The UCMJ and Civilians
By Andrea Boulares
We read a case this week regarding the limits on treaties by the Constitution. I was interested in a case that was found in the notes, Reid v. Covert. In Reid v. Covert the Supreme Court held that the civilian wife accused of murdering her husband on a U.S. Air Force base England could not be tried under the Uniform Code of Military Justice (UCMJ), regardless of the agreement between the U.S. and England. The Court stated in the opinion that, “We reject the idea that, when the U.S. acts against citizens abroad, it can do so free of the Bill of Rights.”
The UCMJ is the criminal law that applies to military members worldwide. The authority to form the UCMJ comes from Art. I Sec. 8 of the Constitution, specifically the “ability to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations” and “to make rules for the government and regulation of land and naval forces”-USConstitution.net. The UCMJ does not follow the Constitution or civilian law on numerous issues. First, under the UCMJ some activities are considered crimes that would not be criminal for civilians like adultery, sodomy, disrespecting an officer, and fraternization (relationships between officers and enlisted or non commissioned officers and their subordinates). Penalties for certain offenses differ from the civilian judicial system. Though the Supreme Court decided in Coker v. Georgia and Kennedy v. Louisiana that the death penalty was not allowed in cases of adult or child rape, the military court has no such provisions and the death penalty is allowed in both situations. Some final differences in the UCMJ and civilian court systems are that the UCMJ does not require indictment by a grand jury and that the jury consists of all military members.
Civilians have typically been governed by the Military Extraterritorial Judicial Act (MEJA) and not the UCMJ. MEJA allows the federal courts to hear cases that occurred overseas if the civilian is accompanying the military and if the crime would have resulted in over a year imprisonment had it been committed in the U.S. This is generally what covers The federal judge is allowed with the Department of Defense to bring the civilian back to the U.S. for a trial in civilian courts. While the UCMJ applies to members of the military, it can also apply to civilians under Art. II sec. 10 which used to read “In time of war, persons serving with or accompanying an armed force in the field.” Recently, the rewording of the UCMJ has expanded the coverage of civilians working with the military overseas. A new amendment to the UCMJ, attached a spending bill in 2007, changes the language from “in time of war” to “in time of declared war OR CONTINGENCY OPERATION.” This will now cover civilians who are working in Iraq and Afghanistan. This would have changed the ruling in McElroy v. Guagliardo and U.S. v. Averette where the court decided because Vietnam was not a war civilians working abroad with the military were not subject to UCMJ.
Because the U.S. was not in an officially declared war, contractors working for the military in Iraq and Afghanistan were not covered under the UCMJ before this change. This was problematic because the military had little control of the actions of the private contracting companies. Companies and private contractors in Iraq have come under attack for their activities. Two major scandals involved civilian personal, Abu Ghraib and Blackwater.
The change to the UCMJ was touted by commanders as a way to have more control over civilian contractors, but this sadly does not seem to be the case. Both Blackwater and the contractors involved in Abu Ghraib were employed by the State Department, Department of Interior, and the CIA. This means that neither the UCMJ nor MEJA apply. Iraqis whose families were killed by Blackwater are working to bring a suit in U.S. Courts, as was allowed for the detainees in Abu Ghraib
While it is important for the Constitution to protect the rights of American citizens abroad, one can’t help but think the government needs to find some way to punish those who commit crimes and tarnish our reputation. As the methods of war change and the military/government increasingly relies on civilians, it is important to hold these contractors accountable for their actions.
There is only one contractor that has been convicted by a court marshall since the change to the wording in the UCMJ. Alaa Mohammad Ali, an Iraqi-Canadian interpreter who stabbed another Iraqi interpreter, was the first contractor to be tried, convicted, and sentenced.
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Learning Constitutional Law 
February 19, 2009 at 6:14 pm
Before we throw civilian contractors like Blackwater (now called Xe)under the bus, we should first evaluate the nature and importance of their mission to determine whether or not their presence is necessary. Companies like Blackwater provide security for contractors and diplomats that the military and the State Department simply do not have the resources to provide. US Ambassador to Iraq Ryan Crocker admitted that “there is simply no way at all that the State Department’s Bureau of Diplomatic Security could ever have enough full-time personnel to staff the security function in Iraq. There is no alternative except through contracts.”
Since civilian contractors are necessary, who are they? Blackwater draws its’ employees from an international pool of former Special Forces operatives, soldiers, and retired law enforcement agents. Before being deployed abroad, all of Blackwater’s employees are sent to the company’s state of the art training facility in North Carolina to receive advanced training in everything from defensive driving to maritime environments.
Blackwater fulfills its’ important and necessary role in the war on terror with employees who are well trained and competent. But, however important the civilian contractors’ roles are, their role is still largely military in nature. Therefore, contractors are subjected to the same stresses and dangers that a regular soldier faces on a day to day basis. Unfortunately, the daily stresses of war often result in poor decisions and itchy trigger fingers.
For example. In 2004, four Blackwater employees were ambushed and killed in Fallujah. Their bodies were hung from a bridge crossing the Euphrates river. (I was in the neighboring city of Ramadi at the time. The indignation from this event led to the bloody and much publicized re-taking of Fallujah by the Marine Corps in which I was involved). In 2005 and 2007 Blackwater helicopters were shot down killing eleven employees. Between 2005 and 2007 Blackwater employees were involved in 193 shooting incidents including the 2007 incident in Baghdad that killed 17 civilians.
