Have we closed the barn door yet? A look at the current loopholes in the Military Extraterritorial Jurisdiction Act.

• Author: Stein, Fredrick A.

1. INTRODUCTION II. THE HISTORY OF RECEDING MILITARY JURISDICTION OVER U.S. CIVILIANS A. How Was the Barn Door Opened in the First Place? B. What Is the Significance of the Evolution in Courts-Martial Jurisdiction? C. Did This Jurisdictional Gap Somehow Go Undetected Until 2000? III. MEJA: A STEP TO LATCH THE BARN DOOR SHUT A. The Provisions of MEJA B. Is MEJA an Improvement? C. The Latch has Already Been Tightened Once IV. IS THE BARN DOOR TRULY SHUT?: TIGHTENING THE LATCH A. MEJA Only Applies to Members of the Military and Civilians Supporting the Department of Defense Mission B. Crimes Punishable by One Year or Less are Outside the Coverage of MEJA C. Implementing Regulations Have Not Been Enacted D. Citizens and Those Ordinarily Resident in the Host Nation Are Excluded E. Civilians Must Be Employed by a U.S. Federal Agency V. CONCLUSION The Military Extraterritorial Jurisdiction Act (MEJA), (1) was passed in 2000 to fill the jurisdictional gap that existed where host nation countries could not or would not prosecute crimes Americans. (2) This most often occurred when the committed by crime was committed only against an American or American property. (3) The Act, its application, and its shortcomings have gained widespread media attention from the prisoner abuse scandal at Abu Ghraib prison and the realization that civilian contractors may be responsible for some of the abuses, yet are immune from any criminal liability. (4) Discussing whether or not the barn door has finally been shut begs the questions: which horses were escaping from which barn, and why was the door open in the first place?

1. INTRODUCTION

   Broadly speaking, the horses are U.S. citizens who commit crimes abroad, and the goal is to keep them within a barn where they may be prosecuted by the United States, if the host nation cannot or will not adequately prosecute the individuals. More realistically though, the horses have been defined narrowly as only two groups of people: those employed by or accompanying the Armed Forces outside the United States and those who are members of the Armed Forces. (5) This narrowing of applicability will be addressed later in this article, as it contributes to the gaps that still remain.

   The U.S. Constitution is the document that builds the walls and roof of this particular barn. Specifically, it is the interplay of Article I courts with Article III courts, the Fifth Amendment, and the Sixth Amendment that truly provides the structure of the barn. (6) Article I, Section 8, Clause 14 of the Constitution allows Congress "to make rules for the Government and regulation of the land and naval Forces," as supplemented by the Necessary and Proper Clause of Article I, Section 8, Clause 18. (7) Article III provides for trial by jury; the Fifth Amendment requires indictment by a grand jury; and the Sixth Amendment guarantees the right to a speedy and public trial. (8) In essence, the barn is constructed by whichever of these provisions grants Congress the authority to extend jurisdiction to individuals accompanying or employed by U.S. Armed Forces outside the United States.

   MEJA begins to close the jurisdictional gap. Part II of this article addresses the history of military jurisdiction over U.S. civilians and previous attempts to address the issue. Part III discusses the provisions of MEJA and how it has been used to narrow the jurisdictional gap. Finally, Part IV applies MEJA to current situations and analyzes the remaining jurisdictional gaps.

2. THE HISTORY OF RECEDING MILITARY JURISDICTION OVER U.S. CIVILIANS

   1. How Was the Barn Door Opened in the First Place?

      The barn door initially cracked open when the Supreme Court was forced to call into question "the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights." (9)

      The Supreme Court has chiseled away at the power of Article I courts to try civilians in piecemeal fashion. The first modern case to question and limit the power of military courts was United States ex rel. Toth v. Quarles, (10) where the military attempted to court-martial a civilian for an offense committed while he was on active duty. The Court determined that the plain meaning of Article I restricted court-martial jurisdiction to individuals who are actually members of the Armed Forces. (11) The Court stressed that a narrow reading of court-martial jurisdiction was important to limit encroachment on Article III courts where individuals are surrounded by greater constitutional safeguards. (12)

