IF IT LOOKS LIKE A DUCK: REINING IN PRIVATE-MILITARY CONTRACTOR CONDUCT THROUGH THE AMENDED UCMJ.

Author:Anderson, Michael
Position:Uniform Code of Military Justice

This Note will explore the 2007 Amendment to the Uniform Code of Military Justice, which I contend allows the military to exercise legal jurisdiction over a narrow-field of private-military contractors who act as de facto soldiers. I will first explain the historical roots of the military justice system and how it rose as a means of ensuring discipline within military ranks. From there I will explore the Constitutional framework of the military justice system, including where military justice springs from and how the military and civilian justice systems differ. I will ultimately conclude that those subject to military law are afforded Constitutional rights differently than those in the civilian justice system, and that there are narrow exceptions where extension of military justice over civilians is Constitutionally permitted. Next, I will discuss why alternatives to military jurisdiction of PMCs have failed and why this failure is an important issue. After this, I will examine relevant case law and conclude that PMCs are distinguishable from civilians who have been exempt from military jurisdiction. Namely, I will conclude that PMCs are more "soldier" than "civilian" and should thus fall under the military's jurisdiction when they engage in criminal conduct. Ultimately, I will conclude that because a lack of PMC discipline can harm military objectives, PMCs act as de facto soldiers, and existing alternatives have failed to offer adequate oversight, the extension of military law over PMCs is Constitutionally permissible and should be not be revoked. Accordingly, the 2007 Amendment should be upheld if applied to a PMC.

  1. INTRODUCTION II. PURPOSES OF THE MILITARY JUSTICE SYSTEM: DO MILITARY JUSTICE AND CIVILIAN JUSTICE COMPORT? A. Underlying Rationale of the Military Justice System B. Similarities and Differences Between the Two Legal Systems 1. Lack of Grand-Jury Requirement 2. Lack of a Jury of Peers 3. What Constitutional Protections Are Due to Individuals under the UCMJ? III. CONSTITUTIONAL FRAMEWORK OF MILITARY JUSTICE A. Congressional Power to Create the Military Justice System B. Military and Civilians: When Can Civilians Fall Under Military Jurisdiction? IV. REINING IN PMC BEHAVIOR: WHY ALTERNATIVES TO MILITARY JUSTICE FAIL A. Why Do We Need to Hold PMCs Accountable? B. Alternatives to Subjecting PMCs to Military Jurisdiction 1. Military Extraterritorial Jurisdiction Act 2. Other Alternatives to Military Jurisdiction V. CIVILIANS IN THE "LAND AND NAVAL FORCES": DISTINGUISHING CONTEMPORARY PMCS FROM OTHER CIVILIANS A. Role of the Civilian Contractor: Then and Now B. The Civilian and Military Justice: Who Falls Under Military Jurisdiction and What Crimes Are Applicable to PMCs? 1. Vital Cogs: Comparing the Role of Contemporary PMCs to Other Civilians 2. Active Hostilities: When is a Civilian "in the Field?" 3. What is a Crime? Military Crimes, Capital Offenses and the PMC VI. CONCLUSION I. INTRODUCTION

    The legal system under which military personnel live and work has long been perceived to be markedly different from the civilian legal system. (1) Since 1950, active service-members in the United States military have fallen under the jurisdiction of the Uniform Code of Military Justice ("UCMJ"). (2) The UCMJ, which is promulgated by Congress pursuant to Constitutional authority, serves as the legal authority for the military and defines criminal conduct. (3) For example, one of the most notable differences between civilian courts, or Article III courts, (4) and courts-martials convened pursuant to the UCMJ, is the latter's failure to provide the protections guaranteed by the Fifth and Sixth Amendment of the Constitution. (5)

    In 2007, despite the apparent differences between the military and civilian justice system, Congress, as part of the John Warner National Defense Authorization Act for Fiscal Year 2007, (6) made a seemingly innocuous amendment to the provisions of Article 2(a) (10) ("2007 Amendment") of the UCMJ. Article 2(a)(10) previously stated that civilians "serving with or accompanying an armed force in the field ... in times of war" were subject to the provisions of the UCMJ. (7) The 2007 Amendment altered this provision to read 11 in time of declared war or a contingency operation," (8) Contemporary courts had interpreted the phrase "in times of war" to mean only a Congressionally declared war. (9) However, there has not been a Congressional declared war in over fifty years, (10) rendering Article 2(a)(10) largely unusable in its previous iteration. As such, the 2007 Amendment may re-institute the application of military justice to civilian contractors accompanying military forces, potentially closing a legal-loophole that has existed for decades. (11)

