DOD Civilian - Criminal Justice Brief

Office of the Staff Judge Advocate

LTC Edward McDonald

Criminal Jurisdiction

Over Civilian Employees

“Today, we find our very preservation as a nation inexorably intertwined with the maintenance of large overseas contingents, composed of both military and civilian personnel.

These groups are so closely related, in all aspects of the venture, that discipline and success will be affected adversely if one segment of the force is free to operate outside the law and the other is restricted to obedience . . .

Improper deportment on the part of civilians overseas . . . has an adverse impact on both discipline and its closely allied military intangible – morale – and ultimately on the success of the mission.”

Judge George W. Latimer U.S. Court of Military Appeals U.S. v Burney, 1956

Managing Civilian Criminal Justice(SecDef Memorandum Guidance of March 10, 2008)

Require specific training for DoD civilian employees and DoD contractors, as required for MEJA jurisdiction under DoD Instruction 5525.11 (Part 153 of title 32, Code of Federal Regulations)

At time of employment or prior to deployment at Mobilization Center.

Upon arrival in theater

“Unique nature of this UCMJ jurisdiction requires sound management over when, where, and by whom it is exercised”

“There is a particular need for clarity regarding the legal framework that should govern a command response to any illegal activities by DOD civilian employees and DoD contractor employees overseas with our Armed Forces”;

Contractors & Civilians

If you commit a (serious) offense, you can be prosecuted under the following laws:

Military Extraterritorial Jurisdiction Act (MEJA) 18 USC 3261, PL 106-523 (Nov 2000)

Uniform Code of Military Justice (UCMJ) Art 2(10) “In time of war” – “persons accompanying the armed forces”

Host Nation law

War Crimes Tribunal

Contractors & Civilians

Minor Acts of Misconduct1. Drinking2. Possessing authorized weapons 3. Pornography4. Inappropriate conduct – violating orders or regulations.

Barring reentry usually results in contractor being fired by employer which is an independent determination by each employer. Failing to follow the rules is the surest ticket out of Iraq - many employers require reimbursement for the travel costs when employees get forcibly removed - each contractor is a little different. (Usually will fly out w/in 24 to 48 Hours)

Civilian Jurisdiction

Subject to host-nation law, if conduct is a host-nation crime Unless SOFA or international agreement between host-nation and U.S.

primarily look to the U.S. to discipline under U.S. laws

Since 2000, subject to prosecution in Federal district court under Military Extraterritorial Jurisdiction Act (MEJA) for felony-level Federal crimes committed while outside the United States

Subject to foreign government not prosecuting offense

Now, subject to Article 2(a)(10), UCMJ, court-martial jurisdiction, depending upon whether

UCMJ offense applies at all to civilians;

UCMJ is exclusive jurisdiction over purely military offenses; or UCMJ offense is concurrent jurisdiction with Federal offense, and any

DoJ/DoD agreement on exercise of respective jurisdiction applies

Notification Process – DODI 5525.11(Senior Official Oversight)

SECRETARY OFDEFENSE

Chairman, JCS and Joint Staff

General Counsel OSD Staff

DOJ

CommanderCombatant Command

Commander(GCM Convening Authority)

MEJA Summary(March 3, 2005 – September 25, 2009)

SUMMARY: DoD - DoJ/DSS - Referral to U.S. Attorney’s Office (USAO)

Not Referred Not Referred Prosecuted USAO USAOOffender Cases to DoJ/DSS to USAO or Charged Pending Declined

1. 18 USC(7)(9), etc. 4 0 0 4 0 0

2. Adult Dependent 10 0 1 4 2 3

3. Juvenile Dependent 6 0 0 3 3 0

4. DoD Civilian Employee 15 0 1 3 5 6

5. US National Contractor 45 0 6 12 19 8 (Price)

6. TCN Contractor 15 0 5 0 2 8 (Ali)

7. Former Mil. Members 8 0 1 2 1 4

8. Military Members under 1 0 0 0 1 0 (§ 3261(d)(2)) (Corbello)

Total: 104 0 (0%) 14 (13%) 28 (27%) 32 (32%) 29 (28%) Total Charged or Pending: 61/104 = 59 %

Contractors & Civilians

Military Extraterritorial Jurisdiction Act (MEJA)

(18 U.S.C. § 3261(a)) provides that “[w]hoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States

1. While employed by or accompanying the Armed Forces outside the United States

2. While a member of the Armed Forces subject to chapter 47 title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.”

Contractors & Civilians Subject to UCMJ

Alaa “Alex” Mohammad Ali, a contractor serving as an interpreter with U.S. armed forces in Iraq, was originally

charged with violation of Article 128 of the UCMJ “Aggravated Assault” for stabbing another translator.

