Uniform Code of Military Justice To Cover Civilian Contractors

Technorati Tags: Pentagon, civilian contractors, FY+2007+defense budget

P.W. Singer at DefenseTech.org tells us that five small words buried deep within the vastness of the Pentagon's 2007 defense budget bill are going to have a huge effect on the legal accountability of civilian contractors working for the U.S. military:

Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that "Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking `war' and inserting `declared war or a contingency operation'." The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).

The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn't normally matter for much. But with this change, contractors' 'get out of jail free' card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice, better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that 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. As long as Congress had not formally declared war, civilians -- even those working for the US armed forces, carrying out military missions in a conflict zone -- fell outside their jurisdiction. The military's relationship with the contractor was, well, merely contractual. At most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities.

Getting tattled on to the boss is certainly fine for some incidents. But, clearly, it's not how one deals with suspected crimes. And it's nowhere near the proper response to the amazing, awful stories that have made the headlines (the most recent being the contractors who sprung a former Iraqi government minister, imprisoned on corruption charges, from a Green Zone jail).

And for every story that has been deemed newsworthy, there are dozens that never see the spotlight. One US army officer recently told me of an incident he witnessed, where a contractor shot a young Iraqi who got too close to his vehicle while in line at the Green Zone entrance. The boy was waiting there to apply for a job. Not merely a tragedy, but one more nail in the coffin for any US effort at winning hearts and minds.

But when such incidents happen, officers like him have had no recourse other than to file reports that are supposed to be sent on either to the local government or the US Department of Justice, neither of which had traditionally done much. The local government is often failed or too weak to act - the very reason we are still in Iraq. And our Department of Justice has treated contractor crimes in a more Shakespearean than Hollywood way, as in Much Ado About Nothing. Last month, DOJ reported to Congress that it has sat on over 20 investigations of suspected contractor crimes without action in the last year.

The problem is not merely one of a lack of political will on the part of the Administration to deal with such crimes. Contractors have also fallen through a gap in the law. The roles and numbers of military contractors are far greater than in the past, but the legal system hasn't caught up. Even in situations when US civilian law could potentially have been applied to contractor crimes (through the Military Extraterritorial Jurisdiction Act), it wasn't. Underlying the previous laws like MEJA was the assumption that civilian prosecutors back in the US would be able to make determinations of what is proper and improper behavior in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. The reality is that no US Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence at hand. The only time MEJA has been successfully applied was against the wife of a soldier, who stabbed him during a domestic dispute at a US base in Turkey. Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished. Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind.

The situation perhaps hit its low-point this fall, when the Under Secretary of the Army testified to Congress that the Army had never authorized Halliburton or any of its subcontractors (essentially the entire industry) to carry weapons or guard convoys. He even denied the US had firms handling these jobs. Never mind the thousands of newspaper, magazine, and TV news stories about the industry. Never mind Google's 1,350,000 web mentions. Never mind the official report from U.S. Central Command that there were over 100,000 contractors in Iraq carrying out these and other military roles. In a sense, the Bush Administration was using a cop-out that all but the worst Hollywood script writers avoid. Just like the end of the TV series Dallas, Congress was somehow supposed to accept that the private military industry in Iraq and all that had happened with it was somehow 'just a dream.'

But Congress didn't bite, it now seems. With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed (as in, Corporate Warriors, meet A Few Good Men). On face value, this appears to be a step forward for realistic accountability. Military contractor conduct can now be checked by the military investigation and court system, which unlike civilian courts, is actually ready and able both to understand the peculiarities of life and work in a warzone and kick into action when things go wrong.

Kevin Drum and Hilzoy agree this is a welcome change -- especially, Kevin writes, in view of the fact that congressional declarations of war are a thing of the past:

... Like it or not, Congress doesn't formally declare war anymore, and recognizing that contractors should be subject to the UCMJ even in the non-wars we fight nowadays is just common sense. The vast majority of military contractors may be honest and hardworking, but the military needs a fair and consistent way of dealing with the ones who aren't.

Hilzoy notes Singer's observation that the altered language in the defense budget legislation has gone completely unnoticed so far, and points out:

This is also a very good lesson about the importance of reading bills in their entirety:

The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land. Not only has the media not yet reported on it. Neither have military officers or even the lobbyists paid by the military industry to stay on top of these things.