1 Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy) Department of Defense Date: August 4, 2009 Congressional March

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Robert E. Reed

Associate Deputy General Counsel

(Military Justice and Personnel Policy)

Department of Defense

Date: August 4, 2009

Congressional March to Accountability For Civilians Overseas

(aka: Filling the Gaps and Crevices)

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UCMJ Civilian Jurisdiction(Briefing Overview)

• Defining The Issue: The Jurisdictional Gap

• Statutory Responses: MEJA and Other Federal Statutes

• UCMJ Jurisdiction, Accountability, and Offenses

• UCMJ: What Can and Can’t Be Done

• How to Manage These UCMJ Cases – Withhold Authority to Reshape the Legal Landscape– Require Notice, Allow for DoJ Consultation, and Provide

Oversight

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Criminal Jurisdiction Over Civilian Employees

Today, we find our very preservation as a nation inexorably intertwined with the maintenance of large overseas contingents, composed of both military and civilian personnel. These groups are so closely related, in all aspects of the venture, that discipline and success will be affected adversely if one segment of the force is free to operate outside the law and the other is restricted to obedience . . . Improper deportment on the part of civilians overseas . . . has an adverse impact on both discipline and its closely allied military intangible – morale – and ultimately on the success of the mission.”

Judge George W. Latimer U.S. Court of Military Appeals U.S. v Burney, 1956

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Congressional March to Accountability for Civilians(Filling “The Gap”)

1996 – Sec. 1151, NDAA for FY ’96 (Pub L. 104-106; February 10, 1996)

Called for DOD/DOJ Advisory Committee Review & Report on adequacy of UCMJ to address civilian misconduct overseas during armed conflict

• 1997 Committee report consisted of two-prong recommendation:

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 excluded persons subject to MEJA

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Congressional March to Accountability for Civilians(Filling “The Crevices”)

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

• But, dependents not included

2008 – H.R. 2740, “MEJA Expansion and Enforcement Act of 2008”

• Reaction to 9/16/07 Blackwater Private Security Guard incident in Iraq• Senate bill is product of inter-agency effort to provide alternative to House bill which is considered vague, depends on contingency operation, only requires act in vicinity of a military operation, doesn’t relieve DoD of preliminary proceedings, etc.• Senate bill amends MEJA, creating separate subsections covering persons while:

– Employed by any Department or agency of U.S. other than the Armed Services in a foreign country in which the Armed Forces are conducting a qualifying military operation, or – Employed as an armed contractor or private security contractor of any Department or agency of the U.S. other than the Armed Forces outside the U.S.– Host nation nationals and persons ordinarily a resident are excluded.

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Congressional March to Accountability for Civilians(Filling “The Crevices”)

2008 – Senate H.R. 2740, “MEJA Expansion and Enforcement Act of 2008” (Continued)

• “Qualified military Operation” defined as:

– an operation under a declaration of war or Congressional authorization for use of force, or

– a contingency operation, as defined by 10 U.S.C. § 101, or

– any other military operation outside the U.S. including humanitarian assistance or peace keeping operation, provided such operation is conducted pursuant to an order from or approved by the Secretary of Defense.

• Would delete 2004 Reagan Amendment language that employee or contractors are covered “to extent that employment relates to supporting the mission of DoD overseas.”

• Calls for creation of Investigative Unit for Contractor Oversight.

• Requires Annual Reports by IGs of DoJ, DoD, DoS, etc, and any other Executive agency to report complaints of MEJA violations.

Prediction: Some version of H.R. 2740 may become law, but there is no current activity.

