From the NY Times (and AP) regarding armed civilians subject to the UCMJ (and other private security contractors employed by the US) in Afghanistan:

President Hamid Karzai issued a decree on Tuesday ordering the disbanding of private security forces in Afghanistan by the end of the year.

The decree, however, provides an exception for private security firms working inside of compounds used by international groups, embassies, businesses and nongovernmental organizations.  The Associated Press reported. Such guards “will have to stay inside of the organization’s compound and will have to be registered with the Interior Ministry,” the decree says, according to The A.P.

Even so, the ban would appear to constitute a significant change in the security makeup of the country. There are at least 24,000 private armed guards working for 52 security companies registered with the country, some foreign but most Afghan, who escort convoys of supply trucks across dangerous roads to NATO military bases, protect government and military buildings, and provide protection for political leaders and others.

It would seem the trouble with local companies is spilling over to US companies and civilians in Afghanistan

An interesting, but not totally military justice related, article in the Public Contract Law Journal this month, Richard, MAJ Theodore, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy, 39 Publ. Contract L. J. 441 (Spring 2010).  The article analyzes the potential use of Letters of Marque in combating the current spate of piracy emanating from Somali.  Interestingly the article in discussing accountability for contractors issued letters of marque does not reference special maritime jurisdiction or other extraterritorial statutes (e.g. MEJA) that might be applicable in this context if letters of marque are issued and tied to contingency operations in support of Congress’ Authorization for the Use of Military Force in 2001.

Here’s a lengthy Virginian-Pilot article about a challenge to MEJA being litigated in the United States District Court for the Eastern District of Virginia.

Interesting MEJA case out of Guam, see DOJ press release here, not for any scintillating facts, but more so for the use of MEJA in Japan. Most civilain crimes in Japan are prosecuted in Japanese courts. This one I am assuming happened on some exclusive US jurisdiction location or there was an extradition problem.

In any event I thought some of our universal jurisdiction naysayers would find the US Attorney’s comments interesting, “This is proof that no one is beyond the law. MEJA allows us to reach out and prosecute U.S. citizens who commit crimes outside the United States.”

Sens. Leahy and Kaufman and Rep. David Price introduced companion bills in the Senate and House titled the “Civilian Extraterritorial Jurisdiction Act” (CEJA?), on Feb. 2, 2010.  H.R. 4567 and S. 2979 create a new section 3272 in title 18 that begins:

(a)  Whoever, while employed by or accompanying any department or agency of the United States other than the Armed Forces, knowingly engages in conduct (or conspires or attempts to engage in conduct) outside the United States that would constitute an offense enumerated in subsection (c) had the conduct been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States shall be punished as provided for that offense

18 USC 3271 and 3272 were previously limited to extraterritorial jurisdiction over certain trafficking in persons offenses.  Thus, CEJA creates an entirely new offense.  Interestingly, section 3272(c) of CEJA does not enumerate every offense under title 18.  Rather, it contains a relatively abbreviated list of serious felonies and corruption offenses, and then a few oddities, but I’ll let you look at the whole list.

The Act also gives defendants a right that they would not otherwise have under international law, namely protection from Double Jeopardy . . . well sort of.  A new section 3272(b) states:

(b) No prosecution for an offense may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting the offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated.

If made law, the Act will, according to Rep. Price’s press release, “close a gap in current law to make certain that American government employees and contractors are not immune from prosecution for crimes committed overseas.” 

Unfortunately the bill also picks up where the MEJA left off with its definitional concepts.  First, the bill does nothing with the language in 18 USC 3267 (MEJA), which defines persons subject to MEJA based upon the phrase “the extent such employment relates to supporting the mission of the Department of Defense overseas.” 

The new offense, uses, as noted above, the phrase “employed by any department or agency of the United States other than the Armed Forces.”  CEJA section 3272(d)(1) defines that phrase by requiring that a contrator employee’s employment “supports a program, project, or activity for a department or agency of the United States other than the Armed Forces.”  3272(d)(2) also uses the new phrase “accompanying any department or agency of the United States other than the Armed Forces,” which is similarly defined and captures dependents of those in 3272(d)(1) of the bill.  No further definition is given for the word “supports.”

As Sen. Leahy’s press release states, the bill also will

Direct the Justice Department to create new investigative units to investigate, arrest and prosecute contractors and employees who commit serious crimes.

Allow the Attorney General to authorize federal agents to arrest alleged offenders outside of the United States, if there is probable cause that an employee or contractor has committed a crime.

Require the Attorney General to report annually to Congress the number of offenses received, investigated and prosecuted under the statute; the number, location, and deployments of the newly created investigative units; and any changes needed in the law to make it more effective.

More to follow as the Act progresses through Congress.  We’ll see if anyone tries to do anything with MEJA as part of the mark up process.

