is afforded the right to a military defense attorney, typically an

Area Defense Counsel, free of charge.175 The Area Defense Counsel answers to a wholly separate chain of command, eliminating any conflicts of interest or loyalty to his client.176

The military attorneys, assistant staff judge advocates (JAG) representing both the government and the accused, must be properly qualified to appear in court on behalf of their respective clients.177

172 MCM, R.C.M. 405(j). 173 MCM, R.C.M. 407. 174 MCM, R.C.M. 405(f). 175 See Lee v. Madigan, 358 U.S. 228 (1959); MCM, R.C.M. 405(d)(2). (Although an accused is assigned a military attorney, he can request one by name if he has a specific attorney that he wishes to represent him. The requested attorney, if available, would then be appointed to represent him. The accused can also hire a private, civilian attorney to represent him if he so desires, but the military would not be responsible for paying the civilian attorney‘s fees.) 176 MCM, R.C.M. 104. 177 MCM, R.C.M. 502(d)(3). Qualifications of individual military and civilian defense counsel. Individual military or civilian defense counsel who represent an accused in a court-martial shall be: (A) A member of the bar of a Federal court or of the bar of the highest court of a State; or (B) If not a member of such a bar, a lawyer who is authorized by a recognized licensing authority to practice law and is found by the military judge to be qualified to represent the accused upon a showing to the satisfaction of the military judge that the counsel has appropriate training and familiarity with the general principles of criminal law which apply in a court-martial.

Though the constitutional rights to presentment and indictment under the Fifth

Amendment and the right to a trial by civilian jury in an Article III court under the Sixth

Amendment do not apply to military courts,178 similar safeguards are in place to ensure that an accused receives equal, if not superior, protections.179

Erosion of UCMJ Article 2

The transition to the UCMJ as the military‘s disciplinary tool also marked the beginning of the end of almost absolute deference to military jurisdiction. By 1972, discipline in the American military had eroded to such a degree that the country now had a less reliable fighting force than it did in World Wars I or II.180

This decline of good order and discipline within the military was due, in part, because the new disciplinary code, as a whole, was unpopular with many commanders.

Outspoken commanders publicly criticized it, 181 because they ―believed the UCMJ diminished the full authority they previously possessed under the Articles of War.‖182

178 See generally United States v. Leonard, 63 M.J. 398 (C.A.A.F. 2006) (no Sixth Amendment right to a jury trial). 179 Under Article 31, UCMJ, the accused (or defendant) has the right to be represented by an attorney, no matter where he is in the world, and the right against self-incrimination. These rights existed for military personnel for more than a decade before civilian courts caught up—in fact, military personnel are not only guaranteed representation by a qualified attorney at no cost to them for all disciplinary matters, including administrative discipline, but commanders are also required to give the accused time to meet with his attorney and work on his defense. Civilian defendants are offered the services of an attorney at no cost to them only if they can show that they cannot afford one on their own. 180 JOSHUA E. KASTENBERG, SHAPING U.S. MILITARY LAW: GOVERNING A CONSTITUTIONAL MILITARY DURING SEVEN DECADES OF CONFLICT (Pending publication, manuscript on file with Ashgate Publising). Lt Col Joshua E. Kastenberg, an active duty judge advocate general and sitting military judge, is also a noted and published historian. 181 JOSHUA E. KASTENBERG, SHAPING U.S. MILITARY LAW: GOVERNING A CONSTITUTIONAL MILITARY DURING SEVEN DECADES OF CONFLICT, Chapter 6 (Pending publication, manuscript on file with Ashgate Publising). Only the Navy appeared to have roundly endorsed the UCMJ. The Air Force, in contrast, likened discipline under the UCMJ to ―expecting a track man to win a race with his feet tied together.‖ 182 MAXWELL D. TAYLOR, SWORDS AND PLOWSHARES, 170 (Da Capo Press 1972); CHRISTOPHER BASSFORD, THE SPIT-SHINE SYNDROME: ORGANIZATIONAL IRRATIONALITY IN THE AMERICAN FIELD ARMY, 83-125 (1988); RUSSELL F. WEIGLEY, HISTORY OF THE UNITED STATES ARMY, 503 (1967).

But by openly undermining the UCMJ, they conveyed to the federal judiciary their lack of confidence in the military‘s new internal disciplinary system, which translated into a lack of confidence that the military would uphold the newer system of rights.

With top military officials expressing opposition to the laws that governed the discipline of their troops, it is not surprising that lower ranking individuals would take their cue from those superior to them and challenge the laws as well. After 1950, the military saw numerous instances of disobedient acts among its personnel, including desertion or the refusal to fight altogether.183 Further, growing ideas about civil rights and the demand for recognition of individual rights led many to question the government‘s, including the military‘s, ability to reach into, and dictate, their lives. This attitude helped fuel the flame that would lead to the eventual erosion of Article 2 of the

UCMJ.

As civilians tried by court-martial began to increasingly challenge the authority of the military to try them, decisions in these habeas corpus proceedings were inconsistent,184 illustrating how difficult it was for judges to balance the constitutional rights of civilians against the needs of the government to maintain control over civilians overseas. So deeply rooted was the American court system to the concept that the conduct of civilians accompanying the Armed Forces in the field should be regulated by

183 JOSHUA E. KASTENBERG, SHAPING U.S. MILITARY LAW: GOVERNING A CONSTITUTIONAL MILITARY DURING SEVEN DECADES OF CONFLICT, Chapter 6 (Pending publication, manuscript on file with Ashgate Publising). 184 See U.S. v. Burney, 21 C.M.R. 98 (1956) (finding that the military had jurisdiction under Article 2(11) of the UCMJ to try a civilian employee stationed on a military installation in Japan); cf. Reid v. Covert, 351 U.S. 487 (1956), rehearing granted by 352 U.S. 901 (1955) (civilian wife of an active duty Air Force sergeant was entitled to a civilian trial for murdering her husband); United States ex rel. Krueger v. Kinsella, 137 F. Supp. 806 (S.D.W. Va. 1956), cert. granted before judgment by 350 U.S. 986 (1956), rehearing granted by Reid v. Covert, 354 U.S. 1 (1957) (civilian wife an active duty Army colonel was NOT entitled to a civilian trial but rather was properly tried by court-martial under Article 2(11) of the UCMJ); and United States ex rel. Klinger v. Commandant, 141 F.Supp 190(S.D.Cal 1956) (Article 2(11) of the UCMJ was a valid exercise of Congressional power under the Constitution).

40 the military185 that the shift in perspective did not occur until 1955, when a line of cases beginning with United States ex rel. Toth v. Quarles, 186 followed by Reid v. Covert, 187

Grisham v. Hagan,188 and Kinsella v. United States ex rel Singleton189 began to erode that authority.

The First Domino to Fall: United States ex rel Toth v. Quarles

The case which paved the way for later constitutional challenges to the courts- martial of civilians began with United States el rel Toth v. Quarles. Toth involved the arrest and trial of a former service-member, a connection which, under the Articles of

War, would clearly have given the military jurisdiction to try him. What began as an endeavor by the Supreme Court to temper the unpredictable disciplinary attempts of an undisciplined military force on military members resulted in an opening for the slow erosion of military reach of the civilian population over whom they previously had jurisdiction.

Toth was a habeas corpus proceeding of a former member of the United States

Air Force who was arrested after his honorable discharge from the military, then tried and convicted at a court-martial for murder and conspiracy to commit murder.190 Though the focus of the case was on national security, it gave the public courage to challenge the

185 Capt Brittany Warren, The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial, 212 MIL. L. REV. 133, 159 (arguing that ―the jurisdictional question pre-Toth was ‗more or less taken for granted‘‖) [hereinafter The Case of the Murdering Wives]. 186 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). 187 Reid v. Covert, 354 U.S. 1 (1957) [hereinafter Reid II]. This case combined the cases of United States ex rel. Krueger v. Kinsella, 137 F. Supp. 806 (S.D.W. Va. 1956) and Reid v. Covert, 351 U.S. 487 (1956), rehearing granted by 352 U.S. 901 (1955), which contained similar facts but had different outcomes. 188 Grisham v. Hagan, 361 U.S. 278 (1960) 189 Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 238 (1960) 190 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

41 constitutionality of the military‘s jurisdiction over civilians and set in motion the line of cases that ultimately diminished the efficacy the UCMJ provisions over civilians.

In 1952, Robert Toth was an active duty Airman stationed in Korea when he and two other active duty servicemen killed a civilian that had accidentally wandered onto the military installation. Toth left the Air Force four months later, before his crime was discovered by military authorities. After receiving an honorable discharge, Toth returned home to Pittsburgh and began work at a steel plant, leading a completely civilian life devoid of any military connection. Five months after he left the service, the Air Force arrested him under the authority of Article 3(a) of the UCMJ, 191 transported him back to

Korea without a hearing of any kind, then court-martialed, convicted and sentenced him.

Toth was later ordered released and his conviction overturned by the Supreme Court.

The Supreme Court‘s decision in Toth reflected the political climate at the time in the sense that the Court‘s conservatives such as Stanley Reed, Harold Burton, and Tom

Clark believed that national security had to be prominent above theoretical rights, while the majority of justices, led by Hugo Black, were convinced that the Executive Branch in particular, but the federal government as a whole, had grown too powerful under the aegis of national security to the detriment of individual rights. In overturning Toth‘s conviction, they openly and explicitly expressed doubt in the military‘s ability to conduct a fair trial.192

191 Art. 3(a), Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 553, 50 U.S.C.A. § 553, provides: ‗Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts- martial by reason of the termination of said status.‘ 192 Quarles, 350 U.S. at 17. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an

The government argued that jurisdiction over offenses committed by members of the armed forces while they were on active duty was necessary for the maintenance of good order and discipline, despite the members having severed their military ties. The court rejected the government‘s argument that the discipline of ex-servicemen should remain with the military if the misconduct had occurred while they were still in the service in order to ensure the maintenance of good order and discipline, an essential component to the preservation of morale among the forces, finding instead that

―exservicemen (sic) [should be given] the benefit of a civilian court trial when they are actually civilians.‖193

The Supreme Court reigned in the military‘s authority to try civilians by declaring that ―considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.‖194 One of the key issues that arose in the Toth case was the fact that, though the crime had been committed overseas, by the time he was arrested, Toth had already returned to the United States. He had been subject to the UCMJ months earlier but as he had been released from the military, as a civilian who was physically located on

American soil, he was protected by the Constitution. But this left open the question of whether the military would have had an argument for maintaining jurisdiction over him had Toth remained in Korea as a civilian. Nevertheless, the opinion in Toth ―denigrated

army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. 193 Quarles, 350 U.S. at 22. 194 Quarles, 350 U.S. at 22-23.

43 courts-martial as inferior courts with a lesser quantum of due process,‖195 effectively setting the tone for later constitutional challenges to courts-martial of civilians.

The Crippling of Article 2(a)(10), UCMJ

After the Toth decision, defense attorneys representing civilians in military cases who had previously not questioned the jurisdiction issue began to challenge the constitutionality of courts-martial against their clients. Within the span of three years, the

Supreme Court rendered the provisions of Article 2(11) of the UCMJ providing for jurisdiction over civilians accompanying the armed forces in non-hostile overseas locations moot with their decisions in Reid v. Covert, Grisham v. Hagan, and Kinsella v.

United States ex rel Singleton. This, in turn, severely weakened the viability of Article

2(10), and therefore its successor Article 2(a)(10), which confers jurisdiction over civilians accompanying the armed forces into hostile or combat zones.

No Jurisdiction Over Dependents in Capital Cases: Reid v. Covert

The Toth decision gave the defense counsel in the Reid court the necessary ammunition to challenge military jurisdiction over civilian dependents of military service accompanying their spouses overseas.196

The Reid case involved two civilian wives of active duty military members,

Clarice Covert and Dorothy Smith, who were separately tried and convicted by general

195 JOSHUA E. KASTENBERG, SHAPING U.S. MILITARY LAW: GOVERNING A CONSTITUTIONAL MILITARY DURING SEVEN DECADES OF CONFLICT, Chapter 6 (Pending publication, manuscript on file with Ashgate Publising). 196 Capt Brittany Warren, The Case of the Murdering Wives, 212 MIL. L. REV. 133, 159 (2012).

