Lack of Extraterritorial Jurisdiction over Civilians: AKew Look at an Old Problem

• Author: Major Susan S. Gibson
• Pages: 02

A milltar) spokesperson in Burundi conftrmed reports that the Army will take no adion against Joseph Dae Dnc. CI Cnited States Arm3 cioilion employee, usas being held far prosecution after he fatally shot u Jordonzan CAY peacekeeper ond a United States Arm) Colonel Doc &,as deployed to the Burundi peacekeeping nzs-sion to mamtam complex mil~tary commummtions equipment. The murder weapon was a .9mm pistol that the Army issued to Dac for self-defense

At a Pentagon briefing, the Army's top lawjer explained that the milttar3 could not try civilians by milztar) court-martial except during a declared war The Attorney General also confirmed that Dac could not be prosecuted in federal court It seems that fei. lazs haw an) effect outsrde the Cnited States.

The L'.V Secretary General 1s demanding that the United Stotes take steps to prosecute Doe If the United States cannot or ut11 notprosecute Dac. the Jordaman goiwnment LS demanding that Dnc be extradated to Jordan to stand trial for the murder of its peacekeeper.

The press release is fictional, but the problem is real. It IS the same old problem that the military has been faemg for over thirty-five years.'Unfartunatel>-, the militaq keeps trying to solve it in the same old way-by extending federal court jurisdiction over civilians

during peacetime 2 But, that solution, i6 targeted at the Army of the past rather than at the Army of the future

This article looks at the problem of America's lack of extraterritorial jurisdiction over civilians accompanying the force, but looks at it with an eye on current military trends and deployments, and with B view to the future The old problem arose in Cold War mill-tar? garrisons in Germany and Japan; ae a conaequence, the old solutions target that problem. The problem continues to arise, haw-ever, in worldwide deployments during operations other than war, Thie article proposes a solution for those overseas military deployments, not for peacetime over~easgarrisons.

These new military operations are conducted under canrtitutional war powers, and the new solution springs from that same power. The solution is limited in scape and grounded in military neceaity, In Rerd u. Comrt,3 the Supreme Court stated that "a statute cannot be framed by which a eidian can lawfully be made amenable to the military jurisdiction in time of peaee."4 For years, legal scholars have read this language as a prohibition against m h tary jurisdiction over civdmns. Read another way, it becomes a pant af authority-allowing military jurisdiction in the absence ofa time of mace.

1. Introduction

This article begins with a brief descnption of the problem and the need for change. Kat, it presents an historical overview of militam iurisdietion over cmlians. That historv beean in 1775 under theirtides of War. It then progressed ti thecniform Code of Military Justice KCMJ), and covered the court cases that took away UCMJ jurisdiction over civilians. The article then discusses the current limits ai extraterritonal federal court jurisdiction. The historical analysis ends with an examination of past and present proposals to regain extraterritorial jurisdiction over civilians.

This article then describes the current problem This problem 1s

farmed by three main farces (1) new mternatmnal tribunals and obhgatmns to prosecute. (21 new military doctrines and deploynents, and (3) a new' reliance on civilian technicians during deployments After defining the problem. the amcle discusses possible solutions to that problem. The problem can be addressed in two ways First, It can be addressed by p i n g ciriliane the eonatnutmnal rights that the Reid Court required for peacetime prosecution, namely grand ply mdictmente, trial b y p y and iimcle Ill judges--ln other words, trial in federal district court The second option focuses on constitutional war powers and Article I courts-martial

Finally, this article proposes B solution based an a limited but necessary expansion of court-martial jurisdiction over civilian^ deployed an milnan operations The article concludes that the war powers of the President and the Congress will mmort this limited expansion of court-martial junsdictmn

A A Time for Change

The time for change has come far several reasom The militaly has drastically reduced the number of militaly personnel and CIYII-inn16 assigned oversem The Cold \Var strereg)- of oversear "forward presence" has been replaced by a "force projection" doctrine 5

America has reduced its armed forces and left the military lookingfor ways to make a smaller force more effective Technology is the anewer.6 Civilian technicians are neeeesary, however. to run and maintain these new high-tech weapons and systems The military can na longer deploy a large force without also deploying e~vilian euppart personnel 7

Force projection LS not the only change in the military's doctrine. Amenca is now projecting it8 armed forces into operations other than w~r.8

Many of these military operations can subject the United States to international obligations to investigate and prose. cute vmlations of treaties or conventions 9 Yet, many of these opera. tiona other than war fall into a legal gray area where the traditional law of war may not apply because there is no "international armed conflict" ae defined by the Geneva Conventions.10

Force prqeetmn doctrine will put large units into foreign territory in four to twelve days Military junsdiction must be ready to project itself with that force, B force that includes a growing number af cntical civilian personnel. The Army will not have time to negotiate extensive status of farces agreements, and any uncertainty or shortcomings in the military's Jurisdictional doctrine will be mamiBed by the pace and complexity oftomorraw's military operations.

