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During the past year, a furor has erupted over alleged attacks against civilians and others by government contractors operating in Iraq and Afghanistan. Most recently, on Sept. 16, employees of Blackwater USA, a private security company employed by the State Department to protect American diplomats, opened fire in midday traffic in Baghdad, allegedly killing 11 Iraqi civilians. Although State Department officials have not completed their investigation, the Iraqi Ministry of the Interior quickly concluded that the gunfire was unprovoked and that Blackwater “is considered 100% guilty.” The Iraqi prime minister announced that Blackwater’s license to operate in Iraq was being revoked. Some commentators and lawmakers are pointing to this incident as another example of the need for greater accountability for U.S. contractors operating overseas. U.S. contractors are thus under rhetorical as well as literal fire. The claim that they enjoy a free pass is somewhat exaggerated, however, given the fact that Department of Defense contractors operating overseas have been subject to U.S. criminal prosecution under the Military Extraterritorial Jurisdiction Act since 2001. And only last year, Congress acted to expand jurisdiction for contractor misdeeds under the Uniform Code of Military Justice. It is true that MEJA initially applied only to the Defense Department’s civilian employees, its contractors, their employees (including subcontractors), and their dependents. The law exposed them to criminal prosecution for felony-level crimes committed outside the United States. In 2004, in the wake of the Abu Ghraib scandal, Congress amended MEJA to include any civilian employee, contractor, and contractor employee (including subcontractors) of any federal agency or provisional authority, to the extent that such employment supports Defense Department missions overseas. MEJA has almost never been used to prosecute contractors, apparently due to the lack of a clear and comprehensive statutory basis for criminal jurisdiction over contractors operating in a war zone and the lack of clear lines of responsibility for conducting prosecutions. Instead of clarifying MEJA, Congress last year chose to amend the UCMJ to make it applicable to federal civilian and private contractor employees who closely support U.S. armed forces “in time of declared war or a contingency operation.” Article 2(a)(10) was thus expanded from the more limited “in time of war.” “Declared war” means a congressionally declared war. “Contingency operation” means a military operation designated by the secretary of defense as one in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or an opposing military force, or such operations that result in the call to or retention on active duty of members of the U.S. military. As modern military operations rarely result from congressionally declared conflicts, the previous version of Article 2(a)(10) reflected an outdated perception of what constitutes a war. The impending regulations to implement this expanded UCMJ coverage have raised significant concern among government contractors because these changes will expose more than 150,000 private and public employees to two sets of potentially conflicting law: civilian and military. CONCERNS OVER CONFUSION The plain text of the National Defense Authorization Act for Fiscal Year 2007 that amended the UCMJ left many significant issues for the regulations. For instance, not all UCMJ offenses can reasonably be applied to civilians. Indeed, preliminary analysis from the Defense Department’s Office of General Counsel showed that out of 163 UCMJ offenses, 14 are not applicable to civilians (the express language only applies to “members” of the military), 67 are “purely military offenses” (misdeeds such as malingering have no civilian analogue), and 82 are offenses that violate analogous federal laws. Yet it is not clear from the statute whether contractors should be subject to prosecution under the UCMJ for purely military offenses or whether nonjudicial punishment is authorized for civilians. The statutory language likewise does not explain how jurisdiction should operate where UCMJ offenses are subject to concurrent criminal jurisdiction under other laws. It is also not clear why UCMJ jurisdiction is limited solely to persons directly supporting — as opposed to those indirectly supporting — contingency operations or whether jurisdiction will extend to other persons traveling with U.S. forces, such as embedded reporters. Finally, it is unclear from the statute whether certain UCMJ procedural protections, such as withholding court-martial authority in these cases from lower-level military officers who do not possess general court-martial convening authority or allowing defense lawyers to seek or compel witness attendance at courts-martial, will apply to civilians charged under the UCMJ. In early 2007, the Acquisition Reform Working Group, which is composed of 11 industry associations representing government contractors and professional services providers, raised a number of concerns about the new amendments. The group asserted that the reach of the amendments is both too broad and too vague, because the secretary of defense has the authority to declare any military activity a contingency operation and because national declarations made by the president also trigger a designation of a contingency operation. For example, the group noted that Hurricane Katrina was a contingency operation. Civilian employees and contractors may not realize that a particular activity has been declared a contingency operation. The group also suggested that the amendments might subject contractors to conflicting lines of