44 court-martial for the murders of their husbands while stationed overseas.197 Mrs. Covert killed her husband with an ax while he was sleeping at their home in England and confessed to the murder the following day. Mrs. Smith stabbed her husband to death at their home in Japan. Charges against the women were brought under the authority of

Article 2(11) of the UCMJ as a person ―accompanying the force.‖198 The women both challenged the constitutionality of the military‘s jurisdiction over them, arguing that they had no authority to try civilians during peace time.

Originally, the Supreme Court in Reid narrowly upheld the military‘s jurisdiction of the two military wives— Hugo Black, William O. Douglas, and Earl Warren dissented while Felix Frankfurter withheld his decision in the hopes of re-argument. 199 The majority of the justices were swayed by the ―long history‖ and ―well established‖ practice of subjecting civilians intimately connected to the armed forces to military jurisdiction.200

Citing their decision in Ross, the majority concluded that Congress had the authority to carve out a special class of citizens for whom the provisions in the Constitution requiring

Article III courts and protection under the Fifth and Sixth Amendments did not apply; the

Court thus struck down the women‘s constitutional challenge, holding that the

Constitution‘s guarantees of a trial by jury after a grand jury indictment did not apply to

Americans overseas.201

197 Separate appellate courts upheld the court-martial conviction of one but found unconstitutional the court-martial of the other. Thus, the cases came before the Supreme Court to settle the conflicting views of the constitutionality of trying civilian dependents by court-martial. 198 Reid II, 354 U.S. at 3. 199 Reid II, 354 U.S. at 5. 200 Capt Brittany Warren, The Case of the Murdering Wives, 212 MIL. L. REV. 133, 165 (2012). 201 Reid II, 354 U.S. at 5; See also Capt Brittany Warren, The Case of the Murdering Wives, 212 MIL. L. REV. 133, 164-65 (2012).

However, in an unusual move, less than a year after publishing their opinion in

Reid, the Supreme Court granted a rehearing on the case and then reversed itself.202 In reversing itself, the Court found that ―[t]he United States is entirely a creature of the

Constitution. Its power and authority have no other source. It can act only in accordance with all the limitations imposed by the Constitution.‖203 Finding that the irreversibility of the death penalty mandated an Article III trial and the protections of the Fifth and Sixth

Amendments204 the court specifically discounted the contention that American citizens abroad could be stripped of their due process rights205 in direct contradiction to Ross’s finding that ―[t]he Constitution can have no operation in another country.‖ 206 The Court was troubled by Ross’s apparent approval of an undemocratic concentration of power in one official (the consular court) which would ―ordinarily [be] regarded as the very acme of absolutism.‖ 207 Though they did not explicitly overturn it, the Ross opinion was relegated to the category of a ―relic from a different era,‖208 with Justice Frankfurter referring to it as ―an episode of the dead past about as unrelated to the world of today as the one-hoss shay is to the latest jet airplane.‖209

The Court further cautioned against viewing Constitutional rights as an expedient privilege applied only when convenient, calling it a dangerous slope that would ―destroy

202 Reid II, 354 U.S. at 5. See also Capt Brittany Warren, The Case of the Murdering Wives, 212 MIL. L. REV. 133 (2012). Capt Warrant provides an excellent in-depth historical analysis of the two women and their cases in her law review article. She points out that the Reid case is ―the first and only time, after already publishing its opinion, the Supreme Court reached a different result in identical litigation, following published opinions, and without a controlling change in the composition of the court.‖ 203 Reid II, 354 U.S. at 6. 204 Reid II, 354 U.S. at 44. 205 Reid II, 354 U.S. at 6. 206 Ross, 140 U.S. at 464 and Reid II, 354 U.S. at 12. 207 Reid II, 354 U.S. at 11. 208 Reid II, 354 U.S. at 12. 209 Kinsella v. Krueger, 351 U.S. 470, 482 (1956).

46 the benefit of a written Constitution and undermine the basis of our government.‖210 At the same time, however, the Court limited its holdings only to dependents of servicemen, and only if they were charged with capital offenses. This left open the question of military jurisdiction over civilians who were connected to the military because of their employment (rather than their marital status or familial ties), and to civilians accused of committing non-capital offenses.211 These two groups of civilians were still arguably subject to military jurisdiction.

The Court‘s struggle with this case demonstrates how difficult it was to balance

Constitutional rights against military needs. In both Reid rulings, the outcome was determined by a very narrow majority that only happened as a result of one Justice changing his mind and ―switching sides.‖212

Civilian Employees No Longer Subject to Jurisdiction: Grisham v. Hagan

Subsequently, the courts expanded the constitutional protections espoused in Reid to include civilians employed by the military in Grisham v. Hagan213 and to dependents accused of non-capital offenses in Kinsella v. U.S. ex rel Singleton.214

In 1960, Albert Grisham, a civilian employed by the United States Army in

France, was court-martialed and convicted for the murder of his wife and sentenced to 35

210 Reid II, 354 U.S. at 15. 211 Reid II, 354 U.S. at 45-46. 212 Capt Brittany Warren, The Case of the Murdering Wives, 212 MIL. L. REV. 133, 164-65 (2012). According to Capt Warren‘s research, the Court‘s conference notes from 4 May 1956 show that the wives initially had the support of five of the Justice, but with one Justice‘s switch during discussion, the ruling came out against them. 213 Grisham v. Hagan, 361 U.S. 278 (1960). 214 Kinsella v. United States ex rel Singleton, 361 U.S. 234 (1960).

47 years of confinement at hard labor.215 Grisham contested his conviction, arguing that the military had no jurisdiction over him. Grisham was originally arrested by French authorities since his wife‘s body was found in their home located off of the military installation. But the French released him and turned over jurisdiction to the U.S. military.

Court-martial charges here were again brought under the authority of Article 2(11),

UCMJ, and were, again, challenged as unconstitutional because it deprived a U.S. citizen civilian of the protections of an Article III court and the Fifth and Sixth Amendments.

Mr. Grisham argued that jurisdiction over his crime vested only in the French government and he was therefore only punishable under French law.216 The District

Court disagreed, applying the standard set out in United States ex rel. Guagliardo v.

McElroy, a habeas corpus proceeding that had affirmed the constitutionality of military jurisdiction over civilian employees attached to the U.S. Armed Forces under Article

2(11) of the UCMJ. 217 The Supreme Court, however, found that Reid was the controlling case since Mr. Grisham committed a capital offense and the death penalty was a possible sentence. The Court ruled that its finding in Reid that ―the death penalty is so irreversible that a dependent charged with a capital crime must have the benefit of a jury,‖ also applied to civilian employees since ―the death penalty had no less impact‖ when applied outside of dependents.218 They declared that, ―for purposes of this decision, we cannot say that there are any valid distinctions between the two classes of persons‖ and reversed

Mr. Grisham‘s conviction.219

215 Grisham v. Hagan, 361 U.S. 278 (1960). 216 Grisham v. Taylor, 161 F.Supp. 112 (M.D.Pa. 1958), reversed, 361 U.S. 278 (1960) 217 United States ex rel. Guagliardo v. McElroy, 158 F.Supp. 171 (D.C.D.C. 1958), reversed, 259 F.2d 927 (D.C.Cir. 1958). 218 Hagan, 361 U.S. at 280. 219 Hagan, 361 U.S. at 280.

Grisham effectively eliminated the narrowed ruling in Reid and expanded the scope of the decision to include civilian employees, though it still limited jurisdiction to instances involving capital offenses only.

Capital Cases Eliminated: Kinsella v. United States ex rel Singleton

The Court then entirely did away with the requirement that there be a capital offense to take the case out of military jurisdiction, thereby further extending the coverage in the Reid and Grisham holdings to include non-capital offenses in Kinsella v.

United States ex rel Singleton.220

Kinsella involved the court-martial and conviction of Joanna Dial, the dependent wife of an enlisted soldier stationed in Germany. The Dials lived on the military installation with their three children, including their one-year-old infant son who died after several weeks of severe beatings.221 Mrs. Dial and her husband had both been charged with premeditated murder but entered into pretrial agreements to plead guilty to involuntary manslaughter, eliminating the death penalty as a sentence option and converting the case into a non-capital offense.

Mrs. Dial challenged the jurisdiction of the court-martial over her, arguing that if civilian dependents charged with capital offenses are not included within language of

Article I, Section 8, Clause 14 of the Constitution,222 which grants Congress the authority to make subject to military prosecution members of the land and naval forces, then

―persons in the same class charged with noncapital offenses cannot be included, since the

220 Kinsella v. United States ex rel Singleton, 361 U.S. 234 (1960) [hereinafter Kinsella]. 221 Brief for the Appellant, Kinsella v. United States ex rel Singleton, 361 U.S. 234 (1960) (1959 WL 101598 (U.S.)). 222 See Reid II, 354 U.S. 1 (1956)

49 clause draws no distinction‖ between capital and non-capital cases.223 Article 2(11) of the UCMJ as applied to her was therefore also unconstitutional. 224 The government argued that Reid specifically limited its findings to capital offenses since the seriousness of the death penalty mandated a trial by jury, thus dependents accused of committing non-capital offenses, where the death penalty was not at issue at all, should remain within the military‘s jurisdiction. The government pointed to the a dependent‘s ―special status as integral parts of the military community‖ which ―requires disciplinary control‖ by the military commander in order to maintain morale and good order and discipline as their actions affected the military community as a whole,225 an argument the Supreme Court rejected.

The Court here established a new test for jurisdiction based on status, finding that only a person who can be regarded as ―falling within the term ‗land and naval Forces‘‖ can be tried by court-martial.226 Civilian dependents, in general, did not fall within this category and could therefore not be subject to a court-martial in violation of their

Constitutional rights. However, the Kinsella court noted that Congress could authorize the ―immediate return to the United States permanently of…civilian dependents, or their subsequent prosecution in the United States for more serious offenses‖ as a potential

―answer to the disciplinary problem.‖227 This suggestion did not take root until 2000, when Congress finally passed the Military Extraterritorial Jurisdiction Act of 2000

(MEJA). Prior to the passage of MEJA, however, several options were suggested to address the jurisdictional gap created by the functional demise of Article 2, UCMJ.

223 Kinsella, 361 U.S. at 238. 224 Kinsella, 361 U.S. at 238. 225 Kinsella, 361 U.S. at 238. 226 Kinsella, 361 U.S. at 240. 227 Kinsella, 361 U.S. at 246.

Options to Cover the Gap

With the erosion of the military‘s ability to prosecute civilians for crimes committed overseas, a jurisdictional (and therefore disciplinary) gap was created.

Because federal criminal statutes generally extended only to ―conduct that occurs within the special maritime and territorial jurisdiction of the United States‖ ex-service members and overseas civilians accompanying the military were able to ―escape prosecution for crimes committed on foreign soil.228 Civilians who committed crimes outside of U.S. jurisdiction were either subject to foreign jurisdiction and thus a foreign criminal system, or faced no action at all.

Although a foreign country with a functioning government could theoretically assert criminal jurisdiction over a U.S. citizen who commits a crime on its soil, this idea is distasteful since ―foreign sovereigns are bound to follow traditions which are foreign to

American standards of due process of law.‖ 229 However, more often than not, if the damage resulting from the crime is to a U.S. citizen or to U.S. property, the foreign country has little interest in expending its time and resources to pursue the case.230 This leaves the offender unpunished.

In countries with no functioning government, as is the case with Iraq and

Afghanistan, there is no system in place to address any criminal conduct by civilians other than to permit ad hoc local tribunals to prosecute crimes. The only steps the U.S. government can take against civilian criminal acts is to bar that civilian from the installation and/or return the civilian to the United States, where it does not necessarily

228 Burney, 21 C.M.R. 98, 103. 229 United States v. Green, 654 F.3d 637, 645 (6th Cir. 2011) cert denied, 132 S.Ct. 1056 (2012). 230 H.R. REP. NO. 106-778, MEJA 2000 at 7.

51 follow that U.S. jurisdiction would attach.231 Once again, there is a high chance of a civilian committing a crime that would otherwise be punishable by imprisonment facing no action other than administrative discipline by their employer.

Over the years, several attempts to close this gap were made, none of which passed in Congress. 232 Finally, in 1995, Congress passed the National Defense

Authorization Act for Fiscal Year 1996 which directed the establishment of an advisory committee to study the problem and make recommendations. 233 The committee submitted its report to Congress in 1997 with two recommendations: (1) extend court- martial jurisdiction to civilians accompany the Armed Forces in ―contingency operations‖ as designated by the Secretary of Defense and (2) extend Federal court jurisdiction to civilians accompanying the forces abroad.234 The distinction between the two extensions is important—under the first recommendation, court-martial jurisdiction reaches civilians accompanying the forces in an area designated as under a ―contingency operation,‖ such as Iraq and Afghanistan; under the second recommendation, federal court jurisdiction reaches civilians in all other overseas cases.

