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.