Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct

• Author: Ian W. Baldwin
• Position: J.D. Candidate, The University of Iowa College of Law, 2008
• Pages: 01

J.D. Candidate, The University of Iowa College of Law, 2008; B.S., U.S. Military Academy, West Point, New York. Thanks to my wife, Ashlea, and my family for their steadfast support. Thanks to the editors and student writers of Volumes 93 and 94 for their comments, dedication, and hard work. Thanks to Professor Tung Yin for his helpful suggestions. This Note does not purport to reflect the views of any governmental entity. Any errors or omissions are mine alone.

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I Introduction

It was Sunday, September 16, 2007, at 11:53 a.m., when a bomb exploded twenty-five yards away from a personal-security detail and a tactical-support team ("TST") in Baghdad, Iraq.¹ TST 22 reacted to protect an official who was visiting the Izdihar financial compound.² The team successfully escorted the official back to the Green Zone³ "'without incident.'"⁴ Moments later, another unit, TST 23, drove from the Green Zone to assist TST 22 and the personal-security detail,⁵ but it instead found itself in a situation that resulted in the deaths of seventeen Iraqis.⁶

TST 23 came under attack from small-arms fire in Nisoor Square and returned fire.⁷ Witnesses of the event and others who arrived after the shootings contest the characterization of the event as an ambush.⁸ Recalling the incident, a member of TST 23 said that he initially fired in response to a car that had maneuvered too close to the convoy.⁹ He then fired a second time in response to small-arms fire that originated from a nearby shack.10 The TST member also responded to various other threats.¹¹ TST 23 then moved out of the ambush area and returned to the Green Zone, covering its exit with smoke.¹² TST 22, the team that TST 23 was supposed to help, drove Page 290 back to Nisoor Square to assist.¹³ TST 23, the original responders, had departed, but a quick-reaction force of Iraqi Army and Iraqi police prevented TST 22 from leaving.¹⁴ A U.S. Army quick-reaction force ("QRF") "'mediated'" TST 22's release from the scene, and "'escorted TST 22 . . . back to the Green Zone.'"¹⁵ Seventeen Iraqis lay dead in and around Nisoor Square.¹⁶

The members of TSTs 22 and 23 worked for Blackwater Worldwide17 ("Blackwater"), a company that specializes in providing a wide range of military services.¹⁸ Blackwater and other private military firms have been regular fixtures in the news headlines for the past few years. They have been involved in some extremely difficult situations while providing services for their employer, the U.S. government.¹⁹ The recent discussion about these companies centers on a few key questions: Who are they? What services do they provide for the government? What happens when someone alleges criminal misconduct on their part?

The government employs private military firms ("PMFs") to free up soldiers, sailors, marines, and airmen for active combat roles. The U.S. government relies heavily on contractors to perform myriad tasks on the battlefield.²⁰ The increased specialization in and technological requirements of maintaining military equipment necessitate the use of the expertise that contractors can provide.²¹

Government use of PMFs can provide another practical benefit by facilitating the application of force in the face of domestic apathy or antipathy. Contracting for certain services can facilitate accomplishment of Page 291 national objectives when nations wish to use military force without arousing public scrutiny or mobilizing public opinion.²² Such circumvention can make for splashy headlines and can have a broad, shocking impact when accounts of contractors allegedly committing crimes emerge.

Public outcry and scrutiny logically result. The infamous Abu Ghraib scandal implicated contractors.²³ The Nisoor Square incident recounted above has renewed congressional and media scrutiny of contractors.²⁴ This renewed scrutiny spurs questions such as: Who or which entity in the U.S. government is responsible for regulating force? For the most part, the White House has not contested the central role of PMFs in fighting the "Global War on Terror," although Congress is increasing its examination of the issue.²⁵ The scholarship that deals with this topic seems to consistently invoke the character of Milo Minderbinder from Catch-22: "Frankly, I'd like to see the government get out of war altogether and leave the whole field to private industry."²⁶ This quotation is instructive in prompting an inquiry into the state's traditional monopoly on military power. Page 292

By looking at Milo Minderbinder's actions throughout the novel, one can begin an even more probing inquiry into how PMFs subsist: Milo contracts with U.S. forces to transport extravagant European foodstuffs to U.S. Army mess halls; he contracts with the United States to bomb a bridge held by Third Reich forces and with the Third Reich to defend the bridge against the same attack; and then he contracts with Nazi Germany to bomb his own unit for monetary gain after a business deal gone awry. ²⁷ None of these fictional activities were possible without government resources, people, and acquiescence. Likewise, in the world of nonfictional combat zones, PMFs need the government; but does the government need PMFs?28 Regardless of the answer to that question, PMFs are a creature of the U.S. government, and as such, the government needs to use the tools at its disposal to guide that creation.

The United States does not necessarily have to cede its traditional control over the application of force when it signs a contract with a PMF. In fact, the United States retains a number of tools that can protect U.S. prerogative and punish misapplications of deadly force.²⁹ Different bodies of law provide bases on which to address alleged acts of wrongdoing; contract law, tort law, and criminal law are options, among others.³⁰ Two statutory Page 293 provisions in particular offer an attractive way to prosecute improper uses of force: the Military Extraterritorial Jurisdiction Act ("MEJA")³¹ and the Uniform Code of Military Justice ("UCMJ").³²

This Note argues that these two statutes can restrain and effectively punish the wrongful use of force by PMFs.³³ Congress passed the MEJA with the specific intent of prosecuting crimes of civilians who accompany the armed forces overseas, whether the civilian is in a contracting role or is a dependent of a service member.³⁴ The UCMJ, on the other hand, traditionally has governed only the conduct of service members in the armed forces. However, a recent statutory change to the UCMJ expands its jurisdiction over civilian contractors who accompany the armed forces to the field.³⁵ The coexistence of two statutes designed to regulate conduct through two distinct authorities-civil and military-gives rise to some important issues. A key question that arises regarding the prosecution Page 294 of a crime committed on the battlefield by a contractor is: Who takes jurisdiction, and by which statute?

These two statutes could operate together to create an effective prosecutorial scheme. More clarity, however, is needed about how these two parts of the United States Code operate and interact.³⁶ Although the Secretary of Defense has promulgated regulations regarding the implementation of the MEJA directive³⁷ and the recent change to the UCMJ,³⁸ no regulations address the potential intersection of the two statutes. This overlap could develop into a jurisdictional nightmare-where no agency has any idea who has responsibility for what-and perhaps even obstruct an agency legitimately entitled to investigate and prosecute.³⁹

One way to ensure that this scenario never materializes is to never prosecute a crime with the new UCMJ language; the other way is to posit a method to use both of the statutes that Congress has provided. If an experienced, well-rehearsed prosecution team can use these two statutes in concert, a synergistic effect might take place, resulting in a greater likelihood of a conviction than would have existed with an uncoordinated prosecution. Some federal crimes not available under the UCMJ could be available for the prosecution team.⁴⁰ Some UCMJ offenses not available to the civilian federal system might be available with a dual prosecution.⁴¹

This Note assumes that the problem at hand involves U.S. civilians employed by a U.S. PMF, under government contract, who have allegedly committed crimes in a combat zone.⁴² The Note will first explain critical terms of art.⁴³ It will then provide critical background on the development Page 295 of UCMJ and MEJA case law as it applies to civilians.⁴⁴ It will also explain the new grant of jurisdiction to the UCMJ ("Article 2(a)(10)jurisdiction")⁴⁵ that brings civilian contractors under its ambit.⁴⁶ After examining the legal merits and demerits of each statute, the Note...