The Incorporation of Civilian Employees into the Armed Forces

After the Kinsella and Grisham decisions, several civilian employees of the armed forces challenged their court-martial conviction for non-capital offenses while stationed overseas. The cases were combined into one habeas corpus proceeding captioned

231 H.R. REP. NO. 106-778, MEJA 2000 at 8. 232 H.R. REP. NO. 106-778, MEJA 2000 at 8. 233 H.R. REP. NO. 106-778, MEJA 2000 at 8. 234 H.R. REP. NO. 106-778, MEJA 2000 at 8.

McElroy v. United States ex rel. Guagliardo235 and argued before the Supreme Court in

October 1959. In upholding its previous findings in Grisham and Kinsella that overseas civilian employees are not subject to court-martial jurisdiction for non-capital offenses, the court offered several ―solutions‖ to address the military‘s need to maintain discipline and accountability.

One of the options offered by the court in Guagliardo was to ―set up a system for the voluntary enlistment of ‗specialists.‘‖236 Under this framework, civilians hired for their specialized skills, such as an electrician or accountant, would voluntarily enlist in the military, thus giving up their civilian status in exchange for government employment overseas.237 This suggestion defeats the purpose of using civilian employees in the first place as the court is essentially suggesting the elimination of civilian positions altogether and employing military personnel in the needed specialized fields—which is a reversal from the current trend initiated by Congress‘ budget cuts to shrink the military‘s size and scope. The court noted that the ―increased cost to maintain these employees in a military status is the price the Government must pay in order to comply with constitutional requirements.‖238 However, this reasoning is circular as it is precisely because of the high cost of training and maintaining a large military that the use of highly trained civilians in specialized positions was used in the first place.

A more realistic option offered by the court, and one that should be seriously considered, is the use of contract provisions in civilian employment positions to bind

235 McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960). 236 McElroy, 361 U.S. at 286. 237 McElroy, 361 U.S. at 287. 238 McElroy, 361 U.S. at 287.

53 civilians under military jurisdiction, as set out in Ex parte Reed.239 Reed involved a civilian working as a Navy paymaster‘s clerk—in taking this position, Reed accepted a contract ―wherein, as required, he bound himself ‗to be subject to the laws and regulations for the government of the navy and the discipline of the vessel.‖240 After his court-martial conviction and sentence in Brazil for malfeasance, Reed challenged the

Navy‘s jurisdiction to try him by court-martial. The court, relying heavily on Reed‘s written agreement to submit to the ―discipline of the navy‖ and the fact that he had taken an oath, ―bind[ing] [himself] to serve until discharged,‖ and that he received all of the benefits commensurate with being incorporated into the military, e.g. payroll and pension, upheld the military‘s jurisdiction over him, declaring, ―[i]f these officers are not in the naval service, it may well be asked who are.‖241

A Tiered System of Discipline

In 2008, a law review article published by the George Washington Law Review discussed the Nisur Square incident and suggested a ―tiered jurisdictional regime‖ to address the accountability issues insofar as it relates to civilian contractors. 242 Under this structure, the host nation would have jurisdictional priority over any civilian misconduct; if the host nation is unable or unwilling to take action, then the military would have

239 Ex parte Reed, 100 U.S. 13 (1879). 240 Reed, 100 U.S. at 19. 241 Reed, 100 U.S. at 22. 242 Michael Hurst, After Blackwater: A Mission-Focused Jurisdictional Regime for Private Military Contractors During Contingency Operations, 76 GEO. WASH. L. REV. 1308 (2008) [hereinafter After Blackwater]. Michael Hurst is a graduate of the Military Academy at West Point and received his J.D. from the George Washington University Law School. He is a former Captain in the United States Army.

54 authority under the UCMJ to take action; if the military is unable or unwilling to take action243 then jurisdiction would shift to the DoJ as authorized by MEJA.

A similar ―tiered‖ system already exists and is in full practice in U.S.-friendly countries with enduring military installations, such as Germany, Korea, Japan, England,

Italy, and Turkey. The conduct of Americans situated overseas, whether active duty or civilian, are governed by existing Status of Forces Agreements which generally give host nations the right of first refusal in seeking redress for criminal conduct. In cases involving civilians, if the host country decides not to prosecute, the civilian can then be returned to the United States under MEJA for possible action by the DoJ.

This tiered system would not likely work, however, for countries such as Iraq or

Afghanistan, even if they had functioning governments because, as Michael Hurst, the author of the law review, recognized, it is questionable whether any American would get a fair trial.244 Hurst counters this concern with the observation that ―all judicial systems struggle with the problem of bias‖ and that this factor should not be enough to eliminate the possibility of host nation action. 245 Hurst argues that this consideration should be weighed against the U.S. mission of establishing a ―stable, democratic host-nation government‖ 246 and, if the Senior U.S. Commander can certify that the host nation judicial system is functional,247 then it would behoove U.S.-host nation diplomacy to allow civilians to be tried under host-nation laws. Further, if there are ―miscarriages of

243 Hurst here envisions a scenario where the civilian misconduct ―may not have enough of a direct effect on military operations to justify a commander‘s attention‖ or a case where the military would not be authorized to act under the UCMJ because he believes that ―it is unclear if UCMJ jurisdiction applies to PMCs who are under contract with agencies other than DoD, such as the State Department.‖ Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1317, 1319 (2008). 244 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1321 (2008). 245 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1321 (2008). 246 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1322 (2008). 247 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1316 (2008).

55 justice in individual cases‖ then Hurst asserts that ―U.S. authorities retain diplomatic options for resolving such issues.‖ 248 In theory, this system might work; however, the reality for countries such as Iraq and Afghanistan, where animosity against Americans is tangible, is that it is unlikely that diplomacy would be sufficient to ensure American citizens receive due process under their laws.

Furthermore, it is unclear how many more years it would take before countries such as Iraq and Afghanistan would have a government and judicial system stable enough to be certified as ―functional,‖ leaving the UCMJ and MEJA as the only alternatives to address civilian misconduct. But as Hurst notes in his article, it is possible that the language of the UCMJ may be too vague to encompass non-DoD contractors, 249 which leaves MEJA as the only vehicle with which to prosecute civilians. However, Hurst fails to note that MEJA would face the same issue as that of the vague UCMJ language—non-

DoD contractors are not covered under MEJA. The issues that exist with MEJA are discussed in the next section.

A tiered system which would give the host-nation jurisdictional priority, followed by the UCMJ, and thereafter MEJA, is not a feasible disciplinary framework to address civilian misconduct in combat zones.

248 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1322 (2008). 249 Michael Hurst, After Blackwater, 76 GEO. WASH. L. REV. 1308, 1319 (2008).

Military Extraterritorial Jurisdiction Act250

In 2000, after more than half a century of inaction,251 Congress finally enacted 18

U.S.C. §3261, Military Extraterritorial Jurisdiction Act (MEJA) of 2000, simply referred to as MEJA. 252 Under MEJA, any person employed by or accompanying U.S. Forces and performing activities related to a Defense Department mission, who commits a crime punishable by more than one year in prison if it had occurred within the maritime and territorial jurisdiction or the United States,‖ would be subject to U.S. Federal criminal jurisdiction. 253 Importantly, however, MEJA specifically excludes ―national[s]‖ or someone who is ―ordinarily [a] resident in the host nation‖ from its jurisdiction.254 Thus,

250 18 U.S.C. 3261 (2000) Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States: (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States— (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense. (b) No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated. (c) Nothing in this chapter may be construed to deprive a court-martial, military commission, provost court, or other military tribunal of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by a court-martial, military commission, provost court, or other military tribunal. (d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless— (1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with 1 or more other defendants, at least 1 of whom is not subject to such chapter. 251 H.R. REP. NO. 106-778, MEJA 2000; 18 U.S.C. 3261 252 H.R. REP. NO. 106-778, MEJA 2000. 253 U.S. Congressional Research Service. Civilian Extraterritorial Jurisdiction Act: Federal Contractor Criminal Liability Overseas (R42358 15 February 2012, by Charles Doyle.) http://www.fas.org/sgp/crs/misc/R42358.pdf, last visited 7 June 2013 [hereinafter CRS Report R42358, CEJA]. 254 18 U.S.C. 3267 Definitions (emphasis added): As used in this chapter: (1) The term ‗employed by the Armed Forces outside the United States‘ means—

57 although MEJA was successfully used in United States v. Green and United States v.

Williams to prosecute a former military member and a military dependent, respectively, for crimes committed while overseas, it still leaves an entire class of employees beyond the reach of U.S. authorities. Both Green and Williams are discussed in the next section.

The enactment of MEJA to fill the jurisdictional void has not been as successful or as straightforward as hoped. MEJA places the onus of prosecuting civilians on the

Department of Justice, but this has proved difficult for the DoJ to accomplish. Although

MEJA ―explicitly authorizes overseas U.S. military law enforcement personnel to arrest those charged with MEJA violations,‖255 something prohibited on U.S. soil by the Posse

Comitatus Act,256 to prevent ―an arbitrary return to the United States to face unfounded charges,‖ 257 MEJA also prohibits the removal of the offender by military or civil authorities from the foreign country where the crime was committed except in limited circumstances, such as for military necessity.258 Additionally, although a civilian arrested

(A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department), as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a subcontractor at any tier); (B) present or residing outside the United States in connection with such employment; and (C) not a national of or ordinarily resident in the host nation. (2) The term ‗accompanying the Armed Forces outside the United States‘ means— (A) a dependent of— (i) a member of the Armed Forces; (ii) a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department); or (iii) a Department of Defense contractor (including a subcontractor at any tier) or an employee of a Department of Defense contractor (including a subcontractor at any tier); (B) residing with such member, civilian employee, contractor, or contractor employee outside the United States; and (C) not a national of or ordinarily resident in the host nation. 255 CRS Report R42358, CEJA. 256 18 U.S.C. §3262, The Posse Comitatus Act, prohibits military personnel from engaging in, or actively assisting, civilian law enforcement activity unless expressly authorized by the Constitution or an Act of Congress. 257 CRS Report R42358, CEJA. 258 H.R. REP. NO. 106-778, MEJA 2000 at 12.

58 overseas must be brought before a federal magistrate,259 the process by which that would happen is left up to the DoJ to develop.260

Further, because MEJA applies to crimes committed overseas, witnesses, victims, and physical evidence are not as easily accessible for the prosecution as investigations that take place in the United States, particularly because the U.S. has no subpoena power over citizens located abroad. Especially difficult are cases where the crimes occurred on foreign soil occupied by the U.S.—such as Iraq or Afghanistan. Oftentimes, witnesses and victims do not speak the language English language and are unable, unwilling, or frightened against travelling to the United States simply for the purpose of testifying against the civilian.

MEJA Challenged

In 2010 and 2011, the constitutionality of MEJA was challenged in United States v. Green and United States v. Williams.261 Both challenges failed.

Green, a former U.S. service member, was convicted and sentenced to life in prison for crimes committed while he was on active duty in Iraq.262 The Sixth Circuit upheld the conviction, finding that MEJA was constitutional and that the district court had jurisdiction to try him under MEJA.263 Williams involved the civilian husband of an active duty member of the United States Air Force stationed in Japan who was convicted

259 CRS Report R42358, CEJA. (―Those arrested for federal criminal offenses outside the United States must be brought before a federal magistrate ―without unnecessary delay,‖ although the initial appearance may be conducted by telephone or videoconference.‖) 260 H.R. REP. NO. 106-778, MEJA 2000 at 20. 261 United States v. Green, 654 F.3d 637 (6th Cir. 2011) cert denied, 132 S.Ct. 1056 (2012); United States v. Williams, 722 F.Supp. 2d 1313 (M.D.Ga. 2010). 262 Green, 654 F.3d at 640. 263 Green, 654 F.3d at 646.

59 of sexually abusing his 14 year old step-daughter while accompanying the Armed Forces overseas. 264 The trial judge found that MEJA was a proper exercise of Congress‘ extraterritorial powers265 and the Court of Appeals for the Eleventh Circuit, in upholding the conviction, found that MEJA did not violate the Sixth Amendment‘s venue or compulsory process provisions.266

The outcomes in Green and Williams should be unsurprising because both trials were conducted in United States District Courts under the Constitution and Federal Rules of Evidence. The military‘s involvement in such trials was limited to technical support and investigations. Thus, the military was subservient to the Article III judiciary.

