Technically, this means that contractors, like U.S. personnel, can be disciplined not just for felony crimes like murder that exist in the general justice system, but for military offenses such as talking back to an officer, viewing pornography in a country where it is forbidden or even wearing a uniform incorrectly.
Whether giving the military the authority to prosecute contractors for mouthing off, surfing adult Web sites or being sartorially inelegant like millions of their fellow Americans back home will represent a victory for accountability remains to be seen.
More importantly, it is unclear how effective the change can be. In 2006 it was hailed by many advocates of greater regulation over the industry. Peter Singer of the Brookings Institution wrote that “contractors’ ‘get out of jail free’ card may have been torn to shreds.”
But the provision has not yet been tested in court, so whether it will hold up is anyone’s guess. Even before the amendment passed, one military law journal noted: “Attempts to use the military justice system to try civilian contractors are incompatible with the tradition of status‐based military jurisdiction as well as the current Supreme Court’s interpretation of the Sixth Amendment.”
The International Peace Operations Association, a PMC industry trade group, noted at the time: “The overwhelming majority of private sector employees supporting Department of Defense programs are not even American; they come from countries such as Afghanistan, India, Iraq, the United Kingdom and scores of others. Requiring all nationalities to be under U.S. military law could be internationally contentious, and even more difficult to apply.
“Application of the UCMJ or any other disciplinary structure requires closer examination of the relationship to other applicable U.S., host nation, and international laws,” the group concluded.
Indeed the wording of the Pentagon memo, which seeks to provide an alternative to prosecution by federal civilian authorities who are often not in a position to investigate war‐zone incidents, shows the ambiguities inherent in allowing both processes to go forward side‐by‐side.
“While the (Department of Justice) notification and decision process is pending, commanders and military criminal investigators should continue to address the alleged crime. Commanders should ensure that any preliminary military justice procedures that would be required in support of the exercise of UCMJ jurisdiction over civilians continue to be accomplished during the concurrent (Department of Justice) notification process. Commanders should be prepared to act, as appropriate, should possible U.S. federal criminal jurisdiction prove to be unavailable to address the alleged criminal behavior.”
Commanders and investigators should indeed “be prepared to act.” Considering that the current U.S. Justice Department appears unconcerned about past and ongoing federal offenses such as use of torture for interrogation or illegal wiretapping of American citizens, how likely is it that it will prosecute contractors if they commit a federal‐level offense?
Moreover, as anyone who has ever actually been in the military knows, the UCMJ is hardly a paragon of jurisprudence. Under it you go to jail for saying, “That’s a stupid order.” What would happen if a driver hauling freight for a contractor was prosecuted under UCMJ for having a gun for self‐defense, even though they are not supposed to? How long would it be before the cost of hiring such a driver would double or triple?
The UCMJ change also creates a legal conundrum for U.S. officers and soldiers. Who reports contractors’ crimes? What is the responsibility of soldiers if they do not report a contractor — even though they may have no idea who they are or who they are working for? Remember that under UCMJ, not reporting a war crime is also punishable. As contractors are not under the military chain of command, where does this responsibility lie?
Finally, the new UCMJ authority does not include Department of State contractors. So contractors working in Iraq for DynCorp, Blackwater and Triple Canopy under State’s worldwide personal protective services contract would be excluded. But these firms — unaffected by the UCMJ change — have been involved in some of the highest‐profile PMC incidents in Iraq, such as the shootings in Baghdad last September by Blackwater contractors.
The UCMJ extension is a solution that might work in an episode of JAG, but in the real world it seems problematic at best.