Court-Martial Jurisdiction Over Civilians
in Contingency Operations:
A New Twist
Colonel R. Peter Mastertont
I. INTRODUCTION
On October 17, 2006, Congress passed a new law making civilians
accompanying the armed forces during "contingency operations" subject to
trial by military court-martial. 1 Previously, such civilians were subject to
trial by court-martial only during a declared war, something which has not
occurred since World War 11.2 The new law expanded the jurisdiction of
military courts-martial to civilian employees, contractors and others who
accompany the United States military in Iraq, Afghanistan, and other
combat zones around the world. 3
The number of civilians accompanying the United States military during
combat operations has expanded dramatically in recent years. Many of the
functions that used to be performed by service members are now being
performed by civilians. 4 Inevitably, some of these civilians commit
'Commander, U.S. Army Claims Service, Fort Meade, Maryland. At the time this article
was written the author was the Chief Circuit Judge, 5th Judicial Circuit, U.S. Army Trial
Judiciary, Wuerzburg, Germany. In this role he tried Army courts-martial in Iraq and
Afghanistan.
I.
John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L.
No. 109-364, 120 Stat. 2083, 2217 (2006). Among other things, this law amended Article 2
of the Uniform Code of Military Justice [hereinafter UCMJ]. 10 U.S.C. §§ 801-946 (2006).
Previously, Article 2(a)(10) provided that "in time of war, persons serving with or
accompanying an armed force in the field" were subject to court-martial jurisdiction. 10
U.S.C. § 802(a)(10) (2000). The October 2006 amendment struck the word "war" and
substituted the words "declared war or a contingency operation." 120 Stat. 2083, 2217.
2.
United States v. Averette, 41 C.M.R. 363, 365 (C.M.A. 1970).
3.
The Washington Post, Law Could Subject Civilians to Courts-Martial,STARS &
STRIPES (Mideast ed.), Jan. 16, 2007, at 4. Information on obtaining archived copies of this
publication can be obtained at http://www.stripes.com/webpages.asp?id=23&nl=3.
4.
Richard Lardner, DOD's Link to ContractorsRaises Concerns, STARS & STRIPES
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
5
criminal offenses.
Previously, military commanders had limited ability to prosecute these
civilians. Civilians either had to be prosecuted by local courts in the combat
theater or sent back to the United States to face trial in federal district court
under the Military Extraterritorial Jurisdiction Act. 6 Neither of these
options have been widely used. Local courts may be nonexistent, and
where they do exist, local prosecutors often have been reluctant to
prosecute United States citizens. 7 Sending civilians back to the United
States for prosecution under the Military Extraterritorial Jurisdiction Act is
a complex process that has been little used, except in particularly serious
cases. This process was resulting in a great disparity between the
prosecution of service members and civilians in combat zones. 9 As one
reporter put it, "[i]n Iraq we court-martial and imprison soldiers ...[b]ut
the contract soldiers who fight alongside them... operate in a law-free
(Mideast ed.), Feb. 5, 2008, at 5. This article estimates that there are 196,000 contract
employees working for the U.S. Department of Defense in Iraq and Afghanistan compared
to 182,000 U.S. service members in these countries. See Major Joseph R. Perlak, The
MilitaryJurisdictionAct of 2000: Implicationsfor ContractorPersonnel, 169 MIL. L. REV.
92, 139 (2001); Kara M. Sacilotto, Jumping the (Un)Constitutional Gun? Constitutional
Questions in the Application of the UCMJ to Contractors,37 PUB. CONT. L.J. 179, 182
(2008).
5.
See, e.g., Associated Press, Justice Dept. Asked to Detail KBR Rape Case
Investigation, STARS & STRIPES (European ed.), Dec. 13, 2007, at 10; STARS AND STRIPES,
Women Complain of Lack of Response from KBR to Sexual Assault Reports, STARS &
STRIPES (Mideast ed.), Feb. 14, 2008, at 6; Associated Press, Judge: Rape Claim Against
Halliburton Can Go To Trial, STARS & STRIPES (European ed.), May 11, 2008, at 10.
Contractor misconduct received heightened scrutiny after the shooting of Iraqi civilians by
employees of Blackwater USA, a private security company, in September 2007. Sinan
Salaheddin, Iraq Plans Review of Status for Blackwater and 2 Other Firms, STARS &
STRIPES (Mideast ed.), Sept. 19, 2007, at 3.
6.
18 U.S.C. §§ 3261-3267 (2006).
Captain Glenn R. Schmitt, The Military ExtraterritorialJurisdiction Act: The
7.
Continuing Problem of Criminal Jurisdiction over Civilians Accompanying the Armed
Forces Abroad - Problem Solved?, ARMY LAW., Dec. 2000, at 1. U.S. military personnel
enjoy immunity from prosecution by Iraqi courts. Until the summer of 2008 this immunity
also extended to U.S. contractors operating in Iraq. However, in July 2008 the media
reported that the United States had agreed to lift this immunity for U.S. contractors. Sabrina
Tavernise, U.S. Agrees to Lift Immunity for Contractorsin Iraq, N.Y. TIMES, July 2, 2008, at
A2.
8.
Sacilotto, supra note 4, at 183; Major Glen R. Schmitt, Amending the Military
ExtraterritorialJurisdictionAct of 2000: Rushing to Close an Unforeseen Loophole, ARMY
LAW., June 2006, at 41 n.8.
9.
Leo Shane III, Report: Contractors Not Being Prosecuted, STARS & STRIPES
(Mideast ed.), Jan. 17, 2008, available at http://www.stripes.com/article.asp?section=104&
article=51695.
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
67
,,I0
zone ....
The new law was designed to remedy this disparity by making civilians
11
and service members subject to the same military prosecutions.
Unfortunately, military court-martial procedures were developed for
service members, not civilians. As a result, a number of issues will need to
be addressed when civilians are tried by military courts-martial.
This article will discuss the historical background of military
prosecutions of civilians that led to the new law. It will then discuss the
effect of the new law on civilians, some of the procedural problems raised
by the law, and the law's constitutionality. Finally, the article will propose
solutions to the procedural problems the new law has created.
II. HISTORICAL BACKGROUND
United States courts have long expressed reservations about military
criminal prosecutions of civilians. Such prosecutions have been permitted
only in limited circumstances. 12
Military commissions are one method of prosecuting civilians for
criminal acts. Military commissions received notoriety due to their recent
13
use by the President in prosecuting suspected terrorists.
Over a century ago, in Ex Parte Milligan, the Supreme Court rejected
the use of military commissions to try civilian residents of the United
States. 14 In Milligan, a military commission tried the defendant, a resident
of Indiana during the American Civil War, for aiding the Confederacy,
even though the civilian courts were open and functioning. 15 The Supreme
Court held that his trial violated the right to a grand jury hearing under the
Fifth Amendment of the United States Constitution and the right to a trial
10.
DAVID CAY JOHNSON, FREE LUNCH 20 (2007).
11.
The new law has little legislative history. It was offered as a floor amendment to
the 2007 Defense Authorization Act by Senator Lindsey Graham. Sacilotto, supra note 4, at
185. The media reported that the bill was designed to reduce the disparity between the
prosecution of civilians and service members. See Washington Post, supra note 3, at 4.
12.
See infra notes 13-52 and accompanying text.
13.
See generally American Bar Association Task Force on Terrorism and the Law,
Report and Recommendation on Military Commissions, reprinted in ARMY LAW., Mar.
2002, at 8; Major Michael 0. Lacey, Military Commissions: A HistoricalSurvey, ARMY
LAW., Mar. 2002, at 41; Major Timothy C. MacDonnell, Military Commissions and CourtsMartial: A Brief Discussion of the Constitutionaland JurisdictionalDistinctions Between
the Two Courts, ARMY LAW., Mar. 2002, at 19; R. Peter Masterton, Military Commissions
and the War on Terrorism, 36 INT. LAW. 1165, 1165 (2002); Major General (Retired)
Michael J. Nardoti, Jr., Military Commissions, ARMY LAW., Mar. 2002, at 1.
14.
71 U.S. 2, 76 (1866).
15.
Id. at 6, 15, 29.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
by jury under the Sixth Amendment. 16 Similarly, in Duncan v.
Kahanamoku, the Supreme Court rejected the use of military trials of
civilians who were under martial law in Hawaii during World War 11.17
United States courts have permitted military commissions to try enemy
combatants who violate the laws of war. In Ex Parte Quirin, the Supreme
Court upheld a military trial of Nazi saboteurs who were caught in the
United States during World War 11.18 The defendants were caught wearing
civilian clothes while attempting to carry out sabotage missions in the
United States. 19 The Court found them to be unlawful enemy combatants
20
and upheld the President's decision to try them by military commission.
United States courts have also permitted military commissions to try
civilians in occupied territories overseas. This issue was addressed after
World War II, when the United States occupied large areas of foreign
territory. In Madsen v. Kinsella, the Supreme Court upheld the jurisdiction
of such commissions to try civilians accompanying the United States
Armed Forces in occupied territories overseas. 2 1 The defendant in Madsen
was a United States citizen who accompanied her husband, an officer in the
United States Air Force, to occupied Germany. 22 A military commission
subsequently convicted her of murdering her husband. When she later
challenged the commission's jurisdiction, the Supreme Court upheld her
conviction, pointing out that the defendant was immune from prosecution
by the German courts; only the United States military courts had
jurisdiction over her case. 2 3
In Hamdan v. Rumsfeld, the Supreme Court struck down the President's
recent use of military commissions to try suspected terrorists. 24 The Court
found the use of such commissions to try enemy combatants overseas to be
unlawful, absent congressional authorization. 25 After Hamdan, Congress
passed legislation authorizing the President to use military commissions in
the Global War on Terrorism. 26 Based on this legislation, the military is
16.
Id. at 122-23; See also U.S. CONST. amend. V, VI.
17.
327 U.S. 304, 324 (1946). This case dealt with trials by provost courts. However,
the Supreme Court analyzed these courts in the same manner as military commissions. Id. at
327 (Murphy, J., concurring).
18.
317 U.S. 1,48 (1942).
19.
Id.
20.
21.
22.
23.
24.
25.
26.
Id. at 36-38, 48.
343 U.S. 341, 361-62 (1952).
Id. at 343.
Id. at 361-62.
548 U.S. 557, 557-58 (2006).
Id. at 594-95, 635.
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
69
proceeding with prosecutions of a number of terrorists. 27 However, the
new law only applies to "alien enemy unlawful combatants." 28 It does not
permit the trial of civilians accompanying American forces.
A second method used to prosecute a civilian for a crime is trial by
court-martial. Before and during World War II, a number of civilians were
tried by court-martial under the Articles of War. 29 Article 2 of the Articles
of War provided for jurisdiction over two classes of civilians: (1) persons
30
accompanying the military outside the United States
and (2) persons
31
war.
of
time
in
field
the
in
military
the
accompanying
In 1950, Congress enacted the Uniform Code of Military Justice
(UCMJ), which replaced the Articles of War. 32 Similar to the provisions of
the Articles of War, the UCMJ contains provisions granting court-martial
33
jurisdiction over civilians.
Article 2(a)(l 1) of the UCMJ provides authority to court-martial
civilians "accompanying the forces outside the United States .... 34
at 10 U.S.C. §§ 948-950 (2006)). On June 12, 2008, the Supreme Court ruled that the Act's
suspension of detainees' right to habeas corpus review was unconstitutional. Boumediene v.
Bush, 128 S. Ct. 2229, 2240 (2008).
27.
Pauline Jelinek, Pentagon Charges Sept. 11 Suspects, STARS & STRIPES (Mideast
ed.), Feb. 12, 2008, at 7.
28.
10 U.S.C. § 948c provides: "Any alien unlawful enemy combatant is subject to
trial by military commission under this chapter." An unlawful enemy combatant is defined
to include "a person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated
forces)." 10 U.S.C. § 948a(l)(a)(i) (2006).
29.
Perlstein v. United States, 151 F.2d 167, 169-70 (3d Cir. 1945); Hines v. Mikell,
259 F. 28, 35 (4th Cir. 1919); McCune v. Kilpatrick, 53 F. Supp. 80, 84-85 (E.D. Va. 1943).
30.
Article 2 provided for jurisdiction over "retainers to the camp and all persons
accompanying or serving with the armies of the United States without the territorial
jurisdiction of the United States." Articles of War, art. 2, 39 Stat. 650, 651 (repealed 1950).
31.
Article 2 also provided for jurisdiction "in time of war" over "all such retainers
and persons accompanying or serving with the armies of the Unites States in the field, both
within and without the territorial jurisdiction of the United States." Id.
32.
UCMJ, 10 U.S.C. §§ 801-946 (2006).
33.
Id. § 802(a).
34.
Id. § 802(a)(1 1). This article provides that the following persons are subject to
court-martial jurisdiction: "Subject to any treaty or agreement to which the United States is
or may be a party or to any accepted rule of international law, persons serving with,
employed by, or accompanying the armed forces outside the United States and outside the
Commonwealth of Puerto Rico, Guam, and the Virgin Islands." Id. This provision has not
been amended even though it was held to be unconstitutional. See infra notes 36-46 and
accompanying text.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
36
35
Initially, the courts upheld this provision. However, in Reid v. Covert,
the Supreme Court held that during times of peace, this provision was
unconstitutional in capital cases. The defendants in Covert were two
American civilian dependents of service members stationed overseas, 37 one
in England and the other in Japan. 38 Both defendants were convicted by
courts-martial of murdering their husbands. 39 The Supreme Court found
that their courts-martial abridged their Fifth Amendment right to a grand
jury indictment and Sixth Amendment right to a jury trial.4 °
In Kinsella v. Singleton, the Supreme Court extended the Covert holding
to noncapital cases involving dependents of service members. 4 1 The Court
struck down the court-martial of a soldier's dependent under Article
2(a)(l 1) of the UCMJ, for the crime of involuntary manslaughter
committed in Germany in peacetime. 42 In McElroy v. Guagliardo,decided
the same day as Kinsella, the Court extended the Covert holding to
noncapital cases involving civilian employees. 43 The Court overturned
courts-martial of two civilian employees of the armed services under
Article 2(a)(l 1) for crimes committed overseas including larceny,
conspiracy, and sodomy. 44 In both cases the Court found that such
prosecutions were unconstitutional abridgements of the rights to a grand
jury indictment and a jury trial.4 5
Another provision authorizing courts-martial of civilians is Article
2(a)(10) of the UCMJ. 4 6 Before October 2006, Article 2(a)(10) permitted
courts-martial of persons "serving with or accompanying an Armed Force
in the field" during "time of war." 47 In United States v. Averette, a military
court held that this provision could not be used to court-martial civilians
35.
See, e.g., Unites States v. Burney, 21 C.M.R. 98, 126-27 (C.M.A. 1956).
36.
354 U.S. 1, 1 (1957).
37.
Id. at 3-5.
38.
Id. at 3, 4.
39.
Id.
40.
Id. at 7-8; see also U.S. CONST. amend. V-VI.
41.
361 U.S. 234, 249 (1960).
Id. at 246-47.
42.
43.
361 U.S. 281, 283-84 (1960).
44.
Id.
45.
Singleton, 361 U.S. at 240; Guagliardo, 361 U.S. at 284. See also Grisham v.
Hagan, 361 U.S. 278 (1960) (overseas civilian employee of armed services not subject to
court-martial jurisdiction for capital offense).
46.
47.
10 U.S.C. § 802 (2006).
Id. This article provided that the following persons were subject to court-martial
jurisdiction: "In time of war, persons serving with or accompanying an armed force in the
field." Id. This provision was amended in October 2006. See supra note 1 and
accompanying text.
2009]
COURT-MARTIAL JURISDICTIONOVER CIVILIANS
71
during the Vietnam War. 4 8 The accused in Averette was a civilian
contractor serving in Vietnam who was convicted of conspiracy and
attempted larceny. 49 The Court of Military Appeals struck down the
defendant's conviction, ruling that courts-martial of civilians under Article
2(a)(10) were permitted only when Congress formally declared war.5" The
because the conflict in
court found that his court-martial lacked jurisdiction
war. 51
Vietnam was not a formally declared
1II. AMENDMENT OF UNIFORM CODE OF MILITARY JUSTICE IN
OCTOBER 2006
The October 2006 amendment of the UCMJ expanded court-martial
jurisdiction over civilians. Congress designed the amendment to undo the
limitation created by United States v. Averette 52 by making civilians
accompanying
the
military
in
combat
subject
to
court-martial
jurisdiction. 53 The amendment changed Article 2(a)(10) of the UCMJ by
replacing the word "war" with the words "declared war or contingency
operations." 54 Article 2(a)(10) now provides that "[i]n time of declared war
an armed
or contingency operations, persons serving with or accompanying
55
jurisdiction.
court-martial
to
subject
are
field"
force in the
The term "contingency operations" is defined elsewhere in the United
48.
