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Criminal liability of civilian contractors in Iraq and Afghanistan.

I.   INTRODUCTION

II.  THE GAPING HOLE: MILITARY CONTRACTORS IN IRAQ AND
     AFGHANISTAN

III. MILITARY EXTRATERRITORIALITY JURISDICTION ACT

IV.  THE UNIFORM CODE OF MILITARY JUSTICE ARTICLE 2(A)(10)

V.   CASE STUDY: UNITED STATES V. ALI
     A. Background
     B. Policy Implications
     C. The Constitutional Questions

VI.  LEGAL TENSIONS: MEJA AND THE UCMJ

VII. CONCLUSION


I. INTRODUCTION

On September 16, 2007, seventeen Iraqi civilians were shot to death in Baghdad by contracted personal security detail from Blackwater trying to clear the way for a U.S. Department of State transport. (1) While Blackwater claimed that its personnel were ambushed, thus provoking a firefight, the Iraqi investigators claimed that the incident was unprovoked. (2) The shooting was only the latest of a series of high-profile incidents where private military contractors allegedly acted outside the scope of the law. In reality, the real problem rested with the fact that despite attempts by Congress to bring these contractors under some legal jurisdiction, effectively they were acting within a zone of lawlessness. With very little threat of punitive action, the problem of contractor liability remains a major issue today for which an effective solution is yet to be found.

Throughout the history of the U.S. military, a code of law has governed the behavior of soldiers, whether at home or serving abroad in the theater of war. This code, the Uniform Code of Military Justice (UCMJ), is used to prosecute military personnel for violations ranging from disobeying orders to capital murder. Effectively, soldiers are held liable for their unlawful conduct under a system of laws that parallels U.S. law.

Historically, contractors have also had a place in the military, with their role evolving from mercenaries who operated on the fringes to becoming a widely-needed and used private military company (PMC). (3) Not until the wars in Iraq and Afghanistan, however, have the military contractors played such an integral role in the execution of the conflict (4) Although these contractors often engage in the same day-to-day activities of enlisted soldiers--patrols, strategic planning, even firefights--there is a long-standing question as to what law will govern their conduct in theaters of war. (5)

The first notable attempt by Congress to create legal liability for military contractors outside of a declared war was through the Military Extraterritoriality Jurisdiction Act (MEJA), passed in 2000. (6) In practice, however, MEJA failed to reach some of the most glaring incidents of criminal activity undertaken by contractors, particularly in Iraq. (7) Thus, in a minor change to the 2007 Defense Authorization Act, Congress sought to bring contractors under the UCMJ, making them responsible under the same regime as U.S. military personnel. (8)

Despite the attempts by Congress to establish contractor liability, first through passing MEJA and then amending the UCMJ, the laws have not had a widespread impact. As discussed below, MEJA remained too ambiguous as a legal instrument, and since the UCMJ amendment, only one contractor has been prosecuted. (9) That contractor was not even a U.S. citizen, but rather an Iraqi national. (10)

After providing a brief background on the significance of civilian contractors' presence in Iraq and Afghanistan, this Note will discuss the history of MEJA and the amended UCMJ and then focus specifically on the only contractor prosecution since the 2007 change in law. The case, United States v. Ali, (11) provides an insight into both the legal challenges and the policy implications of creating UCMJ jurisdiction over contractors. Finally, the case highlights the tensions that continue to exist between the desire to create some form of accountability regime for contractors, and the actual effect of MEJA and UCMJ co-existing as mechanisms for liability. The analysis of the laws and the specific case study of Ali support the conclusion that despite two congressional attempts to create liability for contractors operating in the theater of war, the laws have proven to be more academic than a real threat of legal action against contractors who engage in misconduct.

