Office of the Staff Judge Advocate DOD Civilian - Criminal Justice Brief Office of the Staff Judge Advocate LTC Edward McDonald

Criminal Jurisdiction Over Civilian Employees “Today, we find our very preservation as a nation inexorably intertwined with the maintenance of large overseas contingents, composed of both military and civilian personnel. These groups are so closely related, in all aspects of the venture, that discipline and success will be affected adversely if one segment of the force is free to operate outside the law and the other is restricted to obedience . . . Improper deportment on the part of civilians overseas . . . has an adverse impact on both discipline and its closely allied military intangible – morale – and ultimately on the success of the mission.” Judge George W. Latimer U.S. Court of Military Appeals U.S. v Burney, 1956

Managing Civilian Criminal Justice (SecDef Memorandum Guidance of March 10, 2008) Require specific training for DoD civilian employees and DoD contractors, as required for MEJA jurisdiction under DoD Instruction 5525.11 (Part 153 of title 32, Code of Federal Regulations) At time of employment or prior to deployment at Mobilization Center. Upon arrival in theater “Unique nature of this UCMJ jurisdiction requires sound management over when, where, and by whom it is exercised” “There is a particular need for clarity regarding the legal framework that should govern a command response to any illegal activities by DOD civilian employees and DoD contractor employees overseas with our Armed Forces”;

Contractors & Civilians If you commit a (serious) offense, you can be prosecuted under the following laws: Military Extraterritorial Jurisdiction Act (MEJA) 18 USC 3261, PL 106-523 (Nov 2000) Uniform Code of Military Justice (UCMJ) Art 2(10) “In time of war” – “persons accompanying the armed forces” Host Nation law War Crimes Tribunal If you do commit a Law of War violation, or any other criminal offense, under the War Crimes Act or some other extraterritorial federal criminal statute, you may be prosecuted. The War Crimes Act establishes jurisdiction over civilians who are US citizens, or who commit crimes against US citizens, when they commit serious breaches of the Law of War – “grave breaches” of the Geneva Conventions, or serious violations of Common Article 3, the Hague Rules, or several other Law of War treaties. Examples include torture, murder of protected persons [like the sick, wounded, civilians, or EPW’s], killing after feigning a flag of truce, or intentionally attacking a protected civilian target. The Military Extraterritorial Jurisdiction Act provides a mechanism for prosecuting civilians accompanying the force outside the United States for a variety of federal crimes. It provides for enforcement of those federal criminal statutes that prohibit conduct outside the United States, from drug trafficking, to support of terrorism, to war crimes. In most cases, civilians will be prosecuted in federal district courts in the US. In some cases, like during a declared war, civilians may be prosecuted using the military courts [the Uniformed Code of Military Justice]. An effort is currently underway to extend this UCMJ jurisdiction to “contingency operations.” Administrative sanctions, or contract-based actions, may also be appropriate for lesser offenses. 4 4

Contractors & Civilians Minor Acts of Misconduct 1. Drinking 2. Possessing authorized weapons 3. Pornography 4. Inappropriate conduct – violating orders or regulations. Barring reentry usually results in contractor being fired by employer which is an independent determination by each employer. Failing to follow the rules is the surest ticket out of Iraq - many employers require reimbursement for the travel costs when employees get forcibly removed - each contractor is a little different. (Usually will fly out w/in 24 to 48 Hours)

Civilian Jurisdiction Subject to host-nation law, if conduct is a host-nation crime Unless SOFA or international agreement between host-nation and U.S. primarily look to the U.S. to discipline under U.S. laws Since 2000, subject to prosecution in Federal district court under Military Extraterritorial Jurisdiction Act (MEJA) for felony-level Federal crimes committed while outside the United States Subject to foreign government not prosecuting offense Now, subject to Article 2(a)(10), UCMJ, court-martial jurisdiction, depending upon whether UCMJ offense applies at all to civilians; UCMJ is exclusive jurisdiction over purely military offenses; or UCMJ offense is concurrent jurisdiction with Federal offense, and any DoJ/DoD agreement on exercise of respective jurisdiction applies

Notification Process – DODI 5525.11 (Senior Official Oversight)

MEJA Summary (March 3, 2005 – September 25, 2009) SUMMARY: DoD - DoJ/DSS - Referral to U.S. Attorney’s Office (USAO) Not Referred Not Referred Prosecuted USAO USAO Offender Cases to DoJ/DSS to USAO or Charged Pending Declined 1. 18 USC(7)(9), etc. 4 0 0 4 0 0 2. Adult Dependent 10 0 1 4 2 3 3. Juvenile Dependent 6 0 0 3 3 0 4. DoD Civilian Employee 15 0 1 3 5 6 5. US National Contractor 45 0 6 12 19 8 (Price) 6. TCN Contractor 15 0 5 0 2 8 (Ali) 7. Former Mil. Members 8 0 1 2 1 4 8. Military Members under 1 0 0 0 1 0 (§ 3261(d)(2)) (Corbello) Total: 104 0 (0%) 14 (13%) 28 (27%) 32 (32%) 29 (28%) Total Charged or Pending: 61/104 = 59 %

Contractors & Civilians Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. § 3261(a)) provides that “[w]hoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States While employed by or accompanying the Armed Forces outside the United States While a member of the Armed Forces subject to chapter 47 title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.”

