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 accompanying U.S. forces in the field, including civilian government employees and embedded journalists.
But, hey- you don’t have anything to worry about if you aren’t doing anything wrong!
One additional complication lies in determining who the new provision applies to. Graham said the change was aimed solely at holding contractors accountable. But legal observers say it could be interpreted broadly to also include employees with other government agencies, as well as reporters.
“One could imagine a situation in which a commander is unhappy with what a reporter is writing and could use the UCMJ to pressure the reporter,” said Phillip E. Carter, a contracting lawyer with McKenna Long & Aldridge.
But that would never happen. No one would call someone and Enemy of the State simply because they disagreed with them.
On a serious note, how long is it going to take to clean up all the bullshit like this that the so-called conservatives have inserted into laws over the past 6 years? How much damage has really been done?
Zifnab
Here’s a thought. Let’s stop slipping random criminal legislation into spending bills. Or spending into criminal bills. Especially when the two have exactly jack squat to do with each other.
If this was some sort of censor on US Government contractors – the military has the right to investigate and revoke your funding if you are caught doing something illegal on the American dime – then I’d understand its presence in the bill. But the idea that it can be used on reporters?
I’m reminded of how Republicans wanted to revoke the Estate Tax in the Minimum Wage bill. And tried to open ANWR drilling in the Patriot Act. I mean, Congress isn’t even trying to segway these pieces of legislation together. They just pass everything in big, meaningless lumps.
Zombie Santa Claus
Nope, only if they were a real America-hating, Bush-bashing traitor like most of the moonbats around here right now.
Depends on how long it takes the voting public to allow Swiftboating, teh gays, unbaptized blastocysts, and the unholy menace posed by Islamofascists to take their eye off the ball again. The history of the Republican party for the last 40 years has mostly consisted of shell games of this kind. Funny thing is, it usually works.
fwiffo
If military law applies to mercenaries… excuse me, I mean “independent contractors charged with security duties”… I really don’t have much of a problem with that. But this will probably be applied to any civilian anywhere anyone deems necessary. Gotta love big-government conservatism.
Darrell
Like Kos says, “Screw them”
Zombie Santa Claus
If memory serves, the Geneva Conventions agree.
ThymeZone
And like BJ says, “Screw Darrell.”
Zombie Santa Claus
.
I guess memory served correctly.
So international law says “Screw them,” too. (Although, actually, you might be able to make a case that most of our mercenaries aren’t mercenaries under this protocol because of the language of 2(d). I’m assuming most of them are American citizens, of course. America is a party to the conflict, so I guess they maybe should get the rights the Geneva Conventions extends to combatants.)
Zombie Santa Claus
Wait, here’s the way someone interpreted it on wikipedia. Pretty interesting, actually.
I guess I hadn’t considered that the war is over, Mission Accomplished, and any American who keeps fighting it for private gain is a mercenary. Then again, the conflict is ongoing, as the struggle with Baathist dead-enders continues indefinitely. So this wikipedia entry was written by a moonbat asshole. Nice try, asshole!
Punchy
If memory serves me right, Markos was very angry at them because of their inability/unwillingness to be held accountable. Stories of them shooting at people randomly on the street as they drove by in their trucks, pissing off the locals that they military had to deal with (and die for) later.
For those reasons, I think this bill has merit.
Steve
It’s all in the framing, apparently. When this first came to light, it was like hooray! Military contractors can finally be prosecuted for abuses!
Now that someone has argued the statute might apply to embedded reporters, I guess the sky is falling, and it’s an evil plot by Bushco. I prefer to see it as a great idea that might need a little tweak to close a loophole, frankly.
First, let’s be clear on what the law actually says. Article 2(a) of the Uniform Code of Military Justice lists the persons that military law applies to, including troops, reservists, POWs, and so forth. Section 10 of that statute used to say:
and it was changed to:
In other words, whatever theoretical problems existed with reporters being court-martialed or whatever, those problems were already part of the law. It’s just that the law only took effect during a declared war, and we don’t seem to declare wars any more.
Before this latest change to the law, there was no effective way to do anything about contractors who commit crimes. Now it’s been made clear that if you’re one of the contractors that gets to do a soldier’s job for triple the pay, guess what, you’re going to have to face the same accountability mechanism as that soldier.
Defense Tech has some thoughts on the issue of reporters:
Zifnab
One question, a bit off topic. Why didn’t the Bush Administration just charge Al-Qiada terror suspects as mercenaries? With some legal massaging, the entire bin Laden organization seems to fit the definition of “for-profit mercenary contractors” very nicely. In fact, wasn’t the entire Al-Qiada terror cell legally prosecuted as a crime syndicate back in the 90s? I remember something like that from a Frontline piece.
But “mercenary” seems to be a very easy, pre-defined bucket to drop nationless terrorists into. Much easier than trying to define whatever the hell “enemy combatant” means.
srv
Sadly, Darrells wet dream of an authoritarian state is inevitable now. If anything, the last 6 years have shown just how docile The People have become. Someday, when one of his grandchildren gets a PI and can’t get that job, or clicks the wrong link and becomes an insta-child porn king, maybe he’ll read a Federalist Paper or two and ponder his value system. But probably not.
