On the front page of today’s Washington Post is an article entitled “New Law Could Subject Civilians to Military Trial.” The article discusses the amendment to Article 2, UCMJ, that was discussed on CAAFlog on October 22, 2006. See, New UCMJ Amendment October 22, 2006. According to the Post, “the change remained largely unnoticed until earlier this month, when Peter W. Singer, a Brookings Institution senior fellow who has long advocated greater accountability for contractors, wrote a piece on it for the Web site DefenseTech.org.” The phrase, “largely unnocticed” is an obvious reference to CAAFlog.
Also in the article, Eugene Fidell calls the amendment to Article 2, “a law professor’s dream.” Only time will tell. The article notes how the Military Extraterritorial Jurisdiction Act (MEJA) was enacted, and has been amended, to extend civilian jurisidiction over civilians on the battlefield, but has never been used since it was enacted in 2000. According to the article, the Pentagon is “still developing guidance on how the new provision will be used.” Many questions remain. Which service will prosecute the contractors? Is there appellate review? What rights to counsel are provided? Can a civlian be taken to non-judicial punishment?
It is a safe bet that Mr. Fidell’s dream may soon be realized. It is certain that the Marine Corps prosecutor, that great engine of unecessary litigation, sweltering with the heat of injustice, sweltering with the heat of oppression, will not share in the reluctance of the United States Attorneys to prosecute civilians on the battlefield. I predict that the first case tried under the amended UCMJ will be tried by the Marine Corps and affirmed by the Navy-Marine Corps Court of Criminal Appeals. From there, the future becomes less certain.