United States v. Green

In September 2005, six months after he enlisted in the U.S. Army, Steven D.

Green was deployed to Mahmoudiyah, Iraq, just south of Baghdad.267 On 12 March

2006, while on duty at a traffic checkpoint known as TCP-2, Green informed four other active duty soldiers that he wanted to ―kill some Iraqi civilians‖ in retaliation for the death of several American soldiers.268 The five men decided to go to a nearby house

264 United States v. Williams, NO. 709-CR-8-WLS (C.A.11 (Ga.) February 15, 2013) (Slip Copy, 2013 WL 563167). 265 Williams, 722 F.Supp.2d at 1319. 266 United States v. Williams, NO. 709-CR-8-WLS (C.A.11 (Ga.) February 15, 2013) (Slip Copy, 2013 WL 563167). ―The Sixth Amendment provides that crimes which have been committed within a state and district shall be tried there‖ and that ―[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.‖Id. at 2. However, to prove a compulsory process violation, ―defendant must make a ―plausible showing‖ that the witness's testimony ―would have been both material and favorable to his defense,‖ something Williams failed to do. Id. at 2, citing United States v. Valenzuela–Bernal, 458 U.S. 858, 867 (1982). 267 Green, 654 F.3d at 641. 268 Green, 654 F.3d at 641.

60 where an Iraqi civilian lived with his wife and two daughters. They decided that they would first have sex with one of the women, and then kill everyone in the family.269

After disguising themselves, Green and three of his comrades snuck off the installation with a shotgun and military-issued rifles; the fifth soldier remained behind and acted as a ―look-out.‖270 The men entered the Iraqi civilian‘s house were they herded the male, his wife, and his six-year old daughter into a bedroom. Green remained in the bedroom with the three Iraqis while the other soldiers forced the remaining daughter, a 14 year old, into the living room and took turns raping her.

While the girl was being raped, Green murdered her family in the bedroom with shots to the head or the chest.271 He then came out of the bedroom, ―announced that everyone else was dead and that he had killed them‖ and then took his turn sexually assaulting the girl while one of the other soldiers held her down.272 When he finished,

Green covered her face with a pillow and shot her several times in the face. The men then poured kerosene on her and lit her body on fire. 273 They then returned to the installation, where Green later admitted to the killings to several other soldiers, but his admission was never reported.274

Unaware of the men‘s actions, Army officials determined that Iraqi counter- insurgents had committed the murders and the case was closed.275 Before his chain of command was made aware of his role in the crime, Green was diagnosed with a

269 Green, 654 F.3d at 641. 270 Green, 654 F.3d at 641. 271 Green, 654 F.3d at 642. 272 Green, 654 F.3d at 642. 273 Green, 654 F.3d at 642. 274 Green, 654 F.3d at 641-643. 275 Green, 654 F.3d at 642.

61 personality disorder and received an honorable discharge from the Army, pursuant to

Army regulations.276

Approximately five weeks after his discharge, the men‘s involvement in the murder and rape of the Iraqi family was discovered. The other four soldiers had remained on active duty and were tried by court-martial under the jurisdiction of the

UCMJ. Green, now a civilian, was arrested and tried under the authority of MEJA in the

Western District of North Carolina.277 Under MEJA, Green could have been subject to the jurisdiction of the country in which he committed his crimes; however, an agreement between the U.S. and Iraq explicitly exempted members of the coalition forces from Iraqi jurisdiction.278

The soldiers all pled guilty to their roles in the crime during their courts-martial and received dishonorable discharges and jail sentences of 90, 100, and 110 years.279

Green, facing charges in a civilian court, was eligible for the death penalty.280

Green requested that he be allowed to re-enlist in the Army in order to subject himself to the military justice system, a request denied by the Army.281 He then filed two motions contesting the district court‘s jurisdiction to try him, arguing that (1) he was still subject to the UCMJ and the court therefore had no jurisdiction to try him and (2) that

MEJA ―violates the separation-of-powers principle, the nondelegation doctrine, and the

276 Green, 654 F.3d at 643. 277 Green, 654 F.3d at 645. 278 Green, 654 F.3d at 645 (citing Paul L. Bremer, Coalition Provisional Authority Order Number 17 (Revised), June 27, 2004). 279 Green, 654 F.3d at 644. (The ―look-out‖ was also court-martialed and convicted of being an accessory after the fact and conspiring to obstruct justice. He was sentenced to 27 months of confinement, reduction in rank to Private, and a dishonorable discharge. Id. at FN 3. The UCMJ has more liberal parole rules and is not subject to the Crime Victim‘s Rights Act which potentially serves to constrain pretrial negotiations with prosecutors.) 280 Green, 654 F.3d at 644. (The United States later gave notice of its intent to seek the death penalty. Because of this, Green could not plead guilty but had to be tried.) 281 Green, 654 F.3d at 644.

Due Process Clause of the Fifth Amendment.‖282 The district court denied his motions and Green was convicted by a jury for the rape and murder of the Iraqi girl and her family and was sentenced to five consecutive years of life imprisonment.283

Specifically, the court found that Green could be tried in a United States District

Court under MEJA because he had been validly discharged from the Army and held that

MEJA is constitutional because it does not violate the separation-of-powers principle or the non-delegation doctrine, equal protection, or due process. 284

United States v. Williams

Between 2004 and 2008, the Williams‘ lived in Okinawa, Japan, where Mrs.

Williams, an enlisted member of the U.S. Air Force, was stationed. During their four years in Japan, Williams, his wife, and his stepdaughter lived in three different residences, two located on the Air Force installation, and one located in the city of

Koja.285 In July 2008, the family relocated to Georgia. Due to disciplinary issues at school, Williams‘ stepdaughter moved in with her grandmother in September or October

282 Green, 654 F.3d at 644. 283 Green, 654 F.3d at 644. 284 Green, 654 F.3d at 650. (The Sixth Circuit held that, though Congress, through the passage of MEJA, provided the executive branch ―with the discretion whether to extend civilian criminal jurisdiction to a member of the Armed Forces who committed the offense with a defendant who is not subject to UCMJ,‖ it did not provide the executive branch with discretion ―regarding the forum in which to prosecute a former member of the Armed Forces such as Green, because such a person is not subject to military criminal jurisdiction.‖ (―We decline to address the constitutionality of any delegation of discretion in MEJA because it does not apply in Green's case.‖) As to the argument that MEJA violated the separation of powers clause, the court held that ―MEJA does expand criminal liability and thus increases the power of the executive branch to enforce the law. However, this is no different from any other federal law that increases the categories of conduct deemed criminal and thus provides the executive branch with a new opportunity to exercise its power to prosecute. MEJA's expansion of the executive branch's power to prosecute does not come at the expense of either of the other two branches.‖) 285 United States v. Williams, NO. 709-CR-8-WLS (C.A.11 (Ga.) February 15, 2013) (Slip Copy, 2013 WL 563167).

2008. Approximately three months later, in January 2009, Williams went to Afghanistan to work as a civilian and did not return until July 2009.

In May 2009, while Williams was still in Afghanistan, his step-daughter revealed that he had raped her on numerous occasions while the family was stationed in Japan.

The abuse began when she was nine years old, taking place mainly when her mother was travelling for work, and continued until she was 13 years old, when the family moved to

Georgia. During the period of abuse, Williams had threatened his step-daughter with two alternatives—she could either have sex with him or she could be beaten.286

In July 2009, after his return from Afghanistan, Williams was indicted by a grand jury for the Middle District of Georgia for his crimes and a warrant was issued for his arrest. These actions were taken under the authority of MEJA since the crimes all took place in Japan. Because Williams was a civilian, the military had no authority to try him and it was unlikely that Japan would have pursued a case against him for the abuse that had taken place in Koja.

Williams challenged the constitutionality of MEJA, asserting that ―none of the provisions of Article I or Article III of the Constitution permit Congress's attempt at extraterritorial criminal jurisdiction as embodied in the MEJA.‖287 The court responded by declaring that ―there is no constitutional bar to the extraterritorial application of penal laws.‖288

286 United States‘ Memorandum in Opposition to Defendant‘s Motion to Dismiss Indictment at 1-3, United States v. Williams, 722 F.Supp.2d 1313 (M.D. GA 2010) (No. 709-CR-8-WLS-RLH, filed December 11, 2009). 287 Williams, 722 F.Supp.2d at 1315. 288 Williams, 722 F.Supp.2d at 1317. The court then also considered ―whether [giving extraterritorial effect to the penal statute] would violate general principles of international law‖ and concluded that it did not. Id. at 1318.

Constitutional But Still Problematic

Although MEJA withstood constitutional challenge, the language in MEJA requires a connection to the U.S. Armed Forces for jurisdiction to attach that still leaves open the question of jurisdiction for civilians who work for a department other than the

Department of Defense, such as the Department of State or the Central Intelligence

Agency.289

In response to this, the House sought to extend MEJA to cover the contractors employed by any department or agency of the U.S. ―where the work under such contract is carried out in an area, or in close proximity to an area (as designated by the Department of Defense), where the Armed Forces is conducting a contingency operation.‖290 The language of the bill as passed by the House caused several objections,291 most notably a concern that ―the Armed Forces would be required to undertake significant duties for the handling and detention of non-DOD contractors covered by the bill‖ and that ―[t]he bill…would obligate DOD – in the middle of ongoing armed conflicts in theaters of war

– to support criminal investigations undertaken by the FBI.‖292 Although the bill was subsequently modified, it received no further legislative action.293

To fill the new gap created by MEJA, Senator Patrick Leahy (D-VT) and Rep

David Price (D-NC) introduced the Civilian Extraterritorial Jurisdiction Act (CEJA).

This Act supplements MEJA, specifically covering civilians and contractors working

289 See Slough, 677 F.Supp.2d at 116. 290 CRS Report R42358, CEJA; H.R. 2740, 110th Cong. §2(a)(1), reprinted in H.Rept. 110-352, at 2 (2007). The bill passed the House on October 4, 2007, 153 Cong. Rec. 26632-639 (2007). The 110th Congress adjourned without Senate action on H.R. 2740 291 CRS Report R42358, CEJA. 292 CRS Report R42358, CEJA at n.11 (citing Office of Management and Budget (OMB), Statement of Administration Policy: H.R. 2740 – MEJA Expansion and Enforcement Act of 2007 (Oct. 3, 2007) 293 CRS Report R42358, CEJA.

65 overseas for a federal agency other than the DoD. 294 Moreover, CEJA also covers subcontractors, grantees, subgrantee and their dependents, family members, and members of their households.295

Civilian Extraterritorial Jurisdiction Act

Although the Military Extraterritorial Jurisdiction Act (―MEJA‖) is applicable to contractors, it applies to contractors and their employees employed by the Department of Defense or from other agencies so long as their employment is related to ―supporting the mission of the Department of Defense‖. However, for contractors supporting peace-building operations — which will be the vast majority of contractors in Iraq and Afghanistan going forward — there exists a serious U.S. jurisdictional gap.296

Contractor misconduct in Iraq and Afghanistan, and the corresponding lack of accountability attributed to them by the U.S., is a widely recognized problem. The lack of U.S. control over contractors came to a head in September 2007 with the Nisur Square incident in Baghdad, Iraq,297 which left a number of allegedly unarmed Iraqi civilians

294 David Isenberg, Contractors and the Civilian Extraterritorial Jurisdiction Act, Huffington Post, 24 February 2013, www.huffingtonpost.com/david-isenberg/contractors-and -the-civil_b_446298.html. 295 H.R. 2136, §2(a)(3), proposed 18 U.S.C. 3272(e)(1); S. 1145, §2(a)(1)(C), proposed 18 U.S.C. 3272(d)(1): ―The term ‗employed by any department or agency of the United States other than the Department of Defense‘ means: (A) employed as a civilian employee, a contractor (including a subcontractor at any tier), an employee of a contractor (or a subcontractor at any tier), a grantee (including a contractor of a grantee or a subgrantee or subcontractor at any tier), or an employee of a grantee (or a contractor of a grantee or a subgrantee or subcontractor at any tier) of any department or agency of the United States other than the Department of Defense; (B) present or residing outside the United States in connection with such employment; (C) in the case of such a contractor, contractor employee, grantee, or grantee employee, such employment supports a program, project, or activity for a department or agency of the United States; and (D) not a national of or ordinarily resident in the host nation.‖ 296 International Corporate Accountability Roundtable, http://accountabilityroundtable.org/campaigns/civilian-extraterritorial-jurisdiction-act/, last visited 18 March 2013. 297 Molly Dunigan, U.S. Control of Contractors in Iraq is Vital, The Hill, 1 February 2012, http://thehill.com/opinion/op-ed/208149-us-control-of-contractors-in-iraq-is-vital, last visited 25 March

