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24 March 2008

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Non-JAG OFF

It's rare that I have anything positive to say about establishment insiders, but I have gotten the impression that, ever since he was confirmed in office, Secretary Gates has been making efforts to put DOD and the military itself back on a professional basis. This appears to be one such effort. This is an intelligent thing to do since it's not a very good thing for armed forces to have to worry about rogue, paramilitary units operating in their area of operations beyond the law with all the inevitable blowback that they will bring upon uniformed, disciplined troops who are subject to a code of military justice.

Minnesotachuck

Isn't it a little late?

mlaw230

The UCMJ is an appropriate, practical and servicable system for the situation. The question remains as to what system applies if DOJ does take jurisdiction, where juridiction normally does not lie. One can be sure that defendants caught up in the system will claim that whatever path was chosen was exactly wrong.

mikeyes

But most of these private armies are neither serving with or for the Dept. of Defense. Most are attached to State or to the private contractors and are not under those contractual obligations that the DOD imposes.

So the DOD has no jurisdiction if I read your thread correctly.

Montag

This problem was encountered during the Pershing Punitive Expedition into Mexico during 1916-17. As the troops got deeper into Mexico an occupied zone was established into which Chinese businessmen flocked to operate in a de facto support role to relieve the soldiers of their dollars. But when the time came to return to the U.S. some 500 Chinese were about to be abandoned to the revenge of some rather angry Mexicans. The government didn't want to allow them into the U.S. because they were Chinese. So the Army simply took responsibility for them and transported them with the troops over the border. The government saved face by finding an excuse to let the Chinese stay legally. Apparently they were only Chinese in Mexico.

Andy

I'm not a lawyer, but I play one on the internet. That said, here's my take:

The memo specifically says an inquiry or investigation may be started on persons subject to UCMJ or MEJA authority. UCMJ authority currently only extends to DoD civilians and DoD contractors. MEJA extends this to include contractors of other agencies but only those that are directly "supporting the mission of the Department of Defense overseas."

This would probably preclude most Blackwater contractors since they mostly work for State and not DoD and most of what they do is diplomatic protection. They could conceivable argue they are not supporting the DoD mission overseas, but the DoS diplomatic mission.

However, MEJA is in the process of being amended to include basically any contractor "of any department or agency of the United States working in or near an area where U.S. forces are executing a contingency operation." That bill has passed the house by a strong majority and will presumably be taken up by the Senate at some point. (See here for a summary)

Should that extension of MEJA pass then it looks like UCMJ authority (and US criminal law) will extend over pretty much anyone doing anything on a contractual basis for the US government.

I'm personally wondering what this would mean precisely for local and third country contractors. For instance, if the DoD or some other agency contracts out work to an Iraqi construction company and an Iraqi employee of that company is arrested by the military for criminal activity, could this Iraqi citizen be sent to the US for prosecution? Or what if two Pakistani Jingo drivers hauling fuel into Afghanistan get into a fight and one guy gets killed?

I'm assuming here that the US would defer to local authorities and local law in such instances, but it also seems to me this wide authority could be abused by subjecting large numbers of foreign nationals on foreign soil to US law. There will be, I think, unintended consequences from this.

The solution to Blackwater, ISTM is to develop a diplomatic protection service inside the State Department or extend and expand the secret service or the US Marine embassy defense mission. why has no legislation been introduced mandating such a requirement and providing funds for it? (I have stricken a sentence of Andy's comment here as an ad hominen attack on Congress and possibly myself)

W. Patrick Lang

all

The principlie of applying military law to civilians "serving with or accompanying" US forces in the field is of long standing and goes at least as far back as the Civil War. This directive reinforces that principle and organizes it in the present circumstance,

The "serving with or accompanying" language on page 2 of the directive would seem to me to apply to all such people not just those under contract to DoD.

No. It is not too late. There will be other wars and expeditions. pl

W. Patrick Lang

Andy

I think that the ability to extrend UCMJ to these people has been there right along if there had been enough determination to apply it, but the change in the law that you mention would be welcome.

