Balkinization  

Monday, September 24, 2007

How to Not Bring the Rule of Law to Iraq

Brian Tamanaha

The recent killing of civilians by Blackwater employees has brought renewed attention to the activities of US-hired private security forces in Iraq. Among other jobs, private contractors handle personal security for American officials in Iraq. It is necessary and hazardous work. Estimates suggest that more than 100 contractors have been killed. The number of innocent Iraqis killed by contractors is unknown, though undoubtedly high (General Horst said that "he had tracked at least a dozen shootings of civilians in Baghdad between May and July [2005], with six Iraqis killed").

From a legal standpoint, the most startling aspect of these activities is identified in the following passage (New York Times, 9/23/07):

...a decree by the American administrator L. Paul Bremer III exempted security companies and their employees from accountability under Iraqi law for deaths and injuries caused in the execution of their duties. Although Congress in 2005 instructed the Pentagon to bring contractors under the Uniform Code of Military Justice, no actions have been taken, leaving the contractors in a legal no-man's land--in effect, at liberty to treat all Iraq as a free-fire zone.


It is standard operating procedure for an occupying power to exempt its forces from legal accountability to the occupied country [Yes, we are an "occupying power;" yes, these private contractors are "our forces".].

But the notion that these private forces--for two years, and perhaps even now--operate free from legal restraints is so stupefying that it defies comment.

Comments:

The United States needs to have a clear Status of Forces Agreement (SOFA) as we have with numerous other countries which places contractors under either US or Iraqi civilian law. It may be difficult to bring them under the UCMJ because the provision of Article I which allows Congress to regulate the Army and Navy is restricted to the uniformed services.
 

"Bart" DePalma:

It may be difficult to bring them under the UCMJ because the provision of Article I which allows Congress to regulate the Army and Navy is restricted to the uniformed services.

Maybe you can't call it the "Uniform Code of Military Justice (although that's far from a bygone conclusion), but there's no reason that Congress can't regulate military contractors. They do that all the time. Just check out Title 10, which blows "Bart"'s pet theory that Congress's role in military affairs is limited to the UCMJ, no more and no less, right out of the water.....

I'd note, though, that the UCMJ is not limited to just our servicemen.

Cheers,
 

Bart has presented valid case law that Congress cannot subject civilians (such as military dependents, retired servicemembers charged with crime while in the service, etc.) by court martial. I assume this would apply to military contractors as well.

But these cases have never suggested that Congress has no authority over civilians closely linked to the military. Indeed, one case expressly said that Congress can make a special court for trying retired soldiers charged with crimes while in the service, so long as followed civilian norms.
 

el:

Such a court would just be a special Article III court.

I never posted that Congress could not subject military contractors to a criminal justice system, just that they cannot subject them to military discipline.

This is not a new situation. We have has SOFA agreements with nearly every other nation where we have personnel. It is long past time we had one in Iraq and Afghanistan.
 

Enlightened Layperson:

Bart has presented valid case law that Congress cannot subject civilians (such as military dependents, retired servicemembers charged with crime while in the service, etc.) by court martial. I assume this would apply to military contractors as well.

Here ya go:

10 USC § 802:

(a) The following persons are subject to this chapter:
...
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of war, persons serving with or accompanying an armed force in the field....

I don't see any of "Bart"'s case cites above (and I'm not going to his execrable web page). One might argue that certain exemptions are built into the law, but we have this (from § 802 above):

(4) Retired members of a regular component of the armed forces who are entitled to pay.

for (at least some) "retired servicemembers".

And this is just what Congress has already done. Not what it has the power to do.

I'd note "Bart"'s claim above is that the UCMJ cannot be applied, rather than the more specific claim that courts martial may not be imposed.

IOW, "Bart"'s full-o-it (with the same old "sad but false" song he's been singing for at least a year here....

Cheers,
 

arne:

Try reading the sections to which you cited for content. These sections apply to persons serving with the armed forces of our country or the armed services of other countries who are our prisoners of war.

