Frequently Asked Questions on the UCMJ Change and its Applicability to Private Military Contractors

Peter W. Singer
Peter W. Singer Former Brookings Expert, Strategist and Senior Fellow - New America

January 12, 2007

What does the new law try to do?

The 2007 Defense Bill, enacted in October, places contractors and others who accompany the military in the field under UCMJ (the Uniform Code of Military Justice), by defining UCMJ to cover civilians not just in times of declared war but also contingency operations. To put it another way, basically 100,000 contractors woke up to find themselves potentially under the same set of military laws that govern the armed forces.

Who put the clause in and why?

The clause was put in by Senator Lindsay Graham of South Carolina. Two things are important to note here. Graham is a Republican, which should pop any conspiracy theory that this is some sort of partisan or liberal issue. Also Graham is a reserve JAG officer, and has stated in the press that he felt it would “give military commanders a more fair and efficient means of discipline on the battlefield” by placing “civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.”

Why does this new law even matter?

1) It’s the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasis “potential” here, to finally bring some legal status and accountability to a business that has expanded well past the laws. The old system of hoping to apply extraterritorial civilian law to a military setting 9000 miles away wasn’t working, so Congress took a new tack.

2) It gives officers in the field a new tool, that they have asked for a long time, to actually do something about contractor crimes. It also takes away an excuse that is often made to Congress as to why action is not have been taken against a contractor crime, i.e. that military has no authority over such civilians or only has a “coordinating” relationship with contractors in the field.

3) As someone who has tracked this issue for almost 10 years now, the new law and the reactions to it are also striking in how they demonstrate how the lines of debate have changed. For a long time, there was a sense of denial around the whole issue, denial both by the industry, and about the industry (mainly by government leaders, but also many senior generals). These included denial to how big it has gotten, denial as to its critical roles and functions on and off the battlefield, and denial as to the problems and dilemmas it has raised. But now we are starting to get past this denial to acceptance. For example, firms used to argue that there were or would be never any problems, as the market would deter or solve whatever bad might happen. Thus, they originally bristled at the idea of enhanced regulation and oversight by government. Now, many of them are calling for regulation (as long as they help craft it). Likewise, the center of the debate has shifted for individual criminal legal issues. For a long while, firms and their representatives denied any possibility of bad apples and pointed to market solutions as sufficient deterrence and punishment. Then, over the last few years, they moved to a position that admitted the possibility that bad apples could exist in the industry (like in every human endeavor), but that MEJA (the civilian Military Extra-Territorial Jurisdiction Act) was the solution. Whenever someone would point out the legal gaps, they would cite MEJA, as if it was working and no need to worry. Now, the debate has shifted. The new line is, ‘OK, actually MEJA wasn’t working all along. But let’s fix it, rather than do UCMJ.’ Big change when you take a step back.

4) This law serves as notice that Congress has essentially woken up on this issue and is kicking into action. It is merely the first of many new attempts at adding law to what had been an unregulated marketplace. Keep your eyes out for more bills and hearings.

5) With the new law, UCMJ also opens up questions of military responsibility towards contractors that have been dodged. I think you will see a larger debate within the military as to whether some roles and functions should not have been outsourced in the first place and a roll back is needed. This will continue as more of the Iraq-generation field officers advance in the ranks. For example, US Army Colonel Peter Mansoor, one of the most influential military thinker on counter-insurgency, just told Jane’s Defense Weekly that the US military needs to take “..a real hard look at security contractors on future battlefields and figure out a way to get a handle on them so that they can be better integrated – if we’re going to allow them to be used in the first place… I would much rather see basically all armed entities in a counter-insurgency operation fall under a military chain of command.”

Will it actually be used?

Like any new law, it depends on two things: Interpretation and will to implement. That is, it doesn’t necessarily kick into action and how it kicks into action depends on much.

What about the claims that the new law isn’t constitutional?