I AM NOT in favor of giving State Department troops of its own. Service in several embassies convinced me that they could never command such a force. pl

Andy

Col. Lang,

It wasn't an attack on you. And my disdain is not for Congress as an institution, but many (but certainly not all) of those who presumably represent us there. I expect our representatives to match their words with actions and the portion of my comment you struck (only a few words, actually) was only meant to highlight frustration with the lack of action matching rhetoric since the 2006 elections. I'm not sure why you would think that was aimed at you personally.

And a diplomatic protection service in my view would not be "troops," but more akin to a secret service "lite." It seems that many countries where State operates are dangerous and our DoS folks deserve better security. For a place like Iraq I believe that US military forces lent to them are preferable to armed contractors. However, I'm happy to defer to your much greater experience on this issue.

Andy

PS. If it wasn't clear before, I do support the new MEJA provisions, I just see the possibility for abuse. As always, robust oversight is a requirement.

condfusedponderer
The principlie of applying military law to civilians "serving with or accompanying" US forces in the field is of long standing and goes at least as far back as the Civil War. This directive reinforces that principle and organizes it in the present circumstance,

The "serving with or accompanying" language on page 2 of the directive would seem to me to apply to all such people not just those under contract to DoD.

And it took them five years to get there again?

It tells you a thing or two how long the clean-up will last after Bush & Cie. have left office.

I am confident that in this point there is deep and insurmountable disagreement between Cheney's Addington and Gates' advisors.

JohnH

Theoretically sounds like a positive step. In practice, it's probably meaningless, since DOD has never bothered to clean up its own messes, like Abu Ghraib. Oh yeah, like banning cameras was a real solution!

condfusedponderer
The principlie of applying military law to civilians "serving with or accompanying" US forces in the field is of long standing and goes at least as far back as the Civil War. This directive reinforces that principle and organizes it in the present circumstance,

The "serving with or accompanying" language on page 2 of the directive would seem to me to apply to all such people not just those under contract to DoD.

And it took them five years to get there again?

It tells you a thing or two how long the clean-up will last after Bush & Cie. have left office.

I am confident that in this point there is deep and insurmountable disagreement between Cheney's Addington and Gates' advisors.

Sidney O. Smith III

A few preliminary thoughts. Secretary Gates’ memo appears to offer a procedural answer to what, in fact, is a profound structural problem, e.g. the use of private security operators to circumvent the Abrams Doctrine. So the goal is obvious: to bring these civilian security operators under USM jurisdiction and control without endangering the liberties of civilians in general.

But all Government prosecutors -- civilian and military -- must face this fact: Washington politicians, in reality, want to see the system of private security operations continue so they can continue undeclared wars without losing any political capital. (as P. Singer points out). Neither Congress nor the Executive branch truly desires to clean up this mess, so it leaves Sec. Gates and others with a tough task.

A procedural approach even if well intended, does not always address the source of the structural problem but instead shifts the problem simply to another level while raising complex questions for others to decide. In this case, the burden now seems to shift down the chain of command to “commanders and law enforcement authorities” who must act accordingly. To act accordingly, at least upon a quick reading, now requires that field commanders have a law degree as they must make a multitude of independent determinations about personal and subject matter jurisdiction as applied to private security operators and their actions. And the legal definitions that could help with making such decisions appear vague, perhaps unconstitutionally vague.

As a civilian, I’d prefer that military field commanders have the opportunity to spend as much time as possible reading up on COIN operations and spending time out in the field, and not having to stay up the entire night reading US Supreme Court precedent.