For example, my in-laws operated a dredging firm in the 30s and 40s in South Florida. The Navy decided that they needed my in-laws expertise out in the Pacific and brought them into the service doing the same exact thing they did as civilians, except now they were in uniform. They served with, but were not part of the Seabees. Welcome to the Service, you are no longer a civilian. Section 10 was meant to apply to people like my inlaws.

The Black Water contractors at issue are civilians who work for the State Department. They are not serving with the armed forces and do no fall under the UCMJ. This is why no one is mentioning applying the UCMJ to them.
 

"Bart" DePalma:

arne:

Try reading the sections to which you cited for content. These sections apply to persons serving with the armed forces of our country or the armed services of other countries who are our prisoners of war.


Try reading for content, "Bart". I never said it applies to Joe Shmoe (or even Blackwater in this specific instance, although arguably it does apply if we were actually at war and if they were "serving with or accompanying an armed force in the field", however that is construed). What I said (and that ought to be pretty damn clear) is that your claim that the UCMJ is constitutionally "restricted to the uniformed services" is just flat out wrong. Capece? If you disagree with that, please cite to statute or caselaw that supports your contentions that
1). The provisions at hand apply only to those "now [] in uniform" (whatever that's supposed to mean),
and
2). that this is in fact a hard limit on the reach of the UCMJ, imposed by the Constitution (and not simply Congressional discretion).

Cheers,
 

arne:

When you serve with the armed forces, you are in uniform (or at least entitled to wear the uniform if you work in civilian clothing) and thus subject to the UCMJ.

You may not have finished law school, but you tap dance as furiously as any lawyer I have ever met.

The Article I power to regulate the Army and Navy and the Uniform Code of Military Justice statute enacted under that power are restricted to those who serve in the uniformed services and not to the myriad of civilians overseas who are not serving in the military.
 

"Bart" DePalma:


You may not have finished law school, but you tap dance as furiously as any lawyer I have ever met.


If I'm to return ad hominem in kind, it would be "Doesn't say much for either FSU or the Coloradu and Florida state bars...."

The Article I power to regulate the Army and Navy and the Uniform Code of Military Justice statute enacted under that power are restricted to those who serve in the uniformed services and not to the myriad of civilians overseas who are not serving in the military.

But I've just posted a list of explicit counterexamples to this nonsense you're spouting, straight from the statute. If you think my straight-forward interpretation is wrong, just come out with contervailing statute or caselaw.

Not to mention, as I've said in the past, there's literally tons (if you actually print it out) of stuff in Title 10 that isn't the UCMJ, which makes hash of your 'argument' that all the Article I provision for "rules and regulations" provides is for the UCMJ.

Fact: The UCMJ is not the limit to Article I powers WRT "Armed Forces" (and related matters)

Fact: The UCMJ itself does not restrict its applicability to persons in "the uniformed services".

Deny that and you look more a fool than usual.

Cheers,
 

Why did Bremer's decree not cease to have force once the government of Iraq was reconstituted?
 

Why did Bremer's decree not cease to have force once the government of Iraq was reconstituted?
 

Arne Langsetmo said...

BD: The Article I power to regulate the Army and Navy and the Uniform Code of Military Justice statute enacted under that power are restricted to those who serve in the uniformed services and not to the myriad of civilians overseas who are not serving in the military.

But I've just posted a list of explicit counterexamples to this nonsense you're spouting, straight from the statute. If you think my straight-forward interpretation is wrong, just come out with contervailing statute or caselaw.


arne, you are usually not this obtuse.

I cited your own statutory provisions in my analysis. What part of "assigned to," "serving with," and "In custody of" the "armed forces" are you missing from your own UCMJ provisions?

I did not have the time to regurgitate the case law for you again yesterday, but these cases should put this issue to bed.

The Supreme Court in Reid v. Covert, 354 U.S. 1 (1957), held: "The power of Congress under Art. I, 8, cl. 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," taken in conjunction with the Necessary and Proper Clause, does not extend to civilians...under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States." See also Grisham v. Hagan, 361 U.S. 278 (1960). The current standard used by the courts for applying the UCMJ is membership in the Armed Forces. Solorio v. U.S., 483 U.S. 435 (1987).

Indeed, it was because the UCMJ could not reach civilians living overseas but not serving with the armed forces that Congress enacted the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) to grant US federal courts felony criminal jurisdiction over these civilians.
 