II. THE GAPING HOLE: MILITARY CONTRACTORS IN IRAQ AND AFGHANISTAN

Although the use of military contractors is nothing new to the U.S. armed forces, the "War on Terror" took the use of contractors to a level unseen in any previous U.S. conflict. (12) Whereas during the First Gulf War the number of contractors totaled approximately 9,200, at the height of the Iraq War alone, approximately 100,000 civilian contractors were on the ground serving alongside the military. (13)

By 2013, the number of contractors actually outnumbered the number of military personnel in Afghanistan, with approximately 110,000 Department of Defense (DOD) contractors and 66,000 U.S. military personnel on the ground. (14) In absolute terms, the use of civilian contractors has become so critical to the conflicts that their continued relevance and presence is undeniable. The dramatic shift in contractors' roles in the latest conflicts is underscored by the fact that in 2012, the number of U.S. civilian contractor deaths actually outnumbered the number of U.S. military deaths. (15)

The increase in the use of contractors has been closely followed by a number of incidents of misconduct. In 2007, the use of contractors came to the public's attention in part because the Blackwater shooting in Iraq involved only contractors. But it was not the first or only instance in which private contractors allegedly engaged in illegal conduct. One of the first notable violations came to light in early 2004, when reports leaked of torture being used against detainees at Abu Ghraib prison in Iraq. (16) Low-ranking members of the U.S. military were prosecuted under the UCMJ for their criminal conduct. At the same time, private contractors with Titan and CACI International stationed at the prison also engaged in the same activities, including training military personnel in abusive interrogation methods. (17) Those individuals were not criminally prosecuted.

The Department of Interior, not DOD, managed the contract with CACI. This meant that at the time, MEJA could not be used to prosecute those contractors. (18) The UCMJ also did not reach to civilian contractors and furthermore, the Administrator of the Coalition Provisional Authority of Iraq, L. Paul Bremmer, granted all contractors immunity from host nation prosecution in Iraq. (19) His decision was considered a move to incentivize contracts in Iraq. As a result, the private civilian contractors who engaged in torture at Abu Ghraib were not prosecuted for their behavior, despite acting similar to, or even worse than, those military personnel who were prosecuted. (20) The incident highlighted the gaping hole in contractor liability that continues to plague lawmakers despite various actions to amend the law.

III. MILITARY EXTRATERRITORIALITY JURISDICTION ACT

Historically, civilians serving alongside the armed forces in times of war could be court-martialed just like their military counterparts. (21) Following a string of Supreme Court cases starting in the 1950s, however, it became effectively impossible to prosecute a civilian in a military court. (22) In Reid v. Covert, the Court said, "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." (23) The U.S. Court of Military Appeals later in Averette clarified that "peace" effectively meant times that were not "a war formally declared by Congress." (24) Thus, not until the passage of MEJA in 2000 could civilian contractors working overseas be prosecuted through any manner other than by the host nation. (25)

In 2000, Representatives Saxby Chambliss and Bill McCollum attempted to address the gaping hole in contractor liability by sponsoring MEJA. (26) Introducing the bill, then-Representative Chambliss noted that the legislation, "will close a legal loophole that currently allows civilians accompanying the military outside the United States to avoid prosecution for crimes." (27) Rather than seeking liability under military law, the Act simply sought to extend federal jurisdiction to particular individuals serving overseas with the armed forces. MEJA thus applies to crimes committed either by individuals employed by or accompanying the Armed Forces overseas, or by U.S. service members who committed crimes but were never prosecuted under the UCMJ. (28)

The House Subcommittee on Crime held a hearing on the bill prior to its passage, citing the influx of civilian contractors being posted overseas and the lack of any law extending to these civilians. (29) Chairman Cabot said in his opening statement, "We simply cannot allow violent crimes and crimes involving significant property damage to go unpunished when they are committed by persons employed by or accompanying our military." (30) Not only did the bill pass, but it was drafted with close supervision and support from DOD and the Department of Justice (DOJ). (31)

MEJA contains four pre-requisites for DOJ jurisdiction to prosecute the crime: 1) the offense is punishable by more than a year's imprisonment; 2) the conduct occurred outside the United States; 3) the offense was committed by a member of the U.S. Armed Forces or a person accompanying and/or employed by the Armed Forces; and 4) the conduct occurred within the scope of the maritime and territorial jurisdiction of the United States. (32)

Despite the strong support for MEJA and the recognition that contractors in particular were operating in a zone of lawlessness overseas, the scope of the statute limited the reach of its application. The first notable failure of MEJA resulted from the Abu Ghraib torture and the fact that the law did not reach to contracts other than with DOD. (33) Recognizing the gap in the law, Congress in 2004 amended MEJA to cover contractors with agencies other than DOD. (34) The language of the statute required that the contractor's employment "relates to supporting the mission of the Department of Defense overseas" and thus still cabined the extent of the jurisdiction. (35) Furthermore, Congress failed to define exactly how broadly or narrowly "relates to ... the mission" should be interpreted. Thus, it would have to be determined on a case-by-case basis whether or not the conduct of a civilian contractor in any given instance took place within the scope of a DOD related task for the purposes of federal prosecution.

