Developments in UCMJ Jurisdiction

1
National Defense Industrial Association
(Procurement Division) UCMJ Civilian
Jurisdiction
Robert E. Reed Associate Deputy General
Counsel (Military Justice and Personnel
Policy) Department of Defense Date November
15, 2007
2
UCMJ Civilian Jurisdiction(Briefing Overview)

• Statutes
• UCMJ Jurisdiction, Accountability, Offenses
• What Can and Cant Be Done
• How to Manage These Cases
• Current Thinking Withhold and Oversee

3
Congressional March to Accountability for
Civilians

• 1996 Sec. 1151, NDAA for FY 96 (Pub L.
  104-106 February 10, 1996)
• Called for DOD/DOJ Advisory Committee Review
  Report on adequacy of UCMJ
• to address civilian misconduct overseas during
  armed conflict
• 1997 Committee report consisted of two-prong
  recommendation
• 1. Change UCMJ time of war to
  during contingency operations declared by
  SecDef,
• 2.
  Expand Federal district court jurisdiction
• DoD and DoJ only supported and recommended prong
  2
• 2000 Military Extraterritorial Jurisdiction Act
  (18 USC 3261 et seq.)
• Prong 2 Federal jurisdiction over felony-level
  offenses committed outside the U.S. by
• DoD civilian employees, DoD
  contractors (and subcontractors at any tier) and
  contractor employees
• Dependents of all included.

4
Congressional March to Accountability for
Civilians

• 2004 Sec 1088 of the Ronald W. Reagan National
  Defense Authorization Act for FY 05
• (Pub. L. 108-375 October 28, 2004)
• Redefined MEJA definition of persons employed
  by the Armed Forces outside
• the U.S. to include employees, contractors
  (and subcontractors at any tier)
• and contractor employees of any Federal agency
  or provisional authority whose
• employment relates to supporting the DoD
  mission overseas.
• But, dependents not included
• 2007 H.R. 2740, MEJA Expansion and Enforcement
  Act of 2007
• House and Senate Bills introduced in October
  and November respectively
• Reaction to Blackwater Private Security Guard
  incident in Iraq
• Senate bill is product of inter-agency effort
  to provide alternative to House bill
• which is considered vague, depends on
  contingency operation, only requires act in
• vicinity of a military operation, doesnt
  relieve DoD of preliminary proceedings, etc.

5
Congressional March to Accountability for
Civilians

• 2007 Senate H.R. 2740, MEJA Expansion and
  Enforcement Act of 2007 (Continued)
• Qualified military Operation defined as
• an operation under a declaration of war or
  Congressional authorization for use of force, or
• a contingency operation, as defined by 10 U.S.C.
  101, or
• any other military operation outside the U.S.
  including humanitarian assistance or
• peace keeping operation, provided such
  operation is conducted pursuant to an order
• from or approved by the Secretary of Defense.
• Would delete 2004 Reagan Amendment language
  that employee or contractors are covered
• to extent that employment relates to
  supporting the mission of DoD overseas.
• Calls for creation of Investigative Unit for
  Contractor Oversight

6
Congressional March to Accountability for
Civilians

• 2006 Sec 552 of the John Warner National
  Defense Authorization
• Act for FY 07 (Pub. L. 109-364
  October 17, 2006)
• -- DoD did not initiate or request
  legislation and pointed out DoD/DoJ
• preference for prong 2 of 1997
  Advisory Committee recommendation
• -- Amends persons subject to the
  Code under Article 2(a)(10), UCMJ,
• by adding 5 words
• In time of declared war or a
  contingency operation, persons serving with
• or accompanying an armed force
  in the field.
• -- Legislation goes beyond DoD/DoJ
  Advisory Committee recommendation
• by including all 10 USC
  101(a)(13) contingency operations, not just those
• contingency operations
  designated by SecDef

7
UCMJ Civilian Jurisdiction

• Time of Declared War Congressionally Declared
• Contingency Operation 10 USC 101 (a)(13)
• A military operation against enemy or opposing
  forces by Secretary of Defense designation, or by
  operation of law (mobilization/stop-loss, etc.)
• Persons Unlimited (DoD employees/contractors/TCN
  )
• Serving with or Accompanying
• Two separate concepts
• Accompanying Connected with or reliance upon
  armed forces or its personnel, not necessarily an
  employee of armed forces.
• Armed forces 10 USC 101(4) A, AF, N, MC, CG