66 dead and wounded.298 The contractors were never prosecuted,299 in part because at the time of the incident, the contractors were engaged in traffic control for the Department of

State.300 MEJA requires that contractors be engaged in activities related to ―supporting the mission of the Department of Defense‖ in order to be triggered.301

CEJA, if passed, would extend criminal prosecution to crimes committed by those engaged in activities relating to ―a program, project, or activity for a department or agency of the United States other than the Defense Department.‖ 302 CEJA also specifically lists the offenses to which its jurisdiction would apply but explicitly provides for an exception for ―U.S. intelligence activities abroad.‖303

Since CEJA ―would not repeal or amend MEJA‘s coverage of non-Defense

Department employees, contractors, and dependents,‖ civilians could be prosecuted under either Act, expanding the government‘s ability to address contractor misconduct. CEJA would also spread the burdens associated with investigating and prosecuting the crimes to

2013. Dunigan is an associate political scientist at the RAND Corporation, a nonprofit institution that improves policy and decision-making through research and analysis. 298 Molly Dunigan, U.S. Control of Contractors in Iraq is Vital, The Hill, 1 February 2012; see also 157 CONG. REC. S3500 (daily ed. June 6, 2011)(remarks of Sen. Leahy) at n.56. The number of dead and wounded varies depending on the source of the report. See Slough, 677 F.Supp.2d at 116; CRS Report RL32419, Private Security Contractors in Iraq at CRS-12; see also Ryan Devereaux, Blackwater guards lose bid to appeal charges in Iraqi civilian shooting case, The Guardian, 5 June 2012. 299 157 CONG. REC. S3500 (daily ed. June 6, 2011)(remarks of Sen. Leahy)(―In September 2007, Blackwater security contractors working for the state Department shot more than 20 unarmed civilians on the streets of Baghdad, killing at least 14 of them.... Efforts to prosecute those responsible for these shootings have been fraught with difficulties, and our ability to hold the wrongdoers in this case accountable remains in doubt‖); 300 Slough, 641 F.3d at 547 (internal citations omitted). ―On September 16, 2007, a car bomb exploded near the Izdihar Compound in Baghdad, where a U.S. diplomat was conferring with Iraqi officials. American security officials ordered a team ... to evacuate the diplomat to the Green Zone. Another Blackwater team, Raven 23, headed out of the Green Zone to block traffic at the Nisur Square traffic circle and thus assure the diplomat‘s safe passage back.... Raven 23 positioned its four vehicles on the south side of the Square and its members starting gesturing to stop traffic. Shots were fired; the dispute over who fired at whom and when is the substantive crux of the criminal case underlying this appeal. When the shooting stopped, 14 Iraqi citizens were dead and 20 wounded.‖ 301 CRS Report R42358, CEJA. 302 CRS Report R42358, CEJA. 303 CRS Report R42358, CEJA.

67 the Attorney General and ―the departments and agencies with covered employees, contractors, and grantees.‖ 304 The Attorney General would also ―be empowered to request assistance to conduct such investigations from the agencies with employees and contractors abroad, including the Departments of Defense and State.‖305

Because of the difficulties of not only discovering, but then investigating and prosecuting, crimes committed overseas, CEJA proposes an adjustment to the statute of limitations not found in MEJA. Under CEJA, the statute of limitations for crimes committed overseas would be suspended as long as the person remains overseas, which would potentially ―have the effect of eliminating the statute of limitations for overseas employees and contractors who are foreign nationals with no particular reason to come to the United States.‖306

CEJA, if passed, would address some of the issues left open by MEJA, but the crux of the problem remains the same—the U.S. government‘s inability to prevent the crimes from occurring in the first place because of the lack of control over civilians while they are physically located in a hazard zone. Military commanders, tasked with the dual mission of keeping U.S. personnel safe while waging a publicity campaign, are unable to control a large group of personnel for whom they are directly responsible.

Statutory Amendment

In 1973, amid concerns that the President might exploit a loophole in the War

Powers Resolution to conduct combat operations without the express consent of Congress

304 CRS Report R42358, CEJA. 305 CRS Report R42358, CEJA. 306 CRS Report R42358, CEJA.

68 by using civilian personnel in the CIA to engage in paramilitary activities, 307 Senator

Thomas Eagleton, who had briefly been a vice-presidential candidate to George

McGovern the year earlier, introduced an amendment that would have redefined the term

―United States Armed Forces‖ to include the sentence:

Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for purposes of this Act.308

This proposal had its genesis in the ―Rheault affair.‖ 309 Although Senator

Eagleton explained that the amendment, known as the Eagleton Amendment, was intended to cover ―persons who might be military officers under contract to the CIA,‖ an examination of the legislative history revealed that his true intentions were to ensure that

307 War Powers Resolution: Detailing of Military Personnel to the CIA, 4A U.S. Op. Off. Legal Counsel 197, 199 (1983). 308 War Powers Resolution: Detailing of Military Personnel to the CIA, 4A U.S. Op. Off. Legal Counsel 197, 198 (1983); 50 U.S.C. § 1547(c). 309 In June, 1969, an Army Special Forces unit under the command of a Colonel Robert Rheault killed a Vietnamese national they suspected had become a double agent. Rheault‘s soldiers operated alongside the Central Intelligence Agency in missions designed to find intelligence leaks within the Army of the Republic of Vietnam. Rheault‘s statements to military investigators were contradicted by other soldiers, and Rheault initially claimed that the Vietnamese national was killed in the line of duty. In fact, the Vietnamese national was killed under Rheault‘s orders. General Creighton Abrams, Westmoreland‘s successor in Vietnam preferred murder charges against Rheault, after concluding that the colonel had lied to his staff. On July 21, 1969, Rheault was formally charged, but the Central Intelligence Agency leadership refused to assist the prosecution and provide witnesses and evidence which may have either been exculpatory or damaging to Rheault. Although Abrams and Secretary of the Army Stanley Resor opposed the dismissal of charges, Rheault was freed, because under the UCMJ, as well as constitutionally, an accused citizen is entitled to favorable evidence, as well as full access to the government‘s evidence, but the story on Rheault did not simply end with the right to a fair trial being made an impossibility because of the agency. At Nixon‘s direction, Laird interfered with Resor to forgo a court-martial. For a brief time the episode captured the nation‘s attention as media giants such as Life Magazine headlined the story. See, LEWIS SORLEY, THUNDERBOLT: GENERAL CREIGHTON ABRAMS AND THE ARMY OF HIS TIMES, 269-277 (Indiana University Press 1992); see also, DALE VAN ATTA, WITH HONOR: MELVIN LAIRD IN WAR, PEACE, AND POLITICS, 238 (2008); WILLIAM C. WESTMORELAND, A SOLDIER REPORTS, 368 (1989)

―civilian forces were to be treated the same as military forces for purposes of application of the War Powers Resolution.‖310

The Senate ultimately rejected the Eagleton Amendment,311 but the language used in the amendment provides a useful template for the enactment of a regulation (or an amendment to existing regulations) regarding civilians employed by the U.S.

Government engaged in activities in a hostile environment.

Explicitly including ―any person employed by, under contract to, or under the direction of any department or agency of the United States Government‖ located in any foreign country where hostile or combat action is actively taking place as a member of the Armed Forces for disciplinary purposes, would eliminate any ambiguity in the status of civilians in deployed environments. Taken in conjunction with Article 2 of the UCMJ, this would effectively close any jurisdictional loopholes now in existence that would allow civilian misconduct to continue unfettered.

In response to any opposition to such a change in definition, one need only look to recent attempts by Congress to equalize the status of civilians in deployed environments with those of active duty personnel.

Leveling the Playing Field

On 16 March 2011, at a session during the 112th Congress, Rep. Allen West (R-

FL), introduced H.R. 1142, the Global Combat Zone Recognition Act.312 This bill sought

310 War Powers Resolution: Detailing of Military Personnel to the CIA, 4A U.S. Op. Off. Legal Counsel 197, 199 (1983) (emphasis in original). 311 War Powers Resolution: Detailing of Military Personnel to the CIA, 4A U.S. Op. Off. Legal Counsel 197 (1983); 50 U.S.C. § 1547(c). 312 H.R. 1142, 112th Cong. (2011-2013), Global Combat Zone Recognition Act, available at http://www.govtrack.us/congress/bills/112/hr1142#overview, last visited 7 June 2013 [hereinafter H.R. 1142, 112th Cong.].

70 to amend Title 10 of the U.S. Code to ―ensure equitable treatment of members of the

Armed Forces and civilian employees of the Department of Defense who are killed or wounded in an attack‖ while serving with the armed forces in a contingency operation.313

This bill was likewise never enacted.

On 20 January 2005, a proposal was introduced in the House to exempt pay earned by Department of Defense civilian personnel deployed in hazardous areas from taxation, a policy currently geared exclusively toward active duty personnel deployed in combat zones. 314 The proposed resolution, H.R. 294, would allow federal civilian

Department of Defense employees ―serving in support of the Armed Forces of the United

States‖ to exclude their gross earnings from federal income tax. 315 The maximum amount that could be excluded would be capped at the same amount as active duty military members.316 The proposal was referred to the House Committee on Ways and

Means and has seen no action since.317

In July and September 2006, the House and the Senate each proposed a Federal

Employee Combat Zone Tax Parity Act to ―amend the Internal Revenue Code of 1986 to exclude from gross income certain combat zone compensation of civilian employees of the United States.‖318 This proposal offered the same benefits as the earlier H.R. 294 but opened up the benefit class from only Department of Defense civilian employees to all

313 H.R. 1142, 112th Cong. 314 H.R. 294, 109th Cong. (2005-2006), To amend the Internal Revenue Code of 1986 to extend to civilian employees of the Department of Defense serving in combat zones the tax treatment allowed to members of the Armed Forces serving in combat zones, available at http://www.govtrack.us/congress/bills/109/hr294, last visited 7 June 2013 [hereinafter H.R. 294, 109th Cong.] 315 H.R. 294, 109th Cong. 316 H.R. 294, 109th Cong. 317 H.R. 294, 109th Cong. 318 H.R. 5920, 109th Cong.(2005-2006), Federal Employee Combat Zone Parity Act, available at http://www.govtrack.us/congress/bills/109/hr5920; S. 3959, 109th Cong. (2005-2006), Federal Employee Combat Zone Parity Act, available at http://www.govtrack.us/congress/bills/109/s3959

71 federal civilian employees. Both bills died in committee and were subsequently reintroduced with the same name in April 2007.319

The reintroduced bills clarified the definition of ―employee,‖ limiting the term to civilian employees of the United States and specifically including members of the Public

Health Service and the National Oceanic and Atmospheric Administration.320 None of the proposed bills to extend the combat pay tax exclusion policy to civilians working in combat or hazard zones were passed.

Though none of the proposed bills were ever passed, they illustrate the increasing desire of Congress to have civilians who accompany U.S. Forces abroad, particularly in contingency operations, to be seen and treated as equal to active duty personnel.321 In an article published in the Federal Diary on www.washigntonpost.com on 28 July 2006, Rep

Frank R. Wolf (R-VA), a sponsor of one of the tax bills, stated, ―It is only equitable that both military and civilian employees who are serving side by side receive the same tax benefits.‖322

The failure of the proposed bills to pass had nothing to do with the public‘s, or

Congress‘, unwillingness to ―recognize their [civilians‘] hard work, dedication and sacrifice‖ through ―fair and equitable tax credit[s].‖323 In fact, the opposite is true—in

319 H.R. 1974 110th Cong. (2007-2009), Federal Employee Combat Zone parity Act, available at http://www.govtrack.us/congress/bills/110/hr1974; S.1166, 110th Cong. (2007-2009), Federal Employee Combat Zone parity Act, available at http://www.govtrack.us/congress/bills/110/s1166. 320 S.1166, 110th Cong. (2007-2009), Federal Employee Combat Zone parity Act, available at http://www.govtrack.us/congress/bills/110/s1166/text. 321 The proposals were all geared specifically toward federal civilian employees since contractors who work overseas already enjoy tax exemptions up to $80,000 under a tax provision called the foreign earned income exclusion. 322 Stephen Barr, Combat Zone Tax Breaks for Non-Military Workers, The Federal Diary, July 28, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/07/27/AR2006072701757.html, last visited on 7 June 2013. 323 Stephen Barr, Combat Zone Tax Breaks for Non-Military Workers, The Federal Diary, July 28, 2006.

