Between War and Peace: Exploring the Constitutionality of Subjecting Private Civilian Contractors to the Uniform Code of Military Justice during ‘Contingency Operations

In the context of the Global War on Terrorism and modern counterinsurgency operations, the Department of Defense and other agencies within the U.S. government utilize an unprecedented number of private contractors to support missions in Iraq and Afghanistan.These contractors are vital to counterinsurgency efforts because they augment force limitations by performing services ranging from logistics support to security functions. However, unlike members of the Armed Forces who are “accountable under [the Uniform Code of Military Justice] wherever they are located,”  private security contractors fall into “legal ‘gray areas”’ between host-nation laws, domestic criminal laws, and international laws such as the Geneva Convention.  As civilians, they would normally be subject to host-nation laws. In Iraq and Afghanistan, however, contractors are expressly protected by agreements providing immunity from prosecution in the local jurisdiction.  In addition, although Congress passed the Military Extraterritorial Jurisdiction Act (“MEJA”) to hold civilians accountable under domestic criminal laws, MEJA has not been widely utilized due to significant resource limitations. Finally, contractors do not “fit the formal definition of mercenaries” and are thus “undefined by international law.” While perhaps well intended, section 552 raises many questions. One of the most important questions concerns the constitutionality of section 552. On one hand, numerous federal court decisions have upheld military convictions of civilians accompanying the force during times of declared war. On the other hand, the Supreme Court has declared that subjecting civilians to the UCMJ in peacetime is unconstitutional.  As such, the question of whether the UCMJ can be constitutionally applied to civilian contractors during contingency operations, which fall between war and peace, remains unanswered. This Recent Development will argue that, although there are significant due process barriers to constitutionality, these concerns do not completely rule out the possibility of applying the UCMJ to civilian contractors accompanying the force in contingency operations.