Another challenge of MEJA implementation is simply the resources required for DOJ to investigate overseas. (36) Although DOJ tries to investigate the cases recommended by DOD, officials acknowledge that several cases have been turned down and the number of successful prosecutions has been severely limited. (37) In reality, the ambiguity of the statute combined with the huge potential resource drain leaves DOJ with little incentive to produce a high number of prosecutions under MEJA.

The prosecution of Blackwater contractors, which resulted from the 2007 shooting in Iraq, was the first time that DOJ sought to prosecute contractors who did not directly contract with DOD. (38) Blackwater argued that DOJ did not have jurisdiction to prosecute Blackwater employees because their responsibilities fell outside the scope of DOD's mission. (39) The judge decided to leave that question to the jury, but due to other problems--including prosecutorial misconduct--the case was dismissed. (40) The government appealed and the D.C. Circuit vacated the lower court decision, finding that there was still enough evidence despite the misconduct to make a decision on the merits. (41) Yet the D.C. Circuit avoided answering the question of the reach of MEJA, saying that although Blackwater had a strong argument, for the purposes of vacating the case the court did not need to make the decision about jurisdiction. (42)

Although the Blackwater case continues to make its way through the court system, and thus leaves the question of MEJA jurisdiction open, the shooting in 2007 had again highlighted the gray zone of contractor liability. Senator Lindsey Graham attempted to fill that gap by proposing an amendment to the UCMJ in the 2007 Defense Authorization Bill. But, as will be discussed below, despite an intention to fill the gap left by MEJA, the amendment to the UCMJ faces its own set of legal and implementation challenges.

IV. THE UNIFORM CODE OF MILITARY JUSTICE ARTICLE 2(A)(10)

Prior to the Defense Authorization Act of 2007, Article 2(a)(10) of the UCMJ extended jurisdiction to civilians accompanying the armed forces during times of war. (43) Since World War II, however, the United States had not engaged in any declared war, and thus the section was effectively moot. (44) Senator Lindsey Graham in 2006 proposed that the language be changed to include not just times of declared war but also in time of "contingency operations." (45) This minor change had the potential to bring civilian contractors in Iraq and Afghanistan under the jurisdiction of the UCMJ and subject them to courts-martial--the same used for uniformed military personnel.

Though seemingly small, the move by Senator Graham to amend the UCMJ was significant as it created a new form of criminal liability for civilian contractors. The change was both welcomed--because the general sense is that contractors need to be liable--and at the same time criticized, because of questions going as deep as the constitutionality of the change in this law (46) The new UCMJ language contained the same inherent problem as MEJA: The language was not clear enough to determine the real reach of the UCMJ. Would it apply only to DOD contractors, like MEJA before 2004, did it have to be activity specifically within the mission of DOD, but any contractor within that scope, or would it extend to any civilian contractor overseas, generally? (47) Each scenario poses its own significant policy and legal implications, and as will be discussed in further detail below, the underlying question was whether the provision is even constitutional given the decades of Supreme Court precedent on civilian prosecutions. (48)

An added complication to interpreting this update to the UCMJ was the fact that the process to change the law was nearly effortless. There exists literally no legislative history to inform those wishing to apply the law. (49) In light of the ambiguity surrounding the change, Secretary of Defense Robert Gates issued a memo in 2008 that outlined the process by which a contractor could be prosecuted. (50) The case would still first be recommended to DOJ, and DOJ could choose to investigate and prosecute pursuant to MEJA if a violation of U.S. law took place. (51) At the same time, DOD could also choose to continue to investigate the crime parallel to the DOJ investigation. If DOJ chose not to pursue the case, then DOD could continue its investigation and prosecute under the UCMJ. Thus, DOJ would be afforded a first opportunity to prosecute, and if it did not, an avenue of liability could remain open under the UCMJ. (52)

Despite the attempt to provide clarity, the 2008 memorandum left two major outstanding questions regarding the applicability of the UCMJ. First, how far could contractor liability really extend under the UCMJ? Second, was this change constitutional? As the case of Ali highlights, the answer to these questions rests with the DOD's implementation of the changes--whether they pursue prosecution of contractors--as well as with the courts' determinations of the scope, if any, of applying the UCMJ to civilian contractors.

