New Law Could Subject Civilians to Military Trial

Christopher Anders, legislative counsel for the American Civil Liberties Union, said he understands the desire to hold contractors accountable but feels the legislation was crafted so broadly that it could have negative consequences.

"Soldiers subject themselves to a different system of criminal justice. That's a decision that's made by everyone who enlists," Anders said. "There may be some logic in applying military standards to civilian military contractors who are taking up arms. But it's a whole different thing when others are swept up."

The Pentagon is still developing guidance on how the new provision will be used. "We're going to have to go through and assess the situation as the facts and circumstances develop," spokeswoman Cynthia Smith said.

Contractors have voiced strong opposition to the change. They say that while they support accountability, the use of military law makes the legal framework for private contractors in the field even more muddled. They also have decried the way the change occurred.

"This looks good on the surface, but it creates far more problems than it solves," said Stan Soloway, president of the Professional Services Council, a trade group that represents contractors. "This is a provision that has dramatic impact and deserved far more discussion than it got."

In fact, the provision sparked virtually no debate last year when Graham had it written into the defense spending bill for 2007. The change was easy to miss: It involved adding just five words to a massive bill. The bill was signed into law by President Bush.

Previously, civilians could be tried under the UCMJ only during a declared war. Since military operations in Iraq and Afghanistan never involved a declaration of war, civilians have been exempt. But the new provision also allows the UCMJ to be applied to certain civilians during a "contingency operation." Operations in Afghanistan and Iraq both fit that definition.

The change remained largely unnoticed until earlier this month, when Peter W. Singer, a Brookings Institution senior fellow who has long advocated greater accountability for contractors, wrote a piece on it for the Web site DefenseTech.org.

At least theoretically, contractors in Iraq and Afghanistan have been subject to criminal law in the United States through the Military Extraterritorial Jurisdiction Act, known as MEJA. That law, passed in 2000, is supposed to expand federal prosecutors' authority to foreign battlefields. But MEJA has yet to be used to prosecute contractors.

Allegations of contractor involvement in detainee abuse at Abu Ghraib were referred to federal prosecutors in 2004, but there have been no indictments. Late last year, two former employees of a private security firm in Iraq filed suit, alleging that a superior had shot at civilians without provocation. There, too, no charges have been filed. There have also been several unconfirmed reports of contractors firing at U.S. forces.

"Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished," Singer wrote. "Given the raw number of contractors, let alone the incidents we know about, it boggles the mind."

To try to solve the problem, Rep. David E. Price (D-N.C.) introduced legislation last week that he said would strengthen MEJA, an option he considers superior to using military law. "Military law is not appropriate for civilians," Price said. "The constitutional questions just confuse the issue."

Staff researcher Julie Tate contributed to this report.