So the first step in the analysis perhaps is to try to look at it through the eyes of a field commander, with the hopes of simplifying the legal task. In my view, the goal perhaps should be to set up a procedure where a commander could view any private contractor/employee as he would a uniformed soldier, so he (or she) doesn‘t have to play role of a magistrate judge determining probable cause, first for one group of people and then another. In other words, any snap decision he would make for a soldier he now can make for a private security operator. An additional objective admittedly is this: place the commander in a position where he can order the private security contractor exactly as he would a soldier. It is the approach of giving the commander the ability to tell a private contractor, “Do as I say” or words to that effect.

So the question arises: why not require all DoD contracts between the USG and security operators to contain a nonnegotiable provision that places the private contractor and all employees under the jurisdiction of article 2 of the UMCJ? It is simply part of the bargaining process. Maybe such already exists but, if not, it would seem to make the decision process less cumbersome on military commanders.

With the way it now stands, the procedure appears to give any defense lawyer an infinite variety of arguments to help a private security operator avoid successful prosecution. At least from what I can glean from a quick reading, the issue with the most room to maneuver is the question of whether or not a particular security operator accused of wrongdoing was “serving or accompanying armed forces”. As an example: does defending State Department personnel allow a private security operator to escape jurisdiction? Any good defense lawyer could tie this issue up for a long time.

Maybe that phrase -- “serving or accompanying armed forces -- has been defined statutorily with great precision but in the past it has been left to common law, so the scope of such a legal phrase will remain subject to litigation and precedent from the courts, particularly with the rise of the “corporate warrior”, to borrow a phrase from Singer. And even if it is defined statutorily, then the statutory definition is subject to a constitutional attack.

And then there is the question of concurrent or exclusive jurisdiction under the UCMJ and MEJA. On a practical level, answering such a question on an ad hoc basis will tie up resources, thus hampering what should be COIN operations. And I am left wondering this hypothetical: if a USM commander has determined that a private security operator, through a pattern of behavior, has undermined the COIN objective, then does such a commander have the right to detain a operator, assuming probable causes exists?

And the procedure appears to create obstacles that will hamper an effective investigation of a “crime scene”. First, in any “alleged” incident, presumably, military investigators arrive on the scene. Then perhaps USDOJ investigators or the FBI decide to take over the case. Anytime separate investigating bodies take on different phases of crime scene analysis, odds increase that evidence will be lost or become stale. Plus USDOJ investigators and USM investigators may employ different techniques and different standards, including chain of custody as to tangible evidence. And odds increase of friction between the different investigating bodies.

A possible recommendation: instead of giving the USDOJ first shot --as set up now -- allow the USM to maintain exclusive jurisdiction over issues of criminal liability, aka violations of the UCMJ. Or alternatively, give the USM first shot. And then give federal courts jurisdiction over issues of civil liability. Of course, if evidence of a prior conviction by the USM is admissible in civil litigation, then odds increase greatly that its history for the private security corporation when sued. As a result the USM increases its control over the actions of the private contractor.

That said, a return to the Abrams doctrine appears the only true answer, at least in my view.

robt willmann

Unfortunately, I have never been involved in a case under the Uniform Code of Military Justice, nor have I read the UCMJ.

With that rather large disclaimer, the memorandum from Secretary of Defense Robert Gates, dated recently as March 10, 2008, contains a few interesting tidbits.

First, the military will continue to investigate the matter while the bureaucratic procedures take place concerning whether the Department of Justice (DoJ) will get involved. This is in the body of the memo, as well as in Attachment 2, paragraph 3, and in Attachment 3, parts 4-a and 4-c. This, coupled with the "Command Law Enforcement Authority" to arrest people set out in Attachment 1, could allow the military to detain a mercenary, such as from Blackwater, before that person can be slipped out of Iraq and to Europe or the U.S.

Second, if the DoJ says it will pursue federal criminal charges against the person, or at least investigate (or pretend to investigate) the matter, the military's authority to start a court-martial or do non-judicial punishment is only "withheld", and is not "waived". Attachment 2, paragraphs 3-4, and Attachment 3, parts 4-d and 4-e. The DoJ is also given a short time period in which to decide--14 days--unless an extension of time is agreed upon. Attachment 3, part 4-b. These sections will let the military hang onto any case so that the DoJ and other political operators cannot sweep something under the rug for "political" or "diplomatic" reasons.

