Here is a link to a recent ABA Section of Public Contract Law comment on a new DoD procurement rule (what’s known as a Class Deviation that has the effect of changing a mandatory contract clause for certain DoD contracts).  The reason I even stray into the area of government contracts, my everyday area of practice, is that the rule requires government “contractors” to  report any/all UCMJ and MEJA offenses to the government.  Here is the language:

(a) The Contractor shall report to the appropriate investigative authorities any alleged offenses under–

(1) The Uniform Code of Military Justice (chapter 47 of title 10, United States Code) (applicable to contractors serving with or accompanying an armed force in the field during a declared war or a contingency operation); or

(2) The Military Extraterritorial Jurisdiction Act (chapter 212 of title 18, United States Code).

DoD’s broad interpretation of the UCMJ as it applies to civilians “in the field” under Art. 2(a)(10), to mean “a military operation with a view toward the enemy(purpose), not [a] locality,” makes this clause astoundingly broad.  Also, because the clause lacks a definition of contractor, the letter cites United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009) (FYI, I added the cite) to highlight the potential self incrimination issues in the regulation.  See our prior Serianne posts here and here–among others.  Just something those military justice buffs in Iraq and Afghanistan might want to think about.

Update:  For JO’C’s benefit, here is a link to a summary (at pg. 5) of the Bob Reed “in the field” definition, one also included in a CAAF Conference presentation a few years back, see post here.

2 Responses to “ABA Section Comments on New Mandatory Reporting Rule for DoD “Contractors””

  1. John O'Connor says:

    No Man is baiting me.

    If No Man’s post correctly states DoD’s definition of the concept of “in the field,” it is not historically justified. Other than a couple of (wrongly decided and subsequently discredited) lower court cases, the term “in the field” has generally required not only acts with a view toward an enemy, but also a remoteness from available civil authority.

    Interestingly, in the court-martial jurisdiction cases of the 1950s and 1960s, the United States took the opposite position from that referenced by No Man above, arguing that the constitutional concept of “in the field” just required remoteness from American civil authority, and that operations with a view toward an enemy were not constitutionally required for court-martial jurisdiction. This, the United States argued, permitted the court-martial of civilian dependents and government employees stationed overseas in time of peace. That reinterpretation of the historical materials did not fare well.

    The fairer historical reading is that “in the field,” for purposes of court-martial jurisdiction, requires not only operations with a view toward an enemy, but also the absence of reasonably available, functioning civilian courts.

  2. Cloudesley Shovell says:

    So . . . DoD is going to try to enforce this mandatory reporting requirement via a . . . contract clause. Interesting. What is the gov’t going to do, cancel a multi-million dollar contract because some third-tier subcontractor spoke contemptuously of Congress in violation of Article 88?

    One wonders how much energy the various government departments every day keeping up with all of the ridiculous mandates like this one that clutter up the law. It’s a wonder anything useful ever gets done. Or, to put it another way, is anything that gets done useful?