Contractors & Civilians Subject to UCMJ Alaa “Alex” Mohammad Ali, a contractor serving as an interpreter with U.S. armed forces in Iraq, was originally charged with violation of Article 128 of the UCMJ “Aggravated Assault” for stabbing another translator. Alaa “Alex” Mohammad Ali, a contractor serving as an interpreter with U.S. armed forces in Iraq, was originally charged with violation of Article 128 of the UCMJ “Aggravated Assault” for stabbing another translator. This is the knife which Mr. Ali used to stab the other contractor. This is Mr. Ali’s MUG Shot from when he was processed for the crime. 10 10

Contractors & Civilians Subject to UCMJ Alaa “Alex” Mohammad Ali, pleaded guilty to: Wrongful appropriation of a knife owned by a U.S. Soldier Obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another Interpreter Making a false official statement to military investigators Military judge sentenced Mr. Ali to 5 months confinement after being in pre-trial confinement on the Victory Base Complex for 115 days. He was not paid by his contractor while in pre-trial confinement.

Contractors & Civilians Subject to UCMJ Mr. Ali was afforded all the same rights, protections and privileges Servicemembers receive in military court: Right to Counsel Right to Speedy Trial Protection Against Self-Incrimination Presumption of Innocence He was represented by military defense counsel He will continue to be afforded all the post-trial and appellate rights provided to Servicemembers

Purposes Of Military Justice Promote Justice Maintain Good Order and Discipline Promote Efficiency and Effectiveness Strengthen the National Security

Legal Sources Of Military Justice U.S. Constitution Articles of War Uniform Code of Military Justice Manual for Courts-Martial Federal Statutes Local Regulations Court Decisions

Key Personnel in the Military Justice System Commander (Command driven system) Staff Judge Advocate Trial Counsel Defense Counsel Military Judge Legal Specialists

UCMJ Jurisdiction Over the Person: Active Duty Soldiers Activated Guard/Reserve Soldiers Civilians ( During time of war or declared contingency) Over the Offense: Concurrent Civilian Jurisdiction ? Worldwide Jurisdiction

Courts-Martial Summary Courts-Martial Special Courts-Martial General Courts-Martial (Non-Judicial Punishment – Article 15)

Summary Court-Martial No judge, Summary Court Officer is an appointed commissioned officer No right to a defense attorney at trial – right to consult with defense counsel Max punishment: 30 days confinement (E1-E4) Reduction to E-1 (E1-E4) Reduction one rank (E5 and above) Loss of 2/3 pay for one month Referred by O-5 commander Soldier may turn down trial by Summary Court Martial and demand a higher level of Court-Martial

Special Court-Martial Just like any other trial: Prosecutor and Defense counsel Rules of Evidence apply Maximum punishment-- One year confinement Reduction to lowest rank Loss of 2/3 pay per month for 6 mos No discharge Referred by O-6 commander or if a BCD is authorized, by the GCMCA.

General Court-Martial Highest level of Court-Martial Requires an Article 32 Investigation (pretrial hearing “Grand Jury”) Can give a Bad Conduct Discharge or Dishonorable Discharge Maximum Punishment is the maximum punishment allowed for the UCMJ article the accused is convicted of committing (Death) Referred by Commanding General

Administrative Inspections Commanders have the right and duty to conduct “health and welfare” inspections: Primary Purpose is to ensure security, fitness, property accountability, or good order and discipline—NOT collect evidence of a crime. If contraband is found during inspection it may be seized as evidence. Does not require a Warrant or “Probable Cause” (low expectation of privacy).

Bottom Line Advice Civilians serving with U.S. Forces in contingency operations may be subject to the UCMJ, MEJA or Host nation’s Law. Administrative Inspections may be conducted without warrant. The vast majority of minor acts of misconduct by civilians result in termination and removal from theater.

QUESTIONS? When you come through the SRC, we are in Bldg. 341 and our attorneys will assist you with any required legal assistance. If you have any questions after this briefing, please call 812-526-1758.