authority between the contracting officer and the military commander — even though, the group asserts, the Defense Department specifically sought to avoid conflicting lines of authority when it finalized its 2006 interim regulations on “contractors accompanying the force.” Lastly, the group recommended that Congress repeal the UCMJ amendment and modify MEJA as the more appropriate way to ensure jurisdiction over Defense Department contractors deployed overseas. Neither the House nor the Senate has adopted this idea. HOW TO IMPLEMENT In January 2007, the Joint Service Committee on Military Justice began its annual review of UCMJ amendments, including implementation of the expanded coverage and related changes to the Manual for Courts-Martial. In May, the committee made its recommendations. Although the official text has not been released, an unofficial “information paper” is available. The committee recommended that the Defense Department withhold authority from lower-level commanders to dispose of civilian offenses in particular cases. Specifically, the committee suggested that the department limit court-martial convening authority and authority to punish with nonjudicial action to those military officers possessing general court-martial authority (i.e., a general or “flag” officer) and that the department require notice to combatant commanders prior to the initiation of courts-martial or nonjudicial punishment actions against civilians or contractor employees. The committee also recommended that the Defense Department consult with the Justice Department on cases also covered by MEJA and allow Justice two business days to determine whether it would exercise jurisdiction. Lastly, the committee recommended that the Defense Department’s civilian employees and contractors receive training on the UCMJ at the time of their employment or prior to deployment. A Federal Register announcement requesting public comment on the UCMJ changes was expected by September 2007 but had not yet been released at the time this article went to press. POTENTIAL GAPS Unfortunately, the Joint Service Committee’s recommendations also leave important questions unanswered. The scope of the Defense Department’s proposed “withhold authority” has not been clearly defined. Will the department withhold from the host nation authority to prosecute U.S. contractors operating abroad? What about third-country nationals? Will the department withhold authority in particular locations within the theater of operations? The specific UCMJ offenses that may not apply to civilians have not been identified. Specifically, the Joint Service Committee has not said whether authority to prosecute purely military offenses, such as fraternization or missing movement, will be withheld in its entirety or on a case-by-case basis. The committee recommendations do not appear to address how military panels (the equivalent of civilian juries) for purposes of court-martialing civilians will be composed. The Manual for Courts-Martial currently provides no guidance. The recommendations also do not address the applicability of military-specific sentencing provisions. Finally, the Joint Service Committee apparently makes a broad proposal that UCMJ jurisdiction only be exercised outside the United States. The statute, however, appears to apply to all contingency operations, including those conducted domestically. Simply disavowing jurisdiction over domestic contingency operations may exceed the Defense Department’s authority. If so, the UCMJ may still apply to certain domestic situations involving the military, such as responses to natural disasters or terrorist attacks. If the UCMJ applies to Defense Department civilian employees and contractors taking actions in the United States, certain constitutional issues arise, including concerns about limitations on free speech and restrictions on due process. Procedural protections such as the right to a jury of one’s peers, the right to civilian counsel for those of limited means, and the right not to be tried absent a grand jury indictment are not provided in UCMJ proceedings. Despite the range of concerns raised by contractors about the UCMJ amendments, the proposed revisions to the Manual for Courts-Martial will apparently not be subject to public comment before promulgation because they will be issued via executive order. Thus, contractors will have to live with the executive order and UCMJ implementing regulations — that is, until they are subject to judicial review. On Sept. 25, following the most recent Blackwater incident, Deputy Defense Secretary Gordon England issued a memorandum to all combatant commanders and other senior officials reminding them of the need to ensure that Defense Department policies and processes concerning contractor personnel are followed. The memo also states that the UCMJ, MEJA, and various contract and administrative remedies can all be used to ensure that contractors working overseas comply with the relevant combatant commander’s orders relating to the use of force. Neither the UCMJ’s expanded jurisdiction nor the Sept. 25 memo, however, will apply to contractors doing business with other departments, such as the State Department, until Congress takes additional action. In today’s superheated political climate, that may not take long. Last week the House passed a bill, by a vote of 389-30, to expand MEJA to cover such contractors. The Senate is actively considering a similar amendment.
James J. McCullough is a partner in the D.C. office of Fried, Frank, Harris, Shriver & Jacobson, where he heads the firm’s government contracts practice. Courtney J. Edmonds and Alyssa C. Lareau are associates in the D.C. office.

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