ThP fill of the Soviet Union brought new life to the United Nations (Uh7 The UN iñow willmg and able to step ~n and form international cnmmal tribunals when a natxmstate either cannot or will not prosecute its citizens." If the Unlted States does not

take steps to bring its e>vilians under its jurisdiction. the United States may hare no choice but to turn those civilians over to an international tribunal.

The time 1s ripe for new legislation to expand court-martial jurisdiction over civilians deployed on mhtary operations h e n c a ' ~ deployments demand this solution, and the mllitayv lustice sl-stemis now in a unique posman to support that change. both consmutionally and politically. The 1984 amendments to the Uniform Codeof Military Justice gave the Supreme Court direct review over all military cases l2 In a series of cases since then, the Supreme Court has repeatedly shown Ite increasing regard far the military justice

The Army's doctrine IS chaneng, Its deployments are changing, the military justice System has changed, and America'8 international obligations to prosecute are increasing It 1s time for a new look at the problem of exiraterntorial jurisdiction over milhans

System.13

B. ABrief Omrciei~. of.Wd~tav Jurisdiction Over C~rilians

From 1776 to 1949, the Articles of FVaar gave the militapjuris. diction over civilians accompanying the farces in the field l4 {\'hen the UCMJ *as adopted in 1950, Article Z(a)(ll) also gave the mill-taq iunsdictmn over civilians accompanying the forces over~eas

l6

.*The hldifan JusfireAcf of 1963 Pub L No 98 209 97 Star 1393, permit:ed

I r . .

.

The 1950 changes to military jurisdiction reflected their times: a time of huge forward deployed military cammunines throughout Europe. The 1950 jurisdictional provisions over civilians clearly applied m peacetime, and they tied jurisdietmn to the United States status of forces agreements.16

Starting in 1951, in a line of eases beginning with Reid D.Couert,17 the Supreme Court declared UCMJ Article 2la)(ll) jurisdiction unconstitutional as applied to cwdians during peacetime.18 Thirteen years later, ~n a case involving a civilian employee in Vietnam, the United States Court of Military Appeals19 struck the final blow by holding that UCMJ Article Z(aX10) jurisdiction "durmg time of war'' only attaches during a congressionally declared war.20

Since the CouTts decided those cases, scholars have written article after article analyzing the ew~lmn~unsdietioncases and suggesting possible solutions 21 Additionally, various members of Con.gress have introduced at least seventeen bills IO regain jurisdiction

xisee, ' 8 Agreement Between the Partiee to the North Atlantic Treaty Regardmg the Ststua of Thev Forcer. June 19. 1961. 4 U S I

T S 67

[hereinafter SAT0 SOFA1 ieprinfed ~n DrPr OF Anw, PLMPHLET 27-24, SELECTEDINIERI*.IIOI*LACREE~~ENTS

~ O L

11, at 2-1 (19761 [hereinafter DAPav 27.241 1'354US 111957)~*Sriid (no court-martial jurmdlctmn mer dependent wives for capital afieno-ee committed werreas m pesemme). Kmaella s Singleton. 361 US. 234 11950) (noco~n.mmtfla1 jurisdiction over c~vdisn dependentr far "oncapital affeeniesl, Griiham

Y Hagan. 351 U S 278 119601 (no jurisdiction over ~iv~lianemplo)ees for capital

offenses). McElroy Y Guagharda 361 U S 261 ,19601 In0 pnsdiefmn wer aiihan emo1oiees for nonraoltsl offenses)

)#Note that ~n October 5. 1994. the President nmed info law Senate Bill 2162.Defense Autharizatian Act for Fmal Year 1995. which redealpafed the United Stare. Court oi Military Appeals as the Knifed States Court afAppeali for rhe Armed Forces Srr Naf'l Def Auulh Act for Fiscal year 1995. Pub L So 103.337, 108 Stat 2663 2631 It0 be codified at 10 US C 5 941) ?ha srticle will refer to the court by ~ t a name sf the time afthe deeiiion

R Haurele. Crime Without Punishmanl-Ei-Sorrie~~~~,

Cbrrimn Empiayaia and

Dependents, 13 JAG L REV 154 (1971) [hereinafter Everett. Crime Without Punishmentl. Robinsan 0 Everett. .MzlitaÄ´urzsdretion G ~ e r

Ciriltuns. 1960 DUKE L.J 366 119601 [hereinafter Ewrett. Mbhfary Juriadierianl. Robert Girard, The Consiifuiion and Court-Yoma1 of C~iiiians

Accompanying thr Armed Foxes-A

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