49.
41 C.M.R. 363,365-66 (C.M.A. 1970).
Id. at 363.
50.
Id. at 365.
51.
Id. Another provision used to court-martial civilians was Article 3(a) of the
UCMJ. This provision permitted court-martial of ex-service members for crimes they
committed while in the military. 10 U.S.C. § 803 (2006). This article provides that:
[A]ny person charged with having committed, while in a status in which he
was subject to this code, an offense against this code, punishable by
confinement of five years or more and for which the person cannot be tried in
the courts of the United States ... shall not be relieved from amenability to
trial by courts-martial by reason of the termination of said status.
Id. This provision has not been amended even though it was found to be unconstitutional.
United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). The defendant in Toth was an exservice member who was court-martialed for a murder he committed while on active duty in
Korea. Id. The Court held that his court-martial was an unconstitutional abridgment of the
right to a grand jury indictment and trial by jury. Id.
52.
41 C.M.R. at 363.
The Washington Post, supra note 3, at 4. See Colonel Lawrence J. Schwarz, The
53.
Casefor Court-MartialJurisdiction Over Civilians Under Article 2(a)(1O) of the Uniform
Code of Military Justice, ARMY LAW., Oct./Nov. 2002, at 31.
54.
John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L.
No. 109-364, 120 Stat. 2083, 2217 (2006).
55.
10 U.S.C. § 802(a)(10) (2006).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
States Code. Contingency operations include military operations that are
"designated by the Secretary of Defense as 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."
Contingency operations also include military
operations that result in the call-up of service members in the reserve
57
components to respond to war, national emergency, or similar missions.
The term "in the field" has been defined quite broadly. It includes not
only combat theaters but also areas in the United States
where service
58
members are training in preparation for armed conflict.
In March 2008, the Secretary of Defense published a memorandum
explaining how the new jurisdiction over civilians should be exercised.59
The memorandum states that court-martial jurisdiction over civilians
should be exercised only when another United States federal criminal
jurisdiction is inapplicable or not pursued, and when the civilian's
56.
10 U.S.C. § 101(a)(13)(A) (2006).
57.
Id. § 101(a)(13)(B) (2006). This subsection provides that contingency operations
include military operations "that result in the call or order to, or retention on, active duty of
members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or
12406 of this title, chapter 15 of this title, or any other provision of law during a war or
during a national emergency declared by the President or Congress." Id. Section 688
provides authority to order retired members to active duty. 10 U.S.C. § 688. Section
12301(a) provides authority to order the reserve components to active duty for the duration
of a war or national emergency declared by Congress. 10 U.S.C. § 12301(a). Section 12302
provides authority to order the ready reserves to active duty for up to twenty-four months in
time of national emergency declared by the President. 10 U.S.C. § 12302. Section 12304
provides authority to order the selected reserve and certain individual ready reserve
members to active duty for up to 270 days for missions other than war or national
emergency, to include responding to the use or threatened use of weapons of mass
destruction or terrorist attacks in United States. 10 U.S.C. § 12304. Section 12305 provides
the President with authority to suspend promotion, retirement and separation laws applicable
to service members who are essential to national security. 10 U.S.C. § 12305. Section 12406
provides authority to call the National Guard to federal service when the United States is
invaded, when there is a rebellion or danger of rebellion, or when the President is unable to
execute the laws of the United States. 10 U.S.C. § 12406. Chapter 15 deals with
insurrection. 10 U.S.C. §§ 332-335.
58.
Hines v. Mikell, 259 F. 28, 31, 33-35 (4th Cir. 1919); see generally Schwarz,
supra note 53, at 36.
59.
Memorandum from the Sec'y of Def., to Sec'ys of the Military Dep'ts, Chairman
of the Joint Chiefs of Staff, Under Sec'ys of Def., Commanders of the Combatant
Commands on UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor
Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas
During Declared War and in Contingency Operations (Mar. 10, 2008), available at
http://www.wileyrein.com/docs/docs/144.pdf (hereinafter Memorandum from Secretary of
Defense].
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
misconduct
is adverse
to a "significant
military
interest." 60
73
The
memorandum also requires coordination with the Department of Justice
prior to the exercise of jurisdiction over a civilian. 6 1 Under the
memorandum, the Secretary of Defense is the only official who can
exercise the new jurisdiction when the offense occurs within the United
States or the civilian perpetrator is located in the United States. 62 For cases
outside the 63
United States, only high-level officers may exercise the new
jurisdiction.
IV. ISSUES INVOLVED IN COURTS-MARTIAL OF CIVILIANS
When Congress enacted the UCMJ, the primary purpose was to develop
a fair system to prosecute service members for criminal acts. 64 After
enactment of the UCMJ, the President promulgated the Manual for CourtsMartial (MCM), an Executive Order that supplements the Code. 65 The
MCM provides a much more detailed set of procedural and substantive
rules than those provided by Congress in the Uniform Code of Military
66
Justice.
60.
Id. at Attach. 3. Examples of conduct adverse to a significant military interest
include "misconduct that may jeopardize good order and discipline or discredit the armed
forces and thereby have a potential adverse effect on military operations." Id.
61.
Id. at Attach. 3, para. 4.
62.
Id. at Attach. 2, para. 1.
63.
Id. at Attach. 2, para. 2. For cases outside the United States, jurisdiction is
reserved to commanders of geographic combatant commands and commanders who possess
general court-martial convening authority. Id. A general court-martial convening authority
includes the commander of an Army group, Army, Army Corps, division, separate brigade
or a corresponding unit of the Army or Marine Corps, the commander of a fleet, a naval
station or larger shore activity of the Navy, the commander of an air command, an air force,
and air division or separate wing of the Air Force or Marine Corps. 10 U.S.C. § 822(a)
(2006).
64.
See Brigadier General John S. Cooke, Introduction: Fiftieth Anniversary of the
Uniform Code of Military Justice Symposium Edition, 165 MIL. L. REv. 1 (2000). World
War II resulted in increased scrutiny of military criminal law, codified in the Articles of
War. Id. at 6. Sixteen million men and women served in the Armed Forces during World
War II; there were over two million courts-martial during the conflict. Id. At the end of the
war there was a perceived need for greater protections for service members and a desire for
a common criminal justice system for all of the services. Id. at 7. Congress enacted the
UCMJ in 1950 to address these concerns. Id. at 8.
65.
See generally MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005) [hereinafter
MCM]; see generally Cooke, supra note 64, at 10-11.
66.
The MCM includes Rules for Court-Martial that provide procedural rules
governing courts-martial. MCM, supra note 65, R.C.M. 101-1306 (containing thirteen
chapters of Rules for Courts-Martial). The MCM also includes Military Rules of Evidence,
which are patterned after the Federal Rules of Evidence. MCM, supra note 65; MIL. R.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
Using the rules in the Uniform Code of Military Justice and the Manual
for Courts-Martial to prosecute civilians raises a number of concerns. For
example, civilians do not have military rank and may not have a military
commander. As a result, some of the military criminal rules, designed with
military rank and command-structure in mind, may be inappropriate when
applied to civilians. Additionally, civilians traditionally have not faced the
same penalties as service members for failing to follow orders, disrespect,
and similar crimes.
A. Prosecuting Civilians for Military Offenses
Military crimes have been defined by both Congress and the President.
Congress enacted Articles 77 through 134 of the UCMJ which are the
"Punitive Articles" that define specific military offenses, including murder,
larceny and assault. 67 Article 134 of the UCMJ is a catch-all provision
criminalizing three types of conduct: (1) conduct prejudicial to good order
and discipline, (2) service discrediting conduct, and (3) conduct that
violates other federal criminal laws. 68 The President has defined the terms
"prejudice to good order and discipline" and "service discrediting" in more
detail in the Manual for Courts-Martial by establishing enumerated
offenses punishable under Article 134.69 These offenses enumerated by the
President, which include kidnapping and obstruction of justice, 70 were not
defined by Congress in Articles 77 through 133. 7 1
Military offenses, both those defined by Congress and those
enumerated by the President, fall into two general categories: (1) offenses
that are common to most criminal justice systems, such as murder and
73
rape, 72 and (2) those that are specific to the military, such as desertion.
Applying the former category of offenses to civilians raises few concerns.
These offenses are similar or identical to those which civilians would face
EVID. 101-1103; see Robinson 0. Everett, Military Rules of Evidence Symposium: An
Introduction, 130 MIL. L. REV. 1, 2 (1990). The MCM also includes the Punitive Articles of
the UCMJ and definitions and explanations of these articles. 10 U.S.C. §§ 877-934 (2006);
MCM, supranote 65, pt. IV,
1-113.
67.
§§ 877-934. Murder is proscribed by § 918, larceny by § 921, and assault by §
928. Id. §§ 918, 921,928.
68.
Id. § 934.
69.
MCM, supra note 65, pt. IV, 61-113 (noting several offenses punishable under
the Article 134 such as: Abusing Public Animals (T 61); Adultery ( 62); Kidnapping ( 92);
and Obstruction of Justice ( 96)).
70.
Id. pt. IV, 92, 96.
71.
10 U.S.C. §§ 877-933 (2006) (kidnapping and obstruction of justice are not
included in these Punitive Articles).
72.
Id. §§ 918, 920.
73.
Id. § 885.
2009]
COURT-MARTIAL JURISDICTIONOVER CIVILIANS
75
if prosecuted under civilian criminal codes. 74 Applying the latter category
of military-specific crimes to civilians is more problematic.
Military-specific offenses fall into five categories: (1) absence from
one's unit or place of duty; (2) disobedience; (3) disrespect; (4) misuse of
position; and (5) wartime offenses, such as aiding the enemy and spying.
1. Absence from duties
Offenses involving absence from one's unit or place of duty include
absence without leave, missing movement, and desertion. 75 Absence
without leave includes failure to report for assigned duties, leaving one's
place of duty without authority, and unauthorized absence from one's unit
or place of duty for a specified period of time. 76 The maximum punishment
for absence without leave over thirty days includes eighteen months
confinement. 77 Missing movement consists of missing a transfer of a ship,
vessel or unit either through design or neglect. 78 The transfer must involve
a significant distance and period of time. 79 The maximum punishment for
missing movement by design includes two years confinement.80 Desertion
is absence from a unit or place of duty with the intent to remain away
permanently or with the intent to avoid hazardous duty or shirk important
service. 8 1 Service in a combat zone has been held to constitute "important
service" supporting a conviction for desertion. 82 The maximum
punishment for desertion with the intent to avoid hazardous duty or shirk
important service includes confinement for five years. 83 In time of war, the
maximum punishment for desertion includes death. 84
Punishing civilians for missing work is not new. United States
Department of Defense civilian employees
who are absent without leave
85
can be administratively punished.
Department of Defense civilian
74.
Federal crimes are contained in Title 18 of the United States Code. For example,
murder is defined in 18 U.S.C. § 1111 (2000).
75.
These offenses are covered by § 885 (desertion), § 886 (absence without leave),
and § 887 (missing movement) of the UCMJ. 10 U.S.C. §§ 885-87 (2006).
76.
MCM, supra note 65, pt. IV, 10.
77.
Id. pt. IV, 10(e)(2)(d).
78.
Id. pt. IV, 11(c).
79.
Id. pt. IV,
11 (c)(1).
80.
Id. pt. IV, 1 l(e)(1).
81.
Id. pt. IV, 9(a)(1).
82.
United States v. Swanholm, 36 M.J. 743, 744 (A.C.M.R. 1992); United States v.
Gonzalez, 42 M.J. 469, 472-73 (C.A.A.F. 1995).
83.
MCM, supra note 65, pt. IV, 9(e)(1).
84.
Id. pt. IV, 9(e)(3).
85.
Robb v. Dep't of Defense, 77 M.S.P.R. 130, 136-38 (1998).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
employees can also be punished for failure to serve in support of combat
operations. Certain positions within the Department of Defense are
designated as "emergency-essential," which means that they are required to
ensure the success of combat operations or to support combat-essential
systems. 86 Civilians who hold these positions are required to continue
performing their duties in the event of a crisis or war and may be required
to deploy to a combat zone. 87 Such employees normally sign an agreement
specifying that they will continue to perform their duties in these
situations. 8 Failure to comply with these agreements can result in
administrative punishment. 89
However, none of these administrative punishments are criminal in
nature. Civilian employees who are absent without leave or who fail to
comply with a deployment order may only be punished with written
reprimands, suspensions, reductions and removal; there is no authority to
confine such employees for these offenses. 90 Applying military criminal
offenses such as desertion, absence without leave,
and missing movement
91
to civilians, would be a major change in the law.
2. Disobedience
Crimes involving disobedience include a violation of a written order or
regulation 92 and failure to obey an order issued personally to an individual,
either orally or in writing. 93 Written orders and regulations issued by
certain high-ranking officers have a special significance because service
members are presumed to know of these orders and regulations and can be
prosecuted for their violation without proof of actual knowledge. 94 The
86.
IN
U.S. DEP'T OF ARMY, REG. 690-11, USE AND MANAGEMENT OF CIVILIAN PERSONNEL
SUPPORT
OF
MILITARY
CONTINGENCY
OPERATIONS
8-9 (2004),
available at
http://www.usapa.army.mil.
87.
Id.
88.
Id. para. 1-10.
89.
90.
Id.
5 U.S.C. § 7502
(2000); 5 C.F.R. §§ 752.201-.203 (2006) ("minor" or
nonappealable adverse actions include written reprimands and suspensions for fourteen days
or less); 5 U.S.C. § 7512; 5 C.F.R. §§ 752.301-.406 (2006) ("true" or appealable adverse
actions include suspensions for more than fourteen days, removals and reduction in grade or
pay). See U.S. DEP'T OF ARMY, PAMPHLET 690-471, DA CIVILIAN EMPLOYEE DEPLOYMENT
GUIDE, para. 1-2 (1995).
91.
But see McCune v. Kilpatrick, 53 F. Supp. 80, 89 (E.D. Va. 1943) (civilian's
court-martial conviction for desertion during World War II upheld).
92.
10 U.S.C. § 892 (addressing offenses for failure to obey an order or regulation).
93.
10 U.S.C. §§ 890-92 (covering disobedience to a superior officer, a non
commissioned officer, and failure to obey an order).
94.
MCM, supra note 65, pt. IV, 16c(l)(d). These orders and regulations must be
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
77
maximum punishment for violation of such "general" orders and
regulations includes two years confinement. 95 The punishment for
violations of personal orders depends on the rank of the person issuing the
order: violations of orders issued by superior officers can result in five
years confinement; 96 violations of orders by a noncommissioned or petty
officer can result in one year confinement; 97 violations
of other lawful
98
personal orders can result in six months confinement.
Another offense involving disobedience is dereliction of duty. This
consists of failure to perform assigned duties, either willfully or
negligently. 9 9 The maximum punishment
for willful dereliction of duty
00
includes confinement for six months.'
A more extreme form of disobedience is mutiny or sedition.' 0 1 Mutiny
consists of disobeying orders in concert with others or creating a
disturbance with the intent to usurp lawful military authority.' 0 2 Sedition
consists of creating a revolt in concert with others with the intent to
overthrow lawful civil authority.' 03 Failure to prevent or report a mutiny or
sedition is also0 a5 crime. 104 The punishment for these offenses includes the
death penalty.'
Punishing civilians for disobedience is not new. Department of Defense
civilian employees can be administratively punished for disobeying
orders. 106 They may also be punished for negligent failure to perform their
issued by the President, the Secretary of Defense or Transportation, the secretary of a
military department, an officer having general court-martial jurisdiction, a general or flag
officer in command or a commander superior to one of these. Id. pt. IV, 16c(1)(a).
95.
Id. pt. IV,
16e(l).
96.
97.
Id. pt. IV,
Id. pt. IV,
16e(1).
15e(5).
98.
99.
100.
101.
102.
Id. pt. IV, 16e(2).
10 U.S.C. § 892.
MCM, supra note 65, pt. IV,
10 U.S.C. § 894.
MCM, supra note 65, pt. IV,
103.
Id. pt. IV, 18b(3).
Id. pt. IV, I 18b(4)-(5).
104.
16e(3)(B).
18b(l)-(2).
105.
Id. pt. IV, 18e.
106.