72 light of the reduction in force the military is experiencing, the increased reliance on civilians to do jobs formerly accomplished by active duty members in areas such as Iraq and Afghanistan is well known. The main roadblock is the potential cost—passage of the proposed tax exclusion for federal civilian employees would cost the government an estimated $1 billion over 10 years.324

Yet in combat or hazardous zones, it makes sense to treat the two categories of persons similarly, both in terms of compensation as well as amenability to military jurisdiction. The lives of deployed military members and deployed civilians are deeply entwined. Deployed civilians endure similar living conditions, dangers, and hardships as active duty personnel and should, like members of the armed forces, see the same benefits for their sacrifice.325 ―[Civilians] in such dangerous situations are as likely as unformed military personnel to become casualties of the operation.‖326 To an extent, civilians in deployed zones do give up certain rights that service-members also give up, including curtailment on open religious practices, speech, and freedom of movement.

Thus civilians and active duty personnel, alike, must be able to rely upon, and trust in, each other to follow rules and safety measures to ensure their safety.

324 Stephen Barr, Legislators Balk at Combat-Zone Tax Breaks for Civilians, The Federal Diary, December 4, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2007/12/03/AR2007120301866.html, last visited on 7 June 2013. 325 U.S. Congressional Research Service. Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones, (RL33230 January 30, 2006, by Pamela J. Jackson.) Text in: Open CRS, Congressional Research Service Reports for the People; https://opencrs.com/search/?q=Proposed+Federal+Income+Tax+Exclusion+for+Civilians+Serving+in+Co mbat+Zones%2C, last visited 7 June 2013. (―Certain civilians work close to hostilities, often wearing uniforms and carrying weapons, which make them likely to appear as combatants to opposition forces.‖) [hereinafter CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones]. 326 CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones.

Their lives depend on both groups being reliable and disciplined. As such, a mechanism to ensure that each are held accountable for their actions is necessary. This paper proposes that that mechanism be military jurisdiction over all personnel, active duty and civilians alike, in deployed or combat environments.

Similarly Situated

The Congressional Research Service (CRS) produced a report for Congress on

H.R. 294 analyzing the expense and complexity of extending combat tax benefits to civilians. 327 The two arguments advanced in support of combat tax exclusions for civilians are: 1) to facilitate recruitment for civilians to deploy and 2) to make civilian employee benefits equal to those of the Armed Forces. Both arguments depend on viewing civilian and military personnel that are deployed in war zones or contingency operations as equal, or similar in station, at least for financial purposes.

The report rightly points out that active duty personnel and civilians are wholly different—civilian deployments are on a voluntary basis; civilians who work in a

―deployable‖ position may turn down an assignment to deploy and the only consequence suffered is removal to a different, but equal, position that is non-deployable.328 Because military personnel have little to no choice in the matter of their deployments to a combat zone, this oftentimes places an undue burden on their family members. In response to this, Congress implemented several measures to reduce this hardship—including the tax

327 CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones; see also 26 USC § 112 (1996) (For members of the Armed Forces, gross income does not include any compensation received for any month part of which the member served in a combat zone or for any month during which the member was ―hospitalized as a result of wounds, disease, or injury incurred while serving in a combat zone.‖) 328 CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones.

74 exclusion policy. Rather than serve as a financial incentive for deployments, the policy was meant to reduce an active duty member‘s tax burden.329

Moreover, a further incentive for civilians to volunteer to deploy is not necessary as the DoD already offers a wide range of benefits, similar to those offered to active duty personnel, to encourage civilians to deploy. The Army, in particular, has a vested interest in obtaining civilian support in large numbers—in December 2011, a Civilian

Expeditionary Workforce Program was implemented and tasked with obtaining over 400

―Civilian boots-on-ground in Afghanistan‖ by the end of January 2012.330 This tasking was designated as ―high priority‖ with Army leaders ―at all levels‖ directed to ―fully support civilians accepted for Total Force assignments, and to support them and their families during their deployments.‖331

Recognizing that ―civilian employees play an important role in complementing military operations,‖332 the Army has written policies outlining the benefits DoD civilians enjoy were they to deploy. Civilians who deploy to a hostile region in support of DoD activities are ―clearly distinguishable from normal Government employment‖ 333

Civilians assigned to Iraq, Afghanistan, and Pakistan were particularly singled out as

DoD civilian employees deserving of special benefits.334 Once deployed, civilians enjoy

329 CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones. 330 Memorandum, Department of the Army, Army Civilian Employees Who Volunteer to Support Total Force Department of Defense (DoD) Civilian Requirement in Afghanistan, 21 December 2011 [hereinafter Army Civilian Requirement in Afghanistan Memo]. 331 Army Civilian Requirement in Afghanistan Memo 332 Memorandum, Department of the Navy, DoD Support to Civilian Capacity Requirements in Afghanistan, 17 November 2011. 333 Memorandum, Under Secretary of Defense, Continuation of Certain Benefits, Allowances, and Gratuities for Department of Defense (DoD) Civilian Employees Assigned to Iraq or Afghanistan Under the Authority of 5 U.S.C. §9904 Upon the Expiration of Section 1603 of Public Law 109-234, as amended, 27 December 2011 [hereinafter Continuation of Certain Benefits Memo]. 334 Continuation of Certain Benefits Memo.

75 the same benefits and amenities provided to active duty military members to make their deployments more palatable—civilians are authorized free legal services from the installation legal office, are allowed to eat at the dining facility free of charge, and are permitted to use all of the morale, welfare, and recreational facilities provided to active duty members (gyms, computers labs and internet connections, tax-free shopping at all base/post exchanges), amenities normally reserved specifically for active duty personnel and their dependents only.335

Civilians who are injured while in an area of hostility in support of the Army receive medical ―at the same level and scope provided to military personnel‖ and ―at no cost‖ to them.336 Further, deployed DoD civilians are authorized treatment at a military installation or a private medical facility if they ―later identify compensable illnesses, diseases, wounds or injuries‖ incurred while deployed.337 For all intents and purposes, civilians who deploy in support of military operations are treated exactly like active duty members—they undergo the same pre- and post-deployment health assessments, they are subject to the same health checks and requirements, and they receive the same free healthcare that active duty members receive.

At the same time that proponents push for equality in treatment of military and civilian personnel, they also refuse to extend this concept to the area of discipline. For purposes of addressing misconduct, they want the treatment of civilians to remain distinct from that of active duty personnel. Currently, active duty personnel in deployed

335 AR 690-11, para 2-2.b. 336 Memorandum, Deputy Secretary of Defense, Policy Guidance for Provision of Medical Care to Department of Defense Civilian Employees Injured or Wounded While Forward Deployed in Support of Hostilities, 24 September 2007 [hereinafter Provision of Medical Care to Deployed Department of Defense Civilian Employees Memo]. 337 Provision of Medical Care to Deployed Department of Defense Civilian Employees Memo.

76 environments who engage in misconduct are subject to the military disciplinary system, including courts martial. Civilians, however, are immune to an installation commander‘s authority. Though expected to follow orders, if they refuse to do so or violate orders in place, the most that can happen is their employment in that particular area is terminated and they are returned to the United States. While addressing this issue in the context of minor misconduct may seem appropriate, particularly in light of the Constitutional questions that arise regarding the discipline of civilians by military officials, it is wholly inappropriate considered in light of the health and safety as well as the good order and discipline and morale of the deployed contingent as a whole when the misconduct rises to the level of a major crime, one that might incense the local population to such an extent that retaliatory actions can be expected.

After all, civilians who deploy are ―as likely as uniformed military personnel to become casualties of the operation‖ since they ―work close to hostilities, often wearing uniforms and carrying weapons, which makes them likely to appear as combatants to opposition forces.‖338 It is precisely because they are viewed as part of the deployed military force that civilians should thus be subject to the command and control of the installation commander tasked with ensuring the safety of all those located on his installation.

Current Law

Even with the existence of MEJA and, if passed, CEJA, without a corresponding movement to revive Article 2 of the UCMJ, the U.S. Government‘s ability to hold

338 CRS Report RL33230, Proposed Federal Income Tax Exclusion for Civilians Serving in Combat Zones at CRS-7 to -8.

77 civilians accountable remains limited. Because neither MEJA nor the proposed CEJA cover nationals or residents of the host nation, the jurisdictional gap remains since the

U.S. is still barred from prosecuting an entire class of employees.

In 2012, an Iraqi national working as a civilian contractor for the U.S. in Iraq was tried and convicted by a general court-martial of several UCMJ offenses, including making a false official statement, wrongful appropriation, and impeding an investigation.

He contested the conviction, arguing first that Congress could not exercise jurisdiction, and secondly that the court-martial lacked jurisdiction over him under Article 2(a)(10) of the UCMJ.

His challenges failed at all levels of review with the Court of Appeals for the

Armed Forces holding that Congress had the authority, under their ―war powers‖ to extend jurisdiction to Ali,339 a non-U.S. citizen whose status as a person ―accompanying an armed force‖ made him amenable to court-martial jurisdiction under Article 2(a)(10),

UCMJ.340 Ali‘s employment status with the Army was irrelevant and,341 as a non-citizen,

Ali did not have a Fifth or Sixth Amendment rights to a grand jury indictment and a trial in a civilian court before an independent judge and jury.342

United States v. Ali

In 2007, United States Army Intelligence and Security Command hired L3

Communications, an American company, to provide linguists services in Iraq. L3 hired

339 United States v. Ali, 71 M.J. 256, 269 (2012), cert. denied, 2013 WL 1942430 (May 13, 2013) (NO. 12-805, 12A491). 340 Ali, 71 M.J. at 263-264. 341 Ali, 71 M.J. at 260. 342 Ali, 71 M.J. at 276.

Alaa Mohammad Ali, an Iraqi born Canadian resident and citizen, as an independent contractor to provide these services. Under both Iraqi and Canadian law, Ali retained his

Iraqi citizenship even though he fled the country in 1991 and became a Canadian citizen in 1996.343 Although Ali‘s employment papers informed him that he might have to deploy to a combat zone, he was never informed that he would be subject to the U.S. military‘s jurisdiction under the UCMJ.344

Ali deployed to Hit, Iraq, where he served as an interpreter for the U.S. Army.

Though he was not armed, he wore an Army uniform and accompanied soldiers on their patrols beyond the perimeter of the compound, serving as ―the direct link between the squad and the Iraqi police officers.‖345

In February2008, Ali was involved in a verbal and physical altercation with another Iraqi interpreter. Because the physical altercation involved a knife he took from his squad leader without his permission, Ali was placed on restriction and prohibited from leaving the military installation. 346 Ali ignored the restrictions and left the installation, travelling to Al Asad.

