Applying the UCMJ to Contractors in Contingency Operations

Abstract

Due to the expanded role civilian defense contractors have played in combat missions since the September 11, 2001 terrorist attacks, and because of certain contractors' activities in Iraq between 2003 and 2005, Congress sought to increase contractor accountability in field operations by amending the Uniform Code of Military Justice (UCMJ) to extend military commanders' authority to prosecute by court-martial certain defense contractors serving with the armed forces. The provision, often called the "Warner Amendment," provides that: "[i]n time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field" can be tried and punished for violations of the UCMJ. This Article, published in American University's National Security Law Brief, provides an overview and analysis of the constitutionality of the Warner Amendment, given the Supreme Court's decisions since World War II that generally have limited the military's jurisdiction to prosecute anyone other than active duty personnel.

The opinions expressed herein are the author's own, and do not necessarily reflect any policy or position of the Department of Defense or the United States Government.

Keywords: military jurisdiction, court-martial, uniform code of military justice, ucmj, war on terror, legislation, national defense authorization act, constitutional law, defense contract, defense contractor, Fifth Amendment, Sixth Amendment, war, counterterrorism