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June 03, 2011

Should Civilians Be Tried By Court Martial? [XBradTC]

Crossposted at my place.

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.

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posted by Open Blogger at 01:13 PM

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