Some lawyers look at it and says its unconstitutional. They may be right. There is a long history of the courts not wanting civilians to fall under military law. But other lawyers have looked at and think it might be constitutional. For example, Reid v. Covert (which dealt with a wife murdering her USAF husband at a base in the UK back in the 1957) is often cited as the legal precedent that sets that civilians can’t be tried by military courts. But, the Supreme Court in its ruling in Reid case stressed that it was 1) focusing on dependents, and 2) that things would have been different in its ruling if civilians were being prosecuted in time of war, which it defines (citing Winthrop) as “in an area of actual fighting.” 3) It goes further to say that, “In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.” Finally, 4) the court both alludes to a broader reading of “land and naval forces” and favorably cites 10 USC 802(10), the “accompanying the forces” section, saying this sets out the “maximum historically recognized extent of military jurisdiction over civilians under the concept of ‘in the field.’” As one brilliant lawyer emailed me, “That is the provision in question here, and it has now been broadened to include “contingency operations”, i.e. Iraq.”

Although I do love Boston Legal (“Denny Crane”), I am not a lawyer. The important thing to me as a non-lawyer is that the cases people cite as precedent that it is unconstitutional come from before the time of the private military industry and are not caught up to the issues we are wrestling with now (i.e. Reid dealt with a wife murdering her USAF husband at abase in the UK, not operations in a warzone). Secondly, while the lawyers and trade associations duel out on this in the press on what they think, I prefer to stick with what we do know. At this point, the sense of two of the three branches of government (Congress and the President who signed it), is that the law is constitutional. Finally, predicting what the Supreme Court may or may not rule seems a lot like predicting the lottery. We won’t know until there is a test case. Until then, it’s the law of the land. Anyone who tells contractors to ignore the new law because it might be unconstitutional is giving bad advice.

One final note: An important underlying issue, that illustrates the change, is that we can be very certain that the Supreme Court, however it might rule, is not going to state that the previous state of confusion over contractor status and accountability should be returned to. Whatever the outcome, things get clarified. Also, whomever, is that test case person is going to be inside the legal system, rather than getting away scot-free, as has been the case for many incidents so far.

What are some issues that it raises?

The key controversies are the scope and depth of its interpretation. That is, who does it to apply to and for what issues?

Who will it apply to?

On the whole, there are all sorts of theories as to whether it will apply to only direct Defense Department contractors or those from other agencies working in the same warzones or to 3rd party nationals. I cited in the original article that even embedded journalists might fall under it if an extreme interpretation was taken.

Some say it only should be the direct DoD contractors, but this seems a dodge. It would miss the fact that many are working in support of US mission in Iraq for a variety of agencies, for example, then missing folks like the contractors accused of crimes at Abu Ghraib (who were actually at Department of Interiror, despite being deplotyed in Iraq to do military type jobs). To me, the legislative intent seems to be that what matters is whether they are operating in a warzone in support of an overall US military mission, not which letter in the alphabet soup of agencies they fell under along technical lines. Likewise, for 3rd party nationals. They would seem outside the coverage of the new law if they were employed supporting other nation’s militaries. But for those working for the US military mission (note: many of whom are in violation of their home state laws, just for doing that), there has to be some system of accountability, rather than just a ‘get out of jail free’ card.

The typical way to determine interpretation is to go back to the intent. From Graham’s statements, it seem the law was intended to repair for the development of a new industry that was operating in manners that MEJA wasn’t designed to apply to originally and was found to be ineffective in its workability by officers in the field. So a reasonable guidance would be for contractors and sub contractors working for DoD and/or other agencies in support of US military missions in zones of conflict. But, again, that’s just one interpretation.

What about its depth? That is, will it apply to all of military law?

UCMJ covers far more than just felony offenses and technically now contractors potentially fall under it as well in such operations. How far down that line of coverage extends, if you go beyond the old MEJA standard, is an open question of interpretation that is very important.

For example: what if a contractor in Iraq got drunk, revealed to a JAG that he was openly gay, and then went back to his room and spent the night downloading porn? Each of these violates UCMJ, but is not a felony in civilian life. Seeing such violations of the UCMJ, is that officer obligated to call an MP in and send the contractor to the brig? I don’t think they should, but then again, I’m not the JAG’s who have to figure these things out.

