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Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy)

Contingency Rules: The Application of the UCMJ to Contractors. Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy) Department of Defense Date: July 26, 2007 Time: 3:10 – 4:10. UCMJ Civilian Jurisdiction (Briefing Overview). Statutes

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Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy)

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  1. Contingency Rules: The Application of the UCMJ to Contractors Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy) Department of Defense Date: July 26, 2007 Time: 3:10 – 4:10

  2. UCMJ Civilian Jurisdiction(Briefing Overview) • Statutes • UCMJ Jurisdiction, Accountability, Offenses • What Can and Can’t 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) NDAA call for DOD/DOJ Advisory Committee Review & Report on adequacy of UCMJ to address civilian misconduct overseas during armed conflict 1997 report of two-prongs: 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. 2001 – PATRIOT ACT amended 18 USC § 7(9) Redefined and expanded definition of “Special Maritime and Territorial Jurisdiction of the United States” to cover military installations overseas, but did not apply to persons subject to MEJA 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 Dependents not included 2006 – Sec 552 of the John Warner National Defense AuthorizationAct for FY ’07 (Pub. L. 109-364; October 17, 2006) Expanded UCMJ jurisdiction to persons serving with or accompanying the armed forces in the field during contingency operations

  4. 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

  5. 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 Armed forces – 10 USC 101(4): A, AF, N, MC, CG “In the Field” – Judicially construed to mean with a view toward the enemy, not locality

  6. UCMJ Civilian JurisdictionAddress Article 2(a)(10) Applicability Questions: • Who? Persons (w/o statutory limitation). • (Doing) What? While serving with or accompanying an armed force in the field. “In the field” implies military operations with a view toward the enemy -- not to be determined by locality in which the armed force is found, but rather by the activity in which it is engaged. • When? In time of declared war or a contingency operation. • Where? No geographical boundaries specified; Article 5, UCMJ (10 USC § 805): Code applies in all places. • For What? Accountability for misconduct. • How? Administrative, nonjudicial punishment (?), and court-martial actions. • Why? Good order and discipline for an effective armed force, and accountability for crimes committed.

  7. 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

  8. 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.]

  9. 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 UCMJ’s “in the field” requirement that limits which contingency operations will qualify for UCMJ jurisdiction.

  10. UCMJ Civilian Jurisdiction • 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 to civilians; • UCMJ is exclusive military jurisdiction; or • UCMJ offense is concurrent jurisdiction with Federal offense, and any DoJ/DoD agreement on exercise of respective jurisdiction applies

  11. UCMJ Civilian Jurisdiction As of April 17, 2007, USD(Personnel and Readiness) reports @4,500 civilian employees serving w/forces (not including contractors) • OEF: 449 (Afghanistan - 318) • OIF: 4027(Iraq -1776)

  12. 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

  13. 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.)

  14. 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

  15. 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)

  16. 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

  17. 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

  18. 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 outside the United States and directly related to the qualifying contingency operation • Act from all 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

  19. Managing UCMJ Civilian Jurisdiction • HOW? • Within DoD, Secretary of Defense should 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 President’s general court-martial convening authority • May be accomplished by SecDef Action Memorandum

  20. 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 2 business days of OGC transmittal of DoDI 5525.11-required information • Require specific training for DoD civilian employees and DoD contractors, as 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

  21. 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. • On June 28, 2007, DoD/GC initiated internal DoD Coordination on proposed recommendations.

  22. Managing UCMJ Civilian Jurisdiction JSC Proposal – Combine Withholding Actions & Oversight • SecDef 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; 2.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; 3.Over nonjudicial punishment actions from all commanders who do not possess general court-martial convening authority; 4.For concurrent jurisdiction offenses, by agreement with DoJ, withhold action until DoD/GC first notifies DoJ/DSS of COCOM-reported case and affords DoJ/DSS two business days to determine if Federal jurisdiction will be exercised.

  23. 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; • Secretary’s “withholding action” to general court-martial convening authorities would be accompanied by requirement that general court-martial convening authorities first notify and obtain Commander, Combatant Command approval to dispose 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 • Approved proposals to be incorporated in changes to DODI 5525.11 and Part 153, of title 32, CFR

  24. UCMJ Civilian JurisdictionSample

  25. UCMJ Civilian Jurisdiction(Possible Example)

  26. UCMJ Civilian Jurisdiction(Possible Example) Commanding General, Multi-National Forces-Iraq (General David H. Petraeus)

  27. Managing UCMJ Civilian Jurisdiction • Questions yet to be answered: • Withhold action against host-nation or third country national contractors/employees serving with or accompanying the armed force in the field? • Further withhold to specified “theater” country locations of the qualifying contingency operation? • How to assign/attach to a contingency operation GCMCA for UCMJ purposes; or instead rely on who is supported or accompanied?

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