International Law Advisory - Contractors “In the Field” Now Subject to Military Justice

March 12, 2007

On January 1, 2007, an amendment to the Uniform Code of Military Justice (UCMJ) took effect that substantially affects the rights of government contractor employees serving with US military forces in combat operations in Iraq, or elsewhere around the globe.  The change reads in full:

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.” i

This amendment makes all provisions of the UCMJ immediately applicable to civilian contractors “serving with or accompanying an armed force in the field.”ii  Civilian employees serving in Iraq and Afghanistan may now be subject to court-martial, administrative punishment (known as non-judicial punishment), or any other provision in the UCMJ.  The amendment also applies standards of conduct and military specific offenses contained in the UCMJ, such as Article 92, failure to obey an order or regulation, to civilian personnel serving with the US military in Iraq and Afghanistan.

A constitutional challenge to the new provision is all but guaranteed.  However, the success of such a challenge will depend in large part on the facts surrounding the prosecution and the potential defendants’ ability to portray their role as something short of assistance to actual combat operations.  If a commander disciplines a civilian contractor that is not integrally involved in battlefield operations, and, thereby, the need for swift disciplinary action under the UCMJ is less clear, courts may be reluctant to deprive a contract employee of the spectrum of rights service members lose under the UCMJ.iii

Prior to this amendment, Article 2(a)(10) of the UCMJ had been narrowly construed to only permit jurisdiction over civilians after a formal declaration of war by Congress. iv Because the United States has only been involved in five declared wars,v  and none since the enactment of the current UCMJ, the specter of the UCMJ applying to government contractors has not been considered an issue of great importance. Some employees and their employers may not have adequately planned for this change. Contractors may want to assess the potential impact of this jurisdictional change on existing and future contracts.  

How US military commanders will actually use this newly granted power is unknown. Commanders’ use of this power may be constrained by presidential implementing regulations. These regulations, if properly crafted, could set limits on the application of the UCMJ to civilians serving with or accompanying the armed forces in the field. However, the President’s implementing regulations concerning civilian UCMJ jurisdiction may not be final for more than a year, until reviewed by the Department of Defense and the “Joint Service Committee on Military Justice”—a process unlikely to be completed until the late Spring or early Summer of 2008.vi Although this period provides opportunity for affected entities to comment on the proposed changes to the regulations, it leaves substantial uncertainty in the effect of the UCMJ changes in the meantime.

Steptoe & Johnson LLP attorneys have experience in preparing comments for submission to the Joint Service Committee on Military Justice, defending cases brought under the UCMJ, and advising contractors with personnel accompanying forces in the field. They have been tracking the progress of DoD discussions concerning the amendment and can assist in crafting comments to best implement the amendment in cases involving government contractor personnel. Our attorneys are available to assist you or answer any questions you may have concerning this newly enacted amendment to the UCMJ.  If you have any questions, please contact:  John F. O’Connor (joconnor@steptoe.com, 202-429-8095) or Michael J. Navarre (mnavarre@steptoe.com, 202-429-8081).

i. See 10 U.S.C. § 802(a)(10); John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, 120 Stat. 2083, § 552 (codified in 10 U.S.C. § 802(a)(10)).

[ii] See id. (effective date January 1, 2007); see also United States v. Ronghi, 60 M.J. 83 (C.A.A.F. 2004), cert. denied, 543 U.S. 1013 (2004) (amendment to the UCMJ authorizing life without parole as a punishment was immediately effective and did not require implementing regulations).

[iii] For example, service members do not have the right to a jury trial under the Sixth Amendment or the right to presentment and indictment under the Fifth Amendment.  See generally United States v. Leonard, 63 M.J. 398 (C.A.A.F. 2006) (no Sixth Amendment right to a jury trial); U.S. Constitution, Amendment V, in part, “No person shall be held to answer for a capital, or otherwise infamous, crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces....”

[iv] See United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (C.M.A. 1970) (setting aside the conviction of a civilian contractor under the UCMJ because the prior version of § 802(a)(10) applied only in cases of declared war).

[v] The War of 1812, the Mexican War of 1846, the Spanish American War of 1898, World War I declared in 1917, and World War II declared in 1941.

[vi] See Notice of summary of public comment received regarding proposed amendments to the Manual for Courts-Martial, United States (2005 ed.), 71 Fed. Reg. 78137-78155 (Dec. 28, 2006) (notice of final changes to the Manual based on 2005 and 2006  review of UCMJ amendments).