The importance of this ability to keep the option of military jurisdiction open is emphasized at the beginning of Attachment 3, where it can come into play if "federal prosecution is not pursued", or the alleged misconduct "may ... discredit the armed forces and thereby have a potential adverse effect on military operations".

This example of the option of the jurisdiction should be notice to Blackwater if its mercenaries seek to indiscriminately mow people down with automatic weapons, which apparently happened not long ago in that nasty, publicized incident in Baghdad.

However, since most of law is vocabulary, who is "covered" by a rule is the first issue. Gates in his memo speaks of military forces operating "alongside DoD civilian employees and DoD contractor personnel ...." Whether "contractors" from the State Department or other agency would fall under this jurisdiction would depend on the text of the UCMJ. The language of Gates' memo would obviously not override the statute.

One statement that has no place in the memo, or anywhere else, was put on page one: the Global War on Terrorism (GWOT). This vacuous propaganda device has been used fraudulently to justify destructive conduct to advance the gangster foreign policy. Terrorism, to the extent it can even be defined, is a tactic, technique, or methodology. A "war" on a tactic or technique is obviously impossible.

Except for that one dangerous statement of especially harmful propaganda, the memorandum may turn out to be quite useful.

Sidney O. Smith III

A quick redux:

Another preliminary thought: The procedure described in Sec. Gates’ memo may leave a major loop hole, large enough to drive a truck through.

As an example: suppose Blackwater committed some act that violated the UCMJ. Cheney wants to quash any prosecution. All he has to do is get Addington to call the USDOJ and tell them to pick up the case. Once they do, then USDOJ can deep six the case during the investigation or, alternatively, during Grand Jury stage. Or it can plead it out for next to nothing.

Possible recommendation: Sec. Gates’s memo should set up a procedure where the USM is never excluded from prosecuting a case. The USM gets first shot and the right to preserve the evidence.

Also…the legislature should create a statutory cause of action where the USG, through the USDOJ, specifically has the right to pursue civil liability against private security operators. This statutory right is triggered automatically once the USM initiates a prosecution (a conviction is not required). In fact, the USDOJ is obligated to pursue such a civil action once the USM establishes that probable cause exists, although it can wait until a verdict in the prosecution is reached. The legislation should specifically state that evidence of the USM prosecution is admissible in any civil proceeding in federal court. Punitive damages are applicable and only the USG can waive any right to a jury trial (and elect a bench trial).

Congress won’t admit it but it desires to protect private security contractors, even at the expense of hampering USM objectives and endangering USM personnel. However, I think any Congressman would be hard pressed to explain why creating such statutory cause of action is unwarranted. It would suggest publicly that such a Congressman was against the US military.

Regardless, the memo does raise interesting questions.

inquire

Col Lang,

Speaking of items of some importance the MSM have overlooked, I am wondering if you were aware of, or followed, the Winter Soldier proceedings that occurred just outside Washington last week?

They were covered extensively by Democracy Now! (democracynow.org) but ignored nearly everywhere else. It was organized by Iraq Veterans Against the War ( http://ivaw.org/wintersoldier ). Do you think the Winter Soldier of the early 70s was an important event? Do you think this most recent public tribunal is important, helpful, or otherwise?

As an attentive foreign (Canadian) observer of your country's political processes, the recent Winter Soldier was an amazing and hopeful thing to have happen - if only more citizens had been made aware of it.

Thanks

JerseyJeffersonian

All,

There are two organizations partially devoted to the provision of security to diplomatic personnel under the authority of the DoS. With the usual caveats, please see the articles in Wikipedia:

http://en.wikipedia.org/wiki/Diplomatic_Security_Service

http://en.wikipedia.org/wiki/Bureau_of_Diplomatic_Security

Presumably, the dire security situation which obtains in Iraq could have been advanced as justification for the employment of private contract security forces to supplement (or replace) agents from the two agencies directly under the control of the DoS, not forgetting the historical role of the Marine Corps in protection of embassies, of course.