"Bart" DePalma:

["Bart"]: The Article I power to regulate the Army and Navy and the Uniform Code of Military Justice statute enacted under that power are restricted to those who serve in the uniformed services and not to the myriad of civilians overseas who are not serving in the military.

[Arne]: But I've just posted a list of explicit counterexamples to this nonsense you're spouting, straight from the statute. If you think my straight-forward interpretation is wrong, just come out with contervailing statute or caselaw.

["Bart"]: arne, you are usually not this obtuse.

I cited your own statutory provisions in my analysis. What part of "assigned to," "serving with," and "In custody of" the "armed forces" are you missing from your own UCMJ provisions?
.

What part of "[i]n custody of" constitutes "serving in the 'uniformed services'"?

What part of "[r]etired members of a regular component of the armed forces" constitutes "serving in the 'uniformed services'"?

What part "persons [...] accompanying an armed force in the field" constitutes "serving in the 'uniformed services'"?

I know you have a ... ummm, rather expansive ... view of what constitutes the "uniformed services" ... when it suits your rhetorical purposes (and your defence of putting as much power as possible in one commander -- despite the profound and horrific demonstration of the stoopidity of such a course shown by our current Deciderator-In-Chief, and despite the explicit sagacious warnings of the Founders as to the dangers of such). But your rather uncommon opinion and three bucks might get you a latte.....

["Bart"]: I did not have the time to regurgitate the case law for you again yesterday, but these cases should put this issue to bed.

The Supreme Court in Reid v. Covert, 354 U.S. 1 (1957), held: "The power of Congress under Art. I, 8, cl. 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," taken in conjunction with the Necessary and Proper Clause, does not extend to civilians...under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States."


A plurality. Three justices said this. Two others concurred in the result only so far as UCMJ provisions for courts martial conflicted with Article III and Fifth and Sixth Amendment protections for U.S. citizens. Here's a bit from the plurality opinion:

"Nothing said here contravenes the rule laid down in McCulloch v. Maryland, 4 Wheat. 316, at 421, that:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

"In McCulloch this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the "land and naval Forces," but Art. III, 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions - safe-guards which cannot be given in a military trial."

The issue is one of conflicting Constitutional powers.

Do see Frankfurter's concurrence for his idea as to the limits of the "Rules for the Government and Regulation of the land and naval Forces":

"Everything that may be deemed, as the exercise of an allowable judgment by Congress, to fall fairly within the [354 U.S. 1, 44] conception conveyed by the power given to Congress "To make Rules for the Government and Regulation of the land and naval Forces" is constitutionally within that legislative grant and not subject to revision by the independent judgment of the Court."

Nothing in there about a severely constricted UCMJ; rather the opposite.

More Frankfurter: "I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question."

Here's Harlan's concurrence, explaining his reversal from the previous decision (and his previous opinion) in this case:

"I concur in the result, on the narrow ground that where the offense is capital, Article 2 (11) 1 cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace."

More Harlan:

"I do not think the courts-martial of these army wives can be said to be an arbitrary extension of congressional power."

I'd note, FWIW, that such cases argue strongly against the constitutionality of military commissions lacking the protections of Article III for any U.S. citizens (or persons within the United States) not fairly deemed to be in the "uniformed services".

More from the plurality on the "dividing line":

"Even if it were possible, we need not attempt here to precisely define the boundary between "civilians" and members of the "land and naval Forces." We recognize that there might be circumstances where a person could be "in" the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government. 41 We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier's family."

Does such a description cover, say, Blackwater mercenaries?

And all this has to do with the collision of the UCMJ with the Fifth and Sixth Amendments in the context of criminal prosecutions. As to the ability of the UCMJ (or any other substantive law under Title 10 or other statute) to regulate behaviour of contractors and others, there is no such limitation.

["Bart"]: ... See also Grisham v. Hagan, 361 U.S. 278 (1960)....

Grisham on Reid: "Those who controlled the majority there held that the death penalty is so irreversible that a dependent charged with a capital crime must have the benefit of a jury. The awesomeness of the death penalty has no less impact when applied to civilian employees."