8
UCMJ Civilian Jurisdiction

• In the Field Judicially construed to mean
  with a view
• toward the enemy
  (purpose), not locality
• Place No geographic limitation on UCMJ
• (Art. 5, UCMJ)
• Why? Numbers/Functions of those serving with or
• accompanying have growing impact on
  good
• order and discipline and potential
  affect on
• military mission

9
UCMJ Civilian Jurisdiction

• As of April 17, 2007, USD(Personnel and
  Readiness) reports _at_4,500 civilian employees
  serving w/forces (not including contractors)
• OEF 449 (Afghanistan - 318)
• OIF 4027(Iraq -1776)

10
UCMJ Civilian Jurisdiction

• According to a December 2006 GAO report
• Some 60,000 contractors have been supporting the
• Army in Southwest Asia, which includes Iraq
• Compared w/ 9,200 contractors in the1991 Gulf
  War
• CENTCOM reports (as of January 5, 2007)
• DoD has over 126,000 contractor personnel in Iraq
  
• Nearly 20 (25,200) are U.S. citizens
• TCNs constitute the remainder
• 22,000 Iraqi contractors
• Does not include agencies other than DoD working
  in the AOR

11
UCMJ Civilian Jurisdiction

• Contingency Operations (10 USC 101(a)(13))
• SECDEF Designated Contingency Operation
• An operation in which members of the armed forces
  are or may become involved in military actions,
  operations, or hostilities against an enemy of
  the United States or against an opposing military
  force (Emphasis added.)
• Possible Methods Include in Execute Order
• Issue
  Memorandum
• Against enemy or opposing force Humanitarian
  Relief and Disaster Relief military operations
  would not qualify as SECDEF designated
  contingency operations

12
UCMJ Civilian Jurisdiction

• 2. Contingency Operation by Law
• A military operation that results in the call or
  order to, or retention on, active duty of members
  of the uniformed services under one of the
  following sections of title 10, United States
  Code
• 688 Order to active duty of Retired members of
  the armed forces
• DoD has and continues to
  order retirees to active duty for military
• operations in support of the
  global war on terrorism
• 12301(a) Full Mobilization
• 12302 Partial Mobilization Operations Enduring
  Freedom (OEF) and
• 
  Iraqi Freedom (OIF)
• Operation Noble Eagle (ONE) for defense of U.S.
• 12304 Presidential Selected Reserve Call-up
  DoD has used for Bosnia and
• Kosovo for military
  operations in support of the fight against
  terrorists, etc.

13
UCMJ Civilian Jurisdiction

• Contingency Operations by Law (Continued)
• 12305 Continuation on active duty of members of
  armed forces (stop-loss)
• DoD has used to retain
  members on active duty for military operations
• in support of the global war
  on terrorism
• 12406 Members of the National Guard called into
  Federal service unknown if used
• Chapter 15 Presidential request for call into
  Federal service of the States (National
• Guard) to suppress an
  insurrection last used in Los Angeles, CA, for
• Rodney King 1992 riots,
  or
• any other provision of law during a war or during
  a national emergency declared by the President or
  Congress National Emergency Act under title 50,
  USC not a Stafford Act declaration of emergency
  relief effort
• BUT, keep in mind the UCMJs in the field
  requirement that limits which
• contingency operations will qualify for UCMJ
  jurisdiction.

14
UCMJ Civilian Jurisdiction

• Current Array of Potential Accountability for
  Criminal Misconduct
• Subject to host-nation law, if conduct is a
  host-nation crime
• Unless SOFA or international agreement between
  host-nation and U.S. primarily look to the U.S.
  to discipline under U.S. laws
• Since 2000, subject to prosecution in Federal
  district court under Military Extraterritorial
  Jurisdiction Act (MEJA) for felony-level Federal
  crimes committed while outside the United States
• Subject to foreign government not prosecuting
  offense
• Now, subject to Article 2(a)(10), UCMJ,
  court-martial jurisdiction, depending upon
  whether
• UCMJ offense applies at all to civilians
• UCMJ is exclusive jurisdiction over purely
  military offenses or
• UCMJ offense is concurrent jurisdiction with
  Federal offense, and any DoJ/DoD agreement on
  exercise of respective jurisdiction applies

15
UCMJ Civilian Jurisdiction

• UCMJ Offenses
• Some by nature do not apply to civilians because
  they only apply to members of the armed force
  or the offender must be a service member to
  commit
• E.g., Desertion, AWOL, Fraternization
• Some are purely military offenses because they
  have no analog in Federal law
• Exclusive court-martial jurisdiction (RCM
  201(d)(1))
• E.g., Disorderly conduct, drunk driving,
  provoking speech
• Some are violations of both UCMJ and Federal law
  (e.g., MEJA) and are, therefore, concurrent
  jurisdiction (RCM 201(d)(2))
• Exercise of jurisdiction to be sorted out by
  agreement with DoJ
• E.g., most common law crimes (murder, rape,
  drugs, etc.)