These facts confirm the military nature of Blackwater’s mission in Iraq, but Blackwater is NOT subject to the same laws and rules of engagement that govern the US military. That doesn’t make any sense. The military ROE prohibits US forces from firing unless fired upon and also creates exclusion zones (such as mosques) were US soldiers can NEVER fire unless they receive permission form the Iraq government (talk about a stupid rule that has cost US lives, pure PR). Since Blackwater is not subject to the military ROE and they work in a war zone, they tend to shoot first and ask questions (I know this from personally working with Blackwater employess in Fallujah). Although this policy protects the contractors it leads to increased shooting incidents and civilian casualties.
To complicate matters further,current law provides no adequate or fair means to prosecute Blackwater crimes. The applicable military law, the UCMJ, was changed in 2006 to exempt State Department contractors that provide security escorts for a civilian agency. Prosecution under civilian law would be through the Military Extraterritorial Jurisdiction Act. But trying a criminal case in federal court would require a secure chain of evidence. Iraq police would have to secure the crime scene immediately and any evidence gathered by Iraqi investigators would be regarded as suspect.
A reasonable solution to the Blackwater limbo would be to apply military ROE and laws to any contractor performing a military/armed role in Iraq. The military has fairly and adequately prosecuted US soldiers who committed crimes in Iraq (Abu Graihb), so why can’t the military handle the ROEs and prosecution of contractors? Granted, civilian contractors are not soldiers but if you want to work in a war zone you should be subject to the laws of war. Hopefully, the military, civilian contractors and the government can come to some type of agreement that will allow the contractors to continue in their current role but with a fair and adequate system to control their actions and deal with their missteps.
February 20, 2009 at 1:03 am
I thought this blog was really interesting especially in light of our reading for tomorrow. As I was reading Hamdan I was curious as to how different a trial under the military commission would be to one in a federal district court. So would Hamden be governed by MEJA? It seems like it would make a big difference on the outcome depending on which court or tribunal the case is heard.
I agree with you in that it seems as though one of the problems that Congress is going to have to figure out is what exactly is the distinguishing characteristic(s) that make someone strictly civilian as opposed to a member of the military. It seems as though as technology, etc. advances that line will continue to be blurred. Although our reading for tonight focused on whether the President has the power to make these calls, I think another issue is changing the specifics as to who can be tried where.
February 20, 2009 at 3:54 am
Former Marine,
I would like to comment on your post because I thought it did raise some good points. I do understand that Blackwater is under the stress of being in a war zone. I agree, though, that it is unfair to hold military members accountable for actions that violate the Rules of Engagement and not to hold contractors accountable. This is especially true because of the additional benefits a private contractor receives. Contractors often times have better equipment than the actual military and are paid much more than military members. For my job in the military, civilians who were doing the same job were being paid four times more. This is detrimental to the military several ways. First, it means there is less retention. Most people I served with promptly left the military to take a civilian job. Second, the government is spending the money to pay these private companies for their services, and as the situation with KBR and Halliburton have shown contractors are not always fair in what they charge the government. Third, it is bad for the mission when contractors can get away with crimes like those committed in Abu Ghraib and Nissour Square. We are fighting for support from the Iraq’s and incidents like these endanger soldier and marines by turning public opinion against the U.S. I do feel that there should be accountability for those who volunteer to serve in a war zone. I also feel that the civilians who have ended up being prosecuted under the new exception to the UCMJ are not as detrimental to the groups that we have allowed to evade legal accountability.
February 20, 2009 at 4:28 am
Scott, I completely agree that the cases we read show the necessity of modern-day clarity as wars are fought untraditionally. MEJA wouldn’t apply to Hamdan because it is for people accompanying the military overseas. Normally, people who were caught in a foreign country would be given POW status. The UCMJ allows for military trials for prisoners of war under Article 2(a)(9) as does the Geneva Convention. The characterization of the detainees as unlawful combatants is where the situation gets messy. Unlawful combatants can be tried in the civilian courts of the country that is detaining them. However, as the book stated, the courts tried to use Eisentrager to keep the detainees out of the civilian courts because they had never been in the U.S. and that leads us back to our riveting casebook.
February 20, 2009 at 3:59 pm
I understand fully the demoralizing effect that civilian contractors like Blackwater have on the troops. I worked alongside contractors on multiple occasions and was even offered a job with Blackwater after I left the service. If I had accepted it I would have been paid nearly $100k to essentially do the same thing I did as a Marine!!!! Civilian contractors are expensive and all the money spent on contractors hurts retention. But if the contractors are thrown out of Iraq, neither the military nor the state department will have the manpower to pick up the slack. The government needs a plan to bridge the gap.
For example, Congress can limit the funds available to civilian contractors. At one point Blackwater received a $15 billion contract. With that amount of money being thrown their way Blackwater can pay its’ employees 3 to 4 times more than a soldier. But if the government limits the size of contractors contracts or creates provisions limiting salaries there will be less incentive to leave the military for a contractor because the pay will be nearly the same. Second, with all the money that the government is throwing around for bailouts and “stimulus”, why can’t they throw a little bit at the military. “Stimulus” money and the money not spent on contractors could be used to increase recruiting budgets, military pay and retention bonuses. Remember, the largest employer of males 18-25 is the U.S. military.
As for the crimes committed by civilian contractors, my point was that where a contractor fulfills a military role in a war zone he should be treated as if he were a soldier and should be tried by military law. (Military role = armed). If the contractors know they will be prosecuted by the military they will have no choice but to change their MO and ROE which will result in fewer shooting incidents and casualties.
February 20, 2009 at 4:12 pm
Agreed. I have always wondered why the government did not allocate the money spent on contractors to the military itself to help with retention. They would also not have to worry about who has control then.