V. CASE STUDY: UNITED STATES V. ALI

Through the passage MEJA, its amendments, and then the subsequent change to the UCMJ, Congress demonstrated its earnest desire to create some form of liability for contractors serving overseas. Yet despite wide support and a clear intent for who was to be held liable and why, only one individual has been prosecuted under the UCMJ pursuant to the UCMJ change, and he was not a U.S. citizen. (53)

A. Background

Iraqi-born Alaa Mohammed Ali moved to Canada in 1991 and obtained Canadian citizenship in 1996. (54) In 2007, he became an independent contractor with L3 Communications to provide linguistic services in Iraq. In turn, L3 had a contract with the U.S. Army. Although nothing in Ali's contract stated that he was subject to the UCMJ, it did explicitly say that he might have to work in combat and other dangerous environments. (55) Furthermore, he was trained at Fort Benning, Georgia, the pre-eminent training base in the United States where trainees include general infantry and the elite Army Rangers.

Ali deployed to Iraq and was attached directly to a military police company where he went into combat with soldiers, wore the same uniform as the soldiers (though was not issued a weapon), lived in the same quarters as U.S. military personnel, and reported to a Staff Sergeant for all operational-related activities. (56) On February 23, 2008, Ali had a verbal altercation with another interpreter, followed by a second altercation that was physical. The second altercation resulted in four cuts to the other interpreter. (57) In response, the military put restrictions on Ali's activities, and he was required to check in with L3 twice a day. Ali chose to travel in violation of the restrictions; as a result the military issued charges against him and L3 terminated his employment in April 2008. (58) In May, the charges were referred to a court-martial. (59)

Ali's counsel first challenged the jurisdiction of the court-martial, to which the military judge responded by citing the 2007 change in the UCMJ language, determining that Operation Iraqi Freedom did in fact constitute a "contingency operation." (60) The judge went on to determine that because Ali accompanied the armed forces on every mission, he was in the field and accompanying the armed forces for the purposes of the statute. (61) Finally, the judge also found the use of the court-martial constitutional under Article l, Section 8, Clause 14 of the Constitution, justifying the action of Congress under its power to make the rules for regulating land and naval forces. (62)

B. Policy Implications

Eventually, Ali was convicted and sentenced to five months imprisonment (though he was also credited with time served). (63) He chose to appeal the conviction, continuing to argue both the jurisdiction and constitutionality of the UCMJ changes. In practical terms, the Ali case also reflected a course of action that was not necessarily Congress' primary intent: Resources and time had been put into prosecuting a non-U.S, civilian in a military court-martial. No clear message was therefore sent by this prosecution that DOD would actively prosecute U.S. citizens or that the courts would be as willing to waive constitutional rights, including the Fifth and Sixth Amendments, if the contractor was a U.S. citizen.

The Ali case is also the only prosecution of a civilian to take place under the UCMJ since the change to Article 2(10). (64) That fact alone highlights the lack of information available in assessing whether the change to the UCMJ changed the legal framework for prosecuting contractors when it comes to practice. While the changes arguably envisaged a mechanism to prosecute conduct that fell within the previously recognized legal gap, in practice it has only been used for a minor offense undertaken by a non-U.S, citizen against another foreign national. It is also unclear if the minimal use of the UCMJ change is because DOD still prefers to defer to DOJ for contractor prosecutions, or on the other hand, if there has simply been an absolute drop in the amount of criminal conduct by these contractors.

On the other hand, the military judge did find as a matter of fact that Ali had been informed of his liability under the UCMJ while at pre-deployment training at Fort Benning. (65) Thus, although perhaps the actual prosecutions are near to none, on the front end DOD apparently provided notice of the change in the rules to contracted employees. The deterrent effect of the UCMJ changes are unknown, but there is an argument that the knowledge that individuals could be charged led to some decrease in contractor misconduct. (66) Finally, the change in the UCMJ garnered a lot of media interest initially, with most military publications and think tanks highlighting the change and engaging in discussions as to what the implications of the change would be. (67) Aware of these changes, in addition to the negative media attention that followed contractors, it is possible that changes were made from the inside that helped reduce the instances of misconduct overseas.