["Bart"]: The current standard used by the courts for applying the UCMJ is membership in the Armed Forces. Solorio v. U.S., 483 U.S. 435 (1987).

Solorio concerned the person's status, and Solorio was undisputably serving in the military. Solorio tried to get the Alaska charges dropped from military jurisdiction claiming that "the Alaska offenses were not sufficiently 'service connected' to be tried in the military criminal justice system". The court disagreed, and said that his status as a serviceman was dispositive. How you think this applies to contractors is not obvious. You been doing "selective searches" and quote-mining again, "Bart"?

As I said, the conflict is not as to the permissible extent of Congress in regulating the military and others, but rather in the collision of any UCMJ provisions for courts martial with other Constitutional protections.

Your original claim that contractors cannot be reached because "Congress's [Article I power] to regulate the Army and Navy is restricted to the uniformed services" just ain't so. They could, if they want, make the contractors subject to the ROE of the military commanders, and as long as they didn't violate any Fifth and Sixth Amendment rights of the contractors, make any actions of the contractors they wanted illegal and subject to trial (although not necessarily in a court martial).

Indeed, it was because the UCMJ could not reach civilians living overseas but not serving with the armed forces that Congress enacted the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) to grant US federal courts felony criminal jurisdiction over these civilians.

That solves any potential jurisdictional issues.

So you agree that Congress can regulate contractors.

Thanks.

Cheers,
 

Gentlemen, if you're still here, let me try a slightly lateral approach. I think we can all agree that:

(1) Civilians overseas associated with the US military (such as military dependents or defense contractors) should be subject to trial for crimes they commit.

(2) There are some countries where we have good reason not to want to subject them to local laws and courts.

(3) What we need, therefore, is a federal law for defining, prosecuting, and trying such crimes.

You seem to agree that Congress has authority to pass such a law, so long as it does not subject civilians to court martial. Arne says this authority derives (or may derive) from the Article I power to regulate the armed forces. Bart denies such an origin.

Very well then, Bart, if Congress does have such authority, from what Article I power does it derive?
 

el:

You seem to agree that Congress has authority to pass such a law, so long as it does not subject civilians to court martial. Arne says this authority derives (or may derive) from the Article I power to regulate the armed forces. Bart denies such an origin.

Very well then, Bart, if Congress does have such authority, from what Article I power does it derive?


This is pretty elementary.

Congress may and has extended federal court jurisdiction overseas (see the MEJA) though its N&P clause power to enact legislation to enable the judiciary to exercise its Article III powers and to extend Bill of Rights guarantees to civilians overseas. Reid v. Covert, 354 U.S. 1 (1957), discusses this at some length.

I will allow arne the last word in our dialogue. I would only note that he offers no authority for his contra proposition and his posts are beginning to grow exponentially in length in a vain effort to kick up enough dirt to hide his losing position.
 

"Bart" DePalma:

Congress may and has extended federal court jurisdiction overseas (see the MEJA) though [sic, probably should be "through"] its N&P clause power to enact legislation to enable the judiciary to exercise its Article III powers and to extend Bill of Rights guarantees to civilians overseas. Reid v. Covert, 354 U.S. 1 (1957), discusses this at some length.

What a load'o'hooie. Reid v. Covert had nothing to do with such a proposition.

[Bart"]: I would only note that he offers no authority for his contra proposition....

Hell, I just threw "Bart"'s own cites back at him.

"Bart" continues to neglect the fact that the UCMJ is not limited to "uniformed servicemen" (and his cites purportedly to the contrary are rather addressing the intersection of Fifth and Sixth Amendment rights with the court martial procedures of the UCMJ), and that many parts of the entirety of Title 10 are "the law" WRT military contractors, etc.. There is no bar to enforcing "U.S. law" on the conduct of contractors. If Congress wanted to place limits on the ROE and behaviour of contractors (outside of those now so constrained, such as "persons serving with or accompanying an armed force in the field", they may do so.

Cheers,
 

In one important respect, our two accounts diverge. Goldsmith argues that the Cheney-Addington effort to expand presidential power has backfired, 中国呼吸网 肿瘤网
 

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