My own two cents is that the most sensible implementation would be comparable to MEJA, whose failings it intends to fill. That is, while MEJA references the jurisdiction back (and hence to all of domestic civilian law), it only is supposed to kick in when there is a suspicion of the equivalent of the commission of a felony offense. For example, if you jaywalk in Iraq, MEJA can’t be enacted, even though jaywalking is a crime back in the US, because it’s not a felony. But any crime that could get up 1 year or above in jailtime, could fall technically under MEJA. The difference is that MEJA was never designed to apply to military/security missions or the context of conflict zones (its point of origin was a family abuse case at a US base in Germany) and has proven to be pretty much mythical in application to the contractor world (the only MEJA case activated was a domestic dispute at a base in Turkey). Court martials, for all their faults, are designed for the context of military action and conflict, such as being better set up to interpret things like whether someone violated the rules of engagement than a civilian court could. And, while they can be equally politicized or leave out senior leaders in who gets charged (Abu Ghraib for example), they actually do happen, as opposed to the non-application of the old laws to contractors, which haven’t yet after more than 4 years and 100,000 guys in such roles.

But again, that’s what I as a non lawyer think would be a fair interpretation of the new expansion, that it just kick in for felonies. What happens next up in the air. The way we find out is until either a guidance is issued or there is a test case down the road. I argued it is far better to have the guidance now, so that contractors and soldiers in the field know where the line is, rather than wait years to see what happens, and continue the uncertainty until then.

How might the new law be applied in action vs. the old? That is, what exactly was wrong with the old system? Why wasn’t it working?

Let’s take a theoretic example of a US contractor getting drunk and shooting an Iraqi, with the event occurring inside Iraq.

Previous to this law, he could (and I emphasize could) have been prosecuted under MEJA, as would be a felony. Where the “could” became “won’t” is in the details.

Some US attorney would have had to decide to prosecute the accused, even though the victim and accused wasn’t in his district, fly out to the base in Iraq multiple times, try to track down and depose witnesses (who most likely would have been deployed all over the place to avoid him), and then sell it to a jury back in the US, likely spending his entire yearly budget on one case when he is actually being judged by his bosses on his prosecutions of a lacrosse team, gang violence, or whatever. They would decide it’s a loser and most likely bury it in an “open file” somewhere. And this is if there were no political pressures, and the accused was actually in custody, which military folks haven’t been putting contractors in when they know of such events.

But let’s say the prosecutor was fired up to do something. If he did push forward to prosecute Drunky McDrunk (which again, none have used MEJA in such cases, so we are being really theoretic here), the whole time then the defense team would have to be afforded the opportunity to do the same (depose witnesses around Iraq, etc.). In all likelihood, witnesses would move on to new jobs in new places (perhaps facilitated by firms wanting to not see their guy get prosecuted and roll over on other stuff going on; imagine trying to serve a contractor for something that happened in Iraq, by trying to track them down in Philippines, Afghanistan, Sudan etc.), new deployments by any military witnesses around the world (whereas, court martials are easier to compel appearance), and/or Iraqis, who still wouldn’t likely talk on site, let alone being willing to fly to US to testify against an American. Ultimately, the prosecutor would also have to try to sell this to a jury of 12 of his peers back here, which wouldn’t be folks with military background, but 12 Jane’s and Joe’s, who can’t find Iraq on a map or just think any dead Iraqi is a good one. Heck, if the Iraqi’s body has been taken somewhere and buried in the interim, then they can’t even go for a murder/manslaughter charge, as requires a body. That is, even if we knew the local national was killed, no body, no murder/manslaughter charge (remember, this was the interpretation in the Passaro case). This isn’t even to get into Order 17, which was an old ruling by the CPA that contractors weren’t to fall under Iraqi law either.