See e.g., Ibarra v. Dep't of the Air Force, 10 M.S.P.B. 94, 112, 114-15 (1982),
availableat http://quod.lib.umich.edu (holding that failure to report for weapons training as
directed by superiors justified discipline); Ryan v. Dep't of Justice, 950 F.2d 458, 459-60
(7th Cir. 1991) (holding that discipline was justified for a failure to obey an order to arrest
persons who were unlawfully demonstrating on military installation); Bryant v. Dep't of the
Army, 84 M.S.P.B. 202, 208 (1999), available at http://www/mspb.gov/sites/mspb/pages
/MSPB%20Decisions.aspx (holding that an employee's failure to follow verbal directives
justified discipline).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
duties; 10 7 however, the authorized punishments relate only to the
employees' pay and employment-there is no authority to confine such
employees for disobedience. 10 8 Applying the military crime of
disobedience to such civilians is a major change in the law. Applying the
military crimes of mutiny and sedition to civilians would be an even more
significant change in the law, since the death penalty is authorized for these
offenses. 109
3. Disrespect
Disrespect offenses include disrespect to an officer, a warrant,0
noncommissioned or petty officer, and contempt toward officials."1
Disrespect to an officer consists of irreverent acts or language directed
toward a superior commissioned officer."' The maximum punishment
includes confinement for one year. 112 Disrespect to a warrant,
noncommissioned or petty officer is similar to disrespect to an officer, but
the offense must occur in the sight or hearing of the victim. 113 This crime
is not applicable to civilians because the offender must be a warrant officer
or an enlisted member. 114 Contempt toward officials consists of using
107.
See Steinberg v. Dep't of Def., 52 M.S.P.B. 547, 559 (1992), available at
http://www.mspb.gov/sites/mspb/pages/MSPB%20Decisions.aspx (distinguishing between
insubordination, which required proof of intent to disobey a directive, and failure to follow
instructions, which may be intentional or unintentional).
108.
See 5 U.S.C. § 7502 (2006); 5 U.S.C. § 7512; 5 C.F.R. §§ 752.201-.203 (2007); 5
C.F.R. §§ 752.301-.406.
109.
See MCM, supra note 65, pt. IV, 18e. The maximum penalty for the federal
civilian offense of sedition is 20 years. 18 U.S.C. § 2384 (2006). See generally Colonel
Frederick Bemays Wiener, American Military Law in the Light of the First Mutiny Act's
Tricentennial, 126 MIL. L. REV. 1, 17-24 (1989).
110.
These offenses are covered by Article 89 (disrespect toward a superior
commissioned officer), Article 91 (disrespect to a warrant, noncommissioned or petty
officer) and Article 88 (contempt toward officials) of the UCMJ. 10 U.S.C. §§ 889, 891, 888
(2006).
111.
MCM, supra note 65, pt. IV, 13b.
112.
Id. pt. IV, 13e.
113.
Id. pt. IV, 15b(3).
Id. pt. IV, 15b(3)(a). Article 91 of the Uniform Code of Military Justice requires
114.
that the accused be a "warrant officer or enlisted member." 10 U.S.C. § 891. This provision
was not intended to include civilians since other provisions of the UCMJ draw a distinction
between the terms "warrant officer," "enlisted member," and "civilian." For example,
Article 9 states that pretrial restraint of a "commissioned officer, a warrant officer or a
civilian" may only be authorized by his or her commanding officer, while pretrial restraint
of an "enlisted member" may be ordered by any commissioned officer. 10 U.S.C. § 809(b)(c). The discussion of Article 91 in the Manual for Courts-Martial supports this conclusion:
it states that civilians who assault a warrant, noncommissioned or petty officer should not be
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
79
disparaging words against the President, the Secretary of Defense, the
Secretary of a military department, the Secretary of Homeland Security, or
15
the Governor or legislature of any state in which the accused is on duty. 1
Because the offender
must be a commissioned officer, this crime does not
6
"1
civilians.
to
apply
Disrespect to a superior officer requires the offender to be subordinate to
the victim. 117 If the accused and the victim are in the same armed force, a
"superior" is defined as a commissioned officer superior in rank or
command to the accused. 1 8 If the accused and victim are in different
armed forces, a "superior" is defined as a commissioned officer who is
superior in the chain of command over the accused. 1 9 Since civilian
employees have no military rank, it may be difficult to determine when
they have committed this offense.
Civilians are currently subject to administrative discipline for disrespect
to a supervisor. 120 However, the authorized punishments only relate to pay
and continued employment. 12 1 Prosecuting civilians for the criminal
offense of disrespect and subjecting them to confinement if convicted
would be a major change in the law.
4. Misuse of position
A commander may face court martial for subjecting a subordinate to
cruelty, oppression, or maltreatment.
22
This offense requires proof that the
maltreated subordinate was subject to the offender's orders. 12 This may be
charged for this offense under Article 91 (which also prohibits assault upon a warrant,
noncommissioned or petty officer). Instead such civilians should be charged for assault
under Article 128 or Article 134. MCM, supra note 65, pt. IV, 15c(3).
115.
10 U.S.C. § 888.
116.
Article 88 of the Uniform Code of Military Justice requires that the accused be a
"commissioned officer." Id. This provision was not intended to include civilians, since other
provisions of the UCMJ draw a distinction between the term "commissioned officer" and
the term "civilian." For example, Article 9 states that pretrial restraint of a "commissioned
officer, warrant officer, or a civilian" may only be authorized by his or her commanding
officer. Id. § 809(c).
117.
MCM, supra note 65, pt. IV, 13c(l)(a).
118.
Id.
119.
Id. pt. IV, 13c(1)(b).
120.
See Beaudoin v. Dep't of Veterans Affairs, 99 M.S.P.B. 489, 491, 497 (2005).
121.
See 5 U.S.C. § 7502 (2006); 5 C.F.R. §§ 752.201-.203 (2008); 5 U.S.C. § 7512
(2006); 5 C.F.R. §§ 752.301-.406 (2008).
122.
This offense is covered by Article 93 of the UCMJ. 10 U.S.C. § 893 (2006).
123.
The class characterized by "subject to orders of another" includes not only those
under the direct or immediate command of the superior, but includes all persons, whether
subject to the UCMJ or not, who by reason of some duty are required to obey the lawful
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
difficult to prove when an accused civilian does not directly supervise an
alleged victim.
Another crime involving misuse of one's position is fraternization.
Fraternization may be charged as a violation of Article 134 of the Uniform
Code of Militar Justice 124 or as a violation of a regulation prohibiting
fraternization. 125 Fraternization under Article 134 occurs when one
fraternizes on terms of equality with an enlisted member in violation of the
customs of the service. 126 This offense does not apply to civilians; it only
applies to commissioned and warrant officers. 127 Violations of a regulation
depend on the specific terms of the regulation. The Army regulation
dealing with this subject prohibits relations between soldiers of different
ranks, including enlisted soldiers which: (1) compromise the chain of
command; (2) cause partiality; (3) involve improper use of rank or position
for personal gain; or (4) are exploitative, coercive, or create an adverse
impact of discipline. 12 Since civilian employees have no military rank, it
would be difficult to determine if they violated this regulatory provision.
Department of Defense civilian employees can be administratively
disciplined for maltreatment of subordinates. 129 They may also be
administratively disciplined for fraternization. 130 However, the authorized
discipline only involves loss of pay or employment. 13 1 Prosecuting
order of the superior. MCM, supra note 65, pt. IV, 17c(1).
124.
See 10 U.S.C. § 934.
125.
MCM, supra note 65, pt. IV, 83c(2). Violations of regulations are charged under
10 U.S.C. § 892. Improper relations between persons of different ranks is prohibited in the
Army. U.S. DEP'T OF ARMY REG. 600-20, ARMY COMMAND POLICY, ch. 4-14 (18 Mar.
2008).
126.
MCM, supra note 65, pt. IV, 83b.
127.
Id. pt. IV, 83b(1). This paragraph requires that the accused be "a commissioned
or warrant officer." Id. This provision was not intended to include civilians since other
provisions of the Manual for Courts-Martial draw a distinction between the term "officer"
and the term "civilian." For example, Rule for Courts-Martial 304 states that pretrial
restraint of a "civilian or officer" must be ordered by his or her commanding officer. Id.
R.C.M. 304(b). But see United States v. Clarke, 25 M.J. 631, 634-35 (A.C.M.R. 1987)
(holding that the fraternization offense under UCMJ § 934 applies to enlisted personnel);
United States v. Carter, 23 M.J. 683, 686 (N.M.C.M.R. 1986); United States v. March, 32
M.J. 740, 742 (A.C.M.R. 1991).
128.
U.S. DEP'TARMYREG. 600-20, supra note 125,
4-14.
129.
See Royster v. Dep't of Justice, 58 M.S.P.B. 495, 497, 501 (1993) (disciplinary
action upheld where correctional officer in female prison engaged in threatening and
abusive conduct toward females while off-duty).
See, e.g., Rasmussen v. Dep't of Agric., 44 M.S.P.B. 185, 187, 193 (1990)
130.
(employee's violation of policy forbidding fraternization with students he supervised
justified discipline).
131.
See 5 U.S.C. § 7502 (2006); 5 C.F.R. §§ 752.201-.203 (2008); 5 U.S.C. § 7512
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
81
civilians for the criminal offense of maltreatment or fraternization and
confining them if they are convicted would be a major change in the law.
5. Wartime Offenses
Three military offenses apply exclusively during time of war: improper
use of a countersign under Article 101,132 misconduct of a prisoner under
Article 105,133 and spying under Article 106.134 For purposes of these
offenses, "time of war" exists when Congress declares war or 135
when the
President makes a factual determination that a state of war exists.
Improper use of a countersign includes the unauthorized disclosure of a
secret challenge or password used by sentinels to identify persons
attempting to pass through lines during a time of war. 136 This offense is
somewhat unique because mistake of fact is not a defense. 137 Misconduct
of a prisoner consists of unlawful behavior by a person in custody of the
enemy during a time of war. Misconduct includes illegally securing
favorable treatment by one's captors 138 and unjustifiably maltreating other
prisoners over whom one has authority. 139 The maximum punishment for
both of these crimes is death. 140
Spying, the third wartime offense, includes collecting information
clandestinely from a military or other facility engaged in the United States
(2006); 5 C.F.R. §§ 752.301-.406 (2008).
132.
10 U.S.C. § 901 (2006).
133.
Id. § 905.
134.
Id. § 906.
135.
MCM, supra note 65, R.C.M. 103(19). See United States v. Anderson, 38 C.M.R.
386, 388 (C.M.A. 1968) (time of war interpreted broadly for purposes of statute of
limitations under Article 43 of the UCMJ). But see United States v. Averette, 41 C.M.R.
363, 365 (C.M.A. 1970) (time of war only included declared wars for purposes of
determining jurisdiction over civilians under Article 2 of the UCMJ).
136.
See MCM, supra note 65, pt. IV, 25b-c.
137.
"It is no defense that the accused did not know that the person to whom the
countersign ... was given was not entitled to receive it." Id. pt. IV, 25c(4); United States
v. Zachary, 61 M.J. 813, 820, n.16 (A. Ct. Crim. App. 2005).
138.
MCM, supra note 65, pt. IV, 29b(1); Uhited States v. Dickenson, 20 C.M.R. 154
(C.M.A. 1955) (upholding conviction under Article 105 for prisoner during Korean War
who informed on fellow prisoners to gain favorable treatment); United States v. Batchelor,
22 C.M.R. 144 (C.M.A. 1956) (upholding conviction under Article 105 for prisoner during
Korean War who served as informant to gain favorable treatment).
139.
MCM, supra note 65, pt. IV, 29b(2); United States v. Gallagher, 23 C.M.R. 591,
600 (A.B.R. 1957) (alleging accused struck fellow prisoners and forced them out into
extremely cold temperatures, but not alleging accused was in position of authority defective
under Article 105).
140.
MCM, supra note 65, pt. IV, 25e, 29e.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
war effort with the intent to convey 4it2 to the enemy. 14 1 Death is the
mandatory punishment for this offense. 1
A number of other military offenses require the presence of an enemy
force or a belligerency short of a formal state of war. These include
misbehavior before the enemy under Article 99,143 improperly compelling
surrender under Article 100, 144 forcing a safeguard under Article 102,145
misconduct involving captured or abandoned property under Article
103,146 and aiding the enemy under Article 104.'14
Misbehavior before the enemy includes running away in the presence of
the enemy with the intent to avoid combat, shamefully abandoning one's
unit in the presence of the enemy, casting away one's arms, failing to do
one's utmost to encounter the enemy, and similar cowardly conduct. 148 4It9
also includes endangering one's unit in the presence of the enemy,1
leaving one's place of duty to unlawfully seize property in the presence of
the enemy, 150 and causing a false alarm in the presence of the enemy. 151
Improperly compelling surrender consists of acts by a subordinate which
are intended to compel a commander to surrender his forces to an
enemy. 152 This offense is similar to mutiny, although it need not be
141.
Id. pt. IV, 30b-c.
142.
10 U.S.C. § 906 (2006); MCM, supra note 65, pt. IV, 30e; see United States v.
Blair, 24 C.M.R. 869, 872 (A.F.B.R. 1957); see generally Major David A. Anderson, Spying
in Violation of Article 106, UCMJ, The Offense and the Constitutionality of Its Mandatory
Death Penalty, 127 MILL. REV. 1 (1990).
143.
10 U.S.C. § 899.
144.
Id. § 900.
145.
Id. § 902.
146.
Id. § 903.
147.
Id. § 904.
148.
MCM, supra note 65, pt. IV, 23b(1), (2), (4), (5), (8). See United States v.
Sperland, 5 C.M.R. 89, 92 (C.M.A. 1952) (ruling that accused's actions in surreptitiously
departing his mortar platoon and departing for the rear during combat operations in Korea
constituted misbehavior before the enemy); see also United States v. Payne, 40 C.M.R. 516,
519-520 (A.B.R. 1969) (upholding conviction of defendant for misbehavior before enemy
for refusing to obey an order to go with his unit on a combat operation in Vietnam).
149.
MCM, supra note 65, pt. IV, 23b(3). See United States v. Carey, 15 C.M.R. 112,
115 (C.M.A. 1954) (ruling that a tank commander who endangered his unit by becoming
drunk during combat in Korea was properly convicted of misbehavior before the enemy).
150.
MCM, supra note 65, pt. IV, 23b(6).
151.
Id. pt. IV, 23b(7). See United States v. Terry, 36 C.M.R. 756, 761 (N.B.R. 1965)
(holding that accused was properly convicted of misbehavior before the enemy under
Article 99 for causing a false alarm by throwing and detonating a hand grenade needlessly
and without authority in Vietnam).
152.
MCM, supra note 65, pt. IV, 24b-c.
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COURT-MARTIAL JURISDICTIONOVER CIVILIANS
83
accomplished in concert with others. 153 Forcing a safeguard includes
violating the protections of a guard posted to protect property of an enemy
or a neutral party affected by a belligerency.' 4 Aiding the enemy includes
providing the enemy with arms or supplies, harboring or protecting an
enemy, giving intelligence to the enemy, and communicating with the
enemy. 556 The maximum punishment for all of these offenses is the death
penalty. 1
Misconduct involving captured or abandoned property includes failure to
secure property captured from the enemy and looting captured or
abandoned property located in enemy territory. 157 Captured enemy
property becomes property of the United States; other captured or
abandoned property is required to be properly safeguarded. 158 The
59
maximum penalty for looting includes life imprisonment without parole. 1
There are no civilian counterparts to many of these wartime offenses.
The military offense of spying under Article 106 of the Uniform Code of
Military Justice is similar to the federal civilian crime of espionage under
Title 18 of the United States Code. 160 The military offense of looting under
Article 103 is arguably similar to the federal civilian crime of plundering,
although the former applies to property found in occupied territory while
the latter applies to taking property from a distressed vessel.161 There are
no federal civilian counterparts to the military offenses of improper use of a
countersign, 162 misconduct of a prisoner, 163 misbehavior before the
153.
Id. pt. IV, I 24c(1)(a).
154.
Id. pt. IV,
26b-c.
155.
Id. pt. IV,
28b. See United States v. Dickenson, 20 C.M.R. 154, 154-155
(C.M.A. 1955). (communicating with the enemy while in captivity during Korean War
constituted aiding the enemy under Article 104); see also United States v. Garwood, 20 M.J.
148, 148, 149, 154 (C.M.A. 1988) (holding that accused was properly convicted of aiding
the enemy under Article 104 where he communicated with the enemy while in captivity
during the Vietnam War; accused did not establish improper selective prosecution).
156.
MCM, supra note 65, pt. IV,
23e, 24e, 26e, 28e.
157.
158.
159.
Id. pt. IV,
Id. pt. IV,
Id. pt. IV,
27b-c.
27c(l).
27e(2); R.C.M. 1003(b)(7).
160.
Compare 10 U.S.C. § 906 (2006) with 18 U.S.C. § 974 (2000). See also United
States v. McGuinness, 35 M.J. 149, 153 (C.M.A. 1992) (espionage under 18 U.S.C. § 974 is
equivalent to spying under Article 106).
161.
Compare 10 U.S.C. § 903 with 18 U.S.C. § 1658.
