Should Civilians Be Tried By Court Martial?

As a rule of thumb, I think the military is overlawyerd. Not that there isn’t an important place for them, but I think there is a slight tendency for some folks to think that everything in the world can be solved in a courtroom. If that was the case, we wouldn’t need an army…

We all know that military life is different from civilian life, and accordingly, service members operate under the Uniform Code of Military Justice (UCMJ). But as the Army increasingly relies on contractors for many roles and missions, how do we address the grey areas there? If a contractor is working directly for the Army overseas, and commits a crime, who tries the case? It is difficult to prosecute crimes committed overseas in US Federal court. And do we allow US citizens working for the Army to be at the mercy of host nation courts? What if the host nation has no functioning courts, such as in Iraq immediately after our invasion? What about Third Country Nationals (TCNs) working indirectly for the Army?

AP has a very interesting article about a quiet change to the UCMJ made in 2006 that does allow the military to claim jurisdiction over certain civilians in times of conflict, but not declared war.

Three Army judges are weighing a question that hasn’t cropped up in decades: whether a civilian contractor working for the U.S. military can be tried in a military court. The issue eventually could end up at the Supreme Court.

The case of Alaa “Alex” Mohammad Ali, a former Army translator in Iraq, challenges the notion that courts-martial only have authority over members of the armed forces. But it also runs up against complaints that using U.S. civilian courts to prosecute contractors working with U.S. forces in Afghanistan and Iraq has been largely ineffective, and trying them in local courts often has not been possible.

Ali, an Iraqi-Canadian, was prosecuted by the military after an altercation in Iraq during which he allegedly stole a U.S. soldier’s knife and used it to stab another translator. He pleaded guilty to lesser charges.

Should contractors be under military law? Discipline? If so, what portions of the UCMJ should apply to them? Do we charge a contractor under UCMJ for insubordination if they talk smack to an officer? Charge them with AWOL if they skip work? What are the limits of power for the Armed Forces, and how much responsibility do the services bear for persons not in the military?

One of the primary driving factors behind the adoption of the Posse Commitatus act was to prevent US civilians from being tried by court martial. But that is strictly a domestic law.

I think we will see an evolution of the law in this area, and depending on how much influence the civilian courts have on it, it may be a very messy outcome.

20 thoughts on “Should Civilians Be Tried By Court Martial?”

  1. They’re making to big and complex of an issue out of this. Since this was a conflict zone with no civilian authority EVERYONE in the area was subject to military justice per the Geneva Convention.

    1. It’s not quite that simple. In this particular case, the article is unclear on when the offense occurred. If it was after sovreignity was reestablished in Iraq, then would an Iraqi citizen be under the jurisdiction of Iraq, or US forces? Oh, and what about Canada? What if THEY claimed jurisdiction?

  2. Army Judges? Since when? When did the military acquire judges, and why on earth do they have them at all? You are right about the military being overlawyered. JAG needs to get back into its corner cage as an advisor and stay out of where it doesn’t belong.

    1. Of course the army has judges. They preside over courtsmartial. Not summary court but the real deal courtmartial. When Soldiers commit crimes, and are tried under military jurisdiction, with military (or civilian) lawyers, it is under a military judge, who is generally referred to as a magistrate, though I am not sure of the particulars of that title. Who else would preside over a courtmartial? Certainly line officers are not, and not expected to be, well-versed in the intricacies of the law. I would not trust Soldiers’ legal trial for felony offences to be “judged” by an armor officer; that has more potential constitutional violations than I can even begin to think about.
      As with the last time lawyers come up, I continue to maintain that through three Iraq deployments and 22 years in service, I have yet to personally see where they detracted from my mission. Lawyers do not say “no” to commanders. They only advise them. If commanders then choose to err too far on the side of the lawyers’ opinions, the problem is with the commanders, not with the lawyers.

    2. What I want to know is “when did ‘military judges’ take over Courts Martial?” When I was in Commissioned Officers sat on the boards and passed judgment. Commissioned Officers were the prosecutor and defending counsel as well.

      “Knowing the law” really isn’t the issue. That someone is accused and that the evidence either says they are innocent or guilty is the issue. We don’t need Lawyers for that. They simply get in the way, as is their wont. General Courts were not common when I was in, but they seem to be more common these days, and I strongly suspect that the growth of JAG and the addition of “Military Judges” are part of the driver behind it.