Ali‘s Iraqi citizenship prevented his misconduct from being addressed under

MEJA.347 The only disciplinary authority that Ali could conceivably fall under was the

UCMJ, Article 2(a)(10) as a person serving with or accompanying an armed force in the field during a contingency operation.348 Ali was placed into pretrial confinement349 and

343 Ali, 71 M.J. at 259. 344 Ali, 71 M.J. at 259. 345 Ali, 71 M.J. at 259. 346 Ali, 71 M.J. at 259-260. 347 Ali would also remain outside of CEJA‘s grasp, if enacted, since CEJA contains the same provision regarding nationals or residents of host countries being exempt from the Act. 348 Ali, 71 M.J. at 260 & 270. 349 MCM, R.C.M. 305(h)(2)(B)

79 on 27 March, charges were preferred.350 Approximately two weeks later and well before

Ali could be brought to trial, L3 terminated Ali‘s contract. In May, the charges against

Ali were referred to a general court-martial, after which Ali filed a motion to dismiss, challenging the U.S.‘s jurisdiction over him.351

In his motion, Ali challenged the U.S.‘s jurisdiction on two grounds. First, he argued that Congress did not have the authority to extend UCMJ jurisdiction over him because he was a civilian and, by doing so, he was deprived of his Fifth and Sixth

Amendment rights under the U.S. Constitution.352 Secondly, he argued that, even if

Congress had the authority to extend UCMJ jurisdiction over him, that authority was extinguished once his employment with L3 was terminated.353

At his trial, the military judge354 first addressed Ali‘s contention that he did not fall within Article 2(a)(10) as a person ―serving with or accompanying an armed force‖ because, at the time the charges were referred to a court-martial, he was no longer employed by L3. 355 First, he affirmed that ―Operation Iraqi Freedom (OIF) was a contingency operation as defined by Congress,‖ 356 which triggered the jurisdictional

A person subject to the UCMJ may be placed into pretrial confinement if the commander reasonably believes that: (i) An offense triable by a court-martial has been committed; (ii) The prisoner committed it; and (iii) Confinement is necessary because it is foreseeable that: (a) The prisoner will not appear at trial, pretrial hearing, or investigation, or (b ) The prisoner will engage in serious criminal misconduct; and (iv) Less severe forms of restraint are inadequate. 350 Ali, 71 M.J. at 260. 351 Ali, 71 M.J. at 260. 352 Ali, 71 M.J. at 261. 353 Ali, 71 M.J. at 259. 354 Ali elected to be tried before a military judge alone as opposed to a panel of members. 355 Ali, 71 M.J. at 260. 356 In 2006 Congress amended Article 2 to include contingency operations along with times of declared war. 2007 National Defense Authorization Act, Pub.L. No. 109-364, section 552, 120 Stat. 2217 (2006). 10 U.S.C. 101(a)(13) defines a contingency operation as ―[A] military operation that (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become

80 provisions of Article 2(a)(10) of the UCMJ. He then determined that the area of Hit, where Ali was serving as an interpreter, was an area of ―actual fighting‖ and thus fell within the meaning of ―in the field‖ as it was meant in Article 2(a)(10).357

The military judge also concluded that Ali‘s role in Iraq was ―integral‖ and that he was a ―necessary part of the team,‖358 bringing him within the definition of a ―person‖ who was ―serving with or accompanying an armed force.‖359 Finally, he found that Ali‘s employment relationship with L3 was ―not determinative‖ of his status,360 thus Ali still fell within the reach of Article 2(a)(10) even though he no longer had a financial or employment relationship with the military.361

The military judge then turned his attention to the question of whether the U.S.

Constitution gave Congress the authority to ―extend military jurisdiction as far as it did to reach the accused,‖362 concluding that it did.363 The judge determined that Congress‘ ability to extend UCMJ jurisdiction to Ali stemmed from Article 1, Section 8, Clause 14 of the United States Constitution, which grants to Congress ―the authority ‗to make Rules for the Government and Regulation of the land and naval Forces.‘‖364

involved in military actions, operations , or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed service under…any [ ] provision of law during a war or during a national emergency declare by the President or Congress.‖ Ali, 71 M.J. at n.12. 357 Ali, 71 M.J. at 260. 358 Ali, 71 M.J. at 260. 359 Ali, 71 M.J. at 260. 360 Ali, 71 M.J. at 260. 361 Ali had also argued that the military lacked jurisdiction to try him because he was never put on notice that he was subject to the UCMJ, an argument easily rejected by the court for two reasons. First, the court determined that there was no notice requirement. Nevertheless, the court found that Ali had been put on notice because he attended a pre-deployment briefing which purported to inform the attendees that they were subject to the UCMJ while in Iraq. Ali, 71 M.J. at 261 & n.7. 362 Ali, 71 M.J. at 260. 363 U.S. CONST. art I, § 8, cl. 14 specifically authorizes Congress to make Rules for the Government and Regulation of the land and naval Forces. 364 Ali, 71 M.J. at 260.

Further, because the U.S. had jurisdiction to try Ali by court-martial, his claim that he was denied his Fifth Amendment right to a grand jury was non-existent as Fifth

Amendment rights are explicitly excluded from ―…case[s] arising in the land or naval forces.‖365 Ali‘s case was forwarded to the Army Court of Criminal Appeals (CCA) by the Army Judge Advocate General for review of the jurisdictional issue.366 The CCA, composed of three military appellate judges,367 affirmed the trial judge‘s findings that Ali was properly tried under Article 2(a)(10), UCMJ and, as such, there was no violation of his Fifth or Sixth Amendment rights.368

Ali‘s case was then forwarded to the U.S. Court of Appeals for the Armed Forces

(CAAF), which is made up of a panel of civilian judges.369 Established in 1950, the

CAAF is designed to be immune from command influence and has the authority, albeit within its limited jurisdiction, to compel the Executive Branch to a certain end.370 CAAF took a second look at both issues raised by Ali in his trial.371

That Iraq was a contingency operation which made Article 2(a)(10) applicable was not contested by Ali.372 Ali‘s issue was that he felt he did not properly fall within the meaning of ―serving with‖ or ―accompanying an armed force‖ as required by Article

365 Ali, 71 M.J. at 260. 366 Ali, 71 M.J. at 259-261. See MCM, R.C.M. 1201(b)(1) & 1203. R.C.M. 1201 requires the Judge Advocate General of each service to review the record of all general courts martial where there has been a conviction and a sentence, but the sentence does not include death and does not involve punishing a commissioned officer, cadet, etc., unless the accused has waived his right to appellate review. R.C.M. 1201(b)(1) authorizes the Judge Advocate General to direct a review by the Court of Criminal Appeals in certain cases if, in his review of the record, he determines that it is appropriate to do so. 367 MCM, R.C.M. 1203(a). 368 Ali, 71 M.J. at 261. 369 David F. Forte, Mackubin Owens, Military Regulations, Essays on Article 1, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations, last visited on 2 April 2013. ―The UCMJ established a Court of Military Appeals (renamed in 1994 as the U.S. Court of Appeals for the Armed Forces, which, for the first time in the United States history, created a civilian court with appellate jurisdiction over military justice. 370 See e.g., Clinton v. Goldsmith, 526 U.S. 529 (1999) 371 Ali, 71 M.J. at 261. 372 Ali, 71 M.J. at 262.

2(a)(10), since he was an Iraqi citizen which, he argued, should have effectively excluded him from the class of persons Congress intended to target with the amendment.373 In support of his position, Ali urged the court to look at the language in MEJA and the

North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), which specifically exclude ―nationals of the host nation‖ from its purview.374

The defense advanced two antithetical arguments, perhaps with the hope that the failure of one argument necessarily meant the success of the other. In their brief to

CAAF urging the court to consider MEJA in its question on jurisdiction, the defense declared that ―[i]f it chose, Congress could easily extend MEJA to cover an accused such as Mr. Ali.‖375 At the same time, however, Ali contested Congress‘ extension of the

UCMJ to reach him, thus arguing both that Congress can change the law to cover him if it so chose but also that Congress overextended its authority when it did so.

The court agreed with the defense in part, finding that ―[n]othing suggests that

Congress could not have placed the limitations against application to host-country nationals found in MEJA within Article 2(a)(10)‖ and refused to look outside the provision to determine Ali‘s status.376 Instead, the court looked to Ali‘s circumstances, finding that Ali was not only an ―integral‖ and ―necessary‖ part of the Army unit to

373 Ali, 71 M.J. at 262. 374 Ali, 71 M.J. at 262 and n.13. ―The NATO SOFA defines ―civilian component‖ as ―the civilian personnel accompanying a force of a Contracting party who are in the employ of an armed service of that Contracting Party, and who are not stateless persons, nor nationals of any State which is not a Party to the North Atlantic Treaty, or nationals of, nor ordinarily resident in, the State in which the force is located.‖ Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, art I, para 1(b), June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67. MEJA also specifically states that only those Department of Defense personnel and their contractors, who are not a national or ordinary resident of the host nation, falls within its jurisdiction. 18 U.S.C. §3267(1) (2006). The proposed CEJA also contains language explicitly excluding ―nationals of the host nation‖ from its jurisdiction. 375 Final Brief on Behalf of Appellant at 26, United States v. Ali, 71 M.J. 256 (2012) (No. 12-0008/AR 2009) 376 Ali, 71 M.J. at 263.

83 which he was assigned, but he was, in fact, ―virtually indistinguishable‖ from a U.S. soldier.377 Ali wore the Army uniform, was a target of attack by the enemy, and up- channeled any concerns or issues he might have through his military chain of command.378 Thus, Ali fell within the meaning of ―serving with or accompanying‖ an armed force under Article 2(a)(10).379

The court also easily dismissed Ali‘s claim that L3‘s termination of his employment also effectively terminated his status as a person ―serving with or accompanying an armed force‖ by concluding that, even if he was no longer a person

―serving with‖ an armed force, ―he was still ―accompanying the force‖‖ and therefore still subject to Article 2(a)(10). 380 The court came to this conclusion based on the analysis provided in RCM 202(a) of the Manual for Courts-Martial:

Although a person ―accompanying an armed force‖ may be ―serving with‖ it as well, the distinction is important because even though a civilian‘s contract with the Government ended before the commission of an offense, and hence the person is no longer ―serving with‖ an armed force, jurisdiction may remain on the ground that the person is ―accompanying an armed force‖ because of continued connection with the military.381

The court found that the circumstances causing Ali‘s continued accompaniment of the Army (his confinement) was irrelevant. Voluntariness is not an issue when the confinement was due to his own misconduct.382

377 Ali, 71 M.J. at 264. 378 Ali, 71 M.J. at 263-64. 379 Ali, 71 M.J. at 264. (As to Ali‘s argument that the he was not ―in the field‖ as required by Article 2(a)(10), the court determined that the historical definition of ―in the field‖ as ―an area of actual fighting‖ was sufficient to address the issue.) 380 Ali, 71 M.J. at 265. 381 Ali, 71 M.J. at 265 (noting that explanations and analysis provided in the MCM are not binding on the court but are considered persuasive authority. (citations omitted) Id. at n.16). 382 Ali, 71 M.J. at 265 and n.17.

With regard to his argument that Congress‘ extension of the UCMJ to him was unconstitutional and violated his Fifth and Sixth Amendment rights, the court conducted a fact-specific analysis, thereby limiting their ruling to Ali‘s situation only.383 This still leaves open the question of a U.S. citizen or a non-citizen who is not also a host country national who may challenge jurisdiction over them under Article 2(a)(10), UCMJ.384

Ali urged the court to look at the history of Supreme Court cases finding that civilians could not be properly tried by court-martial because an accused is not afforded the same protections as in civil courts.385 The court dismissed this precedent as irrelevant as it pertains to Ali because, unlike the defendants in those cases, Ali was not a U.S. citizen. 386 ―United States citizens,‖ the court declared, ―…indisputably enjoyed the protections of the Fifth and Sixth Amendments.‖387 Ali did not.

Ali‘s status as a non-U.S. citizen with no real ties to the United States meant that the constitutional protections afforded all citizens and aliens who ―have come within the territory of the United States and developed substantial connections with this country‖388 did not apply to him.389 In refusing to grant Fifth and Sixth Amendment protections to

Ali, the court concluded that ―[w]hatever rights Appellant had were met through the court-martial process.‖390

383Ali, 71 M.J. at 265-266. 384 Ali, 71 M.J. at 269 and nn.26 & 28. 385 Ali, 71 M.J. at 266. Ali was referring specifically to the right to an Article III indictment by a grand jury and a trial by an independent judge and civilian jury. 386 Ali, 71 M.J. at 266. 387 Ali, 71 M.J. at 269. 388 Ali, 71 M.J. at 266 and n.20 (citing the line of cases referenced in Verdugo-Urquidez, 494 U.S. at 271. The court reasoned that these cases argued for the proposition that physical ―presence in the country implied protection. Id. at 268.) 389 Ali, 71 M.J. at 268. (―Thus we find no precedent, and the parties have not provided any law, which mandates granting a noncitizen Fifth and Sixth Amendment rights when they have not ―come within the territory of the United States and developed substantial connections with this country.‖ Citations omitted.) 390 Ali, 71 M.J. at 268.

