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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.