C. The Constitutional Questions

Whether the UCMJ policy worked some level of deterrence on the front end, however, the Ali case did not send a strong message that criminal conduct by contractors would be prosecuted. The decision by the Court of Appeals for the Armed Forces (CAAF), although upholding the jurisdiction and conviction of Ali in the case, also completely dodged the question of constitutionality by citing to the fact that Ali was not a U.S. citizen. (68) That simple fact helped the CAAF to reach a conclusion in the case without providing precedent for future application of the UCMJ in a case involving U.S. citizens.

First, the court noted that the Fifth and Sixth Amendments do not apply to non-citizens. "We are mindful of the Supreme Court's repeated refusals to extend court-martial jurisdiction over civilians" said the opinion, "however, those cases are factually distinguishable because the defendants in those cases were U.S. citizens who indisputably enjoyed the protections of the Fifth and Sixth Amendments." (69) Despite a willingness to find jurisdiction over Ali for the purposes of the court-martial, the court refused to recognize any jurisdiction over Ali for the purposes of granting him rights under the Constitution.

The court specifically noted that long-standing Supreme Court precedent concerning trying civilians in military court related to trying U.S. citizens, not foreign nationals. (70) Citing to the facts that Ali was overseas, not on U.S. territory, and not substantially connected to the United States, he was not owed the same treatment under the Constitution. (71) At the same time, however, because Ali was uniformed like the U.S. military, went on every mission with them, and lived in their quarters, he was subject to a court-martial. (72)

An additional challenge Ali made to the law was whether Congress even had the power to extend the jurisdiction of the UCMJ to civilian contractors. In order for the action of Congress to be constitutional, civilian contractors would have to be considered to be military personnel for the duration of the contingency operations. The CAAF decided that this reasoning did not hold water under their analysis. Citing to Article 1, Section 8, Clause 14 of the Constitution, the CAAF said that Congress had the power to make the rules that govern land and naval forces, but that contractors did not fall into this category. (73) "In this case we find the Government's argument ... that Ali was a member of the "land and naval Forces" unpersuasive." (74) But the CAAF went on to say that although contractors are not part of "land and naval forces," Congress could constitutionally expand the reach of the UCMJ in the context of war. The court found that Congress' war powers are expansive and can be used to give authority and justify a decision to try civilians who are assisting the military in the theater of war.

The case of Ali underscored several issues with the current status of the UCMJ including its concurrent existence with MEJA, and also left open questions of constitutionality and the reach of the statute. Furthermore, the case in itself illustrates the ineffectiveness of the change to the UCMJ, as it is the only prosecution of a civilian under the UCMJ to take place and was decided on very narrow grounds.

VI. LEGAL TENSIONS: MEJA AND THE UCMJ

One of the glaring questions that came out of the CAAF opinion, specifically the concurring opinion from Judge Effron, was the use of the UCMJ when MEJA is an available route for prosecution. (75) In the Ali case MEJA was not available because Ali was a citizen of the host nation, if this were not the case, however, whether the accused was a foreign national or U.S. citizen, DOJ could technically investigate and prosecute in an Article III Court pursuant to MEJA. (76)

Yet, it seemed to some extent that the amendment of the UCMJ was to address the very fact that DOJ was not using MEJA to the extent it could, due in large part to lack of resources and incentive. (77) Furthermore, MEJA's reach was very limited in regards to which agency held the contracts and specifically the activity of the contractor in the war zone. The issuance of the 2008 memorandum only further highlights this purpose, since it provided that DOJ could choose to investigate but that the DOD did not have to stop its process under the UCMJ even if DOJ decided to pursue the case. (78) The idea from the perspective of DOD was perhaps that the UCMJ and MEJA liability could exist concurrently.

The decision by the CAAF left for another time the ultimate question as to whether or not a U.S. citizen could be prosecuted under the UCMJ. Some of the dicta in the CAAF opinion pointed to the resource challenges--it was easier to hold a court-martial than to send the defendant to the United States to be prosecuted in federal court. Perhaps such an argument would provide cover in regards to the long-standing Supreme Court precedent that states a civilian shall not be court-martialed unless very narrow circumstances demand it. (79)

At the same time, the mere existence of MEJA could nullify such an argument because even if DOJ chooses not to pursue a case, the possibility of prosecution in an Article III court remains available and may make it unconstitutional to pursue prosecution in a limited-rights venue like a court-martial. Arguably the only way that the CAAF could find in the case of Ali that prosecution was constitutional was the fact that Ali was in the extremely narrow category of individuals who fell outside of MEJA's reach. (80) Ultimately, the tension between the UCMJ, MEJA and the Constitution may also lie at the heart of why DOD has to date only prosecuted one civilian under the UCMJ.