Finding that Ali properly fell within Article 2(a)(10), the court then addressed whether Congress overextended its authority in applying its reach to Ali. The court agreed with the military judge that Congress did not overreach; however, it concluded that Congress‘s authority came from its ‗war powers‖ under Article 1, Section 8, Clause

11, of the Constitution rather than the ―necessary and proper clause‖ under Article 1,

Section 8, Clause 14.391 Clause 14 refers only to members of the armed forces, a category to which Ali did not belong.392

Moreover, because of the provisions in MEJA excepting nationals and ordinary residents of the host nation, Congress was left with ―no available alternative forum‖ but

Article 2(a)(10). Article 2(a)(10) of the UCMJ was the ―least possible power adequate‖ to try Ali.‖393

The holding in Ali did not clarify conflicting precedent limiting court-martial jurisdiction over anyone ―other than forces serving in active duty‖ 394 and those

―suggesting that civilians serving alongside the military may be subject to the military justice system,‖ 395 but it is significant in two ways. First, it upheld the viability of

Article 2(a)(10), UCMJ, as a provision under which a civilian accompanying the armed forces in a contingency operation could be made subject to military jurisdiction396 and secondly, it grounded Congress‘ authority in extending military jurisdiction over certain

391 Ali, 71 M.J. at 270. 392 Ali, 71 M.J. at 270. 393 Ali, 71 M.J. at 270. 394 Ali, 71 M.J. at 269 (citing to Toth, 350 U.S. 234 (1955), and Reid II, 354 U.S. 1 (1956)). 395 Ali, 71 M.J. at n24 (citing to Milligan, 71 U.S. 2 (1866), and Duncan v. Kahanmoku, 327 U.S. 304 (1946)). 396 Ali, 71 M.J. at 264.

86 classes of civilians through Article 2(a)(10) in its ―war powers‖ under Article I, Section

8, Clause 11 of the Constitution. 397

The Doctrine of Waiver

The glaring issue left open by Ali is how to reconcile the military‘s authority under Article 2(a)(10) over civilians who deploy to a hostile zone in support of the armed forces with their ―indisputable‖ right, as U.S. citizens, to ―enjoy[ ] the protections of the

Fifth and Sixth Amendments.‖ 398 The answer lies in the Doctrine of Waiver.399

―Subject matter jurisdiction cannot be conferred upon a court by either acquiescence or consent, nor may it be created by waiver…Personal jurisdiction over the defendant, however, may be acquired by consent or waiver.‖400 The law recognizes a

―waiver‖ as the ―intentional relinquishment of a known right…supported by an agreement founded on a valuable consideration.‖ 401

Just as the Navy in Reed tied the position of paymaster‘s clerk to military jurisdiction as a condition of employment, 402 it is likely the courts would support a doctrine of waiver for civilians today. Under this doctrine, civilians who desire

397 Ali, 71 M.J. at 269-270. 398 Ali, 71 M.J. at 269. 399 Colin P. Campbell, The Doctrine of Waiver, 3 MICH. L. REV. 9 (1904), available at http://www.jstor.org/stable/1273250?seq=2, last visited 13 June 2013. [A] waiver consist[s] of a relinquishment of a right or claim, possible to be made either orally or in writing, and to be either expressed or implied, requiring a consideration or facts equivalent to an estoppel to support it, only possible to be made with knowledge of the facts by a person of full age, sound mind, and under no restraint, and only valid when not contrary to public policy or the rules of law. Id. at 17. 400 21 AM. JUR. 2D CRIMINAL LAW § 437 (2013). 401 Colin P. Campbell, The Doctrine of Waiver, 3 MICH. L. REV. 9, 9-10 (1904). 402 Ex parte Reed, 100 U.S. 13 (1879) discussed in this thesis in the section entitled ―The Incorporation of Civilian Employees into the Armed Forces‖ on page 53. The Navy required that civilians employed in the position of paymaster‘s clerk agree ―to be subject to the laws and regulations for the government of the navy and the discipline of the vessel‖ as part of their contract. Id. at 19.

87 employment with the federal government would be contractually required to subject themselves to the UCMJ, including trial by court-martial, in the event that they accompany the armed forces into a deployed location as part of a contingency operation or war. Although jurisdictional waivers are procedural in nature, and therefore failure to assert the rights to a particular forum would constitute waiver of that right, because civilians in this situation would be giving up their constitutional rights to a civilian trial and the protections of the Fifth and Sixth Amendments as a condition of employment, such a waiver must be express—that is, it must be a ―voluntary‖ and ―intentional release of a fully apprehended right.‖ 403 The waiver language must be specific and delineate exactly when jurisdiction would be triggered as well as the limits of the military‘s disciplinary authority. Inherent in this is the recognition that the military would be bound by the Supreme Court decisions in Reid, Kinsella, and Grisham prohibiting trial by courts-martial of any civilians in capital cases.404 What did not exist in Reid and its progeny was the issue of waiver.

Because military jurisdiction would only attach in circumstances where the civilians are deployed with the armed services in support of a contingency operation as defined, and when declared, by Congress, this leaves undisturbed the rights of those civilians who accompany the armed forces overseas into U.S.-friendly, or at least non- hostile, territories or those who do not have a direct employment relationship with the

U.S. In effect, just as in Berue, as long as the contracting civilian or federal employee is

403 Colin P. Campbell, The Doctrine of Waiver, 3 MICH. L. REV. 9, 10 (1904). See also, Barker v. Wingo, 407 U.S. 514, 529 (1972) (Prosecution must show that waiver of fundamental right was knowingly and voluntarily made). A waiver of jurisdiction in this case would be treated just as a knowing waiver of a Fourth Amendment right against a warrantless search, a Fifth Amendment right against self-incrimination, or a Sixth Amendment right to counsel. 404 See Reid v. Covert, 351 U.S. 1 (1957), Grisham v, Hagan, 361 U.S. 278 1960), and Kinsella v. United States ex rel Singleton, 361 U.S. 234 (1960)

88 instructed on the full extent of the waiver before transition to a contingency operation, there can be little challenge to the assertion of military jurisdiction.

Implementation of such a waiver would require no more than an extension of the

Army‘s current contract requirement for employees in E-E positions.405 All civilians hired into E-E positions must sign an agreement acknowledging and accepting the possibility of a deployment as a condition of their employment. This could be extended to all federal civilian positions but, instead of acknowledging only the possibility of deployment, prospective employees must also acknowledge and agree to be subject to military jurisdiction should they deploy in support of any contingency operation.

Because military jurisdiction over civilians would be linked to an employment contract, the notice requirement would be satisfied, eliminating ignorance as a possible bar to military jurisdiction over civilian misconduct.

Civilian contractors, including subcontractors, may likewise be bound to the military by virtue of the terms of their contracts with any federal agency, either through an express provision in the contract itself or through a revision of the Federal

Acquisitions Regulation, Part 52, governing solicitation provisions and contract clauses.406 Those who object to being placed under military jurisdiction may forego the lucrative contracts in places such as Iraq and Afghanistan, limiting themselves to contracts on U.S. soil or in U.S.-friendly overseas locations, in order to avoid triggering the jurisdiction provision. They may also forego contracting with the U.S. government altogether if they oppose the inclusion of that provision in their contract entirely.

405 Discussed in this thesis under the section entitled ―Department of Defense Civilians‖ on page 13, Emergency-Essential (E-E) personnel are civilians working for the Army in deployable positions. 406 48 C.F.R. § 52.00

―As a general proposition it may be laid down that any right may be waived unless the waiving of it would be contrary to public policy.‖407 Requiring civilians who accompany the armed forces into hostile territories to waive their rights to an Article III court and subject themselves, instead, to disciplinary action under the UCMJ (along with all of the due process protections that this system affords) would not be contrary to public policy. In fact, the exact opposite would be true in light of the accountability issues the

U.S. government currently experiences with its deployed civilian force. Such a waiver would bring the United States in line with its assertions of command and executive responsibility since World War II.408

Conclusion

[U]nless we treat all Americans in military situations the alike, whether they are wearing a green uniform, red-white-and-blue or a seersucker suit with arms—what payroll you are on is really secondary; whether you get it from the Pentagon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commitment to war. --Senator Thomas Eagleton409

In order to effectively conduct military operations on hostile foreign soil while protecting the lives of those tasked with carrying out the missions, it is imperative that the armed forces and whatever contingent of civilians accompanying them be subject to an

407 Colin P. Campbell, The Doctrine of Waiver, 3 MICH. L. REV. 9, 16 (1904). 408 See e.g., In re Yamashita, 327 U.S. 1, 15 (Law of War requires commanders to be responsible for their subordinates), and The First Nuremberg Trial, Holocaust Education & Archive Research Team, http://www.holocaustresearchproject.org/trials/nurnbergtrial.html, last visited 13 June 2013 (established a precedent that all persons, regardless of their station or occupation in life, can be held individually accountable for their behavior during times of war). 409 War Powers Resolution: Detailing of Military Personnel to the CIA, 4A U.S. Op. Off. Legal Counsel 197, 199 (1983).

90 authority capable of maintaining good order and discipline. The only authority with such capabilities is the United States military, with its organized command structure and versatile workforce, capable of physically protecting allies in armed conflict, rendering medical aid to those in need, and ensuring that discipline among its numbers is just.

Federal civilian employees voluntarily accompany the U.S. armed forces into combat zones because they trust in the force‘s ability to provide them physical protection and treat them fairly. Civilians accompanying the armed forces into the field of combat expect to be treated like a member of the military community—they live and work alongside military members to achieve the same goals, often putting in the same number of hours, living in the same conditions, and offering the same life sacrifice as military members do. In recognition of this, Congress has attempted to pass several laws aimed at financially equalizing the status of civilians and military personnel.

They require a system of law to regulate their conduct as well. Under the current system, that does not exist. Though MEJA provides some recourse for the U.S. government to address criminal misconduct by its civilian personnel, it is very limited in scope, restricting its jurisdiction to employees who are not also nationals of the foreign country to which they have been deployed and to those employed by the DoD only. This leaves an entire sector of the civilian community authorized to accompany the military into a combat zone, such as employees of the Department of State, without any disciplinary means. CEJA, if successfully passed, would theoretically close the gaps left open by MEJA, except for employees who are also nationals of a host nation as well.

Both MEJA and CEJA provide good alternatives to military jurisdiction over civilians when applied only to those civilians located overseas in stable, U.S.-friendly

91 countries. Military installations located in such countries tend to have reciprocal agreements with local authorities whereby American citizens accused of engaging in criminal conduct enjoy some protections and are generally safe from abuse. There is no fear that the time it takes to coordinate with the United States Department of Justice will endanger the lives of those citizens. Local authorities and local witnesses of such countries are also more willing to work with the U.S. government to provide evidence and testimony in court, even if it means that they must travel to the U.S. to participate in a trial.410

However, in locations such as Iraq and Afghanistan, where the military neither has the luxury of working with the local government to gather and preserve evidence to send back to the United States, nor the option of sending victims and witnesses back to the United States to take part in a trial, MEJA and CEJA are not viable options. First, in a situation where a civilian commits an offense for which he should face a trial, it is not as simple as returning him back to the United States for action. In the event that he is indicted and brought to trial, any witnesses would consist primarily of deployed personnel, whether military or civilian, who would have to be taken out of their position and returned to the United States to testify. Depending on that person‘s mission in the deployed environment, this may or may not be possible. If a witness is mission essential, then he would return to the United States, which would deprive the accused of the ability to confront any witnesses against him, rendering a trial impossible. If a witness is capable of temporarily returning stateside to testify, that would leave his unit short on

410 In overseas military installations situated in U.S.-friendly countries, the government could also attempt, if necessary, to convene an Article II court in that country since there would be no danger in sending federal judge overseas to that location. Further, most overseas locations contain large numbers of civilian dependents and employees who could, theoretically, make up a panel of jury members.

92 manning, which would require others in the unit to take on the witness‘ duties. Because deployed personnel already work 10-12 hour days at least six days a week, if not more, this would have a major effect on unit morale which could, in turn, have a negative effect on the mission.

On the other hand, if the crime was committed upon the local population, more sensitive issues would have to be considered. In addition to the difficulty in getting any local witnesses to travel to the United States to testify, returning the accused to the United

States where he may or may not face trial gives the impression that the U.S. government does not hold its citizens accountable for their criminal actions. This oftentimes translates into violence against those Americans still in the country. Even if the accused was ultimately tried in the U.S. under MEJA or CEJA, in light of the tenuous relationship the U.S. maintains with the Iraqi and Afghan governments, delayed justice is sometimes the same as no justice at all.

The U.S. military, now more than any other time in history, enjoys a high level of trust among members of the public, with a correlating expectation of honor and integrity in the conduct of those in uniform. The military should likewise be trusted to uphold the standards of the constitution with respect to its governance of civilians if they accompany the armed forces in a combat zone.

The revival of Article 2, UCMJ, along with the amendment of the definition of

Armed Forces to include civilians employed by the government when located in a combat zone would effectively address all of the gaps that currently exist in the American justice system. Federal civilians and civilian contractors, including civilians who may be nationals of the host country, would fall under the disciplinary command of the military

93 subject to their waiver of civilian jurisdiction upon acceptance of employment with the

U.S. government. This would serve to resolve issues such as the incident that took place at Nisur Square, Iraq.