A little-noticed, last-minute change to a spending bill signed into law last year applies the military justice system to Defense contractors working in Iraq and Afghanistan, and potentially -- during national emergencies -- to those working on U.S. soil.
The change, which consists of just six words inserted into the Uniform Code of Military Justice, extends the military's strict rules of conduct to contractors not only during declared wars, but during so-called contingency operations. These include the current ones in the Middle East, as well as declared national emergencies in which the armed services are called upon, such as the response to last year's Hurricane Katrina.
Under the military justice code, soldiers and now contractors can be disciplined not just for felony crimes like murder that exist in the general justice system, but for offenses such as talking back to an officer, viewing pornography in a country where it is forbidden or even wearing a uniform incorrectly, according to people familiar with the code.
The new language was added to the fiscal 2007 Defense Authorization Bill passed last year. The change, pursued by Sen. Lindsey Graham, R-S.C., is intended to boost the accountability of contractors operating in Iraq. The provision responds to incidents like the Abu Ghraib scandal, in which none of the contractor personnel involved have been charged with a crime, as well as accounts of unprovoked shootings and other lawless behavior.
Even before the change, contractors were already subject to a law -- the 2000 Military Extraterritorial Jurisdiction Act -- holding them accountable to their native court system for potential crimes committed in other countries while working under Defense Department contracts. But the law has rarely been used during the conflicts in Iraq and Afghanistan, causing some to call for change.
Peter Singer, a senior fellow with the Brookings Institution, a Washington, D.C.-based think tank, published a column in Defense Tech last week highlighting the change.
"Not one contractor of the entire military industry in Iraq has been charged with any crime over the last three and a half years, let alone prosecuted or punished," Singer wrote. "Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind."
Singer praised the expansion of the military justice code, but said more clarity is needed on how it will be applied to contractors. "It could be either too limited or too wide, depending on the interpretation," he said, noting that it may or may not apply to war zone contractors working for agencies other than Defense.
The International Peace Operations Association represents private security firms such as those guarding many convoys and construction projects in Iraq. Doug Brooks, the group's president, said the military justice code is not well equipped to handle crimes committed by civilians.
"We're all for accountability, and frankly the UCMJ will be great if it can work," Brooks said of the rule change. "But UCMJ isn't the right thing to do this."
He cited concerns about the constitutionality of subjecting civilians to military legal processes, thereby depriving them of certain aspects of the regular judicial process.
Brooks said it also was unclear whether the military justice code could be applied to non-Americans. If the law applies only to Americans working on Defense contracts, he said, it would ultimately cover less than 10 percent of the contracting force in Iraq, which includes people from around the world.
Brooks expressed little confidence that the military system could work as Graham and Brookings' Singer hope it will, but also did not seem overly troubled by the prospect of the new provisions.
Legal changes such as this generally are implemented by Defense officials through a policy statement that explains how they should be applied. Brooks said he expects the military justice code eventually will apply only to charges against contractors that could amount to a felony, and not to cases in which, for example, a contractor uses obscenities with a military officer.
He said he expected contractor groups to be consulted in the process of developing such a policy, and that in the meantime the rules would not be applied. "In a war zone, you really can't screw around with hearings and things like that," he said, noting that most problems with contractors are solved by officials requesting that they be transferred or removed.
But Stan Soloway, president of the Professional Services Council, an industry group that opposed the rule change when it was discussed last summer, expressed much more concern.
"It's a very dangerous thing to pass laws of this significance and count on everyone always acting reasonable," he said of the idea that nonfelony portions of the code would simply be ignored for contractors.
Soloway said the central argument for applying the military code to contractors was that the existing law has not been used adequately. "I think that's a pretty shallow argument for making such a major legal change and for so dramatically changing the legal status of individuals," he said. "If [the extraterritorial jurisdiction law] has not been implemented, then that's where we should focus our attention."
Soloway also highlighted the potential for conflict between the military code and existing contracting regulations. For example, he said, if a contractor were working at one site and a commanding officer ordered him or her to another site to respond to a sudden emergency -- an occurrence easily imagined in a conflict zone -- the contractor would be compelled by the military code to obey, but required by the Federal Acquisition Regulation to gain approval from a contracting officer before taking on a task outside the contract's scope.
Soloway said his group would talk with Graham and others who have expressed concern about the use of the older extraterritorial jurisdiction law to discuss why it has not been used and how to address those problems.
In the meantime, Soloway generally agreed with Brooks that it was unlikely immediate action would be taken against contractors under the military code.
"If Congress passes a law and the government never writes the [implementing] regulations, did Congress ever pass the law?" he asked.