VII. CONCLUSION

The Supreme Court often avoids constitutional questions if the opinion can be formed on narrower grounds. In Covert, the Court did not have to determine the constitutionality of civilian courts-martial because the case could be determined by an application of narrow statutory interpretation. Thus, the Covert holding focused on the fact that Article 2(10) specifically stated that jurisdiction would only extend to civilians in time of declared war. (81) That decision over fifty years ago by the Supreme Court helped inform Senator Lindsey Graham's decision to expand Article 2(10) to include contingency operations, and made that change significant.

Although Congress changed the UCMJ in a way that reflected the Supreme Court's earlier reasoning for barring civilian courts-martial, it remains unclear as to whether changing the language of Article 2(10) can overcome the outstanding, broader, constitutional questions. If the Supreme Court confronts the question of civilians in military tribunals again, it could address the issue more broadly than it did in Covert. Based upon its long-standing resistance to court-martialing civilians, (82) the Court may ultimately say that if an Article III avenue for prosecution is available, even if only technically speaking, it must be used. If such a decision were made, the UCMJ language itself could continue to be considered constitutional, but only as a last resort if MEJA is not available--what seemed to happen in Ali.

Although the military operations in Iraq have ended and a withdrawal date has been set for Afghanistan, the issue of contractor liability remains relevant. In fact, civilian contractors are filling in the gaps left by troop withdrawals, which makes the issue more salient than ever. The legal and practical challenges of pulling all civilian contractors under some form of liability umbrella are evident. Although DOJ has continued to use MEJA to prosecute civilian contractors, cases like Blackwater demonstrate the outstanding questions about how far MEJA can reach. (83) Similarly, Ali highlights the limited application of the UCMJ.

Because of the minimal use of the legal mechanisms available, contractors continue to exist in what is at best a gray zone of the law and at worst a zone of complete lawlessness. Yet those challenges must be addressed so that now, and in future contingency operations or even declared war, individuals involved in criminal behavior overseas who are working on behalf of the U.S. government will be held accountable, just as every other U.S. citizen and soldier would be.

(1) James Glanz & Sabrina Tavernise, Blackwater Scene Was Chaotic, N.Y. TIMES (Sept. 28, 2007), http://www.nytimes.com/2007/09/28/world/middleeast/28blackwater.html. Blackwater later changed its name to Xe and then Academi, but for purposes of this note I will use "Blackwater," as it was known at the time of the 2007 shooting.

(2) Id.

(3) Deborah C. Kidwell, Public War Private Fight? The United States and Private Military Companies 3, (Combat Studies Institute Press, Paper No. 12, 2005), available at http://usacac.army.mil/cac2/cgsc/carl/download/csipubs/kidwell.pdf.

(4) MOSHE SCHWARTZ, CONG. RESEARCH SERV., R40835, THE DEPARTMENT OF DEFENSE'S USE OF PRIVATE SECURITY CONTRACTORS IN AFGHANISTAN AND IRAQ: BACKGROUND, ANALYSIS, AND OPTIONS FOR CONGRESS 1 (2011).

(5) Marc Lindemann, Civilian Contracts Under Military Law, U.S. ARMY WAR C. PARAMETERS, Autumn 2007, at 83, 86.

(6) See Reid v. Covert, 354 U.S. 1 (1957) (holding that the UCMJ did not extend to civilians accompanying armed forces overseas during times of peace); United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970) (declining to subject Averette to court-martial because his misconduct did not take place during a time of declared war).

(7) John S. Kemp, Private Military Firms and Responses to Their Accountability Gap, 32 WASH. U. J.L. & POL'Y 489,499 (2010).

(8) John Warner, National Defense Authorization Act for Fiscal Year 2007 [section] 552, 10 U.S.C. [section] 802 (2006).

(9) United States v. All, 71 M.J. 256, 280 (C.A.A.F. 2012).

(10) Id.