I hope that this may add to the discussion in some small way.

Montag

Colonel, Civil War indeed. U.S. Grant was libeled as anti-Catholic on the basis of one such incident. Father Paul Gillen held services throughout Grant's department until Grant kicked him out under an order forbidding "citizens" in the military area, and reportedly put him under arrest. Gillen joined the 170th New York as chaplain and ended the affair.

General George Meade objected to the way he was treated in a dispatch filed by Edward Crapsey of the Philadelphia Inquirer and ordered Crapsey to be expelled by the army. The unfortunate correspondent was placed backwards on an old horse, a placard marked "Libeler of the Press" was tied to his chest, and he was paraded through the army to the tune of "Rogue's March."

General George Hooker issued orders that all dispatches had to be published under the correspondent's name. Robbed of the anonymity that had protected their speculation, inaccuracy, and comment, the correspondents with Hooker became much more discreet.

Cold War Zoomie

As an evil DoD contractor, this is the most important point to me:

When offenses alleged to have been committed by civilians violate U.S. Federal criminal laws...

Most contractors are ex-military. Many of us are one-term wonders. We accepted the strict codes of conduct and broad authority and variety of punishments under the UCMJ while we were serving. But when we got out, we expect to be treated like a civilian again.

It is clear that the contractors are not being held to the same standards of conduct as the active duty service members. By that I mean that contractors have to actually commit a crime under civilian code, not what the UCMJ considers an offense. If a contractor is caught malingering or drunk on station, then they should be fired rather than given something akin to an Article 15. So, that's well and good as far as I'm concerned.

One potential problem I see is with any gung-ho NCO who might want to start treating contractors like they're active duty once the word comes down that the UCMJ applies to them. I've had to deal with "lifers" who never worked in the civilian world before joining the military, and they have problems understanding that the military way ain't the only way to manage people.

One more issue would be in the event of an actual court-martial. I'm sure there is some animosity between active duty forces and contractors in Iraq right now. In fact, when I was interviewing for a position over there that was one of my biggest concerns about doing the job since it would be in the field rather than REMF work. I'd just be another over-paid FOM (Fat Old Man) shitbird in some of their eyes. So, when it's time for a court-martial there is the possibility that your "peers" are not too fond of you before they even hear the case.

The solution is not to twist and turn the UCMJ to apply to civilians. The solution is to get the civilians out of the war fighting business and keep them where they belong in strategic installation support roles. That way officers and NCOs can operate under one code that they are accustomed with. They can keep the same management culture that works well for active duty forces but doesn't work too well with civilians.

The reliance on contractors is a serious, serious problem. And it's only going to get worse. Even us contractors recognize that. After all, many of us served and really do care about our forces. Contracting is like a cancer.

Cornfed

When looking this over keep in mind that the potential definition of "contractor" in this situation extends well beyond just the guys with the guns. While those individuals have provided us with some of the most egregious examples of the need for greater oversight and control other quieter crimes have been mounting, unanswered.

The problem with substandard the Chinese pumps for example:
http://www.post-gazette.com/pg/08080/866631-85.stm

I think the parents will have a hard time in their civil suit, precedent is not on their side. But, switching from my law hat to my Occ. Health and Safety hat, this does appear to verge on criminal (it's a high hurdle unfortunately, hence the verge).
That this directive could address such issues has the potential to be very interesting.

Russell J Coller Jr

To CWZ: Excellent points, but as you know, the bad apples DO need to be dealt with swiftly in any difficult, high-stakes situation. (Wall Street, County jails, ice-cream stands, Armed convoys...)
Quite simply, there is nothing the Secretary of Defense needs more than a direct chain of accountability down to every dude with a weapon in his area of responsibility. (i.e.: Earth.)
Don't like it? Plenty of Barney Fife jobs out in God's country. You are smart enough to know that, pal.