16
UCMJ Civilian Jurisdiction

• For What UCMJ/MCM Offenses?
• (Draft Analysis)
• Of 163 offenses listed in UCMJ and Part IV, MCM,
  14 are not applicable to civilians (e.g.,
  Desertion, AWOL, Fraternization, Contempt Toward
  Officials)
• Offender must be a member of armed forces
• Nature of offense and elements only applicable to
  service members
• Of remaining 149 UCMJ listed offenses, 67
  offenses have no analog in Federal law and,
  therefore, are exclusive court-martial
  jurisdiction (RCM 201(d)(1))
• 24 are felony-level offenses
• 43 are minor offense level
• Of the remaining 82 UCMJ listed offenses with an
  analogous offense under Federal law, 60 are
  concurrent jurisdiction and require an agreement
  as to who would prosecute (RCM 201(d)(2))
• 60 are felony-level offenses, to which MEJA
  concurrent jurisdiction applies
• 22 are minor offense level, and not concurrent
  because MEJA only applies to felony-level offenses

17
Managing UCMJ Civilian Jurisdiction

• What we know may not be done
• By regulation or policy, repeal or eliminate UCMJ
  jurisdiction
• By regulation or policy, direct the type of
  disposition, or direct the type or amount of
  punishment or sentence to be imposed by
  subordinate authorities (Unlawful Command
  Influence)

18
Managing UCMJ Civilian Jurisdiction

• What options may be considered
• Provide guidance that the court-martial of
  civilians is generally warranted only under
  extraordinary circumstances or when conduct is
  adverse to a significant military interest of the
  United States
• Make sure RCM 306, Disposition, Discussion of
  factors, and guidance for commanders are adequate
  to address cases involving non-military members
• Suggest consultation with civilian HR Specialist
  (if reasonably available) or contracting officer
  to understand and appreciate the nature of
  civilian administrative adverse actions and
  contractor remedies available prior to
  determining appropriate RCM 306 administrative or
  punitive disposition

19
Managing UCMJ Civilian Jurisdiction

• Keeping in mind Rule for Court-Martial 306(b),
  Manual for Courts-Martial
• Manual for Courts-Martial and Rules for
  Courts-Martial are created by Presidential
  Executive order IAW 10 U.S.C. 836 (Article 36,
  UCMJ)
• Policy. Allegations of offenses should be
  disposed of in a timely manner at the lowest
  appropriate level of disposition listed in
  subsection (c) of this rule.
• (c) (1) No action
• (2) Administrative action
• (3) Nonjudicial punishment
• (4) Court-martial

20
Managing UCMJ Civilian Jurisdiction

• HOW?
• Use existing MCM authority (as Presidential
  Executive order implementing the UCMJ) for a
  superior competent authority to withhold
  authority to dispose of offenses under Article
  2(a)(10) jurisdiction in individual cases, types
  of cases, or generally (R.C.M. 306, 401, 601)).
  Withhold authority to
• Act, except for offenses committed and persons
  located outside the United States
• Act, except commanders (generally or as
  specified) possessing general court-martial
  convening authority
• Act to impose nonjudicial punishment under
  Article 15, UCMJ
• A superior competent authority may cause charges,
  whether or not referred to court-martial, to be
  transmitted to the authority for further
  consideration, including, if appropriate,
  referral (R.C.M. 601(f))
• By policy, require subordinates who are
  contemplating UCMJ action under Article 2(a)(10)
  jurisdiction to first notify a superior competent
  authority

21
Managing UCMJ Civilian Jurisdiction

• HOW?
• Within DoD, Secretary of Defense may act as the
  most senior military justice superior competent
  authority possessing general court-martial
  convening authority
• Convening authority may not be delegated (10 USC
  822, RCM 504)
• Superior to Commanders of Combatant Commands, who
  possess general court-martial convening authority
  