(11) Id.

(12) Lindemann, supra note 5, at 86.

(13) Renae Merle, Census Counts 100,000 Contractors in Iraq, Wash. Post (Dec. 5, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/12/04/AR2006120401311.html.

(14) Office of the Deputy Assistant Secretary of Defense (Program Support), U.S. Dep't of Def., Contractor Support of U.S. Operations in the USCENTCOM Area of Responsibility to Include Iraq and Afghanistan (Jan. 2013), available at http://www.acq.osd.mil/log/PS/CENTCOM_reports.html. That number does not include contractors with other government agencies, who are also present on the ground in Afghanistan and who are in fact equally relevant to the activities of the military and the questions of liability which follow, Id.

(15) Rob Nordland, Risks of Afghan War Shift from Soldiers to Contractors, N.Y. Times (Feb. 11, 2012), http://www.nytimes.com/2012/02/12/world/asia/afghan-war-risks-are-shifting-to-contractors.html.

(16) See Maj. Gen. Antonio M. Taguba, Ar 15-6 Investigation Of The 800th Military Police Brigade (2004), at 16 (report and recommendation of the 2004 military inquiry into Abu Ghraib prison abuse) [hereinafter Taguba Report]; Seymour M. Hersh, Torture At Abu Ghraib, New Yorker (May 10, 2004), http://www.newyorker.com/archive/2004/05/10/040510fa_fact?currentPage=all.

(17) Renae Merle & Ellen McCarthy, 6 Employees" From CACI International, Titan Referred for Prosecution, Wash. Post, Aug. 26, 2004, at A18.

(18) Id.

(19) Ellen McCarthy, Immunity Provision Extended for U.S. Firms With Reconstruction Contracts, Wash. Post, June 29, 2004, at A18.

(20) Mark Benjamin, No Justice for All, Salon (Apr. 14, 2006, 5:31 AM), http://www.salon.com/2006/04/14/contractor_2/.

(21) Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 MIL. L. REV. 114, 122 (1995).

(22) See, e.g., Reid v. Covert, 354 U.S. 1, 38-40 (1957); United States v. Averette, 41 C.M.R. 363, 364-55 (C.M.A. 1970).

(23) Reid, 354 U.S. at 35.

(24) Averette, 41 C.M.R at 365.

(25) Douglas S. Anderson & Mark J. Yost, Current Developments: The Military Extraterritoriality Jurisdiction Act of 2000: Closing the Gap, 95 Am. J. Int'l L. 446,446 (2001).

(26) 145 Cong. Rec. E2419 (daily ed. Nov. 17, 1999) (statement of Rep. Saxby Chambliss).

(27) Id.

(28) U.S.C. [section] 3261 (2012).

(29) Military Extraterritorial Jurisdiction Act of 1999: Hearing on H.R. 3380 Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 106th Cong. 1, 1-2 (2000).

(30) Id. at 1 (statement of Rep. Cabot, member, H. Comm. on the Judiciary).

(31) Id.

(32) 18 U.S.C. [section] 3261.

(33) Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad: Hearing on H.R. 2136 Before the S. Comm. on the Judiciary, 112th Cong. 1 (2011) (statement of Lanny A. Breuer, Ass't Att'y Gen. of the United States).

(34) Id.

(35) Id.

(36) Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment: Hearing Before the S. Comm. on Foreign Relations, 110th Cong. 1-4 (2008) (statement of Sigal P. Mandelker, Deputy Assistant Att'y Gen.).

(37) Id.

(38) Donna Marie McKinnon, Federal Civilian Criminal Prosecutions of Private Military Contractors: Inherent Legal Ethics Issues, 24 GEO. J. Legal Ethics 695,698 (2011).

(39) Jennifer K. Elsea, Cong. Research Serv., R40991, Private Security Contractors in Iraq and Afghanistan: Legal Issues 23 (2010) [hereinafter Contractor Legal Issues].

(40) Id.

(41) United States v. Slough, 641 F.3d 544, 554-55 (D.C. Cir. 2011).

(42) Id.

(43) Human Rights First, Private Security Contractors at War: Ending The Culture Of Impunity 28 (2008) [hereinafter Human Rights].

(44) See generally Reid v. Covert, 354 U.S. 1 (1957) (holding that civilians accompanying the armed forces could not be court-martialed unless there was Congressionally declared war).

