Blackwater under UCMJ

Chapter 7 - A Mad Tea-Party

Prologue

Last time, we looked at an Air Force shooting at Manas Air Base and at the Blackwater Christmas Eve shooting in Baghdad. We found that the “absolute immunity” storyline is myth—contractors in Iraq do receive immunity, but it is a limited immunity where they are subject to local prosecution for any act not required by U.S. government contract. We also found that the treatment of contractors under CPA Order 17 is similar to the treatment of contractors under SoFA agreements worldwide.

Learning that the “total immunity” tagline doesn’t jibe with the facts is a real buzzkill for radicals from both ends of the political spectrum, but don’t worry guys, to paraphrase that insightful lyrical genius 50 Cent, “I still love you like a fat kid loves cake.”

Speaking of people who should be in prison, this week we’ll stick with the same two case studies and consider how these accused can be punished under U.S. military law, which is of course different from whether they should or will be. (The fact that the Blackwater armorer was not comfortably installed in a dank penitentiary cell for 20-to-life before Boxing Day is anathema to pundits and politicians whose vitriol masquerades as change-the-world sanctimony. But no matter how guilty either one of these shooters may be, there is this little thing we like to call “due process of law.”)

For purposes of analyzing the accountability question, though, we’ll throw due process out the window and (1) will not take into account the self-defense arguments of both accused individuals and (2) will assume that a criminal act was committed in each case.

This is liable to be so dry that trees will be following dogs around, so hang on …

Military Justice, “Old School”

More than a year before the Declaration of Independence, and more than a decade before the Constitution or Bill of Rights existed, the Second Continental Congress approved 69 Articles of War to govern the conduct of the Army.

Those who decry mercenaries and rail against this “new threat” of armed contractors might note Article XXXII, which provides that “All suttlers and retai[n]ers to a camp, and all persons whatsoever, serving with the continental army in the field, though not [e]nlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army.”

Next time you run into Samuel Adams or George Clinton (no, not the “lager” pouring out of the same tanks as Iron City or the P.Funk All-Star originator of the inimitable “Atomic Dog”), you’ll have to ask those Founding Fathers if previously discussed “mercenaries” like Layfayette and von Steuben were subject to the Articles because they all had commissions, or if some of them were subject by virtue of “serving with the continental army in the field.” Either way, armed contractors falling under the military justice system were clearly contemplated by the Fathers and—as shown by the 20’s-series Articles providing for punishments up to and including the death penalty—they weren’t kidding around.

The Articles of War were revamped in 1806, going from 69 to 101 Articles, but the contractor / mercenary provisions were effectively unchanged (albeit renumbered). After that 1806 rework, the Articles were pretty much left alone. From Lewis and Clark’s expedition, Sherman’s March, and Little Bighorn, through the Great War and into WWII concentration camps, civilian contractors both accompanied the force and were subject to military courts-martial under the Articles.

WWII, however, proved to be an acid test for military justice. I mean, you court martial 1.7 million people in just a few years and you sorta notice the bugs in the system, you know? So in 1950, the Articles of War were replaced by the UCMJ, and the long tradition of military justice for deployed contractors was reflected in their inclusion on the laundry list of people subject to the UCMJ. Specifically, the Code applied to: “In time of war, persons serving with or accompanying an armed force in the field.”

232 years of military justice history in five paragraphs, with all the analytical depth of a puddle. Breathtaking!

No wonder that smokin’ jailbait hottie down at the local kwik-e-mart gives me that knowing look every time I buy another dozen worthless lottery tickets as if to say, “I might flirt with you, if you weren’t just a loser with a moderately amusing but mainly obscure website.” That, or she is thinking “You look just like a younger George Clooney … if he were a hobbit.” Tramp.

The Supremes: “Nothing But Heartaches”

Given this history, the question would be what happened to military law such that by 2005, SecDef Rumsfeld was claiming of contractors: “they’re not subject to the uniform code of military justice?”

The answer would be the courts.

During the War of Northern Aggression, President Lincoln found that whole habeas corpus thing rather inconvenient. So he “suspended” it. (Don’t fret, Congress had his back.) BTW, for those who think nasty partisan politics and vicious attacks were born in either the Clinton or Bush II regimes, here is what was said of American icon Lincoln in his own time: “[He] is the fungus from the corrupt womb of bigotry and fanaticism … a worse tyrant and more inhuman butcher than existed since the day of Nero.” Hoooah!

Meanwhile, one Mr. Lambdin P. Milliken (I couldn’t make this stuff up) was a charming Copperhead war protester who plotted to seize arsenals and release POWs throughout the Northwest. His arrest, court martial, and death sentence, however, proved a slight setback to that scheme.

Millikin ended up before the Supreme Court, which went through the applicable law like a tornado in a trailer park, focusing on pesky things like lack of a grand jury and right to jury trial. The Supremes didn’t object to suspension of habeas, but they did start a trend of restricting military trial of civilians on Bill of Rights grounds. While this case didn’t change the rules for contractors, it laid the foundation for change.