• Keep withheld authority within Combatant
  Commands, to keep authority high, but not too
  high
• Responsible for overseas AORs and good order and
  discipline
• Avoids elevating all to Secretary, but keeps
  Secretary available for disqualifications or
  other problems to transfer to other convening
  authority or handle himself
• Avoids situation where only superior authority to
  Secretary is the Presidents general
  court-martial convening authority
• May be accomplished by SecDef Action Memorandum

22
Managing UCMJ Civilian Jurisdiction

• HOW?
• Reach general agreement to first consult with
  DoJ/DSS on cases having MEJA concurrent
  jurisdiction
• 60 UCMJ felony-level offenses with concurrent
  MEJA jurisdiction
• DoJ/DSS advises decision can be made within 3
  business days of OGC transmittal of DoDI
  5525.11-required information
• Require specific training for DoD civilian
  employees and DoD contractors, as is now required
  for MEJA jurisdiction under DoD Instruction
  5525.11 and Part 153 of title 32, Code of Federal
  Regulations
• At time of employment or prior to deployment, and
• Upon arrival in AOR of qualifying contingency
  operation
• SecDef Memorandum and incorporate all policy
  decisions in DOD Instruction 5525.11 and Part 153
  of title 32, Code of Federal Regulations

23
Managing UCMJ Civilian Jurisdiction

• In January 2007, Joint Service Committee on
  Military Justice (JSC) was tasked pursuant to
  DODD 5500.17 to address issues of implementation
  guidance and appropriate amendments to the MCM.
• In May, 2007, JSC completed its review.
• On June 12, 2007, JSC recommendations were
  briefed to DoD General Counsel and on June 28,
  2007, sent for DoD coordination.
• DoD Senior Staff review conducted. Pending
  SecDef review.

24
Managing UCMJ Civilian Jurisdiction

• JSC Proposal Combine Withholding Actions
  Oversight
• Secretary of Defense Withhold Article 2(a)(10),
  UCMJ, Jurisdiction
• A. Over all offenses except those committed
  outside the various states of the
• United States and its territories,
  possessions, and commonwealths, and
• B. Over all dispositions against all
  persons then located within the various states
• of the United States and its
  territories, possessions, and commonwealths
• All court-martial convening authority (summary,
  special and general) from commanders who do not
  possess general court-martial convening
  authority
• Commander, COCOM has authority to further limit
  by withholding action to specified general
  court-martial convening authorities and to limit
  to specified geographic areas within COCOM
  theater of contingency operation
• Commander, COCOM has authority to further limit
  by withholding action against host-nation or
  third country national employees/contractors
  serving with or accompanying the armed force in
  the field

25
Managing UCMJ Civilian Jurisdiction

• JSC Proposal Combine Withholding Actions
  Oversight
• Withholding Action (Continued)
• Over nonjudicial punishment actions (Article 15
  actions) from all commanders who do not possess
  general court-martial convening authority
• For concurrent jurisdiction offenses
• By agreement with DoJ, withhold authority
  to act until
• a. DoD/GC first notifies DoJ/DSS of
  COCOM-reported case, and
• b. DoD affords DoJ/DSS three business days to
  determine if Federal
• jurisdiction will be exercised.

26
Managing UCMJ Civilian Jurisdiction

• JSC Proposal Combine Withholding Actions
  Oversight
• Oversight
• Civilian employees or contractors attached for
  UCMJ purposes to a specific armed force general
  court-martial convening authority conducting
  contingency operation
• Secretarys withholding action to general
  court-martial convening authorities would be
  accompanied by requirement that general
  court-martial convening authorities first notify
  Commander, Combatant Command before initiating
  courts-martial or nonjudicial punishment actions
• Provides option for Commander, COCOM to withhold
  authority or exercise his or her own authority
  pursuant to RCM 601
• Following notification procedures of DODI 5525.11
  for potential MEJA cases, similar notice would
  first be given to DoD/GC of all intended actions
  under Article 2(a)(10), UCMJ, jurisdiction
• Provides option for DoD civilian leadership to be
  notified and for the Secretary to withhold
  authority or exercise his or her own authority
• Provides DoD/GC opportunity to notify DOJ/DSS of
  possible U.S. Federal offense (MEJA)
• Approved proposals to be incorporated in changes
  to DODI 5525.11 and Part 153, of title 32, CFR

27
UCMJ Civilian Jurisdiction(Possible Example)
28
UCMJ Civilian Jurisdiction(Possible Example)
29
UCMJ Civilian Jurisdiction(Possible Example)
Commanding General, Multi-National Forces-Iraq
(General David H. Petraeus)
30
Notification Process