      The next major case was the rehearing of Reid v. Covert (13) and its companion case. Mrs. Covert was accused of murdering her husband, a sergeant in the U.S. Air Force, in England. (14) Despite her claim of insanity, she was found guilty and sentenced to life in prison by a military tribunal. (15) In overturning its decision in the first Reid v. Covert (16) case, the Court addressed the exercise of court-martial jurisdiction over dependents accompanying the Armed Forces who commit capital offenses. (17) In concluding that court-martial jurisdiction did not extend to this class of individuals, the Court expressed its concerns with courts-martial: "Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of 'command influence.' In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command." (18) While recognizing that nearly all military personnel have a "high degree of honesty and sense of justice," the Court concluded that members of a court-martial "do not and cannot have the independence of jurors drawn from the general public or of civilian judges." (19) Two Justices in the majority concurred at least partially on the basis that capital offenses are unique. (20)

      A couple years later the Court addressed the issue of dependents who commit non-capital offenses. In Kinsella v. United States ex rel. Singleton, (21) the Court prohibited military jurisdiction over civilian dependents in times of peace, whether or not the crime was a capital offense. Mrs. Dial, the wife of a soldier, lived in government housing in Baumholder, Germany. (22) She was accused of involuntary manslaughter stemming from the death of one of the Dials' children. (23) The Court's major focus was determining the lynchpin of power granted to Congress in Article I. They determined that the test for jurisdiction was a question of status, not a question of the crime committed. (24) The question to be answered was "whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.'" (25) Since the focus of jurisdiction was on status, there was no legally significant distinction between capital and non-capital offenses. Article III of the U.S. Constitution, the Fifth Amendment, and the Sixth Amendment were written in broad terms that cover all criminal prosecutions with no geographical limitations. (26)

      The Court's analysis focused on the incongruity that would arise by authorizing courts-martial jurisdiction for non-capital cases while denying it for capital cases. (27) The Court expressed concern that the government's position would permit unreviewable military discretion as to which offenses would come within its jurisdiction. (28) Offenses could simply be downgraded to give courts-martial jurisdiction to the military. (29) In addressing the government's contention that those accused of a crime would benefit, because capital offenses would be downgraded to non-capital offenses, the Court strongly cautioned against this apparently benevolent position, referring to it as a "garb of mercy." (30) The Court was unwilling to allow the military to choose when to downgrade offenses, thereby removing the procedural safeguards that would allow civilians to fully defend themselves. (31)

      In a companion case to Kinsella, the Court addressed the next logical step in its steady progress of limiting Article I courts-martial jurisdiction over civilians. Girsham v. Hagan (32) provided the fact pattern for the Court to address the applicability of courts-martial jurisdiction to capital cases arising against civilian employees of the military overseas. The case arose from a writ of habeas corpus after the petitioner was charged with premeditated murder, found guilty of unpremeditated murder, and sentenced to thirty-five years. (33) The Court made short shrift of the government's detailed differentiation between civilian family members and civilian employees of the Armed Forces. (34) The Court found no logical distinction between this case and Reid and concluded that the same protections guaranteed by Article III, the Fifth Amendment, and the Sixth Amendment were still controlling. (35)

      A third companion case, McElroy v. Guagliardo, (36) decided the last permutation of this puzzle: namely, the legitimacy of court-martial jurisdiction over civilian employees of the Armed Forces, stationed overseas, who commit non-capital crimes in times of peace. Here, an Air Force employee stationed near Casablanca, Morocco, stood accused of larceny and conspiracy to commit larceny. (37) The Court took a detour to discuss the option open to the government of drafting specialty employees, as occurred in the formation of the Seabees for World War II, (38) but quickly went on to conclude that this case was no different than the preceding cases. Court-martial jurisdiction did not cover civilian employees overseas accused of non-capital crimes. (39)

      Interestingly enough, the final push to completely open the barn door came from the military itself. All of the preceding Supreme Court cases determined jurisdiction for offenses that...