Summary
[...] the Constitution does not foreclose military trials of certain civilians; the historical record details numerous occasions, dating back to the Revolutionary War, in which civilians with close connections to the armed services were held accountable by courts-martial. [...] a late twentieth-century opinion from the Court of Military Appeals,38 which effectively overturned generations of precedent and principle, was wrongly decided and anomalous, and should not foreclose current legislative attempts to hold civilians who accompany the armed forces during contingency operations responsible for illegal conduct.
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Extract
Civilian Military Contractors On Trial: The Case for Upholding the Amended Exceptional Jurisdiction Clause of the Uniform Code of Military Justice
"To keep watchdogs, who, from want of discipline or hunger, or some evil habit or other, would turn upon the sheep and worry them, and behave not like dogs, but wolves, would be a foul and monstrous thing in a shepherd . . . ." - Plato
I. INTRODUCTION"I call it a massacre," said a Kurdish witness to the afternoon carnage in the streets of Baghdad, "[t]hey used the law of the jungle."2 American soldiers3 and military officials4 were equally appalled at the aftermath: the plume of smoke over Nisour Square having dissipated, only the bullet-riddled, lifeless bodies of unarmed civilians remained.5 A banner proclaiming "[t]he Creators of Life are always Victorious"6 fluttered eerily overhead, an optimist's hope for Iraqi reconstruction diminished by the tumult below. This catastrophe was not, however, the work of terrorists. Rather, the deaths occurred at the hands of employees of Blackwater USA,7 a private security company under contract with the U.S. Department of State, whose primary mission in Iraq is to protect U.S. diplomats.8The facts of the shooting remain contested; Blackwater's chairman claims that his employees acted "appropriately" after coming under small-arms fire.9 However, numerous witnesses have said that the only shots fired that day came from the barrels of Blackwater's guns-for-hire,10 an allegation confirmed by U.S. military and F.B.I, investigators.11 According to reports, the Blackwater convoy hurtled through Nisour Square against the flow of traffic12 after a car bomb had exploded in the distance.1' A civilian driver failed to stop in time, and the Blackwater guards fired on him, splitting his head open while his mother screamed for help from the passenger seat.14 The sedan kept rolling, and as many as five contractors15 unleashed a barrage of firepower, engulfing the car in flames.16 Bullets suddenly flew in every direction." Even those trying to flee their vehicles were targeted: one man attempted to escape from his Volkswagen and was shot in the head from behind.18 Before finally leaving the Square, the Blackwater convoy fired on a bus of unarmed civilians.19 Among the seventeen dead and twenty-seven wounded20 were students, laborers, professionals, and children as young as eleven; they were middle class and poor.21 "What I want is the law to prevail," said a doctor whose wife and son were killed in the attack, "I hope that this act will not go without punishment."22Although five Blackwater guards were indicted in December 2008 for their roles in the attacks,21 private military and security firms generally continue to operate with relative impunity amidst regulatory frameworks that are porous, impracticable, and rarely utilized. Contractors deployed in Iraq were, until recently,24 immunized from local laws under Coalition Provisional Authority Order 17,25 a policy promulgated by Americans in 2004.26 The U.S. Military Extraterritorial Jurisdiction Act (MEJA)27 subjects Department of Defense contractors to the jurisdiction of U.S. Article III courts; however, firms like Blackwater, which contract with the State Department, arguably evade the reach of such measures.28 Even a proposed amendment to MEJA, which would bring all overseas U.S. contractors within the jurisdiction of the Article III courts, may be of limited utility, since prosecutorial responsibility under MEJA rests with assistant U.S. attorneys in the potential defendants' home jurisdictions.29 In addition, no formal notification procedure exists to apprise American prosecutors of matters potentially arising under MEJA.30 Until the Nisour Square indictments, only two Iraq-related cases had been prosecuted under MEJA - both for non-combat related offenses31 - a fact that belies the unwillingness of stateside prosecutors to expend limited resources on complex ca...See the full content of this document
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