      As for “yea or nay,” JAG officers have done just that in places like Central Command. Many decisions in Iraq and AFG have been referred to them. This has not been something that has gone unreported.

      The JAG Corps could stand to be cut in half, at a minimum.

    3. If you were charged with a felony, would you let me, with my only credentials being my commission, defend you or sit in judgement on you while a qualified laywer prosecuted you? When line officers or others sit on a courtmartial, it is essentially for jury duty, to be judged by your peers. The only case in which a regular officer can dispense legal judgement is in a summary court martial or as an Article 32 officer, and that one is a recommendation only.
      As for lawyers disrupting commanders, I would like to see specifics, not allegations. I don’t dispute that lawyers may have a detrimental effect, but EVERY order issued by a military organization has the commander’s name on it. I’d like to see where a lawyer has imposed his will on an organization, where he prevented a commander from doing something that was lawful. Lawyers provide advice, they have zero ability to be directive.

    4. Esli,

      I would most certainly do so and I would prefer a jury of officers over NCs any day of the week since I wasn’t an officer. 😉

      I’ll take the justice meted out by men over the law adjudicated by lawyers any day of the week.

    5. ESLI, go do some research in the early days in AFG. You’ll find many times triggers couldn’t be pulled until the decision was referred to a JAG in Tampa. A number of times the JAG said no. Most of the rest it was an effective no because they took their own sweet time about it.

      As for the Courts Martial, you and I are talking two different eras. In mine Commissioned Officers heard the case and a JAG was an advisor. Judges were unheard of. Perhaps the law has changed since, but if so the effect has been baleful as things have gone to General Courts that would have simply gotten a swift kick in the pants in my time.

      Yes I would have trusted a officer to act as my defense, since the same type of man was the prosecutor. I’d bet a dollar to a donut I would have gotten a much fairer trial as well. When Lawyers get involved, it all goes down hill rapidly. I stand by my comment.

  3. 1. The offenses all occurred in Iraq.

    2. Prior to 1950 court-martials had “law officers” who assisted the president of the court-martial. That person was a lawyer and gave legal advice to the president of the court-martial on the rules of procedure, evidence, and law. In 1950 the UCMJ was established. In that statute the Congress established the position of military judge, and also the various rights, legal representation, and procedure for courts-martial. The UCMJ is the disciplinary system applicable to all members of the armed services. At court-martial an accused can be tried for anything from a failure to report to formation to premeditated murder, and can be sentenced to life in prison without parole or death, depending of course on the crime of which convicted. At a court-martial there are defense counsel and prosecutors, judges, and “juries” much like the civilian courts. Once at court-martial you are in a criminal justice system. Overall the system works well. The National Guard is slightly different, but based on experience in NG cases, the Guard generally follows the same UCMJ. Except for certain procedures, a court-martial proceeds much the same as in any federal district court CONUS.
    3. I’ve served overseas and deployed a number of times. The issue is messy. The issue has always been there but until the Military Extraterrorial Jurisdiction Act it was almost impossible to do anything with civilians or contractors overseas. For example the civilian employee drug dealer on base in Rota, Spain, or the civilian sexual assaulter on base in Germany. The use of civilians and contractors overseas in the combat AOR added more complications and frustrations to an already existing problem. The Article 2, UCMJ, amendment was intended to try to bring some order and accountability to civilians and contractors in the combat AOR.
    4. Everything has changed since the 1940/50s when the U.S. Supreme Court said that civilians (in two cases wives who had killed their active duty spouses overseas) were not subject to court-martial jurisdiction. The use, some would argue overuse, of civilians and contractors means the potential presence of “criminals” who can’t be touched. That’s not good or right. Congress attempted to deal with the problem. Besides the Ali case there have been four other contractors who committed serious crimes. In one or two they ended up being prosecuted in federal district court, and in two (I think) no action was taken after discussions between DOD and DOJ. There have been other instances of contractor misconduct of a less serious nature and these people had their employment contract terminated and they were removed from the AOR.
    5. Excellent post, very perceptive.

