New Law Could Subject Civilians to Military Trial

In an image from 2004, a private contractor enters an interrogation room at Abu Ghraib prison.
In an image from 2004, a private contractor enters an interrogation room at Abu Ghraib prison. (By John Moore -- Associated Press)
By Griff Witte
Washington Post Staff Writer
Monday, January 15, 2007

Private contractors and other civilians serving with U.S. troops in Iraq and Afghanistan could be subject for the first time to military courts-martial under a new federal provision that legal scholars say is almost certain to spark constitutional challenges.

The provision, which was slipped into a spending bill at the end of the last Congress, is intended to close a long-standing loophole that critics say puts contractors in war zones above the law.

But the provision also could affect others accompanying U.S. forces in the field, including civilian government employees and embedded journalists.

The Pentagon has estimated that there are 100,000 government contractors operating in Iraq, doing such jobs as serving meals, guarding convoys and interrogating prisoners.

Critics have long complained that, unlike soldiers, contractors are rarely prosecuted for their actions, even after evidence surfaced that contractors mistreated prisoners or fired on U.S. troops.

"Right now, you have two different standards for people doing the same job," said Sen. Lindsey O. Graham (R-S.C.), who pushed the provision. "This will bring uniformity to the commander's ability to control the behavior of people representing our country."

Graham, an Air Force Reserve lawyer, said the change will help morale in the field. "If the troops see someone getting away with something that hurts the overall mission, that is a morale buster," he said.

Under military law, known as the Uniform Code of Military Justice, commanders have wide latitude in deciding who should be prosecuted. Crimes include many that have parallels in civilian courts -- murder and rape, for instance -- as well as many that don't, such as disobeying an order, fraternization and adultery.

Legal experts say that latitude is one reason why attempting to hold civilians to the same standards as U.S. troops could be a messy process. It is also likely to raise constitutional challenges: Civilians prosecuted in military court don't receive a grand jury hearing and are ultimately tried by members of the military, rather than by a jury of their peers. The Supreme Court has struck down civilian convictions under military law, and no conviction of a civilian under the UCMJ has been upheld in more than half a century.

"The Supreme Court has been quite hostile to trying civilians in a court-martial," said Eugene R. Fidell, president of the National Institute of Military Justice. "On the other hand, the military justice system is more robust and has more protections in it than it did back in the 1950s. . . . This is going to be a law professor's dream."

One additional complication lies in determining who the new provision applies to. Graham said the change was aimed solely at holding contractors accountable. But legal observers say it could be interpreted broadly to also include employees with other government agencies, as well as reporters.

"One could imagine a situation in which a commander is unhappy with what a reporter is writing and could use the UCMJ to pressure the reporter," said Phillip E. Carter, a contracting lawyer with McKenna Long & Aldridge.

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