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MEJA Summary(March 3, 2005 – July 20, 2009)

SUMMARY: DoD - DoJ/DSS - Referral to U.S. Attorney’s Office (USAO)

Not Referred Not Referred Prosecuted USAO USAOOffender Cases to DoJ/DSS to USAO or Charged Pending Declined

1. 18 USC(7)(9), etc. 3 0 0 3 0 0

2. Adult Dependent 10 0 1 4 4 1

3. Juvenile Dependent 6 0 0 2 4 0

4. DoD Civilian Employee 16 0 1 2 8 5

5. US National Contractor 42 0 4 9 22 7 (Price)

6. TCN Contractor 15 0 3 0 6 6 (Ali)

7. Former Mil. Members 7 0 0 1 2 4

8. Military Members under 1 0 0 0 1 0 (§ 3261(d)(2)) (Corbello)

Total: 100 0 (0%) 9 (9%) 21 (21%) 47 (47%) 23 (23%) Total Charged or Pending: 68/100 = 68%

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Federal Prosecution Summary – OIF/OEF AORs(March 3, 2005 – July 20, 2009)

SUMMARY: DoD - DoJ/DSS - Referral to U.S. Attorney’s Office (USAO)

Contractors in Not Referred Not Referred Prosecuted USAO USAOIraq/Afghanistan Cases to DoJ/DSS to USAO or Charged Pending Declined

1. 18 USC(7)(9) 2 0 0 2 0 0 - Iraq - - - - - - - Afghanistan 1 - - 1 - - - Qatar 1 - - 1 - -

2. US Nat’l Contractor 40 0 4 8 21 7 (Price)

- Iraq 33 - 2 4 20 7 - Afghanistan 4 - 1 2 1 - - Kuwait 2 - 1 1 - - - S. Arabia 1 - - 1 - -3. TCN Contractor 15 0 3 0 6 6 (Ali)

- Iraq 15 - 3 - 6 6 - Afghanistan - - - - - -

Total: 57 0 (0%) 7 (12%) 10 (18%) 27 (47%) 13(23%) Total Charged or Pending: 37/57 = 65%

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Congressional March to UCMJ 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

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UCMJ Accountability for Civilians

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 – Statutorily Unlimited (DoD employees/contractors/ Third Country Nationals)

Serving with or Accompanying • Two separate concepts• Accompanying = Connected with or reliance upon armed forces or

its personnel, not necessarily an employee of armed forces.

Armed Forces – 10 USC 101(4): A, AF, N, MC, CG

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UCMJ Accountability for Civilians

“In the Field” – Judicially construed to mean a military operation with a view toward the enemy (purpose), not locality

Place – No geographic limitation on UCMJ (Art. 5, UCMJ)

Why? – Numbers/Functions of those serving with or accompanying have growing impact on good order and discipline and potential effect on military mission

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UCMJ Accountability for Civilians(Sense of the Jurisdictional Scope)

As of July 20, 2009, JCS J1 (Personnel) reports the following civilian employees serving w/forces (not including contractors)

– Afghanistan – 1,335– Iraq – 2,355 – USCENTCOM AOR – 4,956

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UCMJ Accountability for Civilians(Sense of the Contractor Scope)

• CENTCOM Census Data for 2nd Qtr, FY 2009, DOD has:– Iraq: 132,610 contractor personnel

• 36,061 U.S. citizens• 60,244 Third Country Nationals (TCNs)• 36,305 Iraqi contractors

– Afghanistan: 68,197 contractor personnel• 9,378 U.S. citizens• 7,043 TCNs• 51,776 Afghanistan contractors

– USCENTCOM AOR: 242,657 contractor personnel• 54,387 U.S. citizens• 94,260 TCNs• 94,010 local/host Country Nationals

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UCMJ Accountability for Civilians(Sufficiently “War-like”?)

• Contingency Operations (10 USC 101(a)(13))1.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

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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)]

• 12304 – Presidential Selected Reserve Call-up [DoD has used for Bosnia and Kosovo for military operations in support of the fight against terrorists, etc.]

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• Contingency Operations by Law (Continued):

• 12305 – Continuation on active duty of members of armed forces (stop-loss) • 12406 – Members of the National Guard called into Federal service • Chapter 15 – Presidential request for call into Federal service of the States’ (National Guard) to suppress an insurrection, 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.