162.
Compare 10 U.S.C. § 901 (involving misuse of countersign used for passage
through lines) with 18 U.S.C. § 1386 (2006) (prohibiting theft of key used to secure arms or
classified information).
163.
10 U.S.C. § 905. See Major Charlotte M. Liegl-Paul, Civilian Prisonersof War: A
Proposed Citizen Code of Conduct, 182 MIL. L. REV. 106, 127 (2004).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
enemy, 164 improperly compelling surrender, 165 forcing a safeguard, 166 or
aiding the enemy. 167 At least one commentator has pointed out the problem
with the lack of rules governing civilians on the battlefield. 168 Applying
these military wartime offenses to civilians is a significant change in the
law.
B. Alternatives to Courts-Martial
One alternative to court-martial is nonjudicial punishment under
Article 15 of the Uniform Code of Military Justice. 169 This provision
permits commanders to punish service members for minor offenses by
reducing them in rank, placing them on restriction or in correctional
custody, assigning them extra duties, and ordering forfeiture of their
pay. 17 The amount of punishment depends on the rank of the offender and
the rank of the officer issuing the punishment. The maximum punishment
that may be imposed by generals and admirals upon officers in their
command includes restriction for sixty days, arrest in quarters for thirty
days, and forfeiture of one-half pay for two months. 17 1 The authorized
punishment that may be imposed by field-grade commanders upon "other
members of the command" (including enlisted personnel and, presumably,
civilians) 172 includes correctional custody for thirty days, forfeiture of onehalf pay for two months, reduction to the lowest enlisted pay grade, extra
duties for forty-five days and restriction for sixty days. 17- The maximum
punishment a company-grade commander may impose "upon other
personnel of his command" includes correctional custody for seven days,
forfeiture of seven days pay, reduction by one grade, extra duties for
164.
10 U.S.C. § 899.
165.
Compare 10 U.S.C. § 900 (involving a subordinate compelling commander to
surrender) with 18 U.S.C. § 2387 (prohibiting activities affecting the armed forces,
including advising service members to mutiny).
166.
10 U.S.C. § 902.
167.
Compare 10 U.S.C. § 904 (prohibiting harboring or communicating with an
enemy or providing an enemy with intelligence or supplies) with 18 U.S.C. § 2339
(prohibiting harboring or aiding terrorists).
168.
169.
170.
See Liegl-Paul, supra note 163.
10 U.S.C. § 815.
Id.; MCM, supra note 65, pt. V.
171.
§ 815(b)(1)(B); MCM, supra note 65, pt. V, 5(I)(B).
172.
The term "officers" in Article 15 of the UCMJ was not intended to include
civilians, since other provisions of the Code draw a distinction between the term "officer"
and the term "civilian." For example, Article 9 states that pretrial restraint of a
"commissioned officer, warrant officer or civilian" may only be authorized by his or her
commanding officer. 10 U.S.C. § 809(c).
173.
§ 815(b)(2)(H); MCM, supra note 65, pt. V,
5b(2)(B).
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
85
174
fourteen days and restriction for fourteen days.
Under the new amendment to Article 2(a)(10), nonjudicial punishment
175
under Article 15 could be issued to civilians accompanying the force.
Unfortunately, many of the provisions of Article 15 were specifically
designed for service members. Reduction in rank, for example, is
inapplicable to civilians because they have no military rank. It may be
possible to order a Department of Defense civilian employee to forfeit pay,
but it would not be possible to do the same to a contract employee without
the cooperation of his or her employer. Extra duties could violate the
provisions of the civilian employee's employment contract or collective
bargaining agreement.
The guidance from the Secretary of Defense requires commanders to
notify and coordinate with the Department of Justice and high-level
commanders before initiating nonjudicial punishment under Article 15
against civilians. 176 The burden of making these notifications defeats the
purpose of Article 15, which is to "provide[] commanders with an essential
and prompt means of maintaining good order and discipline.., without the
stigma of a court-martial conviction." 1 77 These requirements may make it
less likely that commanders will consider nonjudicial punishment in cases
involving civilians.
A number of administrative alternatives to courts-martial also exist.
79
178
adverse evaluation reports, 1
These include administrative reprimands,
administrative reductions in rank,' 80 and administrative separations from
the service.1 81 Provisions of the regulations on administrative separation of
service members specifically permit resignations and separations in lieu of
courts-martial. 182
174.
175.
§ 815(b)(2); MCM, supra note 65, pt. V,
10 U.S.C. § 802(a)(10).
176.
177.
178.
Memorandum from Secretary of Defense, supra note 59 at Attach. 2, 3.
MCM, supra note 65, pt. V, Ic.
U.S. DEP'T OF ARMY, REG. 600-37, UNFAVORABLE INFORMATION. (Dec. 19, 1986)
5b(2)(A).
(governing the placement of reprimands in official files within the Army).
179.
See, e.g., U.S. DEP'T OF ARMY, REG. 623-3, EVALUATION REPORTING SYS. (Aug.
10, 2007) [hereinafter AR 623-3].
180.
See, e.g., U.S. DEP'T OF ARMY, REG. 600-8-19, ENLISTED PROMOTIONS AND
(Mar. 20, 2008).
In the Army, the administrative separation of enlisted personnel is governed by
REDUCTIONS,
181.
U.S. DEP'T OF ARMY, REG. 635-200, ACTIVE DUTY ENLISTED ADMINISTRATIVE SEPARATIONS,
(Jun. 6, 2005) [hereinafter AR 635-200]. The administrative separation of Army officers is
governed by U.S. DEP'T OF ARMY, REG. 600-8-24, OFFICER TRANSFERS AND DISCHARGES
(Apr. 12, 2006) [hereinafter AR 600-8-24].
182.
See, e.g., AR 635-200, supra note 181, at ch. 10; AR 600-8-24, supra note 181,
ch. 3.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
Many of these administrative alternatives also apply to civilians.
Department of Defense civilian employees can be counseled, issued written
reprimands, and removed from their positions. 183 However,
there are no
84
1
court-martial.
of
lieu
in
civilians
such
remove
to
provisions
Because of the difficulty of applying Article 15 and administrative
separations in lieu of court-martial to civilians, commanders may believe
they have few alternatives to trial by court-martial in cases involving
civilians. Attorneys must ensure that they have advised commanders of all
the available options for dealing with civilian misconduct.
C. Preliminary Inquiries
Rule for Courts-Martial 303 provides that "the immediate commander"
of a person suspected of a court-martial offense "shall make or cause to be
made a preliminary inquiry" into the offense. 185 Determining the
immediate commander of a service member is relatively simple because of
the military organizational structure. It may be more difficult to determine
the commander of a civilian accompanying an armed force because civilian
contractors and other civilian employees may not have an immediate
military supervisor. The preliminary inquiry may be informal and may be
conducted by the commander personally. In serious or complex cases, the
commander86 may seek assistance from military law-enforcement
personnel. 1
Deciding how to conduct the investigation and whether to involve law
enforcement is a critical part of a criminal case. As a result, it is important
to quickly identify the "immediate commander" of civilians who have
engaged in misconduct in the field. This is best accomplished by
designating military commanders for all civilians subject to court-martial
jurisdiction.
D. Pretrial Confinement and Restraint
Rule for Courts-Martial 304 permits commanders to order pretrial
restraint of persons suspected of offenses. 187 There are generally four types
of restraint: (1) conditions on liberty, such as orders not to contact the
alleged victim; (2) restriction, which is an order to remain within specified
limits while still performing full military duties; (3) arrest, which is an
183.
See 5 U.S.C. §§ 7502, 7512 (2006); 5 C.F.R. §§ 752.201-.203, 752.301-.406
(2008).
184.
185.
Id.
MCM, supra note 65, R.C.M. 303.
186.
Id. R.C.M. 303, discussion.
187.
Id. R.C.M. 304(c).
2009]
COURT-MARTIAL JURISDICTIONOVER CIVILIANS
87
order to remain within specified limits (normally narrower than limits
imposed by restriction) and a prohibition from performing certain duties;
and (4) pretrial confinement in a confinement facility or jail. 188 Rule for
Courts-Martial 304 states that only a "commanding officer189to whose
authority the civilian ...is subject" may order pretrial restraint.
Persons placed in pretrial confinement are granted a number of rights
under Rule for Courts-Martial 305.190 These include the right to be
informed of the charges and be represented by a civilian attorney at no
expense to the government or by a free military attorney. 19 1 The
confinement is reviewed at least three different times. Within forty-eight
hours of the initiation of confinement, a "neutral and detached officer"
must review the adequacy of the probable cause to continue
confinement. 192 Within seventy-two hours, the confinee's commander
must decide whether pretrial confinement will continue and, if so, prepare a
memorandum stating the reasons for continued confinement.' 9 ' Within
seven days, a neutral and detached officer will conduct a more complete
review and permit the prisoner to appear and make a statement. 194
Because commanders decide whether to impose pretrial restraint and
conduct the seventy-two-hour review, it is critical to determine the identity
of the commander of persons suspected of criminal activity. Therefore, it is
important to establish a clear military chain of command for civilians
subject to court-martial jurisdiction.
E.Initial Disposition, Preferral and Forwarding of Charges
Ordinarily, the immediate commander of a suspect initially determines
how to dispose of the offense. 195 This commander may take no action, take
proceedings. 196
administrative action, or initiate nonjudicial punishment 97
Alternatively, the commander may initiate a court-martial. 1
A court-martial begins with the "preferral" of charges. This is a formal
act that may be completed by "[a]ny person subject to the [Uniform Code
of Military Justice]."' 98 Persons preferring charges must sign a charge
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
Id. R.C.M.
304(a).
304(b)(1).
305.
305(e)(3), (f).
305(i)(1).
305(h)(2)(c).
305(i)(2).
306(a).
306(c)(1)-(3).
306(c)(4)-(5).
307(a).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
sheet and swear that they have personal knowledge of or have investigated
the charges and believe they are true. 199 Preferring charges against
civilians should pose no special problems, since anyone subject to the Code
can perform this function.
Once charges have been preferred, they are ordinarily' forwarded to the
immediate commander of the accused for disposition.20 That commander
may dismiss them or forward them to a superior commander. 20 ' This
superior commander is usually the summary court-martial convening
authority, a mid-level commander. 20 2 This officer can either refer the
charges to a summary court-martial (the lowest level of court-martial) or
forward them to the special court-martial convening authority, a senior
commander. 20 3 The senior commander, in turn, may refer the charges to a
summary court-martial, a special court-martial (an intermediate level of
court-martial), or forward them to the general court-martial convening
authority, usually a high-ranking general or admiral.20 4 The general courtmartial convening authority may refer the charges to a summary courtmartial, a special court-martial or a general court-martial (the highest level
of court-martial).20 5
The higher up the chain of command the charges are forwarded, the
199.
Id. R.C.M. 307(b).
200.
Id. R.C.M. 401(a), discussion.
201.
Id. R.C.M. 401(c).
202.
A summary court-martial may be convened by the commander "of a detached
company or other detachment of the Army; ... a detached squadron or other detachment of
the Air Force; or ... any other command[er] empowered by the Secretary concerned." 10
U.S.C. § 824(a) (2006).
203.
MCM, supra note 65, R.C.M. 403(b)(3)-(4). A special court-martial may be
convened by the commander "of a district, garrison, fort, camp ... Air Force base [or]...
air field ... where members of the Army or the Air Force are on duty;" the commander of
"a brigade, regiment, detached battalion, or corresponding unit of the Army;" the
commander of a "wing, group, or separate squadron of the Air Force;" the commander of a
"naval or Coast Guard vessel, shipyard base or station; the commanding officer of a Marine
brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any
Marine barracks, wing, group, separate squadron, station base, auxiliary air field, or other
place where members of the Marine Corps are on duty;" or any other "command[er]
empowered by the Secretary concerned." 10 U.S.C. § 823(a) (2006).
204.
MCM, supra note 65, R.C.M. 404(d). A general court-martial may be convened
by the commander of "an Army Group, an Army, an Army Corps, a division, a separate
brigade, or a corresponding unit of the Army or Marine Corps; the commander in chief of a
fleet . . . a naval station or larger shore activity of the Navy;" the commander of "an air
command, an air force, an air division, or a separate wing of the Air Force or Marine Corps;
[or] any other commanding officer designated by the Secretary concerned ....
10 U.S.C. §
822(a) (2006).
205.
MCM, supra note 65, R.C.M. 407.
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
89
higher the maximum punishment becomes. The maximum punishment at a
summary court-martial includes confinement for one month.2 °6 At a special
court-martial, it includes confinement for twelve months. 20 7 In a general
court-martial, the maximum punishment is limited only by the offense of
which the accused is convicted.20 8 For example, the death penalty is
authorized for murder. 209
The identity of the chain of command can be critical because of the
importance of the actions by commanders who receive charges. It is
important not only to establish civilians' immediate commanders, but also
their higher-level commanders.
F. Speedy Trial
The speedy trial rights of an accused are greater at a court-martial than
in many civilian jurisdictions. 2 10 An accused at a court-martial is
guaranteed the right to a speedy trial under the Sixth Amendment of the
United States Constitution, 2 11 which is triggered when charges are
preferred.2 12 Additionally, the accused is protected by the Due Process
Clause of the Fifth Amendment against egregious tactical delays by the
prosecution. 2 13 There are two speedy trial rules that are unique to courtsmartial. Under Rule for Courts-Martial 707, an accused must be brought to
trial within 120 days of preferral of charges or imposition of certain types
of pretrial restraint. 214 Under Article 10 of the UCMJ and military case
law, an accused in pretrial
confinement must be brought to trial with
"reasonable diligence." 2 15
Applying the military-specific speedy trial rules to civilians may be
burdensome for military prosecutors. Problems determining a civilian's
chain of command and sorting out the application of rank-specific
procedural rules may make it difficult for prosecutors to process cases
involving civilians as quickly as those involving service members. These
206.
Id. R.C.M. 1301(d).
207.
208.
Id. R.C.M. 201(f)(2)(B).
Id. R.C.M. 1003.
209.
10 U.S.C.§ 918.
210.
Robert S. Poydasheff & William K. Suter, Military Justice?-Definitely!49 Tut.
L. REV. 588, 601 (1975); Francis Gilligan, The Bill of Rights and Service Members, ARMY
LAW., Dec. 1987, at 7.
211.
U.S. CONST. amend. VI.
212.
United States v. Groin, 21 M.J. 53, 55 (C.M.A. 1985).
213.
U.S. CONST. amend. V; United States v. Reed, 41 M.J. 449, 451-53 (1995).
214.
MCM, supra note 65, R.C.M. 707(a).
215.
10 U.S.C. § 801 (2006); United States v. Kossman, 38 M.J. 258, 262 (C.M.A.
1993).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
problems may be exacerbated by the Secretary of Defense's requirement to
notify the general court-martial convening authority and to coordinate with
the Department
of Justice before initiating a court-martial against a
2 16
civilian.
G. Discovery
The discovery rights of an accused at a court-martial are greater than
discovery rights in many civilian jurisdictions. 2 17 As in all jurisdictions, the
prosecutor is obligated to disclose exculpatory evidence. 2 18 Under Rule for
Courts-Martial 701,219 the prosecutor is required to disclose a great deal of
additional information. For example, the prosecutor is required to disclose
the papers accompanying the charges shortly after a case is referred to
trial. 220 These papers typically include all of the police reports and
statements relating to the case. In addition, the prosecutor is required to
disclose other documents, evidence, and reports related to the case upon
request. 221 Before trial, the prosecutor is required to disclose the names and
addresses of its witnesses. 222
The Military Rules of Evidence also contain discovery requirements.
Prior to arraignment, the prosecutor is required to disclose the contents of
statements made by the accused that are relevant to the case, known to the
prosecutor, and in the control of the armed forces. 223 The prosecutor is also
required to disclose evidence seized from the accused or believed to belong
to the accused that it intends to offer at trial.2 24 In addition, the prosecutor
must disclose prior identifications of the accused at a lineup or similar
process that it intends to offer at trial.2 25
Discovery in courts-martial involving civilians may be more difficult
than those involving service members. Investigatory reports involving
civilians may be prepared by civilian police agencies with little connection
to the military. In addition, many of the witnesses involved in courtsmartial of civilians are likely to be civilians themselves. Civilian
defendants often work with other civilians who may have witnessed their
216.
217.
Memorandum from Secretary of Defense, supra note 59, at Attach., para. 3.
Gilligan, supra note 210, at 7.
218.
Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97,
110-11 (1976). See also MCM, supra note 65, R.C.M. 701(a)(6).
219.
MCM, supra note 65, R.C.M. 701.
220.
221.
Id. R.C.M. 701(a)(2).
Id.
222.
223.
Id. R.C.M. 701(a)(3).
