thedrifter
01-06-07, 01:59 PM
Some UCMJ rules now cover U.S. contractors
By William Matthews
Staff Writer
During an argument, a U.S. civilian contractor utters a few unprintable words to a U.S. military officer. Under newly revised U.S. law, the contractor may be court-martialed.
The same new rules may apply to contractors who drink alcohol or possess pornography in countries where it is forbidden, commit adultery or fraternize — the military’s term for having improper relationships.
A five-word revision of the U.S. legal code, passed virtually unnoticed by Congress last fall, would make U.S. civilians working for the U.S. military in Iraq, Afghanistan or other “contingency operations” subject to the Uniform Code of Military Justice (UCMJ).
Before the revision, contractors were governed by the UCMJ only in times of declared wars.
The change was intended to close a legal loophole that has enabled contract personnel to escape punishment for violating the law, said Peter Singer, a military scholar at the Brookings Institution.
But a result may be that contractors now can be punished for actions not ordinarily prosecutable under U.S. law, said Stan Soloway, president of the Professional Services Council, an organization that represents government contractors.
The legal change is the work of Sen. Lindsey Graham, R-S.C., who said 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.”
The new law appears to impose the UCMJ — the military’s “code of behavior” — on contractors working for the U.S. military in contingency operations, Soloway said.
The UCMJ’s “behavioral requirements are very different and potentially in conflict with contract law and criminal law,” Soloway said.
New Reasons To Prosecute Civilian contractors now might be punished for disrespecting an officer, disregarding an order or committing adultery — actions that are not prosecutable under U.S. law, Soloway said.
“If a general or colonel directs a contractor or government civilian to do something that is outside terms of contract, under U.S. procurement law, the contractor does not do it without authority from the contracting officer,” Soloway said. But under the UCMJ, “that might be failure to follow an order.”
Singer, who has studied the use of civilian contractors in contemporary wars, called Graham’s amendment “long overdue.”
Without the new law, “whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq or Afghanistan, they had no tools to resolve them,” he said. Alleged contractor misdeeds range from theft and fraud to mistreatment of prisoners, operating sex rings, rape and murder. But according to Singer, contractors are almost never prosecuted.
Contractors have escaped through a legal gap, he said. They were not covered by the UCMJ, and while they are subject to local laws, often, as in Iraq, there is no functioning legal system to prosecute criminal activity.
Soloway said U.S. contractors are subject to the Military Extraterritorial Jurisdiction Act (MEJA).
“If you are working under a DoD contract at a U.S. military facility and you commit a crime, that is considered a crime in the United States and you can be prosecuted under U.S. law,” he said.
But Singer said, “the reality of MEJA is it has not been activated for Iraq.” Despite atrocities by contract interrogators and killings by contract security guards, no contractors have been prosecuted under MEJA, he said.
“We have had contractors involved in all sorts of stuff, but the military has said there’s nothing we can do,” Singer said. “Many JAG [judge advocate general] officers and contracting officers have wanted this.”
“For the longest time, there has been a legal vacuum and a lack of political will on part of the Bush administration and Congress to do anything about it,” he said.
Concern that contract personnel will be prosecuted for disrespecting an officer, fraternization or other actions that are not violations of civilian law are probably exaggerated, Singer said.
Although it has not been determined yet, it would be reasonable to prosecute civilians under the UCMJ for felony violations, but not for lesser offenses, he said. That is the level at which prosecution occurs under MEJA.
Soloway agreed that “there needs to be a way that contractor and government employees can be prosecuted for criminal acts.” But the Professional Services Council would prefer to have MEJA expanded rather than have contractors subjected to the UCMJ.
“We’re deeply concerned that the broad and arbitrary application of the UCMJ imposes a whole range of behavioral requirements” on contract employees, Soloway said.
But Singer said for too long, contractors have taken advantage of “the unregulated marketplace.”
If private individuals want to do military jobs for profit in war zones on behalf of the U.S. government, then they should agree to fall under the same laws as U.S. soldiers, he said.
“If a contractor doesn’t agree to those regulations, that’s fine, don’t contract,” he said. • E-mail: bmatthews@defensenews.com.
