‘Tis the season for Art. 2(a)(10) publications. This article, by Kara Sacilotto, a partner at Wiley Rein, is titled Jumping the (Un)Constitutional Gun” Constitutional Questions in the Application of the UCMJ to Contractors, 37 Pub. Contract. L. J. 179 (Winter 2008). I’ll try to get a link to an electronic version from the ABA later today. This is another article published as a result of the 2007 ABA conference session on the application of the UCMJ to civilian contractors.
With another article comes No Man’s continued stream of BZs for another good article on this topic, but again an issue with the conclusions in the article—which is not to say they are poorly reasoned, I just disagree. First, I should note that I wholeheartedly agree with her conclusion that MEJA is “arguably preferable for crimes committed overseas by civilian contractors,” though I would omit the arguable. However, Ms. Sacilotto references SecDef’s withholding memo that was still in draft at the time of her article and we discussed recently, memo available here. She states, “If DoD rejects the JSC’s recommendations and permits application of the UCMJ for offenses committed within the United States, the Court may be more likely to find that Congress went too far.”
My disagreement with that conclusion is with the assumed scope of SecDef’s Art. 22, UCMJ withholding power. SecDef cannot restrict the class of persons upon which the UCMJ can be applied. SecDef can only withhold to itself commanders’ ability to exercise that power. The ability to prosecute contractors “serving with or accompanying an armed force in the field” during “contingency operations” still resides in SecDef pursuant to the congressional grant in Art. 2(a)(10). Thus, if an attack on Art. 2(a)(10) as amended is a facial challenge, SecDef’s withholding memorandum has no effect on the challenge. An as applied challenge, would also be unaffected by the memo because the memo only affects who may prosecute a particular individual, not if the individual may be prosecuted under the UCMJ.
I think that a decent argument can be made that the commonly understood, and generally accepted, meaning of the terms of the statute may be at odds with the construction that Ms. Sacilotto states would allow the courts to narrowly construe the statute to make it constitutionally acceptable. Since Congress, via Sen. Graham the drafter of the provision, was well aware of these definitions, one would think they would apply to the statute. But, I will let our readers draw their own conclusions about whether the terms of the statute can be constitutionally construed . . . and I just don’t have time to pull all the research cited in the article (at 192-199, 210-12 and accompanying footnotes).