Id. MIL. R. EVID. 304(d)(1).
224.
225.
Id. MIL. R. EVID. 31 1(d)(1).
Id. MIL. R. EVID. 32 1(c)(1).
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COURT-MARTIAL JURISDICTION OVER CIVILIANS
91
misconduct or who may be able to testify about pertinent character traits.
Some of these civilian witnesses may have little or no relationship to the
United States armed forces. While the defense has equal access to
witnesses and evidence, 226 it may be difficult to interview civilian
witnesses with little or no connection to the military, especially
since
22 7
witnesses have no obligation to submit to pretrial interviews.
H. Plea Bargaining
Plea bargaining at a court-martial is more robust than in many civilian
jurisdictions. 228 Rule for Courts-Martial 705229 permits an accused to enter
into a pretrial agreement with the government and, in return, receive a
direct limitation on the sentence that can be approved.2 3 °
Involuntary pretrial agreements are prohibited in courts-martial. 2 31 The
courts have long been wary of subtle command pressure that may make
pretrial agreement terms involuntary. 23 2 The same rationale may not apply
to civilians if they are not subject to these command pressures.
In one respect, civilians are more limited than service members in their
ability to negotiate pretrial agreements. Service members can include
limitations on reductions in rank and punitive discharges in their pretrial
agreements. 23 3 Civilians are unable to bargain for these terms since they
have no military rank and cannot be discharged from the service. However,
civilians are still left with a great number of other terms that they can
negotiate, such as withdrawal of certain charges, 234 or a limitation on the
confinement that can be approved.23 5
Since pretrial agreements only extend to trials by courts-martial,2 36
attorneys negotiating a pretrial agreement involving a civilian accused
should ensure the accused will not be prosecuted by another jurisdiction
after the court-martial is over. 237 Civilians pending a court-martial, may be
226.
227.
Id. R.C.M. 70 1(e); 10 U.S.C. § 846 (2006).
United States v. Morris, 24 M.J. 93, 93 (C.M.A. 1987).
228.
Gilligan, supra note 210, at 9.
229.
MCM, supra note 65, R.C.M. 705.
230.
Id. R.C.M. 705(b)(2)(E).
231.
232.
Id. R.C.M. 705(c)(1)(A).
See United States v. Jones, 23 M.J. 305, 308 (C.M.A. 1987); United States v.
Zelinski, 24 M.J. 1, 2 (C.M.A. 1987).
233.
MCM, supra note 65, R.C.M. 705(b)(2)(E), 1003(b)(2)(2), (8).
234.
Id. R.C.M. 705(b)(2)(C).
235.
236.
Id. R.C.M. 705(b)(2)(E), 1003(b)(2)(7).
Id. R.C.M. 705(a), Discussion.
See U.S. DEP'T OF DEFENSE, DIR. 5525.7, IMPLEMENTATION OF THE MEMORANDUM
237.
OF UNDERSTANDING
BETWEEN THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
subject to criminal prosecution under local law or United States federal
civilian law. 238 Prosecution under United States federal civilian law should
not be an issue; the Secretary of Defense has directed that courts-martial
against civilians may be initiated only when federal civilian prosecution is
either inapplicable or is not pursued. 239 However, prosecution by local
authorities, who are not satisfied with the results of a court-martial, is a
distinct possibility.
I. Pretrial Investigation Under Article 32
Before charges may be referred to a general court-martial, a pretrial
investigation must be conducted under Article 32 of the UCMJ. 24 0 This
241
pretrial investigation is often compared to a civilian grand jury hearing.
However, the rights of the accused at such a pretrial investigation are
substantially greater than at a grand jury hearing. The accused has the right
to be present at such a hearing, the right to counsel, and the right to call
An accused in a federal grand jury
witnesses and present evidence. 242
24 3
hearing does not have these rights.
In one respect, however, the pretrial investigation provides the accused
with less protection than its civilian equivalent. Unlike a grand jury
hearing, the recommendations of the Article 32 investigating officer are not
binding. 244 In other words, charges may be sent to trial by court-martial
even though the Article 32 investigating officer recommends dismissal or a
lower level of disposition. If a federal grand jury hearing does not result in
an indictment, prosecutors are bound by this decision. 245
It can be difficult to obtain civilian witnesses at an Article 32
investigation. Military witnesses may be compelled to testify at such a
DEFENSE RELATING TO THE INVESTIGATION AND PROSECUTION OF CERTAIN CRIMES (Jan. 22,
1985) reproduced in MCM, supra note 65, app. 3.
238.
Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261-3267 (2006)
(authorizing the federal prosecution of civilians).
239.
Memorandum from Secretary of Defense, supra note 59, at Attach 3.
240.
10 U.S.C. § 32 (2006).
241.
See Major Larry A. Gaydos, A Comprehensive Guide to the Military Pretrial
Investigation, 111 MIL. L. REV. 49,49-50 (1986).
242.
MCM, supra note 65, R.C.M. 405(f).
243.
See FED. R. CRIM. P. 6. See also Gilligan, supra note 210, at 6; Poydasheff and
Suter, supra note 210, at 590.
See MCM supra note 65, R.C.M. 405(a), discussion; Green v. Widdecke, 42
244.
C.M.R. 178, 179 (1970).
245.
An indictment is required for federal offenses punishable by death or
imprisonment for more than one year. FED. R. CRIM. P. 7(a). Grand juries are comprised of
sixteen to twenty-three persons and may return an indictment only if at least twelve jurors
concur. FED. R. CRIM. P. 6(a), (f).
2009]
COURT-MARTIAL JURISDICTION OVER CIVILIANS
93
hearing. 246 Civilian witnesses, on the other hand, can be invited, but may
not be compelled to attend.24 7 This is a problem for both military and
civilian personnel pending court-martial. However, this problem is more
likely to arise in courts-martial of civilians, since they often work with
other civilians who can vouch for their character or testify about their
alleged offenses.
J. Command Influence
Article 37 of the Uniform Code of Military Justice prohibits
commanders from attempting to influence the results of courts-martial.2 4 8
This prohibition on command influence helps to ensure that military
criminal trials are conducted fairly, without undue pressure from highranking officials in the chain of command.2 49
Article 37 and case law prohibit various types of command influence.
The most obvious form of prohibited command influence is controlling or
reprimanding military judges, military jurors (referred to as "members"), or
counsel involved in courts-martial. 2 50 A more subtle type of prohibited
command influence is influencing witnesses by discouraging them from
testifying. 25 1 Another form of unlawful command influence is controlling
the discretion of lower-level commanders involved in a case by directing
252
them to prefer charges or recommend a particular disposition.
The problem of command influence would, arguably, be less in the
court-martial of a civilian. Since civilians have no military rank they may
be less easily coerced by senior military commanders. However, other
participants in a civilian's court-martial, such as military attorneys, judges,
witnesses, and jurors, could be subjected to unlawful command influence.
The Secretary of Defense's guidance on the exercise of court-martial
jurisdiction over civilians requires notification of high-level commanders
246.
Military witnesses can be compelled to attend an Article 32 hearing through
coordination with their commander. MCM, supra note 65, R.C.M. 405(g)(2)(A).
247.
Id. R.C.M. 405(g)(2)(B), Discussion.
248.
10 U.S.C. § 837(a) (2006); see also MCM, supra note 65, R.C.M. 104(a)(2).
249.
See generally Teresa K. Hollingsworth, Unlawful Command Influence, 39 A.F. L.
REV. 261 (1996); Samuel J. Rob, Note, From Treakle to Thomas, The Evolution of the Law
of Unlawful Command Influence, ARMY LAW., Nov. 1987, at 36; Deana M.C. Willis, The
Road to Hell is Paved with Good Intentions: Finding and Fixing Unlawful Command
Influence, ARMY LAW., Aug. 1992, at 3.
250.
MCM, supra note 65, R.C.M. 104(a)(1).
251.
United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004); United States v.
Thomas, 22 M.J. 388, 397 (C.M.A. 1986).
252.
United States v. Gerlich, 45 M.J. 309, 313 (C.A.A.F. 1996); United States v.
Martinez, 42 M.J. 327, 332-33 (C.A.A.F. 1995).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
before charges against a civilian are preferred.2 5 3 This requirement may
raise the danger of command influence if lower-level commanders feel
pressured to prefer or forward charges because of the involvement of senior
commanders. It will be important for prosecutors to ensure that all
commanders exercise their independent judgment without regard to
scrutiny from higher commanders.
K. Court-Martial Personnel
Once a case has been referred to trial, a number of military personnel
must be "detailed" to try the case. These personnel include a military judge,
(referred to
military jurors (referred to as members), at least one prosecutor
25 4
counsel.
defense
military
one
least
at
and
counsel),
trial
as a
Each service branch has a separate cadre of military attorneys assigned
as military judges. 255 These judges are provided tenure to ensure their
impartiality. 256
The accused at a court-martial has the right to trial by a military jury. 257
Military jurors are selected by the convening authority, the commander
who refers a case to trial. 258 Since the convening authority determines
when to send cases to trial (a prosecutorial function), many question
whether the same official should also select the jury. 259 One response to
this concern is to limit the criteria the convening authority may use to select
jurors. Under Article 25 of the UCMJ, the convening authority must select
the most qualified members based on "age, education, training, experience,
length of service and judicial temperament." 260 Commanders are not
permitted to select jurors with the intent to achieve harsh sentences. 261
253.
254.
Memorandum from Secretary of Defense, supra note 59, at Attach. 2, para. 3.
MCM, supra note 65, R.C.M. 501.
255.
See, e.g., U.S. DEP'T OF ARMY REG., 27-10, MILITARY JUSTICE, ch. 8 (Nov. 16,
2005) [hereinafter AR 27-10].
256.
See id. 8-1(g) (establishing three year tenure for Army judges); see also United
States v. Weiss, 510 U.S. 163, 179, 181 (1994).
257.
MCM, supra note 65, R.C.M. 903(a)(1).
258.
Id. R.C.M. 503(a).
259.
Guy P. Glazier, He Called for His Pipe, and He Calledfor His Bowl, and He
Calledfor His Members Three-Selection of Military Juries by the Sovereign: Impediment to
Military Justice, 157 MIL. L. REV. 1, 4 (1998); Bradley J. Heustis, Anatomy of a Random
Court-MartialPanel, ARMY LAW., Oct. 2006, at 22; Stephen A. Lamb, The Court-Martial
Panel Selection Process: A CriticalAnalysis, 137 MIL. L. REv. 103, 112 (1992). But see
Christopher W. Behan, Don't Tug on Superman's Cape: In Defense of ConveningAuthority
Selection and Appointment of Court-MartialPanel Members, 176 MIL L. REv. 190, 256
(2003).
260.
261.
10 U.S.C. § 825(d)(2) (2006).
United States v. McClain, 22 M.J. 124, 131 (C.M.A. 1986); United States v.
2009]
COURT-MARTIAL JURISDICTIONOVER CIVILIANS
95
Enlisted service members facing trial by court-martial are permitted to
request at least one-third of their military jury be comprised of enlisted
members.26 2 Civilians do not have this right.2 63 As a general rule, no
member of a military jury may be junior to the accused.2 64 Since civilians
have no military rank, it may be difficult to determine how to enforce this
requirement. Some regulations contain equivalency tables between
Department of Defense civilian grades and military ranks. 265 However,
such tables do not apply to all civilian positions and do not apply to
contractors.
The prosecutor or "trial counsel" at a general court-martial must be a
military attorney certified by the service Judge Advocate General.26 6 The
use of such a prosecutor would raise no significant problems during the
court-martial of a civilian, since there is no rank or organizational
requirement for a military prosecutor. 267
An accused at a court-martial has the right to a free military defense
counsel. 268 This free defense attorney is provided regardless of whether the
accused is indigent. 269 Most of the services have a separate organization of
defense counsel to ensure that these attorneys are independent. 270 An
accused at a court-martial is also entitled to obtain a civilian defense
counsel, although such an attorney
must be provided by the accused at no
27 1
expense to the government.
Military defense attorneys may have difficulty defending civilians
during a court-martial because military attorneys are used to defending
service members. They will need to become familiar with their new civilian
clients and the organizations they work for before they can provide
adequate representation. The ability to hire a civilian attorney may alleviate
this problem but civilian attorneys may not be readily available to defend
Redman, 33 M.J. 679, 683 (A.C.M.R. 1991).
262.
263.
264.
MCM, supra note 65, R.C.M. 903(c)(1).
Id. R.C.M. 903(a), Discussion.
10 U.S.C. § 825(d)(1); MCM, supra note 65, R.C.M. 912(f)(1)(K).
265.
See, e.g., AR. 623-3, supra note 179, at 7 tbl.2-1. This table equates Army civilian
personnel in the grade of GS-13 equivalent to a major or lieutenant colonel and equates
civilian personnel in the grade of GS-15 to colonel. Id. For equivalencies under the new
National Security Personnel System, see DEP'T OF DEFENSE CIVILIAN PERSONNEL MANUAL
(1400.25-M), subch. 1911 (Apr. 28, 2006), availableat http://www.cpms.osd.mil/nsps/docs/
implementing-issuances/1911 conversion.pdf.
266.
MCM, supra note 65, R.C.M. 502(d)(1).
267.
Id.
268.
269.
270.
271.
Id. R.C.M. 506.
Id.
See, e.g., AR 27-10, supra note 255, at ch. 6.
MCM, supra note 65, R.C.M. 506(a).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
civilians in courts-martial. Civilians are only subject to court-martial
jurisdiction when they are "accompanying the armed forces in the field," an
environment
where few civilian criminal defense attorneys may be
272
available.
L. Production of Witnesses
An accused at a court-martial has the right to obtain relevant and
necessary witnesses. 273 This right is similar to the rights of a defendant in a
civilian criminal trial.2 74 However, while a defendant in a civilian criminal
trial may be required to pay for attendance of witnesses or prove
indigence, 2 75 the accused at a military court-martial is able to obtain
relevant and necessary witnesses at the government's expense. 276
An accused at a court-martial also has the right to obtain relevant and
necessary expert witnesses at the government's expense under Rule for
Courts-Martial 703.277 In addition, Rule for Courts-Martial 706 provides
the accused a unique opportunity to obtain assistance from mental-health
professionals. 278 This rule permits defendants to request an inquiry into
their mental responsibility at the time of the offenses as well as their mental
capacity to stand trial. 279 The prosecutors are not permitted to view most of
the reports generated by these inquiries; they receive only the ultimate
conclusions of whether the accused lacks mental responsibility or is
competent to stand trial. 280 This protection is important for service
members, because they must usually rely on military doctors who might
release the results of their examinations to prosecutors. The protection may
be less important for civilians because they often use civilian281physicians
who are less likely to inform prosecutors of their examinations.
Production of military witnesses at a court-martial is relatively simple:
272.
A number of civilian attorneys have represented service members in courtsmartial in Iraq and Afghanistan. See, e.g., Bradley Brooks, Sniper Convicted of Killing Iraqi
Civilians, STARS & STRIPES (Mideast ed.), Feb. 11, 2008, at 3.
273.
10 U.S.C. § 846 (2006); MCM, supra note 65, R.C.M. 703.
274.
Under the Federal Rules of Criminal Procedure, both the defense and the
prosecution can subpoena witnesses. There is a similar procedure for the subpoena of
witnesses in courts-martial. Compare FED. R. CRIM. P. 17 (subpoenas) with MCM, supra
note 65, R.C.M. 703 (production of witnesses and evidence).
275.
See, e.g., FED. R. CRIM. P. 17(b).
276.
277.
278.
MCM, supra note 65, R.C.M. 703(c)(2).
Id. R.C.M. 703(d).
Id. R.C.M. 706.
279.
280.
281.
Id.
Id. R.C.M. 706(c)(3)(A), (c)(5); Id. MIL. R. EVID. 302.
Id. MIL. R. EVID. 302 app. 22, § III, at A22-7.
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97
such witnesses are ordered to attend the trial and are provided with
appropriate funding for their travel.2 82 Production of civilian witnesses can
be more complicated. Civilian witnesses in the United States can be
subpoenaed to appear at a court-martial in the United States. 283 Overseas,
civilian witnesses can be required to attend a court-martial only with the
cooperation of the country where the witness is located. 284 No procedure
exists to compel 2a85civilian witness in the United States to attend a courtmartial overseas.
The Secretary of Defense has limited the authority to initiate courtsmartial of civilians in the United States. 286 As a result, such trials are likely
to be held overseas. It will be difficult to obtain civilian witnesses at such
courts-martial because of the limitations on compulsory processes overseas.
The difficulty obtaining civilian witnesses applies equally to military and
civilian defendants. However, civilians pending court-martial are more
likely to need civilian witnesses because they are more likely to have
worked with other civilians who can vouch for their character or testify
about their alleged offenses.
