The Military Extraterritorial Jurisdiction Act of 2000: Implications of Contractor Personnel

• Author: Major Joseph R. Perlak
• Pages: 03

92 MILITARY LAW REVIEW [Vol. 169

THE MILITARY EXTRATERRITORIAL JURISDICTION ACT OF 2000: IMPLICATIONS FOR CONTRACTOR

PERSONNEL

MAJOR JOSEPH R. PERLAK1

For a man will never be judged good who, in his work-if he wants to make a steady profit from it-must be rapacious, fraudulent, violent, and exhibit many qualities which, of necessity, do not make him good. Nor can men who practice war as a profession-great men as well as insignificant men-act in any other way, since their profession does not prosper in peacetime. Therefore, such men must either hope for no peace or must profit from times of war in such a manner that they can live off the profit in times of peace. Neither of these thoughts is found in a good man.2

1. Introduction

   In the early sixteenth century, Italian military theorist Niccolo Machiavelli used a notional dialogue between two Florentine citizens as a vehicle to discuss the complexities of war and military science and their overall

   influence on a society. The passage quoted above seems to paint an absolutist and bleak picture about the inherent character of people who make their living through military pursuits. Machiavelli likely intended this, however, as a commentary on the evils of warfare itself as much as an indictment of individuals. Both prongs are worthy of exploration.

   Now nearly five centuries later, warfare has been institutionalized so that a professional military is a significant part of any important nation on the world stage. Indeed, military prowess largely defines a nation's international status and credibility. Another large component of international military significance is the scope and capabilities of a nation's defense industry. Today we are no longer burdened as Machiavelli was with concepts of good versus evil in formulating military policy. We have accepted it as a necessary and integral part of modern nationhood. We have learned to live with the social structures of warfare, including a standing military and a sophisticated defense industry.

   But what about individuals? The other side of Machiavelli's entreaty, the concern with individual acts of evil in the context of the martial professions, remains a concern today. As is true in all walks of life, some who derive their living from warfare will engage in criminal activity. We may have reached a social accommodation with warfare itself, but not with individual wrongdoing. The Uniform Code of Military Justice (UCMJ)3 provides a comprehensive scheme of procedural rules and proscriptive laws to cover transgressions by members of the military, but until now the judicial system has not affected the significant number of civilians accompanying the force overseas.

   For over forty-three years, civilians accompanying the force overseas have been beyond court-martial jurisdiction and a significant portion of the overall criminal jurisdiction of the United States.4 In an unacceptable number of cases, these civilians have escaped prosecution altogether.5

   With years of legislative history and careful draftsmanship6 to support it, Congress enacted the much-anticipated7 Military Extraterritorial Jurisdiction Act of 2000.8 The purpose of the Act is to fill this jurisdictional gap by extending many of the criminal laws of the United States to overseas areas.9 Historically, many of these crimes were beyond U.S. jurisdiction and involved crimes that host nations had little interest in prosecuting. This article takes a fresh look at the Military Extraterritorial Jurisdiction Act's new scheme of criminal law applicable to civilian contractor employees accompanying the force, from both international and domestic law perspectives.

   Operational commanders, their legal advisors, and members of the contracting community must be aware of the implications of the Act for contractors accompanying the force in both a deployed and pre-positioned overseas environment. Commanders, contracting officers, and contractors alike will have to know how to respond when the new jurisdiction is applicable. Commanders, especially, will be challenged to fulfill the often-competing goals of maintaining positive relations with foreign states, which are governed by international agreements, exploitation of contractor support as a force multiplier, and overall mission accomplishment.

   To this end, this article analyzes the Act from three necessarily interrelated perspectives. First, the article provides a brief overview of the state

   of the criminal law for those forty-three years leading up the to the enactment of the Military Extraterritorial Jurisdiction Act of 2000. Next, the article provides a comprehensive overview of jurisdiction from an international law perspective. Last, the article addresses the import of this overall scheme of criminal and international law imposed by the Act from a perspective that has received scant attention to date-the contract law perspective.

