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Battlefield Accountability for Contractors: At What Cost? Print
Geoffrey S. Corn | Bio | 04 Apr 2008
World Politics Review Exclusive

Something radical has begun in Iraq, but it has flown under the radar of the media and the public. For the first time since 1970, the U.S. Army is court-martialing a civilian; and not an American civilian, but a Canadian civilian. Charged with aggravated assault for attacking another contractor during an altercation, this civilian contractor now faces trial by a military court, with a jury, judge and defense counsel all in uniform, without the benefit of indictment by grand jury, and with a potential federal criminal conviction awaiting him at the end of the process.

To understand why this is a radical change to the status quo, it is necessary to turn the clock back to the end of the conflict in Vietnam. It was then that the highest military criminal appeals court, relying on a Supreme Court decision from 1957 that struck down the use of military courts to try civilian spouses of members of the armed forces, ruled on a challenge to the court-martial conviction of a civilian working with the military in Vietnam. At that time, trying civilians "accompanying the force in the field" in military courts was not unprecedented, and had in fact been used throughout our history to hold civilian contractors to account during times of war. But by 1970, subjecting civilians to military trials -- even civilians working with the military in a combat zone -- was perceived as an unacceptable deviation from the fundamental rights protected by the Constitution. As a result, the court ruled that the deprivation of the right to trial by a jury of peers and indictment by grand jury was so significant that it could be justified only when Congress actually declared war.

As a result of that decision, the practice of trying civilians by courts-martial came to a halt. For the next 35 years, military lawyers treated this de facto immunity as an article of faith, and assumed that no civilian would ever again be hauled before a court-martial for criminal trial. Then, in October of 2006, in a move that surprised even the Pentagon, Congress amended the Uniform Code of Military Justices (UCMJ) to resurrect military jurisdiction over civilians accompanying the military in operational areas. This amendment effectively overruled the 1970 appeals court decision by defining the meaning of the term "time of war" in the UCMJ to mean not only a declared war, but any other "contingency" operation, thereby subjecting literally tens of thousands of civilian contractors in Iraq to military jurisdiction. An apparent response to the growing perception of contractor impunity, the amendment to the military legal code expressly provided that civilians accompanying the armed forces during any "contingency" operation fell under military criminal jurisdiction.

It is difficult to dispute the wisdom of establishing more effective legal accountability over contractors in places like Iraq. But does this mean that military trials are the best way to achieve this goal? Trial of a civilian by a military court involves some very significant departures from some of our most fundamental constitutional rights. Unlike their civilian counterparts, military courts do not offer a defendant a jury of peers or a life-tenured judge. Instead, a military jury is composed of officers selected by the commander based on experience, education, and rank. And the judge that presides over the trial, while a lawyer, is assigned to the bench for a limited period of time and does not enjoy the same degree of absolute independence associated with life-tenured judges.

These differences between military and civilian criminal trials may not seem significant to the casual observer. Nor do they prove that a military trial is less "fair" than a civilian trial. To the contrary, military justice has evolved to provide significant safeguards to ensure fundamentally fair trials. But for a civilian defendant facing a federal criminal conviction, the perception of legitimacy becomes almost as important as the reality, and deprivation of rights considered by our Supreme Court to be essential to a fundamentally fair trial will invariably be perceived as producing an illegitimate process.

It is of course true that rights of criminal defendants have always been balanced against the needs of society. Perhaps based on such a balance, the absence of any viable alternative to military trials for contractor misconduct to ensure some criminal accountability might justify invoking military jurisdiction. But this is not the case now, nor was it the case when Congress resurrected the power of the military to try civilians. Now, as then, a federal law called the Military Extraterritorial Jurisdiction Act provides that civilian contractors working for the military overseas are subject to federal civilian criminal jurisdiction for a range of crimes against both people and property.

Enacted by Congress for the specific purpose of ensuring contractors working with the military overseas could be held accountable for their misconduct, this law has never been effectively implemented and has rarely been used. But this ineffective use of the law by the executive branch seems an invalid justification for the alternative of turning to military courts. Indeed, the availability of this alternative seems particularly significant considering that no such alternative existed when military jurisdiction over civilians was invalidated by the Court of Appeals for the Armed Forces in 1970. That court concluded that the deprivation of fundamental constitutional rights could not be justified by the necessities of accountability in a time of de facto war when no viable accountability alternative existed. If the justification was invalid in the absence of such an alternative, the contemporary availability of civilian prosecution must weigh against the alleged necessity for the use of military courts.

The U.S. military justice system is undoubtedly a model of fairness and legitimacy in the realm of military law. Indeed, critics of the military commissions continually point to the court-martial process as a "gold standard" for comparison. But no matter how legitimate that system is for members of the armed forces, it is not now nor ever has been intended to be an exact replica of the civilian criminal justice system. The most obvious indicator of the difference between these two systems is the composition of the military jury. And while a jury is only one aspect of a criminal justice process, it is perhaps the most fundamental to the protection of due process, a fact long recognized by the Supreme Court and embedded in our Bill of Rights. In light of this reality, subjecting civilians to military jurisdiction -- even civilians working alongside the military in a combat zone -- should be a measure of true last resort.

Today in Iraq, a civilian awaits his fate before a military court. Accountability for the misconduct he engaged in is important, but at what cost? Congress has provided for his prosecution and that of other contractors in a regularly constituted civilian criminal court. While that process may be more difficult than simply trying him in a military court in Iraq, difficulty should not and cannot be a justification of such a deviation from our Bill of Rights.

Geoffrey S. Corn is an assistant professor of Law at South Texas College of Law in Houston, Texas, where he teaches courses in the fields of National Security Law and Criminal Law. Prior to joining the faculty at South Texas, Corn served 22 years in the U.S. Army, retiring as a lieutenant colonel.
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