M. Fourth Amendment and Search and Seizure
The Fourth Amendment of the United States Constitution 287 protects
service members from unreasonable searches and seizures. 2 88 These
282.
Id. R.C.M. 703(e)(1).
283.
Id. R.C.M. 703(e)(2)(A).
284.
In foreign countries, witnesses may be obtained in accordance with international
agreements or international law. Id. R.C.M. 703(e)(2)(E)(ii). In occupied territories, the
appropriate commander may compel the attendance of civilian witnesses in such territory.
Id. R.C.M. 703(e)(2)(E)(iii).
285.
United States v. Bennett, 12 M.J. 463, 471 (C.M.A. 1982).
286.
The Secretary of Defense is the only person who can authorize courts-martial of
civilians when the offense occurs within the United States or when the civilian accused is
located in the United States. Memorandum from Secretary of Defense, supra note 59, at
Attach. 2, para. 1.
287.
U.S. CONST. amend. IV. This amendment provides that:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated; and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched and the
persons or things to be seized.
Id.
288.
United States v. Stuckey, 10 M.J. 347, 349 (C.M.A. 1981). But cf Colonel Fredric
I. Lederer & Lieutenant Colonel Frederic L. Borch, Does the Fourth Amendment Apply to
the Armed Forces? 144 MIL. L. REv. 110, 119 (1994) (discussing how much and in what
ways the Fourth Amendment rather than the Manual for Courts Martial affords protection to
service members).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
protections have been codified to make them simpler to understand 289 but
the protections in the military are sometimes
more limited than the
290
protections provided in civilian jurisdictions.
The Fourth Amendment and military search and seizure protections do
not exclude evidence when there is no reasonable expectation of
privacy. 29 1 There generally is no reasonable expectation of privacy in
govemment property that is not issued for personal use 292 such as
government desks 293 and computer equipment. 294 Barracks rooms and
similar military living areas have a reduced expectation of privacy. 295 In
addition, Fourth Amendment and military search and seizure rules provide
commanders with broad authority to conduct inspections. 296 As long as the
purpose of the inspection is to ensure "security, military fitness, or good
order and discipline," the command can inspect any area under military
control without a warrant or probable cause. 2 97 Commanders can also
authorize inspections of those entering or exiting military installations,
aircraft, and vessels. 298 As a result, civilians living or working on military
installations are likely to have little privacy and few protections against
searches and seizures.
The Fourth Amendment and military search and seizure rules do not
apply to searches by foreign police agents. 299 The rules also do not apply300
to
searches by United States agents of a foreigner's property overseas.
289.
MCM, supra note 65, MIL. R. EvID. § III, analysis, at A22-5. For the sake of
assisting the considerable number of non-lawyers involved in military justice, Fourth
Amendment protections were codified in the Military Rules of Evidence section of the
MCM. Id.
290.
See id. MIL. R. EVID. 313, analysis, at A22-20.
291.
See id. MIL. R. EvID. 31 l(a)(2); see generally Katz v. United States, 389 U.S. 347
(1967) (holding that the Fourth Amendment protections extend to areas where there is a
reasonable expectation of privacy).
292.
See MCM, supra note 65, MIL. R. EVID. 314(d).
293.
294.
295.
United States v. Muniz, 23 M.J. 201 (C.M.A. 1987).
United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000).
United States v. McCarthy, 38 M.J. 398, 403-04 (C.M.A. 1993); United States v.
Battles, 25 M.J. 58, 60 (C.M.A. 1987).
296.
MCM, supra note 65, MIL. R. EVID. 313; see New York v. Burger, 482 U.S. 691,
702 (1987).
297.
298.
MCM, supra note 65, MIL. R. EvID. 313(b).
Id. MIL. R. EvID. 314(e)(5).
299.
United States v. Morrison, 12 M.J. 272, 275-77 (C.M.A. 1982); MCM, supra note
65, MIL. R. EVID. 311(c)(3), 315(h)(3). However, such searches are inadmissible if the
accused was subjected to gross and brutal maltreatment or if military personnel or other
agents of the United States participated in the search. Id. MIL. R. EVID. 311 (a), (c).
300.
See United States v. Verdugo-Urquidez, 494 U.S. 259, 264-65 (1990).
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COURT-MARTIAL JURISDICTIONOVER CIVILIANS
99
Courts-martial of civilians are likely to occur overseas, 30 1 and the
defendants in such trials may live in areas subject to search by foreign
authorities. As a result, the military search and seizure rules may provide
few protections to civilians overseas who are subject to trial by courtmartial.
One area where military search and seizure rules provide greater
protections than the Fourth Amendment is consent searches. The military
rules require the government to prove by clear and convincing evidence
that the consent was voluntary. 30 2 This increased burden, which is not
required by the Fourth Amendment, 30 3 was created to protect service
members from being coerced by their commanders to consent to
searches. 30 4 This concern may not apply to civilians if they are not under
direct military supervision.
Foreign searches, reduced expectations of privacy, and military
inspections affect service members to the same extent as civilians.
However, while service members are usually familiar with these
conditions, civilians may need to be briefed on the unique military search
and seizure rules.
N. Fifth Amendment and Self-Incrimination
The Fifth Amendment of the United States Constitution 3 05 protects
service members from involuntary self-incrimination. 30 6 The Supreme
Court has held that the Fifth Amendment not only protects an accused at
trial, but also requires rights warnings during custodial interrogations prior
to trial.30 7
Article 31 of the UCMJ 30 8 provides additional protections against self-
301.
There are significant restrictions on court-martial of civilians in the United States.
The Secretary of Defense is the only person who can authorize courts-martial of civilians
when the offense occurs within the United States or when the civilian accused is located in
the United States. Memorandum Secretary of Defense, supra note 59, at Attach. 2, para. 1.
302.
MCM, supra note 65, MIL. R. EVID. 314(e)(4), (15).
See MCM, supra note 65, MIL. R. EvID. 314(e), analysis, at A22-26.
303.
304.
See id.
305.
U.S. CONST. amend. V. This amendment provides, in part, "No person.., shall be
compelled in any criminal case to be a witness against himself .... Id.
306.
See MCM, supra note 65, MIL. R. EVID. 30 1(a); see also United States v. Tempia,
37 C.M.R. 249, 256 (C.M.A. 1967).
307.
See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
308.
10 U.S.C. § 831 (2006). This article provides, in part:
No person subject to this chapter may interrogate, or request any statement
from an accused or a person suspected of an offense without first informing
him of the nature of the accusation and advising him that he does not have to
make any statement regarding the offense of which he is accused or
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
incrimination. Article 3 1 requires rights warnings for military suspects,
regardless of whether they are in custody. 30 9 The rationale for this
increased protection is that the military rank structure may coerce service
members into providing involuntary statements. 310 This rationale may not
apply equally to civilians who have no military rank, especially if they are
not under the direct supervision of a service member.
The military protections against self-incrimination under the Fifth
Amendment and Article 31 have been codified in a separate section of the
Military Rules of Evidence,3 11 which make them easier to understand. 3 12
This is important since many non-lawyers are involved in the military
justice process. For example, commanders are responsible for the
preliminar inquiry into an offense and may question suspects during this
process. 313
Civilians subject to court-martial should be familiar with the Fifth
Amendment protections against self-incrimination because these rules
apply to civilian trials as well as courts-martial.3 14 However, they may
need to be educated on the unique protections against self-incrimination
provided by Article 3 1.315
0. Trial Procedures
The procedures at a court-martial are similar to those in
criminal trials. Courts-martial include an arraignment, 3 16
motions, 3 17 entry of pleas by the accused, 3 18 voir-dire and
of
presentation
statements, 32
jurors, 3 19 opening
most civilian
litigation of
challenges 32of1
evidence,
suspected and that any statement made by him may be used as evidence
against him in a trial by court-martial.
Id. § 831(b).
309.
Id. § 831; MCM, supra note 65, MIL. R. EvID. 305.
310.
See generally Captain Fredric I. Lederer, Rights Warnings in the Armed Services,
72 MIL. L. REV. 1 (1976) (the right against self-incrimination is deemed a fundamental right,
in both the civilian and military context given the coercive nature of custodial
interrogations).
311.
315.
316.
MCM, supra note 65, MIL. R. EvID. 301-306.
See id. MIL. R. EvID. § III, analysis, at A22-25.
Id. MIL. R. EVID. 303.
See United States v. Tempia, 37 C.M.R. 249, 255 (C.M.A. 1967); see generally
v. Arizona, 384 U.S. 436, 497 (1966).
10 U.S.C. § 831 (2006); MCM, supra note 65, MIL. R. EvID. 301-306.
MCM, supra note 65, R.C.M. 904.
317.
318.
Id. R.C.M. 906.
Id. R.C.M. 910.
319.
320.
Id. R.C.M. 912.
Id. R.C.M. 913(b).
312.
313.
314.
Miranda
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COURT-MARTIAL JURISDICTION OVER CIVILIANS
101
arguments, 32 2 the judge's instructions on the law, 323 deliberations by the
jury, 324 and the entry of a verdict. 325 These procedures are common to
criminal trials in most American jurisdictions. 326
The Military Rules of Evidence govern admissibility of evidence at a
court-martial. 3 27 These rules are based on the Federal Rules of
Evidence. 328 As a result, the evidentiary rules at a court-martial are very
similar to those applicable to federal civilian criminal trials.
The Military Rules of Evidence depart from Federal Rules of Evidence
in those areas where unique military concerns require it. For example, the
rules differ in the area of privilege. The Federal Rules do not codify any
specific rules of privilege, but simply rely on the common law as
interpreted by the courts. 329 The Military Rules of Evidence, on the other
hand, codify a number of specific privileges, including the lawyer-client
privilege, 330 the priest-penitent privilege, 3 31 and the husband-wife
privilege. 332 In addition, the Military Rules include a number of special
privileges dealing with classified information, 333 government information
that is not classified,3 34 and the identity of informants.33 5 The drafters of
the Military Rules believed that clear guidance was needed in this area
because of the significant number of non-lawyers involved in the military
justice system. 336
Civilians pending court-martial are likely to understand the military trial
process, since it is similar to that of civilian trials. However, they may not
be aware of some of the differences, such as the clearer privilege rules
Id. R.C.M. 913(c).
321.
322.
Id. R.C.M. 919.
323.
Id. R.C.M. 920.
324.
Id. R.C.M. 921.
325.
The verdict in a court-martial is referred to as the findings. Id. R.C.M. 922.
326.
See, e.g., FED. R. CRIM. P. 10 (arraignment), 11 (pleas), 12 (motions), 24 (voir dire
and challenges), 26 (taking of testimony), 29.1 (closing argument), 30 (instructions), 31
(verdict).
327.
MCM, supra note 65, MIL. R. EVID. 101.
328.
Id. MIL. R. EVID. 1102(a). Changes to the Federal Rules apply to the Military
Rules eighteen months after the effective date of such amendments unless the President
takes action to the contrary. Id.
329.
FED. R. EVID. 501.
330.
331.
332.
MCM, supra note 65, MIL. R. EVID. 502.
Id. MIL. R. EvID. 503.
Id. MIL. R. EVID. 504.
333.
Id. MIL. R. EVID. 505.
334.
335.
336.
Id. MIL. R. EVID. 506.
Id. MIL. R. EvID. 507.
Id. MIL. R. EvID. 501.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
applicable to classified and other sensitive government information. 337 It
may be helpful to educate civilians on these unique aspects of military
trials.
P. Sentencing Proceedings
Military sentencing proceedings are quite different from those in most
civilian jurisdictions. Sentencing proceedings in a court-martial are usually
conducted immediately after a trial on the merits. 33 8 Pre-sentencing reports
do not exist in the military. 339 Instead, both the prosecutor and defense are
permitted to introduce evidence to the sentencing authority. 340 If the
accused elected to have a trial by jury, the jury will determine the
sentence. 34 1 If the accused
chose trial by military judge alone, the judge
342
determines the sentence.
Rule for Courts-Martial 1001 specifies what the prosecution and the
defense can introduce during sentencing proceedings. 343 Prosecutors are
relatively limited in what they may introduce into evidence; they may
introduce aggravation evidence directly relating to the offenses, service
data from the charge sheet, data from the accused's personnel records, and
evidence of rehabilitative potential.3 44 The defense, however, has broader
rights to present evidence. They may present evidence in extenuation or
mitigation, in the form of service records and statements from the
accused's friends and family. 34 5 The346
accused can also make a sworn or
sentencing.
during
statement
unsworn
Service records often are an important part of the evidence presented
during sentencing. 34 7 Civilian defendants do not have such records, which
might place them at a disadvantage. However, civilians may have other
records, such as civilian personnel files containing awards and promotions,
which can be used in lieu of service records.
337.
Compare United States v. Reynolds, 345 U.S. 1, 10-11 (1953) (Air Force accident
report involving plane crash was deemed to be privileged; there was "reasonable possibility
that military secrets were involved") with MCM, supra note 65, MIL. R. EVID. 505, 506.
338.
MCM, supra note 65, R.C.M. 1001.
339.
Cf 18 U.S.C. § 3552 (2006) (describing pre-sentence reports in the federal
civilian system).
340.
MCM, supra note 65, R.C.M. 1001(b), (c).
341.
Id. R.C.M. 903, R.C.M. 1006.
342.
Id. R.C.M. 903(a)(2), 1007.
343.
Id. R.C.M. 1001.
344.
345.
346.
Id. R.C.M. 1001(b).
Id. R.C.M. 1001(c)(1)(B), 1001(c)(3).
Id. R.C.M. 1001(c)(2)(A).
347.
Id. R.C.M. 1001(b)(2), (c)(1)(B).
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The punishments that a court-martial may impose include
5'
confinement,3 4 8 a reprimand,3 4 9 a fine, 3 50 reduction in pay grade, 3353
352 and a punitive discharge from the service.
forfeiture of pay,
Reduction in pay grade and punitive discharges are not options for civilians
at a court-martial since they have no military pay grade or status as service
members. Forfeiture of pay is generally not an option for a civilian
either. 354 The limited punishment options available for civilian defendants
may leave sentencing authorities with the impression that confinement and
a fine are the only effective punishments. This may place civilian
defendants at a disadvantage.
Q. Post-Trial
After trial is over, a court-martial is reviewed by several officials. The
court-martial is initially reviewed by the convening authority, the officer
who directed that the case go to trial.3 55 This officer takes "action" on the
case by approving or disapproving the sentence. 356 The accused has the
right to submit matters to the convening authority before he or she takes
action on the case. 3 57 In higher-level courts-martial, the convening
authority's attorney must prepare a legal review of the case before
action. 358
If the approved sentence includes a discharge from service or
confinement for one year or more, the case must be reviewed by a service
appellate court, 359 referred to as "a Court of Criminal Appeals." 361 Other
cases are reviewed by the service Judge Advocate General or a lower-level
judge advocate. 36 1 Cases reviewed by a Court of Criminal Appeals can also
348.
Id. R.C.M. 1003(b)(7).
349.
Id. R.C.M. 1003(b)(l).
350.
Id. R.C.M. 1003(b)(3).
351.
Id. R.C.M. 1003(b)(4).
352.
Id. R.C.M. 1003(b)(2).
353.
Id. R.C.M. 1003(b)(8).
354.
Ordinarily a fine, rather than a forfeiture of pay, is the proper monetary penalty to
be adjudged against a civilian subject to military law. Id. R.C.M. 1003(b)(3).
355.
Id. R.C.M. 1107(a).
356.
The convening authority may also approve or disapprove the findings. Id. R.C.M.
1107.
357.
Id. R.C.M. 1105(a).
358.
This legal review is referred to as the "[r]ecommendation of the staff judge
advocate or legal officer." Id. R.C.M. 1106. The review is required in general courts-martial
and special courts-martial in which a punitive discharge was adjudged. Id.
359.
Id. R.C.M. 1201(a).
360.
Id.
361.
All general courts-martial that result in a sentence and are not otherwise reviewed
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
be reviewed by the Court of Appeals for the Armed Forces, 362 a court
composed of five civilian judges. 363 Cases reviewed by the Court of
Appeals of the Armed Forces can be reviewed by the United States
Supreme Court by writ of certiorari.36 4
This review of courts-martial is more robust than the review of civilian
criminal trials. The review by the appellate military courts is similar to that
permitted in federal civilian criminal trials. 365 However, the review by the
convening authority 366 and the review of less serious cases by a legal
367
officer are procedures that do not exist in civilian jurisdictions.
