zimv20
Jan 16, 2007, 03:04 PM
washpost (http://www.chron.com/disp/story.mpl/nation/4472421.html)
By GRIFF WITTE
Washington Post
WASHINGTON — Private contractors and other civilians serving with U.S. troops in Iraq and Afghanistan could be subject for the first time to military courts-martial under a new federal provision that legal scholars say is almost certain to spark constitutional challenges.
The provision, which was slipped into a spending bill at the end of the last Congress, is intended to close a long-standing loophole that critics say puts contractors in war zones above the law. But the provision also could affect others in the field, including civilian government employees and embedded journalists.
Critics have long complained that, unlike soldiers, contractors are rarely prosecuted for their actions, even after evidence surfaced that contractors mistreated prisoners or fired on U.S. troops.
"This will bring uniformity to the commander's ability to control the behavior of people representing our country," said Sen. Lindsey Graham, R-S.C., who pushed the provision.
Under military law, commanders have wide latitude in deciding who should be prosecuted.
Legal experts say that latitude is one reason why attempting to hold civilians to the same standards as U.S. troops could be a messy process.
It is also likely to raise constitutional challenges: Civilians prosecuted in military court don't receive a grand jury hearing and are ultimately tried by members of the military, rather than by a jury of their peers. The Supreme Court has struck down civilian convictions under military law, and no conviction of a civilian under the UCMJ has been upheld in more than half a century.
"The Supreme Court has been quite hostile to trying civilians in a court-martial," said Eugene Fidell, president of the National Institute of Military Justice. "On the other hand, the military justice system is more robust and has more protections in it than it did back in the 1950s ... This is going to be a law professor's dream."
One additional complication lies in determining who will be covered by the new provision.
Graham said the change was aimed solely at holding contractors accountable.
But legal observers say it could be interpreted broadly to include employees with other government agencies, as well as reporters.
By GRIFF WITTE
Washington Post
WASHINGTON — Private contractors and other civilians serving with U.S. troops in Iraq and Afghanistan could be subject for the first time to military courts-martial under a new federal provision that legal scholars say is almost certain to spark constitutional challenges.
The provision, which was slipped into a spending bill at the end of the last Congress, is intended to close a long-standing loophole that critics say puts contractors in war zones above the law. But the provision also could affect others in the field, including civilian government employees and embedded journalists.
Critics have long complained that, unlike soldiers, contractors are rarely prosecuted for their actions, even after evidence surfaced that contractors mistreated prisoners or fired on U.S. troops.
"This will bring uniformity to the commander's ability to control the behavior of people representing our country," said Sen. Lindsey Graham, R-S.C., who pushed the provision.
Under military law, commanders have wide latitude in deciding who should be prosecuted.
Legal experts say that latitude is one reason why attempting to hold civilians to the same standards as U.S. troops could be a messy process.
It is also likely to raise constitutional challenges: Civilians prosecuted in military court don't receive a grand jury hearing and are ultimately tried by members of the military, rather than by a jury of their peers. The Supreme Court has struck down civilian convictions under military law, and no conviction of a civilian under the UCMJ has been upheld in more than half a century.
"The Supreme Court has been quite hostile to trying civilians in a court-martial," said Eugene Fidell, president of the National Institute of Military Justice. "On the other hand, the military justice system is more robust and has more protections in it than it did back in the 1950s ... This is going to be a law professor's dream."
One additional complication lies in determining who will be covered by the new provision.
Graham said the change was aimed solely at holding contractors accountable.
But legal observers say it could be interpreted broadly to include employees with other government agencies, as well as reporters.
