Bringing Discipline to the Civilianization of the Battlefield: A Proposal for a More Legitimate Approach to Resurrecting Military Criminal Jurisdiction over Civilian Augmentees

Abstract

Since the 1990's, the numbers of civilian contractors deployed in support of U.S. military operations (civilian augmentees) has exploded. This privatization trend has reached historically unprecedented levels in Iraq, where most estimates indicate there are today more civilian contractors deployed than members of the armed forces. Beginning in the late 1990's, this trend generated serious concerns over the perceived immunity of these civilian support personnel from disciplinary sanctions. In response, and because of a decades old decision effectively excluding civilians from the jurisdiction of military courts, Congress responded by passing Federal criminal statutes extending U.S. criminal law to reach contractors.

However, the exponential role of civilians in Iraq, and the ineffective implementation of these criminal statutes seemed to reinforce the perception that civilian augmentees enjoyed de facto immunity for their misconduct. Congress responded in 2006 with an amendment to the Uniform Code of Military Justice effectively resurrecting military criminal jurisdiction over these civilians. Ostensibly unexpected by the Department of Defense, this amendment raises potentially serious constitutional questions, and has yet to be implemented.

This article analyzes the genesis of this amendment, and why there is as much uncertainty today regarding the constitutional validity of subjecting civilians to military criminal jurisdiction as existed thirty years ago when the predecessor provision of the UCMJ was struck down by the highest military appellate court. While acknowledging the legitimate necessity of subjecting civilian augmentees to disciplinary authority, the article argues that the recent amendment is unjustifiably over-broad. The article then proposes an alternative amendment that would provide a more balanced means to accommodate this legitimate military need. This amendment would provide military commanders a non-criminal disciplinary tool to apply to civilian augmentees by subjecting them to the limited jurisdiction of summary courts-martial, best understood as a quasi-judicial forum that does not result in a criminal conviction. Such an approach would enable military commanders to respond to a wide array of minor disciplinary infractions while reserving more serious misconduct to the jurisdiction of Federal courts.

Keywords: national security, military law, UCMJ, law of war, contractors, military jurisdiction

JEL Classification: K10, K14, K33, K40