Monday, October 01, 2007
Prosecuting Military Contractors: More a Problem of Law in Action Than Law on the Books
First of all, thanks to Jack for offering me the opportunity to write a series of posts concerning the increasing use of military contractors both by the United States and by other countries and international organizations. My discussion will mostly track arguments I make in my forthcoming book, Outsourcing War and Peace.
I would suggest that the UCMJ would be preferable to civilian agencies for the prosecution of criminal allegations which took place on a foreign battlefield.
To start, beyond the dangers inherent in attempting an investigation on an active foreign battlefield, the FBI and Justice are very unlikely to know the language and customs of the foreign witnesses to conduct an effective investigation. They are also unlikely to be able to distinguish an innocent witness from an enemy attempting to game them for propaganda purposes.
In contrast, the JAGC enforcing the UCMJ has lengthy institutional experience prosecuting alleged crimes committed by soldiers on the battlefield and has the immediate in country experience to conduct a more effective, if not perfect, investigation.
I his recent book "Terror Presidency," Jack Goldsmith spends some time discussing the fact that enemy asymmetrical attacks on our armed forces now include abuses of our judicial system by making false war crime allegations against our soldiers. Such weapons are similarly being used against security contractors.
It has been difficult enough for the military on the scene to distinguish between the false allegations of war crimes made by the enemy for propaganda purposes and the real McCoy. This task is complicated by political pressures to prosecute high profile media cases like the alleged Haditha massacre even if they fall apart for lack of evidence in the initial stages of military court review. I would suggest that civilian prosecutors, ignorant of enemy tactics and more immediately subject to political pressure from DC, would have an even harder time navigating these prosecutorial shoals.
As I suggested in the last post on this subject, I believe you can cure the constitutional problems in applying UCMJ against civilian contractors by enacting a statute which places all armed civilian contractors providing security services for the government in a foreign war zone under command of the armed forces in that country and expressly make them subject to UCMJ. In this way, the civilian contractors become members of the armed forces subject to congressional regulation and government under Article I.
Just curious: Are you dropping your claim (see here, et seq.) that the UCMJ applies only to the "uniformed services"?
Not at all. I am attempting to bring the contractors within the Armed Services to the point where the Constitution could be reasonably read to extend military discipline to them.
I agree with Baghdad Bart. We draft all the McHessians, pay them the same wage we pay the military, and subject them to military justice.
I wonder if military contractors would be so willing to sign on if they were treated like regular solidiers in most respects (other than money, I asume).Post a Comment