Battlefield Accountability for Contractors: At What Cost?

Battlefield Accountability for Contractors: At What Cost?

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.

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