Contractors & Civilians Subject to UCMJ

Alaa “Alex” Mohammad Ali, pleaded guilty to:

1. Wrongful appropriation of a knife owned by a U.S. Soldier

2. Obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another Interpreter

3. Making a false official statement to military investigators

Military judge sentenced Mr. Ali to 5 months confinement after being in pre-trial confinement on the Victory Base Complex for 115 days.

He was not paid by his contractor while in pre-trial confinement.

Contractors & Civilians Subject to UCMJ

Mr. Ali was afforded all the same rights, protections andprivileges Servicemembers receive in military court:

1. Right to Counsel2. Right to Speedy Trial3. Protection Against Self-Incrimination4. Presumption of Innocence

He was represented by military defense counsel

He will continue to be afforded all the post-trialand appellate rights provided to Servicemembers

Purposes OfMilitary Justice

Promote Justice

Maintain Good Order and Discipline

Promote Efficiency and Effectiveness

Strengthen the National Security

Legal Sources Of Military Justice

U.S. Constitution

Articles of War

Uniform Code of Military Justice

Manual for Courts-Martial

Federal Statutes

Local Regulations

Court Decisions

Key Personnel in theMilitary Justice System

Commander (Command driven system)

Staff Judge Advocate

Trial Counsel

Defense Counsel

Military Judge

Legal Specialists

UCMJ JurisdictionOver the Person:

Active Duty Soldiers

Activated Guard/Reserve Soldiers

Civilians ( During time of war or declared contingency)

Over the Offense:

Concurrent Civilian Jurisdiction ?

Worldwide Jurisdiction

Courts-Martial

Summary Courts-Martial

Special Courts-Martial

General Courts-Martial

(Non-Judicial Punishment – Article 15)

Summary Court-Martial

No judge, Summary Court Officer is an appointed commissioned officer

No right to a defense attorney at trial – right to consult with defense counsel

Max punishment:30 days confinement (E1-E4)Reduction to E-1 (E1-E4)Reduction one rank (E5 and above)Loss of 2/3 pay for one month

Referred by O-5 commander Soldier may turn down trial by Summary Court

Martial and demand a higher level of Court-Martial

Special Court-Martial

Just like any other trial:Prosecutor and Defense counselRules of Evidence apply

Maximum punishment-- One year confinement

Reduction to lowest rank Loss of 2/3 pay per month for 6 mos No discharge

Referred by O-6 commander or if a BCD is authorized, by the GCMCA.

General Court-Martial

Highest level of Court-Martial

Requires an Article 32 Investigation (pretrial hearing “Grand Jury”)

Can give a Bad Conduct Discharge or Dishonorable Discharge

Maximum Punishment is the maximum punishment allowed for the UCMJ article the accused is convicted of committing (Death)

Referred by Commanding General

AdministrativeInspections

Commanders have the right and duty to conduct “health and welfare” inspections:•Primary Purpose is to ensure security, fitness, property accountability, or good order and discipline—NOT collect evidence of a crime.

•If contraband is found during inspection it may be seized as evidence.

•Does not require a Warrant or “Probable Cause” (low expectation of privacy).

Bottom Line Advice Civilians serving with U.S. Forces in contingency

operations may be subject to the UCMJ, MEJA or Host nation’s Law.

Administrative Inspections may be conducted without warrant.

The vast majority of minor acts of misconduct by civilians result in termination and removal from theater.

QUESTIONS?

When you come through the SRC, we are in Bldg. 341 and our attorneys will assist you with any required legal assistance.

If you have any questions after this briefing, please call 812-526-1758.