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UCMJ Civilian Jurisdiction(Current Array of Potential Accountability)

– 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 at all to civilians;

• UCMJ is exclusive jurisdiction over purely military offenses; or • UCMJ offense is concurrent jurisdiction with Federal offense, and any

DoJ/DoD agreement on exercise of respective jurisdiction applies

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UCMJ Civilian Jurisdiction(UCMJ Offenses)

• Some offenses by nature do not apply to civilians because they only apply to “members of the armed force” or elements require service member offender– UCMJ statutory language

• E.g., Desertion, AWOL, Fraternization

• Some are “purely military offenses” because they have no analog in Federal law– Exclusive court-martial jurisdiction (Rule for Courts-Martial 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.)

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UCMJ Civilian Jurisdiction(Concurrent and Exclusive Jurisdiction)

(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, or– Nature of offense or elements are only applicable to service members

• Of remaining 149 UCMJ listed offenses, 68 offenses have no analog in Federal law and, therefore, are exclusive court-martial jurisdiction (RCM 201(d)(1))

– 25 are felony-level offenses– 43 are “minor offense” level

• Of the remaining 81 UCMJ listed offenses with an analogous offense under Federal law, 62 are concurrent jurisdiction and require an agreement as to who would prosecute (RCM 201(d)(2))

– 62 are felony-level offenses, to which MEJA concurrent jurisdiction applies– 19 are “minor offense” level, and not concurrent because MEJA only applies to

felony-level offenses

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UCMJ TIP-Related Offenses • To be reported annually, per Para 5.1.8, DODI 2200.11, based on facts

and circumstances

1. Article 120, UCMJ:a. Rape;b. Various Sexual Assault or Sexual Abuse (Lewd) Offenses

2. Article 134, UCMJ:a. Kidnapping;b. Pandering;c. Prostitution / Patronizing a Prostitute;d. Soliciting Another to Commit an Offense (that is TIP-related).

3. Additional Offenses:a. Aiding and Abetting Another (to commit a TIP-related offense), Article 77, UCMJ;b. Accessory After the Fact (to a TIP-related offense), Article 78, UCMJ;c. Attempts (to commit a TIP-related offense), Article 80, UCMJ;d. Conspiracy (to commit a TIP-related offense, Article 81, UCMJ.

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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)

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• What Can Be Done …Options Considered.

Manage how, when, where, and by whom courts-martial are initiated, by:

– Legislative Amendments to UCMJ,

– Presidential Executive Order Amendments to the Manual for Courts-Martial, or

– Secretarial Action to Modify Current Court-Martial Process, Procedure, and Policies

• Use existing UCMJ and MCM authority as the Department’s most superior court-martial convening authority

• Quick to establish, flexible to adjust to particular cases with SecDef modifications, as appropriate, and allows for thorough review of proposed action in light of litigation risk to UCMJ authority


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• Applying Guidance and Policy …

– 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

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• Keeping in mind Current Rule for Court-Martial 306(b), Manual for Courts-Martial:

– Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) 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

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• Existing Authorities …

– 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 and persons located outside the United States

• Except by commanders (generally or as specified) possessing general court-martial convening authority

• 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 that superior 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

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• HOW?

– Within DoD, Secretary of Defense could 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 cases to Secretary, but keeps Secretary

available for disqualifications or other problems necessitating a transfer to another convening authority or Secretary handles himself

• Avoids situation where only superior authority to Secretary acting is the President’s general court-martial convening authority

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Managing UCMJ Civilian Jurisdiction(SecDef Memorandum Guidance of March 2008)

• “It is important that the exercise of this jurisdiction be based on military necessity to support an effective fighting force and be called for by circumstances that meet the interests of justice, such as:– When U.S. federal criminal jurisdiction otherwise does not apply or federal

prosecution is not pursued, and/or– When the person’s conduct is adverse to a significant military interest of the

U.S. (e.g., may jeopardize good order and discipline or discredit the armed forces and thereby have a potential adverse effect on military operations.”

• “Before initiating (preferring) court-martial charges and nonjudicial punishment under this jurisdiction, and regardless of whether the suspected offense may also be an offense under federal criminal laws, the geographic combatant commander shall first provide notice of the case in writing (including by email or facsimile), in accordance with the procedures established in DODI 5525.11.”

