Andres Healy, The Constitutionality of Amended 10 U.S.C. § 802(A)(10): Does the Military Need a Formal Invitation to Reign in “Cowboy” Civilian Contractors?

62 Fla. L. Rev. 519 (2010) |   |   |   |

INTRODUCTION :: Alaa “Alex” Mohammad Ali never set out to make history. He just needed a job. Nevertheless, on February 23, 2008, Ali took his first step toward making history, and did it with blood on his hands. What began as an argument with a fellow translator on a U.S. military base near Baghdad quickly escalated into a fight. It ended just as quickly, with Ali allegedly stabbing the other man in the chest four times. Of course, while terrible, a simple assault is hardly history making, or even newsworthy, given the daily carnage in Iraq. So what makes Ali’s story so special?

On March 27, 2008, Ali became the first civilian contractor working for the United States since 1968 to be criminally charged by the U.S. military. The charges were the first to be levied under Congress’ 2006 amendment to 10 U.S.C. § 802(a)(10), which expanded the reach of the military justice system to “persons serving with or accompanying an armed force in the field” during even contingency operations-a profound shift from the pre-amendment need for a war formally declared by Congress. Because U.S. citizens are generally immune from prosecution in U.S. courts for crimes committed abroad and cannot be tried by the military outside of exceptionally limited circumstances, the amendment’s proponents hoped that the amendment would finally close the jurisdictional gap that allowed civilian contractors to operate abroad without fear of criminal prosecution for any unlawful action.

Instead, the amendment has ignited a storm of controversy and put Ali’s otherwise mundane case into the limelight. Michael Navarre, a former member of the Navy’s Judge Advocate General’s Corps (JAG) who now works in private practice, explained that “[Ali's case] is a significant test case because the constitutionality of the new amendment will be litigated . . . . There is a question as to whether the Congress extended the power of the military too far.”

Navarre was not alone in raising the question of the amendment’s constitutionality; besides commentators and academics, even the government has been wary of the constitutionality of the amendment. The Congressional Budget Office reported that “using the [Uniform Code of Military Justice] to prosecute civilians, even during a war, may generate constitutional challenges based on the standards of due process applicable to military courts.” This might explain why the Department of Defense waited nearly seventeen months after passage of the amendment before it issued a memorandum directing the military branches on how to begin employing the military’s newly authorized jurisdiction. Notably, Ali was charged only days later, though he had already been in military custody for thirty-three days. Some commentators, as well as Ali’s military attorney, have thus postulated that the government is using Ali, who is not an American citizen, as a legal lab rat. “They want to test out a new American law on somebody who is not even an American,” said Captain Clay Compton, Ali’s attorney.

If a legal laboratory was the military’s intent, its experiment was a success. Originally charged with aggravated assault, Ali pled guilty on June 22, 2008, to lesser charges of wrongful appropriation of a knife owned by a U.S. soldier, obstruction of justice for wrongfully disposing of the knife, and making a false official statement to military investigators. As a result of his plea, Ali’s assault charge, which carried an independent maximum penalty of eight years confinement, was dismissed, and Ali would spend only five months in confinement.

The decision in Ali’s case, however, does not render the issue moot. Perhaps as a result of its initial success, the military has not hesitated in utilizing its new authority. In January 2009, it began court-martial proceedings against two more civilian contractors in Iraq. In response, each contractor, in petitions for writs of habeas corpus filed in federal court, challenged the military’s ability to exercise constitutionally such jurisdiction, specifically raising the issue of whether such jurisdiction is allowable outside the context of a declared war.

Critically, the viability of the statute depends on this very issue. This Note will therefore resolve whether Congress extended the power of the military too far when it amended 10 U.S.C. § 802(a)(10). Part II illustrates the problems that arise with the absence of civil or military jurisdiction over criminal acts committed by civilian contractors. Part III describes the failure of Congress’ attempts to subject civilian contractors to civilian criminal jurisdiction and the resulting need for the amendment to 10 U.S.C. § 802(a)(10). Part IV analyzes judicial precedent concerning previous attempts to expand military jurisdiction to civilians. Finally, Part V concludes by stating definitively that 10 U.S.C. § 802(a)(10) is constitutional.

This entry was posted in Constitutional Law, Contract Law, Government Contracts, Military Law, Uncategorized and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.