Green Zone Cafe

I'll believe it when I see an Article 35 hearing against a civilian contractor.

There are several problems. The first is the unholy alliance between DOS/DOD public affairs officers and contractors who wish to cover up misconduct. The theme is lie and deny when any misconduct is alleged, especially when only those Iraqis are the victims.

The second issue is the unwritten rule that if you have to kill 100 innocent Iraqis to keep the State principals alive, so be it. This accounts for all of the old Iraqi guys dead now because they got a little inattentive and too close to a BW convoy. This is the alliance between the Diplomatic Security Service and BW - DSS covers BW's ass. It's why DSS offered immunity to the BW witnesses after Nisoor Square last year.

I'm sure that many military commanders would love to prosecute some of these contractors - they make things tough for military guys trying to build good will - but the USG agencies being protected by those contractors will protect them in turn.

The other issue is the danger of Mickey Mouse rearing its head on contractors and civilian employees. The question of gunslinger contractors drinking is a good one - already Dyncorp has banned its employees from drinking after a couple of incidents of alcoholic gunplay, while BW still allows its operators to drink copious amounts of Jack Daniels and Turk-brewed beer off-duty. But I've seen DOD civilians with the Corps of Engineers sent home for having a beer. Seems kind of counterproductive when you can't fill the positions you have. The older, highly educated "nation building" consultants for State and USAID are not going to want to live under the kind of oppressive rules that KBR lives under.

Blue Girl, Red State

I am certainly no fan of Robert Gates. His name has been spat like bitter invective in my household my entire life. I can not remember a time when one or the other parent was not cursing his name.

I was raised to detest the man and I most certainly do - but I also respect the talent. Gates isn't the kind of guy who would mow down the office with an automatic weapon. He is the kind of guy that would poison the coffee pot, make himself a cup of tea, spend the morning working in his office with the door closed then step over the bodies on the way to lunch without ojnce looking down.

Like I said, I despise the man but respect the talent.

In that vein I have to give the devil his due, and garner my support for this bold move on his part.

If his goal is to just keep it together as best he can and minimize the damage done by these miscreant fucks until the next administration takes over, then props for that, too.

William R. Cumming

Perhaps a few basics in the form of questions should be asked? I think overall the document issued by Gates is helpful to US image and operations but what were the T's crossed in producing the document? First, was it cleared by DOD lawyers, including military JAG types? Was it cleared by any other department or agency such as STATE or DOJ? DOJ has no investigation unit except the FBI and limited capacity to do so in the US Marshall's Service. So are there written procedures extant in those organizations? What if the contractors are not formerly under written contracts? If not, and the act being investigated is brought to the attention of anyone, does the memo even apply? Does it make a difference as to whether it is a combat zone, hostile fire zone, theatre of war etc? What about aliens accompanying our soldiers? Does it apply to citizens only, or all non-US contractors? What are the internal DOD implementation procedures and delegations? Usually UCMJ changes are promulgated by Presidential Directive, why not here if it is expanding UCMJ coverage? Who is in charge of its administration in both DOD and the military? Is it self-executing or does it require further elaboration? Does it rescind or supercede any prior policy? What is the authority under which it is issued? Did Gates even have authority to issue it? Both statutory or other authority? DOD directives are usually guidance and have no force of law behind them, but may impact obligation of funds? What is the funding for this mechanism when and if triggered? Did the UN concur or get a chance to review? Or the ICC (International Criminal Court and its lawyers)? Whose rights and obligations exactly does it modify? How are acts determined to fall within its scope? Still my bottom line a good step that it was issued. Since the Army deploys JAG officers down to the Battalion level in part to determine rules of engagement, will they be trained on this memo and be the line authority or just advisors? Once again Congress has sat sucking its thumb while a huge issue was allowed to fester!
No hearings, no oversight, no legislation. But they all want to be re-elected.

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