    1. The NG is certainly different. Unless called to Active Duty (Annual Training doesn’t count for this), the UCMJ doesn’t even apply to them. In the TNARNG we had to go to the State’s General Sessions Courts to try charges against any trooper. We rarely got a sympathetic hearing either. Only the judges that had military service, or were in the NG themselves would give us a fair trial (fair to both sides, that is). Most just blew off the officer bringing the charges.

  4. This is a simple issue: make it part of the civilian’s contract that if they work for the DOD, they are under UCMJ. Of course, we did this with contractors in Iraq, only to see the Xe contractors hired by DoS act li,e jackasses, and DoD was powerless to act, even though the military had to pick up the mess.
    Simpler still, make everyone working in a theater of operations fall under UCMJ, until such time as that theater ceases to be an active combat zone.
    Part of the UCMJ is the appeals process, which eventually wind up in US district court, then takes the normal route to the US Supreme Court.
    What people generally fail to understqnd about the UCMJ is that the beauty of it is the jury pool–senior NCOs and Officers are generally well educated, mature, with a depth and breadth of experience, making very hard decisions. Compare that with the nitwits in the OJ trial.

    1. Chuck,

      As I pointed out earlier, in the absence of “friendly” civilian government in a theater the military commander occupying the region is the source of law for the theater and this applies to every single person, military or civilian, in that theater.

      In the context of this post, I see that fact as paramount, making the actual timeframe of the crimes committed to be of upmost importance.

      The above is not meant to contradict the quite accurate comments that have been given above by several people. They were generalized comments, however, and did not address the specific circumstance of parts of the Iraq War.

    2. It ‘s funny that most of the Ossifers I talked with informed counseled their “clients” not to insist on enlisted members of the Court Martial Board. It seems the NCOs tended to be harder on the troops than the ossifers.

  5. Esli, there is a place you can contribute some of your knowledge as a Bn CO, or at least having watched such (I can’t remember if you are/have been a Bn CO or not). Lex has asked a question about the difference in maneuver training for a Company CO vs Bn CO. I made a pathetic attempt and ended up saying very little and so far no one has contributed anything to really answer the question.

    The thread is Called “Old Army.” The profundity of my comment boils down to “they’re different.”

    http://www.neptunuslex.com/2011/06/05/the-old-army/comment-page-1/#comment-728189

    1. QM: thanks, that was much more interesting writing than are legal matters! Nice initial stab at it yourself. I am currently about ten months out from assuming a command.

  6. I’ll have to check my most recent overseas orders, but I seem to recall a passage that placed me under military authority, meaning for UCMJ. Not sure about the wording, and certainly that could have been just part of the specific contract I was working.

    But I can say a lot of contractors went home from Afghn and Iraq, losing security clearances and a lot more than pay, for General Orders No. 1 violations. I sent four of them home myself. In each case, UCMJ was not cited. Instead the customer simply said, “they will be gone by sundown.” So UCMJ authority or not, the “customer” has a lot of strings to pull when it comes to discipline of contractors.

  7. After I hit post on the invite above, I remembered you had recently pinned on leafs. Still, the attempt you saw was about the best I’d ever be able to do and I knew that you had more time with such than I will ever have (not much call for arthritic 56 yo troopers). You added a lot, and I appreciate it.

    Don’t know if you read LTC F’s post after yours or not. He left BN command in January. His relief had been an E4 Cav Scout in his BN when F was a Company CO. He’s planning to retire when he gets back from Iraq (he’s headed over soon, but didn’t say exactly)

    He told some scary stuff about the state of maneuver experience in the Army. Seems we have gone done the same path as we did in Vietnam by neglecting the other things an Army needs to be able to do.

    1. Yes, I read his comments. They were spot on. The state of maneuver training is atrocious, but understandable, given our focus for the last 8 years. All of our forces have either been deployed, resetting from deployment, or preparing to deploy. Simply no time to train in maneuver tasks. As the army draws down from Iraq, the heavy units are seeing more time at home, and all of the combat training centers are gearing up to put units through old-school rotations involving major combat operations instead of focusing solely on stability operations. The first couple units through these have, by all accounts, not done well. Given that many senior leaders with that maneuver experience have, or are soon, retiring, and none of us have that experience at our current paygrades or duty positions, it is going to be a steep learning curve!

  8. What if the contractor is wronged by the military staff overseas, (germany).what course of action does the civilian Have.? and can the civilian contractor use the military legal staff ?

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