. . . he’ll be busy reading this recently published student-authored piece on the extension of court-martial jurisdiction over civilian contractors in contingency operations. Cara-Ann M. Hamaguchi. Recent Development, Between War and Peace: Exploring the Constitutionality of Subjecting Private Civilian Contractors to the Uniform Code of Military Justice During “Contingency Operations”, 86 N.C. L. Rev. 1047 (2008).
Ms. Hamaguchi concludes that the exercise of court-martial jurisdiction over civilian contractors in contingency operations will likely be upheld as constitutional:
[T]he section 552 amendment to 10 U.S.C. § 802(a)(10) faces major constitutional barriers but may nonetheless pass muster when applying the framework established in [Reid v. Covert, 354 U.S. 1 (1957)]. Undoubtedly, despite major improvements to the UCMJ and the greater rights it often affords, the remaining due process concerns regarding jury composition and military-specific offenses are extremely significant. Nevertheless, as dicta in Reid suggest, Congress’s power under Article I, Section 8 may warrant application of the UCMJ in contingency operations. At the very least, it keeps the door open. Unlike 10 U.S.C. § 802(a)(11), which was found to be unconstitutional in Reid, the amendment to § 802(a)(10) is narrowly focused on declared wars and contingency operations, which fall under Congress’s Article I, Section 8 authority. If the power to subject civilians accompanying the force to the UCMJ was inherent in Congress’s authority to declare war prior to section 552, then it follows that Congress should be able to subject civilians to the UCMJ in war-like contingency operations without having to actually declare war. Section 552 aims to do just that.
Id. at 1065-66.