    The changes in the language of Article 2(a)(10) were largely a response to public outcry following a massive shooting during the Iraq War resulting in the deaths of seventeen Iraqi civilians. (12) In the midst of the Iraq War, a car approaching a police checkpoint in busy Nisour Square drew the attention of a small cadre of armed men. (13) When the vehicle failed to yield, the group began to indiscriminately fire their weapons in the packed square. (14) By the time the dust settled and the fracas had abated, the shooting had resulted in nearly fifty casualties, including the seventeen Iraqi civilians. (15) The perpetrators of this attack, however, were not active military personnel. (16) Rather the armed men were employed by Blackwater USA and contracted by the United States government to assist military personnel in Iraq. (17) This massacre, termed by some as Baghdad's "Bloody Sunday", (18) revealed to the greater public a "dirty" secret of the United States military: civilian contractors are frequently utilized as like replacements for actual military personnel in modern contingency operations.

    Blowback from the Nisour Square massacre was immediate, with the military investigation conducted post-shooting noting that there was no evidence of "enemy activity" and characterizing the Blackwater employee's actions as "criminal." (19) Iraqi civilians who witnessed the shooting described the event by saying "it was horror ... Anything that moved in Nusoor [sic] Square was shot. Women, children, young people, they shot everyone." (20) While the perpetrators of the Nisour Square were eventually indicted for their actions, (21) a lengthy delay preceded legal proceedings, belying the difficulties in holding civilian contractors serving overseas accountable for criminal conduct. (22)

    Although events like the Nisour Square shooting and atrocities committed by American contractors at Abu Gharib (23) brought the United States reliance on military contractors to the general public's conscience, such reliance on civilian contractors is hardly a modern development. (24) Historically, the military has frequently used civilian forces to augment its strength. (25) For example, General Washington hired numerous civilians for logistical support and to haul equipment for the Continental Army, (26) while civilians accompanied General Sherman as his forces burned their way across the Confederate States during the Civil War. (27) Recent trends suggest that the use of civilian contractors is poised to continue and perhaps even become more prevalent, as some estimates placed the ratio of soldiers to civilians serving during the Iraq War at 1:1. (28) Other sources proffered that civilian contractors actually outnumbered military personnel in Iraq. (29) This ratio has continued to grow in recent years and by some estimates, in 2013, contractors outnumbered American military personnel in Afghanistan by a near 2:1 ratio. (30) In contrast, during World War II, this ratio was greatly skewed towards soldiers, with nearly seven soldiers for every civilian contractor accompanying the military. (31)

    While the use of civilians as supplemental forces is not a recent development, the manner in which civilians have been utilized and deployed has drastically changed since the times of Washington and Sherman. (32) The events of Nisour Square, perpetrated by the employees of Blackwater USA, is emblematic of the evolving role of a civilian contractor, and highlights the rise of private-military contractors ("PMCs") (33) as an increasingly vital component of American military strength. (34) Although the term PMC, as typically used, can cover a host of contractors, from those merely involved in logistical support to those involved in direct combat, (35) of chief concern to this Note is the trend towards employing PMCs who act as de facto soldiers by engaging in conduct typically thought as a "soldiers" role. For example, these PMCs often engage in front-line combat operations, (36) dress like soldiers, bear military-weaponry, (37) and provide security on military bases and installations. (38)

    Part and parcel to the increasing integration of PMCs and actual military personnel is the need to regulate PMC's behavior and conduct in the field through a system of legal oversight. As indicated by the 2007 Amendment, one such attempt to ensure legal accountability of PMCs is by placing them under the jurisdiction of the UCMJ. (39) The use of military justice to check the behavior of civilians is not a novel concept and the 2007 Amendment to the UCMJ reflects a long-standing principle that "civilians serving alongside the military may be subject to courts-martial under the military justice system in some limited capacity." (40)

    Determining how to best hold PMCs legally accountable when they accompany military forces overseas is no mere triviality. Firstly, holding PMCs criminally accountable is necessary for ensuring that victims of PMC criminal conduct receive personal justice. (41) Secondly, legal accountability is necessary for pragmatic reasons, namely the achievement of military objectives. Particularly in contingency operations such as Iraq, in which military personnel are deeply...

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