On the same day that President Bush signed the Military Commissions Act of 2006 into law, with considerably less fanfare he also signed the John Warner National Defense Authorization Act for Fiscal Year 2007, 109 P.L. 364; 120 Stat. 2083 (2006).
As usual, this year’s authorization act tweaks the military justice system. Here are this year’s provisions:
Subtitle E–Military Justice Matters
Sec. 551. APPLICABILITY OF UNIFORM CODE OF MILITARY JUSTICE TO MEMBERS OF THE ARMED FORCES ORDERED TO DUTY OVERSEAS IN INACTIVE DUTY FOR TRAINING STATUS.
Not later than March 1, 2007, the Secretaries of the military departments shall prescribe regulations, or amend current regulations, in order to provide that members of the Armed Forces who are ordered to duty at locations overseas in an inactive duty for training status are subject to the jurisdiction of the Uniform Code of Military Justice, pursuant to the provisions of section 802(a)(3) of title 10, United States Code (article 2(a)(3) of the Uniform Code of Military Justice), continuously from the commencement of execution of such orders to the conclusion of such orders.
Sec. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR.
Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking “war” and inserting “declared war or a contingency operation”.
The second section could be enormously significant. This is the old UCMJ provision: “(a) The following persons are subject to this chapter . . . (10) In time of war, persons serving with or accompanying an armed force in the field.” That will now read, “(a) The following persons are subject to this chapter: (10) In time of declared war or a contigency operation, persons serving with or accompanying an armed force in the field.”
This change allows court-martial jurisdiction to reach a great number of civilians who were not previously susceptible to court-martial jurisdiction. In a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970). Throughout U.S. history, we have fought only five declared wars (World War II, World War I, the Spanish-American War, the Mexican-American War, and the War of 1812). We have been engaged in a great many more contingency operations.
It will be interesting to see whether — and, if so, how — the military takes advantage of this major expansion of court-martial jurisdiction.