Today’s WaPo ran this lengthy article examining the dismissal of the MEJA prosecutions of the Blackwater contractors arising from the Nisour Square shootings in Baghdad in 2007.  Del Quentin Wilber, Missteps, Errors and Miscommunication Doomed Balckwater Case, Wash. Post, Feb. 11, 2010, at A4.  The WaPo also reports here that Iraq has ordered all former Blackwater contractors out of the country.  None of the Blackwater contractors involved in the Nisour Square shootings remains in Iraq.

Today’s New York Times reports here that “[t]wo former Blackwater security guards were arrested Thursday on murder charges stemming from a shooting in Afghanistan last May that left two Afghans dead and a third wounded.”  James Risen, Two Former Blackwater Guards Are Charged with Murder in an Afghan Shooting, New York Times, Jan. 8, 2010, at A10.  The article also reported:  “In the criminal case involving Blackwater in Afghanistan, the two former guards — Justin Cannon, 27, of Corpus Christi, Tex., and Christopher Drotleff, 29, of Virginia Beach, Va. — were arrested after being indicted in federal court in Virginia on charges of second-degree murder, attempted murder and firearms violations. At the time of the May 5 shooting in Kabul, the men were working for Paravant LLC, a subsidiary of Xe Services, and under a contract they were assigned to train Afghan soldiers.”

I’ve posted the brief filed at the Sixth Circuit on behalf of Steven Green here.

Here are the two issues the brief raises:

I.  The Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261) is unconstitutional because it violates the separation of powers, the non-delegation doctrine, and Equal Protection and Due Process under the Fifth Amendment.

II.  Appellant was subject to the Uniform Code of Military Justice (UCMJ – 10 U.S.C. §801 et seq.).  The district court was therefore without jurisdiction to try him under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §3261).

Here’s the Summary of Argument:

Argument I – MEJA is unconstitutional because it violates the separation of powers and non-delegation doctrine.  Congress as the Legislative Branch of government has improperly delegated its constitutional powers to the Executive Branch by allowing the Executive to have the unfettered discretion to decide whether a person who commits a crime while a member of the Armed Forces, is to be tried by the military under the UCMJ or in district court under MEJA.  Moreover, the disparate treatment of Green and the more severe punishments he faced compared to his military co-accused violated Green’s rights to equal protection and due process.

Argument II – Green was improperly subjected to prosecution in district court under MEJA because his discharge from the Army was invalid.  The “clearing process” that is an essential component of a soldier’s separation from the military failed to comply with Army Regulations thereby rendering Green’s discharge invalid and subjecting him to prosecution under the UCMJ rather than MEJA.

It should be interesting to compare the United States’ response to the second issue to arguements that the U.S. has advanced in asserting post-DD 214 jurisdiction in court-martial cases.

The Louisville Courier-Journal reports here that Steven Green has filed an appeal with the Sixth Circuit challenging his MEJA conviction arising from the rape of a 14-year-old girl in Iraq and the murder of the girl and three of her family members.  The report indicates that Green, who had already been discharged from the Army when the crimes came to light, is challenging the validity of his discharge and argues that he should have been court-martialed instead of being prosecuted in federal court.  I’ll try to get a copy of the appeal and post it.

We had closely followed the Green capital MEJA prosecution in Kentucky, which resulted in a discharged soldier being convited of conspiracy, rape, and multiple murders for crimes he committed inMahmoudiya, Iraq while he was on active duty. The jury did not unanimously agree to a death sentence, as is required in federal (and military) practice.  Phil Cave’s Court-Marital Trial Practice blog links to this AP article reporting that yesterday, Green was senetnced to five consecutive life sentences for his crimes.

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ’s summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.

As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit “the offense with one or more other defendants, at least one of whom is not subject to” the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I’d say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically “subject to the UCMJ.” Who in these procurement fraud cases isn’t subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don’t know that such a metric has been borne out yet, though you would think in 3 years it would have. I’ll get back to everyone with some stats later this week.

Second thought–not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that’s not an issue. Also, the lead in portion of subsection (d) discusses “member of the Armed Forces subject to . . .,” whereas the exception in (d)(2) omits the “member of the Armed Forces” language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

Last year, we expressed our dismay about an increase in the number of recruits entering the military on conduct waivers. This year, we celebrated the news that the Army had stopped enlisting potential recruits with felony convictions and recent drug use.

The New York Times reports that former Army PFC Steven D. Green “got into the Army in 2005 on a so-called morals waiver, having had problems with alcohol and drug abuse.” This example gives an all-too-disturbing face to the statistics suggesting those who entered the military on conduct waivers are more likley to commit misconduct than are those who didn’t.

Here’s a link to today’s NYT article on the former PFC Green’s sentence. The Times reports that the jury deadlocked on sentence, resulting in life without eligibility for parole.

Here’s a link to a USA Today article.

The federal jury deliberating on the sentence in the Green capital MEJA case didn’t reach a conclusion today. Here’s an AP article on today’s sentencing arguments.