Ellie
By William Matthews
Staff Writer
During an argument, a U.S. civilian contractor utters a few unprintable words to a U.S. military officer. Under newly revised U.S. law, the contractor may be court-martialed.
The same new rules may apply to contractors who drink alcohol or possess pornography in countries where it is forbidden, commit adultery or fraternize — the military’s term for having improper relationships.
A five-word revision of the U.S. legal code, passed virtually unnoticed by Congress last fall, would make U.S. civilians working for the U.S. military in Iraq, Afghanistan or other “contingency operations” subject to the Uniform Code of Military Justice (UCMJ).
Before the revision, contractors were governed by the UCMJ only in times of declared wars.
The change was intended to close a legal loophole that has enabled contract personnel to escape punishment for violating the law, said Peter Singer, a military scholar at the Brookings Institution.
But a result may be that contractors now can be punished for actions not ordinarily prosecutable under U.S. law, said Stan Soloway, president of the Professional Services Council, an organization that represents government contractors.
The legal change is the work of Sen. Lindsey Graham, R-S.C., who said 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.”
The new law appears to impose the UCMJ — the military’s “code of behavior” — on contractors working for the U.S. military in contingency operations, Soloway said.
The UCMJ’s “behavioral requirements are very different and potentially in conflict with contract law and criminal law,” Soloway said.
New Reasons To Prosecute Civilian contractors now might be punished for disrespecting an officer, disregarding an order or committing adultery — actions that are not prosecutable under U.S. law, Soloway said.
“If a general or colonel directs a contractor or government civilian to do something that is outside terms of contract, under U.S. procurement law, the contractor does not do it without authority from the contracting officer,” Soloway said. But under the UCMJ, “that might be failure to follow an order.”
Singer, who has studied the use of civilian contractors in contemporary wars, called Graham’s amendment “long overdue.”
Without the new law, “whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq or Afghanistan, they had no tools to resolve them,” he said. Alleged contractor misdeeds range from theft and fraud to mistreatment of prisoners, operating sex rings, rape and murder. But according to Singer, contractors are almost never prosecuted.
Contractors have escaped through a legal gap, he said. They were not covered by the UCMJ, and while they are subject to local laws, often, as in Iraq, there is no functioning legal system to prosecute criminal activity.
Soloway said U.S. contractors are subject to the Military Extraterritorial Jurisdiction Act (MEJA).
“If you are working under a DoD contract at a U.S. military facility and you commit a crime, that is considered a crime in the United States and you can be prosecuted under U.S. law,” he said.
But Singer said, “the reality of MEJA is it has not been activated for Iraq.” Despite atrocities by contract interrogators and killings by contract security guards, no contractors have been prosecuted under MEJA, he said.
“We have had contractors involved in all sorts of stuff, but the military has said there’s nothing we can do,” Singer said. “Many JAG [judge advocate general] officers and contracting officers have wanted this.”
“For the longest time, there has been a legal vacuum and a lack of political will on part of the Bush administration and Congress to do anything about it,” he said.
Concern that contract personnel will be prosecuted for disrespecting an officer, fraternization or other actions that are not violations of civilian law are probably exaggerated, Singer said.
Although it has not been determined yet, it would be reasonable to prosecute civilians under the UCMJ for felony violations, but not for lesser offenses, he said. That is the level at which prosecution occurs under MEJA.
Soloway agreed that “there needs to be a way that contractor and government employees can be prosecuted for criminal acts.” But the Professional Services Council would prefer to have MEJA expanded rather than have contractors subjected to the UCMJ.
“We’re deeply concerned that the broad and arbitrary application of the UCMJ imposes a whole range of behavioral requirements” on contract employees, Soloway said.
But Singer said for too long, contractors have taken advantage of “the unregulated marketplace.”
If private individuals want to do military jobs for profit in war zones on behalf of the U.S. government, then they should agree to fall under the same laws as U.S. soldiers, he said.
“If a contractor doesn’t agree to those regulations, that’s fine, don’t contract,” he said. • E-mail: bmatthews@defensenews.com.
Ellie