Here is a link to a superb piece on the constitutionality of Art. 2(a)(10), UCMJ, titled Contractors and Courts-Martial, 77 Tenn. L. Rev. 751 (2010).  The author, CAAFlog frequent commenter John O’Connor, opines that there are at least three analytical principles to be divined from the Supreme Court’s civilian courts-martial cases, in particular United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), to determine if Art. 2(a)(10) passes constitutional muster:

First, . . . that Congress’s constitutional power to regulate the land and naval forces seemingly carried with it a power to court-martial only actual servicemembers.  Second, the constitutional preference for civilian justice over military justice required that any court-martial jurisdiction be confined to “the least possible power adequate to the end proposed.”  Third, in assessing whether a court-martial was the necessary forum, it would not suffice to argue that if a court-martial lacked jurisdiction there would be no recourse· against the accused. If Congress could create federal criminal jurisdiction over an offense, its failure to do so would not strengthen the case for court-martial jurisdiction.

After an extensive review of historical courts-martial practice and SCOTUS precedent, the article finds that Art. 2(a)(10) likely does not pass the mustard, explaining that:

[E]xisting judicial precedent creates a significant, and perhaps insurmountable, obstacle to the enforcement of Article 2(a)(10). Moreover, even if a court were to cast aside existing precedent as dicta, or the Supreme Court repudiated existing case law in this area, there is little in the historical practice or in the historical understanding of Congress’s powers to support the constitutionality of Article 2(a)(10) in the context of modern warfare.

While I agree that as currently drafted Art. 2(a)(10) would face significant constitutional hurdles if the power were exercised today, I don’t agree with JO’C that “the circumstances that historically have been found sufficient to permit the court-martial of civilians largely do not exist today, and might never exist again.” Rather, I think that based on the current state of warfare and those points that the SCOTUS and military law historians agree upon, there is a small set of circumstances where Art. 2(a)(10) would both (a) serve a purpose in maintaining good order and discipline in a military force in the field and (b) satisfy other historic conditions for exercising military jurisdiction over civilians.  Those are . . . let’s see if Army Lawyer is amenable to a rebuttal article.

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