V. CONSTITUTIONALITY OF JURISDICTION OVER CIVILIANS
The constitutionality of the new court-martial jurisdiction over civilians
will undoubtedly be challenged. 368 An accused in a court-martial has most
of the same constitutional protections available to those pending criminal
trial in civilian courts. 3 6 9 However, two protections are missing: the right
to a grand-jury indictment, required by the Fifth Amendment of the United
States Constitution, 370 and the right to a jury trial, required under the Sixth
Amendment and Article 111.371
by a court of criminal appeals, must be reviewed by the service Office of the Judge
Advocate General. Id. R.C.M. 1201(b)(1). Most other courts-martial are required to be
reviewed by a judge advocate. Id. R.C.M. 1112.
362.
363.
Id. R.C.M. 1204.
10 U.S.C. § 942(a)-(b) (2006).
MCM, supra note 65, R.C.M. 1205.
C.f 18 U.S.C. § 3742 (2006) (explaining civilian appellate review of criminal
364.
365.
trials).
366.
Compare MCM, supra note 65, R.C.M. 1107(a)-(b) (allowing review of a variety
of factors from the trial as well as additional matters) with FED. R. CRIM. P. 35 (permiting
correction or reduction of sentence based on clerical error or motion by the government).
367.
Compare MCM, supra note 65, R.C.M. 1112(a), 1201 (requiring review of certain
courts-martial) with 18 U.S.C. § 3742 (providing no intermediate step before appellate
review).
368.
The first court-martial involving a civilian under the new amendment to the
UCMJ was reported in the press in April 2008. Contractor Charged Under Military Law,
STARS & STRIPES (European ed.), Apr. 6, 2008, at 7. The court-martial resulted in a guilty
plea in June 2008. Dean Yates, First Contractor Convicted Under U.S. Military Law in
Iraq, REUTERS, June 24, 2008, at 3, available at http://www.reuters.com/article/GCA-GCAiraq/idUSL243864420080624.
369.
Poydasheff & Suter, supra note 210 n.6, at 589; see generally Gilligan, supra note
210, at 3; Captain Scott Hancock, The Constitution and the Criminally Accused Soldier: Is
the Door Opening or Closing?, ARMY LAW., Nov. 1987, at 28.
370.
U.S. CONST. amend. V. The language of the Fifth Amendment specifically states
that the right to a grand jury does not exist in "cases arising in the land and naval forces." Id.
371.
U.S. CONST. art. Ill, § 2, cl. 3; amend. VI. The courts have held that the right to a
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COURT-MARTIAL JURISDICTION OVER CIVILIANS
105
The Fifth Amendment provides that "[n]o person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury . ... "372 This constitutional right only applies
to federal courts; it has not been applied to the states through the
Fourteenth Amendment. 3 73 The term "infamous" has been interpreted to
include felonies, 374 but
it does not include crimes punishable by a prison
375
term of a year or less.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been
committed .... ,,
Article III provides, in part, that "[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial
shall be held in the State where the said Crimes shall have been committed;
but when not committed within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed." 3
The constitutional right to a jury trial applies whenever an accused faces
more than six months imprisonment. 378 The Supreme Court has held that
the Constitution does not mandate twelve person juries and that juries
consisting of six persons pass constitutional muster. 379 However, juries
consisting of five or fewer do not pass muster. 380 The Supreme Court has
also held that non-unanimous verdicts are constitutional, 381 but nonunanimous verdicts by six-person juries are unconstitutional.38 2
In the past, the Supreme Court has ruled that courts-martial of civilians
jury trial does not apply to courts-martial. United States v. McClain, 22 M.J. 124, 128
(C.M.A. 1986). C.f Ex Parte Quirin, 317 U.S. 1 (1942).
372.
U.S. CONST. amend. V.
373.
Lem Woon v. Oregon, 229 U.S. 586, 589-90 (1913); Hallinger v. Davis, 146 U.S.
314, 317-18 (1892); Hurtado v. California, 110 U.S. 516, 537-38 (1883). See also U.S.
CONST. amend. XIV.
374.
See Michel v. Louisiana, 350 U.S. 91, 99 (1955).
375.
See United States v. Coachman, 752 F.2d 685, 689 n.24 (D.C. Cir. 1985); United
States v. Simon, 510 F. Supp. 232, 234-35 (E.D. Pa. 1981).
376.
U.S. CONST. amend. VI.
377.
U.S. CONST. art III, § 2, cl. 3.
378.
Baldwin v. New York, 399 U.S. 66, 68-69 (1970); Duncan v. Louisiana, 391 U.S.
145, 161-62 (1968) ("[A] crime punishable by two years in prison is... a serious crime and
not a petty offense."); see also Cheff v. Schnackenberg, 384 U.S. 373, 380 (1968)
("[S]entences exceeding six months for criminal contempt may not be imposed by federal
courts absent jury trial or waiver thereof.").
379.
Williams v. Florida, 399 U.S. 78, 86 (1970).
380.
Ballew v. Georgia, 435 U.S. 223, 245 (1978).
381.
Johnson v. Louisiana, 406 U.S. 356, 363 (1972).
382.
Burch v. Louisiana, 441 U.S. 130, 138-39 (1979).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
are unconstitutional because the defendants at such trials are not afforded
the right to a grand jury indictment and jury trial.3 83 However, these cases
all involved courts-martial of civilians during peacetime. 384 The Court has
never dealt directly with courts-martial of civilians
accompanying the
3 85
operation.
contingency
or
war
a
during
forces
armed
The new jurisdiction over civilians is likely to be found constitutional
for two reasons. First, the new jurisdiction is limited to "war or a
contingency operation,"' 386 an area where the courts have given the military
broad latitude. Second, the rights available to an accused during a courtmartial have 387
become similar to those guaranteed by the Constitution in
trials.
civilian
A. Broad Jurisdiction During War
During World War II, the Supreme Court recognized the broad latitude
of military courts to try civilians during a time of war. 388 After World War
II, the Court began to restrict the power of military courts over civilians
during peacetime, but continued to recognize the broad power of such
courts during war. For example, in Reid v. Covert,389 the Supreme Court
ruled that courts-martial of civilians for capital offenses during peacetime
were unconstitutional. 3 90 However, the Court's plurality opinion pointed
out that jurisdiction over civilians in the field during a time of war was
different, and recognized that in these extraordinary circumstances, trials
could be justified under the government's war powers. 39 1 The Court stated
that the "maximum historically recognized extent of military jurisdiction
383.
Kinsella v. Singleton, 361 U.S. 234, 249 (1960); McElroy v. Guargliardo, 361
U.S. 281, 284-85 (1960); Reid v. Covert, 354 U.S. 1, 39-40 (1957).
384.
Singleton, 361 U.S. at 235; Guargliardo,361 U.S. at 282; Reid, 354 U.S. at 3.
385.
The Supreme Court has upheld the use of military commissions to try civilians in
occupied territories where civilian courts did not have jurisdiction. Madsen v. Kinsella, 343
U.S. 341, 343 (1952). The Court stated in dicta that courts-martial would have jurisdiction
over civilians in the same situation. Id. at 345.
386.
10 U.S.C. § 802(a)(10) (2006).
387.
See Poydasheff& Suter, supra note 210, at 589 n.6. Courts-martial provide all the
same constitutional protections except the right to a grand-jury indictment and the right to a
jury trial. U.S. CONST. amend. V, VI.
388.
See Ex Parte Quirin, 317 U.S. 1, 45 (1942) (trial by military commission of
German saboteurs caught in the United States held constitutional).
389.
354 U.S. 1 (1957).
390.
The Supreme Court ruled that courts-martial of two civilian dependants under the
predecessor to Article 2(a)(1 1) of the UCMJ (which granted jurisdiction over civilians
"serving with, employed by, or accompanying the armed forces without the continental
limits of the United States") for capital offenses overseas was unconstitutional. Id. at 4-5.
391.
Id. at 33.
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COURT-MARTIAL JURISDICTION OVER CIVILIANS
107
over civilians" was during a time of war. 392 In subsequent opinions, the
Supreme Court continued to restrict the power of military courts over
civilians during peacetime, but still recognized that such courts have
broader powers during times of war. 393
The Fifth Amendment of the Constitution provides that the right to a
grand jury indictment does not apply "in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public
danger .... 394 Based on this language, the Supreme Court has ruled that
grand jury indictments have no place in military trials. 395 The language
''war or public danger" is broad enough to encompass contingency
operations. Contingency operations involve "military actions, operations or
hostilities against an enemy of the United States or against an opposing
military force"396or "war or ...national emergency declared by the President
'
or Congress."
The jury-trial language in the Sixth Amendment and Article III does not
specifically exclude military cases. 39 7 Despite this, the Supreme Court
398
recognized that this constitutional right is inapplicable to military trials.
In Ex Parte Quirin the Court found that the constitutional concept of trial
by jury did not apply to military trials when the Constitution was drafted,
and that military cases were "excepted by implication" from the jury trial
399
language of the Sixth Amendment.
The Supreme Court has long recognized that military jurisdiction is
broad in times of war. 400 The same rationale applies to the new jurisdiction
392.
Id. at 34 n.61.
393.
Kinsella v. Singleton, 361 U.S. 234, 249 (1960); McElroy v. Guargliardo, 361
U.S. 281, 284-85 (1960). In Singleton, the Supreme Court held that court-martial
jurisdiction over civilian dependants for non-capital offenses during peacetime was
unconstitutional. However, the Court recognized that military courts may have jurisdiction
over civilians in some situations and cited Madsen v. Kinsella, 343 U.S. 341, 348, 350-51,
354-55 (1952) (upholding trial by military commission of a civilian dependant in occupied
Germany shortly after the war when there were no civilian courts with jurisdiction to try the
defendant). Singleton, 361 U.S. at 244. In Guagliardo, the Supreme Court held that courtmartial jurisdiction over civilian employees during peacetime was unconstitutional.
However, the Court recognized that court-martial jurisdiction during a period of war was
fundamentally different. Guagliardo,361 U.S. at 284.
394.
U.S. CONST. amend. V.
395.
Ex ParteQuirin, 317 U.S. 1, 39 (1942).
396.
10 U.S.C. § 101(a)(13)(a)-(b) (2006).
397.
U.S. CONST. amend. VI; U.S. CONST. art. III § 2.
398.
Ex Parte Quirin, 317 U.S. at 40; O'Callahan v. Parker, 395 U.S. 258, 263-64
(1969); United States ex rel Toth v. Quarles, 350 U.S. 1, 17-18 (1955).
399.
Ex Parte Quirin, 317 U.S. at 39-40.
400.
Reid v. Covert, 354 U.S. 1, 33 (1957).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
over civilians during "contingency operations." 40 1 During such operations,
control
commanders must maintain discipline among civilians under their
40 2
and may not be able to rely on local criminal courts to try them.
B. Protections Provided in Courts-Martial
In 1957, the Supreme Court was quite critical of the military justice
system when it ruled that courts-martial of civilians were unconstitutional
in Reid v. Covert.4 03 Quoting Blackstone, the Court stated that "martial
law, which is built upon no settled principles, but is entirely arbitrary in its
decisions, is ... in truth and reality no law, but something indulged rather
than allowed as a law." 40 4 Since the Court decided Covert, a number of
refinements have been made in the military justice system.
In the past fifty years, military trial procedures have become similar to
those in civilian courts. In 1980, the Military Rules of Evidence were
promulgated, mirroring the evidentiary rules in federal civilian courts. 40 5 In
1984, the military procedures in capital cases were substantially revised to
required by the United States Constitution in
comport with 40standards
6
civilian cases.
Many military offenses have been revised to mirror those in civilian
criminal systems. In 1992, the military drunk-driving statute was amended
to include blood and breath alcohol levels similar to those in most civilian
jurisdictions.40 7 In 2006, the military 40rape statute was substantially
rewritten to mirror the federal civilian law. 8
Military courts have adopted most of the constitutional protections
applicable in civilian trials. 40 9 The Fourth Amendment protection against
401.
10 U.S.C. § 802(a)(10).
402.
Schmitt, supra note 7, at 1.
403.
Reid, 354 U.S. at 5, 18-19.
404.
Id. at 26.
405.
MCM supra note 65, MIL. R. EviD., analysis, at A22-1.
406.
See id. R.C.M. 1004 analysis, at A21-74. These revisions were in response to
litigation challenging the constitutionality of military capital sentencing procedures. See,
e.g., United States v. Matthews, 16 M.J. 354, 364 (C.M.A. 1983).
10 U.S.C. § 911 (2006); MCM supra note 65, pt. IV, 35, analysis, at A23-10.
407,
See also R. Peter Masterton, The Military's Drunk Driving Statute: Have We Gone Too
Far?, 150 MIL. L. REV. 353, 357-59 (1995).
408.
10 U.S.C. § 920; Jennifer S. Knies, Two Steps Forward,One Step Back: Why the
New UCMJ's Rape Law Missed the Mark, and How an Affirmative Consent Statute Will Put
It Back on Target, ARMY LAW., 1,20 (2007).
409.
Poydasheff & Suter, supra note 210, at 589; Gilligan, supra note 210, at 3;
Hancock, supra note 369, at 28. Hancock argues three other constitutional rights are
inapplicable at courts-martial: the right to bail, the right to a public trial, and the right to an
independent judge. However, the article concedes military protections in these areas are
2009]
COURT-MARTIAL JURISDICTIONOVER CIVILIANS
109
unreasonable searches and seizures has been applied to the military, 4 10 as
well as the Fifth Amendment protection against self-incrimination. 4 1 1 In
addition, most of the Sixth Amendment protections have been applied to
the military: the right to a speedy trial; 4 12 the right to a public trial; 4 13 the
right to confrontation; 4 14 the right to compulsory process; 4 15 and the right
to counsel. 4 16 However, two rights are absent in a courts-martial: the right
to indictment by a grand jury, as required by the Fifth Amendment, 417 and
the right to a jury trial, guaranteed by the Sixth Amendment and Article
111.418
Many commentators view pretrial investigations required by, Article 32
of the UCMJ 41 9 as similar to civilian grand jury hearings. 420 Article 32
investigations are required for all courts-martial that may result in more
42
than one year of confinement. 1
An Article 32 investigation is different from a grand jury indictment,
since a single officer conducts the investigation 422 and the officer's
recommendations are not binding. 42 3 However, the rights of an accused at
an Article 32 hearing are actually greater than those of a civilian indicted
by a grand jury. The accused has the right to be present at the investigation,
424
to be represented by counsel, and to produce evidence on his behalf.
Recently, military courts have strengthened these rights by clarifying the
accused's entitlement to witnesses 425 and prohibiting waivers of the
substantial. Hancock, supra note 369, at 32-33.
410.
United States v. Ezell, 6 M.J. 307, 313 (C.M.A. 1979).
411.
United States v. Tempia, 37 C.M.R. 249, 260 (C.M.A. 1967).
412.
United States v. Johnson, 17 M.J. 255, 260 (C.M.A. 1984).
413.
414.
United States v. Grunden, 2 M.J. 116, 121 (C.M.A. 1977).
United States v. Jacoby, 29 C.M.R. 244, 249 (C.M.A. 1960).
415.
United States v. Iturralde-Aponte, I M.J. 196, 197-98 (C.M.A. 1975).
416.
417.
United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985).
U.S. CONST. amend. V.
418.
419.
Id. amend. VI; id. art. III, § 2.
See 10 U.S.C. § 832 (2006).
420.
421.
Poydasheff & Suter, supra note 210, at 590; Gilligan, supra note 210, at 7.
Such investigations are required for all general courts-martial. Id.; MCM, supra
note 65, R.C.M. 405. One punishment at general courts-martial includes confinement that
may exceed one year. Id. R.C.M. 1003(b)(7). A special courts-martial may only impose
confinement of one year or less. Id. R.C.M. 201(f)(2)(B).
422.
Id. R.C.M. 405(d)(1).
423.
The investigating officer submits "recommendations" to the convening authority.
Id. R.C.M. 4050)(2)(1).
424.
Id. R.C.M. 405(f)(3), (4), (10), (11).
425.
See generally United States v. Marrie, 43 M.J. 35, 36 (1995) (noting the Rules for
Courts-Martial does not set a "perse rule" regarding what makes a witness unavailable).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
investigation made without the informed consent of the accused.4 26
The military equivalent of a jury trial is trial by "members." 427 Trial by
members at a court-martial is not the equivalent of a jury trial mandated by
the United States Constitution, because military juries may be composed of
less than six persons42 8 and unanimous verdicts are not required.4 29
However, military juries do provide protections similar to those required by
the Constitution. Although military juries can consist of as few as three
persons, they frequently consist of many more than this minimum. 430 The
2005 Manual for Courts-Martial amended the jury requirement for capital
4 31
cases by increasing the mandatory number of jurors to twelve.
The Supreme Court ruled that juries of less than six persons are
unconstitutional based on empirical data suggesting that small juries are
less likely to foster effective deliberations, reach accurate results, and
contain minority representation. 432 However, these studies are arguably
inapplicable to military juries. Military jurors tend to be better educated
and trained than civilian jurors. 433 Furthermore, military juries are more
426.