The simple fact is that previously US officers thought they did not have authority to arrest and court martial if was a citizen. They only thought they could report to civilian authorities, in full knowledge that nothing would happen. Sometimes they might detain the contractor, but always would release.

The military link with contractors was viewed as simply “contractual” or “coordinating.” So, the primary punitive action that officers thought they had at hand was to ask the firm to fire the guy and/or the base commander could revoke the contractor’s security card to get them the hell off their base. Indeed, they would even get frustrated that they sometimes see guys they kicked off their base pop up somewhere else, working for the same or different firm at a different base in Iraq.

What about under the new rules?

Now, with the news on the expansion of UCMJ to contingency ops, legally a military officer can have UCMJ authority over contractors.

As to the theoretic case, again, it comes down to interpretation and will. If they did arrest the accused, it would be up to DoJ and DoD to decide who gets him. But important thing is that now DOD has the potential legal authority, which it didn’t have before. Congress has said it has a dog in the fight. It might want to use the incident as a test case, or wait for something more clearcut. It might use its new link as way to force DOJ to finally act, so MEJA does happen finally, or it might try to bury it. The key is that it can no longer report back to Congress that it didn’t act because it didn’t have authority.

In turn, the new law opens up all sorts of questions for the accused’s defense (and importantly now they have to mount one). If government goes for court martial, the defense lawyer’s might then go to civilian court and start citing the Jose Padilla (American “Dirty Bomber”) case to get him sprung to civilian side and the whole thing would become a test case, perhaps even going to the Supreme Court. Or, their lawyer may not and the whole thing could be decided by military court. Indeed, a few defense lawyers who have been both JAGs and then civilians say they like the evidentiary rules in UCMJ better than civilian criminal law, so they’d prefer take their chances there.

What has been the reaction to your story breaking the news on it?

The reaction from contractors in press reports has been mixed. Many have worried about how it might be applied or feel that is unnecessary. They also were a bit peeved that they had to find out about this major change from the blogs rather than their own firm or from trade groups paid to stay on top of these things. Others, usually ex-military guys, have taken the attitude that they lived under UCMJ for years while in service, so it’s not a big deal.

The reaction from the US military has been overwhelmingly positive. One officer even tracked me down here in DC to say he thought the news was “awesome” and was emailing his fellow officers back in Iraq to let them know about it. For foreign militaries, there seems to be an appetite to see what happens next, as to whether they explore similar measures for contractors they employ.

Is the new law just bad news for contractors?

No, again, many contractors have said they welcome the extension of UCMJ. In the same article in Jane’s Defense, Johann Jones, the former director of the Private Security Company Association of Iraq, said he thought firms in general would support being placed under the UCMJ, saying, “I would imagine that the industry would welcome this type of thing because the industry believes that everything is going the right way.” Actually, there’s another unstated reason it might be positive. Under their previous murky status, a few contractors have been treated like unlawful combatants and detained in ways that shouldn’t happen, before they would be punted out of the system (some would point here to the Zapata situation or the recent news story on contractor Donald Vance, held for some 90 days in Baghdad, despite working for FBI). And that was treatment when in custody by US military. Legally, contractors were also in murky situation if captured, as they might now be treated as POWs by other side. This not so much an issue with al Qaeda, who just behead all prisoners and save the paperwork. But say in a conflict with China, contractors caught in such roles could possibly be sent to their version of Gitmo (maybe some converted casino in Macau). They are civilians, but not civilians merely accompanying the force, rather serving military functions within it, but outside the chain of command and uniform. Its sounds bizarre, and it’s not something that the firms tell their guys, but this alternative interpretation is what the military lawyers have worried about for years, even for unarmed contractors in support roles. Clarifying that contractors fall under UCMJ could also clarify their status and treatment when in custody, giving legal protections that haven’t been there before. Again, though, it all depends on interpretation.

Why did this news initially get missed?

The law was a very small change inside a big bill, that was on another issue. That is, the wording was section 552 in a bill that had over 3000 sections and only contained an addition of 5 new words to the law. It also didn’t scream out its implications for contractors in the title of the section.