During the 20^th century, the high court continued to restrict civilian courts martial by striking down military-law convictions of other civilians such as dependents and non-deployed individuals based on Bill of Rights concerns. Deployed contractors, however, were still covered. Then during Vietnam, a lower appeals court expanded the Supreme Court position, declaring that deployed contractors were only subject to court martial during a declared war, another one of which is about as likely in our lifetime as Adam Sandler winning the women’s gold in rhythmic gymnastics at the 2008 Olympics.

Is He Is, or Is He Ain’t?

So, these court decisions mean that the Blackwater armorer avoids a military trial, right? Well, not exactly.

Two months before the Christmas Eve shooting, the 2007 Defense Authorization Act amended the applicable UCMJ article by changing "In time of war ..." to read "In time of declared war or contingency operation ….” (Interestingly, this Act is the same omnibus trainwreck that reworked the Posse Comitatus Act.) At first glance, this new UCMJ language would seem to resolve the court-precedent hurdle.

It certainly means, for example, that contractors at the gianormous Balad military base, from logisticians and translators to intel analysts and armed guards, once again clearly fall under the UCMJ. There are, however, three problems, and one of them goes directly to the Blackwater armorer.

The DoD Slow Roll

Ask your run-of-the-mill private contractor, soldier, sailor, or even JAG officer (when the latter are not out piloting stolen strike aircraft or parachuting behind lines for covert specops missions) what P.L. 109-364 did to the UCMJ and their response, if not deer-in-the-headlights, will likely be unprintable or as enlightening as an explanation from a Wookie. You see, the military doesn’t deal in laws, it deals in implementing regulations and directives.

When the military wants to court martial someone, it turns to the Manual for Courts Martial (MCM). And whether you call it by its Public Law number, its accompanying U.S. Code section, or its UCMJ section, any “new piece of law” is pretty much of only academic interest to the military until it is implemented into the MCM by Executive Order of the President. And in the annual MCM update for 2007, the new Defense Authorization Act language is nowhere to be found. Of it, the Army says only “it is unclear how this change will be implemented and precisely what the ramifications will be.”

Until that happens, you can plan on JAGs avoiding contractor trials like the herpes.

Civil Rights

The potential concerns with regard to military trial of civilians are many and widely reported. Most obvious are the Fifth, Sixth and Eigth amendment issues (discussed above) previously raised by the courts, but there are also messy questions about which deployed civilians will be covered—Government employees? Embedded reporters? Foreign nationals? Many of the Bill of Rights questions can be found in the reporting on military commissions / tribunals trying terror suspects. There are also questions of whether we as a nation are ready to subject civilians to court martial for, by way of example, failing to get a haircut, being overweight, or reckless driving.

The calls for Old Testament justice to rain down on mercenaries are not limited to a party or ideology (e.g., Republican Senator Graham was the source of the UCMJ change), but to swerve into opinion for a moment, it is amusing that some of those calling most vehemently for security contractors (including citizens) to be crushed under the courts-martial system without civil protections are among those cheering most gleefully for terror suspects’ (including foreigners) removal from military proceedings and grant of full civil-court Bill of Rights protections. Disturbing on so many levels, we would scarcely know where to begin.

The Loopholes

Here is the more fundamental problem: the Graham amendment is guilty of a military cardinal sin: fighting the last war. It covers incidents that came before it, but it does not look ahead to where deployed contracting, and private security in particular, is headed. In fact, where it is already.

The amended UCMJ applies to “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.” Thus, the Balad gate guard would be covered, but looking beyond Iraq to, for example, a gate guard back at Manas Air Base in Kyrgyzstan, he or she is with the force, but are they part of a contingency op? Further, it is not clear that contractors performing tasks loosely or not related to DoD, such as guarding USAID sites or protecting non-DoD government civilians, would be “serving with or accompanying” and therefore covered by UCMJ. And given the nature of that company's work in Iraq, the Blackwater armorer is probably in this category.

As things stand, we have the unique situation of having the contract cook and the janitor at Balad under the UCMJ, but the contractor piloting weaponized Predator drones from stateside and the armed security contractors conducting DEA operations in South America not under the Code.

So Who Gets Court Martialed?

There is not much question that the airman is subject to the UCMJ for his killing while on duty at Manas. As far as the Blackwater contractor, presuming the change is implemented into the MCM, he will have law professors lining up to argue the complex civil rights issues and the question of whether he was “serving with or accompanying.” So the short answer is … guess we’ll see.

Before you loose all hope of justice, however (again, assuming there was a crime), remember that courts-martial are not the only, or even the best, answer. We still have to look at civilian courts. But that will have to wait until next week. For now, I have to attend to higher matters. My customized red Swingline has gone missing, and I know that schmutz Earl from over in Receiving had something to do with it. He mocks me.

p.s. – The news of the week—splashed across websites everywhere railing about neocon fascists—was the T. Christian Miller story about how if you count local laborers then contractors now outnumber military in Iraq. Have you seen any of the commentary on this issue mention that contractors outnumbered military by a 1.5:1 ratio in Bosnia? Folks, this is an important public policy debate deserving of critical thought, not a cagematch us-v.-them partisan hatefest.

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Next Week: A firm handshake can deter prison rapists.