(45) Human Rights, supra note 43, at 28.

(46) Contractor Legal Issues, supra note 39, at 25-29.

(47) Peter W. Singer, Frequently Asked Questions on the UCMJ Change and its Applicability to Private Military Contractors, Brookings (Jan. 12, 2007), http://www.brookings.edu/research/opinions/2007/01/12defenseindustry-singer.

(48) Id.

(49) United States v. Ali, 71 M.J. 256, 262 (C.A.A.F. 2012).

(50) Memorandum from Sec'y. of Def. Robert Gates to Sec'ys of the Military Dep'ts, Chairman of the Joint Chiefs of Staff, Under Sec'ys of Def., and Commanders of the Combatant Commands (Mar. 10, 2008), at 2 available at http://www.fas.org/sgp/othergov/dod/gates-ucmj.pdf.

(51) Id. 52 Id.; see also Kara M. Sacilotto, Secretary of Defense Issues Guidance on Application of the UCMJ to Contractors Accompanying the Forces, Wiley Rein LLP (Mar. 18, 2008), http://www.wileyrein.com/publications.cfm?sp=articles&id=4633.

(53) Ali, 71 M.J. at 280.

(54) Id. at 259.

(55) Id.

(56) Id.

(57) Id.

(58) Id. at 260.

(59) Id.

(60) Id.

(61) Id.

(62) Id. at 260-66. The constitutional argument, however, suffers from a degree of circular reasoning. On one hand, by citing to the power of Congress to regulate land and naval forces, civilian contractors arguably fall under that umbrella and thus could legally be treated the same as military personnel. On the other hand, however, Article 2(10) of the UCMJ specifically creates jurisdiction over civilian contractors in certain contexts, thus indicating that generally speaking, they are not considered the same as military personnel. Even if Congress could and intended to extend jurisdiction in specific circumstances as part of regulating land and naval forces, the question still remains as to whether the jurisdiction itself is constitutional.

(63) Id. at 280.

(64) Id.

(65) Id. at 259.

(66) It is also important to note that contingency operations in Iraq are now over, and the nature of operations in Afghanistan continue to change, which may also account for a possible decrease in criminal behavior.

(67) See, e.g., Singer, supra note 47; David C. Hammond, The First Prosecution of a Contractor Under the UCMJ: Lessons for Service Contractors, Service Contractor, Fall 2008, at 33, 34; William Matthews, Some UCMJ Rules Now Cover U.S. Contractors, Marine Corps Times (Jan. 5, 2007, 5:00 PM), http://www.marinecorpstimes.com/article/20070105/NEWS/701050309/Some_UCMJ-rules-now-cover-U-S-contractors (providing notice that the UCMJ had been amended); see also Michael Navarre & John O'Connor, Testing, Military Jurisdiction Over Contractor Employees, LAW 360 (Nov. 30, 2011), http://www.steptoe.com/publications-7901.html (discussing the Ali case in particular, in light of the UCMJ changes).

(68) Ali, 71 M.J. at 269.

(69) Id.

(70) Id.

(71) Id.

(72) Id. at 277 78 (Baker, C.J., concurring).

(73) Id. at 269.

(74) Id,

(75) Id. at 280 (Effron, J., concurring).

(76) Id.

(77) Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment: Hearing before the S. Comm. on Foreign Relations, 110th Cong. 1-4 (2008) (statement by Sigal P. Mandelker, Deputy Assistant Att'y Gen.).

(78) Memorandum from Sec'y of Def. Robert Gates to Sec'ys of the Military Dep'ts, et al., supra note 50.

(79) See Reid v. Covert, 354 U.S. 1, 39(1957).

(80) Ali, 71 M.J. at 280.

(81) Reid v. Covert, 354 U.S. 1,39 (1957).

(82) Id. at 39 (citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955)).

(83) James Risen, Efforts to Prosecute Blackwater Are Collapsing, N.Y. Times (Oct. 20, 2010), http://www.nytimes.com/2010/10/21/world/21contractors.html?pagewanted=all.

INGRID L. PRICE, J.D., Stanford Law School, 2013. I am grateful to Janet Alexander for a thought provoking seminar that motivated me to write this Note, and for her helpful comments on previous drafts.
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Publication:Stanford Journal of International Law
Date:Jun 22, 2013
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