United States v. Garcia, 59 M.J. 447, 451-52 (2004).
427.
MCM, supra note 65, R.C.M. 501(a)(1)(A).
428.
Special courts-martial proceedings require a minimum of three members, and
these members may adjudge an individual to confinement of no more than one year. Five
members are required at a general courts-martial and are authorized to impose over one year
confinement. Id. R.C.M. 501(a)(2)(A), 201(f)(2)(B)(i). The United States Constitution
requires juries of at least six persons. Ballew v. Georgia, 435 U.S. 223, 239 (1978).
429.
Neither general nor special courts-martial require unanimous verdicts even when
the number of jurors is as few as three. MCM, supra note 65, R.C.M. 921(c)(2)(B). The
United States Constitution requires unanimous verdicts for six-person juries. Burch v.
Louisiana, 441 U.S. 130, 130 (1979).
430.
Three persons is the minimum that must be present at a special court-martial; five
is the minimum at a general court-martial. MCM, supra note 65, R.C.M. 501(a)(1)(a).
However, the convening authority will usually detail more than this number so that this
minimum number will still be present after challenges for cause and peremptory challenges
have been made. See id. R.C.M. 912.
431.
Id. app. 21, R.C.M. 501(a)(1)(B), at A21-27. This jury can consist of fewer than
twelve persons if this number is not available because of physical conditions or military
exigency. Id. R.C.M. 501(a)(1)(B).
432.
Ballew, 435 U.S. at 232-37.
433.
The Army Court of Military Review has stated that courts-martial panels are
"essentially different from the jury envisioned by the Sixth Amendment. The composition of
courts-martial is different as the members are drawn exclusively from the accused's own
profession based on specified qualifications (one of which is judicial temperament), with
specialized knowledge of the profession .
. . ."
United States v. Guilford, 8 M.J. 598, 602
(A.C.M.R. 1979). See also United States v. Corl, 6 M.J. 914, 914-16 (N.C.M.R. 1979).
Article 25 of the Uniform Code of Military Justice requires the convening authority to select
members based on "age, education, training, experience, length of service and judicial
temperament." 10 U.S.C. § 825(d)(2) (2006).
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COURT-MARTIAL JURISDICTION OVER CIVILIANS
Ill
likely to contain minorities than civilian juries because of the greater
percentages of minorities in the military. 434 The required number of
persons for military juries
is slightly lower than civilian juries in
43 5
recognition of these facts.
4 36
The jurors at courts-martial may convict based on a two-thirds vote.
In 1986, the Manual for Courts-Martial was amended to require a
unanimous vote for conviction of capital offenses. 437 The jurors in a courtmartial vote only once; if fewer than the required number vote for a finding
of guilty, the ballot automatically results in a finding of not guilty. 4 38 This
can be more advantageous than civilian criminal trials where jurors can
vote repeatedly. In federal civilian criminal trials, jury verdicts must be
unanimous. A less than unanimous verdict does not result in an acquittal;
the jurors simply continue voting until they reach a unanimous verdict to
acquit or convict. If they are unable to do so, a mistrial may be declared.4 3 9
Courts-martial are substantially similar to civilian criminal trials. Even
though the accused at a court-martial is not afforded the constitutional right1
44
44 0
Article 32 investigations
to a grand jury indictment and a jury trial,
and trial by members 44 2 provide similar protections. The rights of
defendants at courts-martial have substantially increased over the past fifty
434.
According to the U.S. Census Bureau, the estimated percentage of minorities in
the United States population in 2005 was 33.1 (66.9% white non-Hispanic; 12.8% African
American; 14.4% Hispanic; 5.9% other). The equivalent percentage of minorities in the
Army during the same year was 39.2 (60.8% white non-Hispanic; 21.7% African American;
10.5% Hispanic; 7.0% other). Compare U.S. Census Bureau, Annual Estimates of the
Population by Sex, Race and Hispanic Origin for the United States: April 1, 2000 to July 1,
2007, available at http://www.census.gov/popest/national/asrh/NC-EST2007/NC-EST200703.xls, with Situation Report, SOLDIERS MAGAZINE, Jan. 2006, p. 18, at 19, available at
http://www.army.mil/publications. Military courts have upheld the convening authority's
inclusion of minorities on military juries to ensure they represent a cross-section of the
community. United States v. Smith, 27 M.J. 242, 249 (1989).
435.
"The court-martial is often referred to as a 'blue ribbon panel,' hand picked by the
convening authority." James Kevin Lovejoy, Abolition of Court Member Sentencing in the
Military, 142 MIL. L. REv. 1, 32 (1993). See also Marcus N. Fulton, Never Have So Many
Been Punished So Much by So Few: Examining the Constitutionality of the New Special
Court-Martial,ARMY LAW., June 2003, at 1.
436.
MCM, supra note 65, R.C.M. 921(c)(2)(B).
437.
Id. R.C.M. 1004(a)(2) analysis, at A21-75.
438.
Id. R.C.M. 921(c)(3). The only exception is if a member proposes reconsideration
before announcement of the verdict in open court. However, a second vote (reconsideration)
of an acquittal can only occur if a majority agrees to do so. Id. R.C.M. 924(b).
439.
FED. R. CRIM. P. 3 1(b)(3).
440.
U.S. CONST. amend. V; id. amend. VI; id. art. III § 2.
441.
10 U.S.C. § 832 (2006).
442.
MCM, supra note 65, R.C.M. 501.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
years, making it likely that the new court-martial jurisdiction over civilians
will be upheld.
VI. PROPOSED SOLUTIONS
There are a number of practical problems that need to be addressed
during courts-martial involving civilians. Military rules designed for
service members may need to be adjusted when applied to civilians.
Commanders and attorneys involved in these cases will need to be vigilant
to ensure that courts-martial of civilians are fair.
A. Addressing Constitutional Concerns
One constitutional concern with courts-martial is the small size of
military juries. 44 3 Increasing the size of military juries may eliminate this
concern. This has been done in capital cases where twelve person juries are
required. 4 In addition, prosecutors may want to consider instituting
random selection procedures
to ensure that juries consist of a cross section
445
community.
of the
Another constitutional concern is the lack of a grand jury indictment
prior to courts-martial. The military equivalent of a grand jury, the Article
32 investigation,44 6 does not result in a binding recommendation.4 4 7 To
ensure civilians receive similar protections, commanders could be limited
in their ability to proceed to trial against the recommendation of an Article
32 investigating officer.
B. Exercising Jurisdiction Over Civilians
Commanders should exercise court-martial jurisdiction over civilians
only in appropriate cases. Some military offenses were designed
specifically for service members. Applying offenses such as
disobedience 44 8 and fraternization 449 to civilians, who do not have a
443.
Compare id. R.C.M. 501(a)(2)(A) (three person juries required for special courtsmartial), and id. R.C.M. 501(a)(1)(A) (five person juries required for general courtsmartial), with Ballew v. Georgia, 435 U.S. 223, 239 (1978) (holding juries consisting of five
or fewer persons unconstitutional).
444.
MCM, supra note 65, R.C.M. 501(a)(1)(B), analysis, at A21-27.
445.
Heustis, supra note 259, at 22.
446.
10 U.S.C. § 832.
447.
MCM, supra note 65, R.C.M. 4050)(2)(I).
448.
Disobedience of the order of a superior commissioned officer's order may be
charged under Article 90 of the UCMJ. 10 U.S.C. § 890.
449.
Fraternization in violation of a service regulation prohibiting improper relations
between personnel of different ranks is chargeable under Article 92 of the UCMJ. 10 U.S.C.
§ 892.
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COURT-MARTIAL JURISDICTIONOVER CIVILIANS
113
military rank, may not make sense. Such cases may be difficult to prove
and to defend.
The guidance from the Secretary of Defense precludes the exercise of
jurisdiction over civilians unless there is a significant military interest at
stake, and the Department of Justice is unable or unwilling to pursue
prosecution. 450 Commanders should initiate courts-martial of civilians only
when they can identify an obvious military interest and the impact on
military morale or the mission is clear.
C. Training
It is important for prosecutors and defense counsel to receive training on
the unique aspects involved in the court-martial of civilians. Military
attorneys are accustomed to dealing with service members but may not be
familiar with Department of Defense civilian employees or contractors.
Defense attorneys, in particular, need to become familiar with their new
clients.
Prosecutors and defense counsel also need to develop procedures to
ensure that courts-martial involving civilians are tried expeditiously. The
military speedy-trial rules 4 51 require efficient disposition of cases. The
required coordination with the Department of Justice and high-level
commanders 452 may make this difficult. Procedures should be established
to streamline this process.
Discovery 453 may pose special challenges during the court-martial of a
civilian. Prosecutors and defense counsel will need to be able to identify
evidence that is relevant to civilians. 4 54 Service records will not be
available, but there may be other employment records that are helpful.
Civilians subject to court-martial jurisdiction also need training. They
should be briefed on the new military crimes applicable to them and on
their rights under the military justice system. Such briefings are required
for all service members. 455 Civilians could be required to sign a certificate
prior to deployment acknowledging that they are aware they are subject to
court-martial jurisdiction. Those responsible for drafting contracts
involving civilian personnel should ensure such contracts require
appropriate training and certification prior to deployment.
450.
Memorandum from Secretary of Defense, supra note 59, at Attach. 3.
451.
See generally, MCM, supra note 65, R.C.M. 703; 10 U.S.C. § 810; United States
v. Kossman, 38 M.J. 258 (C.M.A. 1993).
452.
Memorandum from Secretary of Defense, supra note 59, at 2.
453.
454.
455.
MCM, supra note 65, R.C.M. 701.
Id. R.C.M. 1001.
AR 27-10, supra note 255, at ch. 19.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
D. Establishing Clear Chain of Command
All civilians subject to court-martial jurisdiction should have a clear
military justice chain of command. The identity of an accused's
preliminary
commander can be critical since this person conducts the
457 and orders pretrial restraint. 4 58
inquiry, 456 forwards charges,
One method of establishing a chain of command for civilians is to issue
orders attaching them to a military commander for purposes of courtmartial. This is a common procedure for service members. 4 59 The
advantage of such orders is that they make it simple to identify the
appropriate commander and place civilians on notice that they are subject
to court-martial jurisdiction. The disadvantage is that some civilians may
be missed when orders are issued.
Another method of establishing a chain of command is by assigning a
commander responsibility over all civilians stationed in a particular area.
This "area jurisdiction" concept is an accepted means of establishing a
military justice chain of command for service members. 460 The advantage
of this method is that fewer civilians will be missed, since individual orders
are unnecessary. The disadvantage is that it may be difficult to determine
where a civilian is stationed, especially if he or she travels frequently.
E. Oversight
Senior commanders and their legal advisors must ensure that courtmartial jurisdiction over civilians is exercised fairly. They must 4be
61
particularly vigilant to ensure there is no unlawful command influence.
This task may be complicated by the requirement to coordinate with highlevel commanders prior to initiating courts-martial against civilians. 462 It is
especially important for senior lawyers to issue proper guidance to
commanders must
subordinates when this coordination occurs. Lower-level
463
charges.
forward
or
prefer
to
pressured
not feel
There are many alternatives to courts-martial.4 6 4 Unfortunately, the
456.
457.
458.
459.
Id.; MCM supra note 65, R.C.M. 303.
AR 27-10, supra note 255, ch. 19; MCM supra note 65, R.C.M. 401.
AR 27-10, supra note 255, ch. 19; MCM supra note 65, R.C.M. 304.
See, e.g., AR 27-10, supra note 255, ch. 5, § 5-2(b)(1).
460.
See, e.g., U.S. ARMY EUROPE, REG. 27-10, MILITARY JUSTICE (Jul. 16, 2007), T 12.
461.
462.
463.
10 U.S.C. § 837(a) (2006).
Memorandum from Secretary of Defense, supra note 59.
See United States v. Gerlich, 45 M.J. 309, 312-13 (1996); United States v.
Martinez, 42 M.J. 327, 331-33 (1995).
464.
See, e.g., 10 U.S.C. § 815.
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coordination requirement 465 may lead commanders to believe that courtmartial is the only practical option for dealing with civilian misconduct.
Legal advisors must ensure that commanders are aware of all of the
alternatives.
Plea bargaining 4 66 involving civilians also may be challenging. Because
the sentence options are more limited,46 7 it may be difficult for civilians to
effectively enter into pretrial agreements. Senior prosecutors should be
vigilant to ensure that civilians are treated fairly in the plea bargaining
process and are offered pretrial agreements consistent with those offered to
service members.
F. Compulsory Process for Civilian Witnesses
It is important to establish a means of obtaining compulsory process for
civilian witnesses in combat zones. Procedures should be established to
obtain civilian witnesses for pretrial interviews, Article 32
investigations,4 6 8 and trial. 469 While such procedures will assist both
service members and civilians pending court-martial, it may be particularly
important for the civilians, since the potential witnesses in their cases are
more likely to be fellow civilians.
Department of Defense civilian employees may be directed to appear as
witnesses by their supervisors. 470 Contractors may also be directed to
appear by their supervisors. Those negotiating contracts in combat zones
should ensure that such contracts incorporate clauses to facilitate this
appearance.
Obtaining attendance of local national witnesses may be more difficult.
In occupied territories, military commanders have the authority to compel
such witnesses to attend trial.4 71 In other overseas areas commanders must
rely on agreements with local governments to obtain the attendance of
witnesses. 4 72 Attorneys negotiating local support and status-of-forces
agreements should be cognizant of the need to compel witnesses to attend
courts-martial.
465.
466.
Memorandum from Secretary of Defense, supra note 59.
MCM, supra note 65, R.C.M. 705.
467.
468.
469.
Id. R.C.M. 1003.
10 U.S.C. § 832; MCM, supra note 65, R.C.M. 405.
Id. R.C.M. 703.
470.
471.
472.
Id. R.C.M. 703(e)(2)(A), discussion.
Id. R.C.M. 703(e)(2)(E)(iii).
Id. R.C.M. 703(e)(2)(E)(ii).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:65
G. Establishing Equivalency to Military Ranks
A clear equivalency between military rank and civilian pay grades is
needed whenever civilians are charged with offenses that involve rank,
such as disobedience 4 73 and fraternization. 474 Such equivalency is also
necessary to determine whether the jurors on a court-martial panel are
senior to a civilian accused.4 75
This equivalency could be determined based on the salary of the
individuals involved. The advantage of this system is that it is relatively
easy to apply, since salaries of military personnel are published.4 76 The
disadvantage is that it may not be accurate. Service members may have
lower salaries than their civilian counterparts even though their
responsibilities are greater. In addition, service members' compensation
may be understated because it does not include retirement and other
benefits.
The equivalency could also be established by a local command
regulation based upon the civilian employee's grade or position. 477 The
equivalency between military rank and Department of Defense civilian
grades and contractor positions could be published by the command in each
combat theater. The advantage of this system is that it is likely to be more
accurate than a simple pay comparison. The disadvantage is that certain
contractors and civilians may be overlooked when the local lists are
developed.
VII. CONCLUSION
Civilians play a critical role in combat operations. The new court-martial
jurisdiction over civilians provides commanders with an important tool to
maintain discipline. However, this tool must be used wisely.
The courts are likely to uphold the constitutionality of the new
jurisdiction over civilians. The jurisdiction is only applicable in time of war
and contingency operations, an area where the courts have traditionally
given the military great deference. In addition, the rights of an accused at a
court-martial are similar to the constitutional guarantees in civilian criminal
473.
Disobedience of a superior commissioned officer's order may be charged under
Article 90 of the UCMJ. 10 U.S.C. § 890.
474.
Fraternization in violation of a serviie regulation prohibiting improper relations
between personnel of different ranks may be charged under Article 92 of the UCMJ. 10
U.S.C. § 892.
475.
10 U.S.C. § 825(d)(1); MCM, supra note 65, R.C.M. 912(f)(1)(K).
476.
Military pay tables may be obtained at the Defense Finance and Accounting
Service Internet site at http://www.dfas.mil/militarypay/militarypaytables.html.
477.
One Army regulation already establishes a partial equivalency between civilian
grades and military rank. AR 623-3, supra note 179, tbl.2-1.
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trials.
There are a number of issues that need to be addressed when civilians
are tried by court-martial. Attorneys and others involved in these trials
should be trained on the unique aspects of civilian courts-martial. Because
commanders play a central role in the military justice system, all civilians
subject to court-martial jurisdiction should be assigned to a specific
military command. Since many aspects of courts-martial depend on rank, a
clear equivalency should be established between civilian pay and military
rank.
The new court-martial jurisdiction over civilians will help ensure that
everyone on the battlefield receives equal treatment. It should provide an
effective way of holding civilians accountable for their actions in combat
zones.