• Commanders should continue law enforcement, criminal investigations, and other military justice procedures that precede the initiation (preferral)

of court-martial charges (and during pendency of DoJ review).”

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Managing UCMJ Civilian Jurisdiction(SecDef Memorandum Guidance of March 10, 2008)

• Require specific training for DoD civilian employees and DoD contractors, as required for MEJA jurisdiction under DoD Instruction 5525.11 (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 Guidance of March 10, 2008:

• Provides summary of “Command Law Enforcement Authority“• “Unique nature of this UCMJ jurisdiction requires sound management over when,

where and by whom it is exercised”;• “There is a particular need for clarity regarding the legal framework that should

govern a command response to any illegal activities by DOD civilian employees and DoD contractor employees overseas with our Armed Forces”;

• “It is important that the exercise of this jurisdiction be based on military necessity to support an effective fighting force and be called for by circumstances that meet the interests of justice, such as:– When U.S. federal criminal jurisdiction otherwise does not apply or federal prosecution is not

pursued, and/or– When the person’s conduct is adverse to a significant military interest of the U.S. (e.g., may

jeopardize good order and discipline or discredit the armed forces and thereby have a potential adverse effect on military operations.”

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Managing UCMJ Civilian Jurisdiction(SecDef Guidance Combines Withholding Actions & Oversight)

Manage Cases by Withholding Article 2(a)(10), UCMJ, Jurisdiction:

1. A. Over all UCMJ offenses except those committed outside the various states of the United States and its territories, possessions, and commonwealths, and

B. Over all UCMJ 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 (i.e., summary and special courts-martial) from commanders who do not possess general court-martial convening authority;

A.. Commander, Combatant Command (COCOM ) has authority to further limit by action withholding authority to specified general court-martial convening authorities within the COCOM and by limiting authority to specified geographic areas within COCOM theater of the contingency operation;

B. Commander, COCOM has authority to further limit by action withholding authority by subordinates against host-nation or third country national employees/contractors serving with or accompanying the armed force in the field;

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Managing UCMJ Civilian Jurisdiction (SecDef Guidance Combines Withholding Actions & Oversight)

Withholding Action (Continued):

3. Over nonjudicial punishment actions (Article 15 actions) from all commanders who do not possess general court-martial convening authority;

4. For concurrent jurisdiction offenses:

By agreement between DoJ and DoD, withhold UCMJ authority to act until:

1. DoD/GC first formally notifies DoJ/DSS of COCOM-reported case, and

2. DoD affords DoJ/DSS 14 calendar days to review the case and advise if Federal

jurisdiction will be pursued. Extension requires agreement of Deputies AG and DoD

3. After 14-day review period, DoD may inform DoJ of intent to pursue UCMJ jurisdiction and inform command it may proceed at its discretion.

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Managing UCMJ Civilian Jurisdiction (SecDef Guidance Combines Withholding Actions & Oversight)

Oversight:

1. Civilian employees or contractors attached for UCMJ purposes to a specific armed force general court-martial convening authority conducting contingency operation;

2. Secretary’s “withholding action” to general court-martial convening authorities would be accompanied by requirement that general court-martial convening authorities first notify Commander, Combatant Command (COCOM) 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

3. Following notification procedures of DODI 5525.11 for potential MEJA cases, similar formal 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

– Provides DoD/GC opportunity to notify DOJ/DSS of possible U.S. Federal offense (MEJA)

– United States v. Alaa Mohammad Ali is the first UCMJ Case – Convicted in 2008 and sentenced to 5 month’s confinement. Case is under ongoing post-trial review, but Ali is now back in Canada.

– Approved proposals to be incorporated in changes to DODI 5525.11 and Part 153, of title 32, CFR

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Notification Process(Senior Official Oversight)

SECRETARY OFDEFENSE

Chairman, JCS and Joint Staff

General Counsel OSD Staff

DOJ

CommanderCombatant Command

Commander(GCM Convening Authority)

Documents

1 Robert E. Reed Associate Deputy General Counsel (Military Justice and Personnel Policy) Department of Defense Date: August 4, 2009 Congressional March