   With a forty-three year jurisdictional gap, there is a dearth of doctrine, procedure, and policy on just how this new criminal statute will affect the way the military does business with contractors. Equally unclear is how the Act will affect the actions of contractor employees and the commanders they support overseas. To that end, this article offers proposals to help fill the current doctrinal gap and to incorporate the practical effects of this new law into Joint Chiefs of Staff (JCS) doctrine, Department of Defense instructions, and the Federal Acquisition Regulation. The article ultimately intends to effect the Act's synthesis into relevant government policies and regulations to ensure a predictable continuity of contractor support to overseas commanders.

2. Criminal Law Background

   While this article focuses on international and contract law implications, at its foundation, the Military Extraterritorial Jurisdiction Act is a federal criminal statute. The Act applies to civilians10 and is found, like most other federal criminal statutes, in title 18 of the U.S. Code.11 Important for the purposes of this article, "civilians" includes both contractors and subcontractors.12 Another significant aspect of the statute is its additional applicability to members of the armed forces and the corresponding intersection with the Uniform Code of Military Justice (UCMJ), which, like most military and defense-related matters, is found in title 10 of the U.S. Code.13 A brief discussion of judicial history is required to explain the development of this federal criminal statute with extraterritorial effect

   that applies to both the armed forces and those civilians accompanying the forces overseas.

   Before the enactment of the UCMJ in 1950,14 military jurisdiction over both the uniformed military and civilians15 serving with the armed forces was well established in law under the Articles of War.16 With the codification of military law in 1950 came a series of provisions establishing court-martial jurisdiction over certain personnel, including active duty and Reserve military personnel, military retirees, prisoners of war, certain civilians, and others.17 The personal jurisdiction provisions of the first UCMJ came under almost immediate challenge in court.18 These provisions became the basis for judicial challenges that ultimately led to the Military Extraterritorial Jurisdiction Act of 2000. These judicial challenges were directed at Articles 2(a)(10)19 and 2(a)(11) of the UCMJ,20 previously Articles 2(10) and 2(11) of the Articles of War. Article 2(a)(10) generally applies to those serving with the force in the field in time of war. Article 2(a)(11) applies to those serving with or accompanying the force overseas under an international agreement, not necessarily in time of war.

   Beginning with Reid v. Covert21 and Kinsella v. Krueger,22 the Supreme Court decided a series of cases challenging the UCMJ's jurisdiction over civilians charged and tried at courts-martial for various crimes committed in overseas areas. These cases involved military spouses stationed overseas who were tried by courts-martial for capital offenses occurring in peacetime. The Court held that subjecting civilian dependents

   to trial by courts-martial for capital offenses under Article 2(11) was unconstitutional.23 Shortly thereafter, unable to find any basis in law to distinguish capital from non-capital offenses, the Court extended its holding to non-capital offenses committed by military dependents, invalidating the exercise of court-martial jurisdiction.24

   During the same session, the Court also considered the applicability of UCMJ Article 2(11) to other civilians who were not military dependents, but rather employees of the various military branches. In both capital25 and non-capital26 cases, the Court held that courts-martial had no jurisdiction to try civilian employees during peacetime.

   In 1967, the Vietnam War served as the backdrop for the next challenge to UCMJ jurisdiction over civilians. A challenge came to Article 2(10), which extends jurisdiction over civilians27 serving in the field "in time of war." The Court of Appeals for the D.C. Circuit held that, even assuming a proper assertion of court-martial jurisdiction over a civilian was possible under Article 2(10) in an undeclared war, the circumstances of the offense were too remote to permit jurisdiction in that case, resulting in the release of a merchant seaman convicted by court-martial for murder.28

   The final blow to court-martial jurisdiction over civilians overseas came, interestingly enough, at the hands of an appellate military court in 1970 in a case involving a contractor employee, United States v. Averette.29

   As the analysis in this paper focuses on civilian contractors under the Military Extraterritorial Jurisdiction Act of 2000, this case is particularly si

   nificant because it effectively removed the last vestiges of jurisdiction based on UCMJ Article 2(10).

   Averette was a civilian employee of an Army contractor serving in Vietnam. He was convicted of...