Unitary Executive Theory is now not just something found in the realm of crackpot dinner conversations. It now has precedence. The Congress and the Supreme Court have failed to reign it in, so it’s just something the next crackpot leader will extend.
And extend it, they will.
RSA
Thanks for the info, Steve. About this:
I wonder why the statute doesn’t say something more precise about combatants or providing support for combatants? This encompasses neutral observers, which would seem to be pretty easy to refine out.
Azure
Heh, you’ve got to love how good Darrel is at derailing the discussion. Got no easy angle of attack on the topic at hand? Just recycle some older outrage.
Larry M
How long is it going to take? Try never. Ironically given claims of BDS and shrillness, it still hasn’t registered with the left just how bad things will be when 2008 rolls around. We may have already passed the tipping point where the United States power and economy are headed for a drastic and unstoppable dramatic decline (as in falling off a cliff). We certainly will pass that point in the next two years. This is true for any number of reasons, but I might just mention that the Bush administration seems hell bent on pushing us into an all out war with Iran. That war will drag on for decades, will cost trillions of dollars, will mean bringing the draft back, tens, perhaps hundreds of million dead world wide as the conflagration turns into a world war, worldwide depression as the flow of oil from the middle east is distrupted on a massive scale, and an increase in terrorism against us by several orders of magnitude.
What’s that you say, the next president will stop the war? If Bush had confined himself to Iraq, then yes, most likely. But do you think that any president will have the moral courage to stop a war with Iran, once it’s started? I don’t.
AnneJ
Maybe this law isn’t the best way to go about it, but the contractors exist in a realm of impunity. They cannot be (or are not) prosecuted under Iraqi law and DOJ isn’t doing it either. Again, making military law applicable, might not be the sollution. Especially since the only way it might help, would be if commanders would put in the energy to prosecute misgivings.
I’d propose adhering to the international rule dedere aut judicare either prosecute or hand them over to the iraqis. Iraq is a sovereign nation now.
Otto Man
It depends on quickly we hit rock bottom. If things flatten out in a quick collapse like the Great Depression, there might be a real movement for repair. If it’s just a slow swing through the Dark Ages, probably a lot longer.
Krista
That’s pretty much what I’m afraid will happen as well.
HyperIon
i’m thinking that the WH gets surrounded by thousands of pissed off americans in this case. and i’m going to be one of them.
The Other Steve
I don’t understand why it should apply to reporters and such.
Did they not clarify that this only applies to Mercs?
gus
This reminds me, what ever happened to that American nutcase who had his own prison in Afghanistan? He claimed that he had Rumsfeld’s blessing. I never heard what happened to him.
srv
Think he got released a couple of months ago after a year or two in jail.
ThymeZone
The people will stop it. Just as they did with Vietnam. The presidents got way behind the people.
And keep in mind, there’s no military for a real war with Iran. Not unless you create a draft and a giant increase in the defense budget and further bankrupt the country. There isn’t really enough force right now to support what we are doing today properly.
War with Iran is fading into improbability. It’s the opposite of what I thought two years ago, but let’s face it, what are we going to fight it with? Two weeks of shock and awe followed by being greeted as liberators? Sorry, we’ve been to that hoedown already.
scarshapedstar
Isn’t this basically a stealth declaration of martial law? I thought FEMA was supposed to come into play here…
dslak
In Russia, you protect yourself from military!
KCinDC
Of course we have, but if Bush wants to take us there again, who’s going to stop him, especially if he moves quickly?
ThymeZone
Well, as I argued earlier, a march on Washington, and the lack of any troops to fight Iran with. That’s my current theory. Of course, with these meatheads, you have to be on your toes, as you suggest.
TenguPhule
Sorry, I doubt it. War with Iran has never been closer, because Darrell’s lord and master is still in charge of the military. We’re not ready or able to fight on a third war front, but Bush is stupid enough to get us pulled into one anyway.
When the dust settles, we’ll have to sue for peace and turn over Bush, Cheney, Rice and their Darrell supporters to the Iranians to do with as they please.
TenguPhule
Zifnab
If only it was that easy. But I think the Rethugs will start flinging nukes before they “surrender” to the Iranians.
dslak
The pie must flow!
KCinDC
TZ, we had plenty of marches, with plenty of people, trying to stop the invasion of Iraq. Bush ignored them. The media paid little attention, except when painting them as the antics of “far left” wackos. I have little confidence that marches will stop Bush from attacking Iran.
I don’t think lack of troops with stop him either, if he decides it’s part of what God put him in office to do to fight evil. He believes he must make the tough decisions that no one else will, and he’ll be vindicated one day in the history books.
dslak
Maybe if we march on Washington and all meditate at once, we can levitate on the Pentagon!
Zombie Santa Claus
That’s a really good idea. I guess they probably figured that it wasn’t interesting enough after 9/11 and whatnot. We needed a special category to deal with the special new Islamofascist threat. That kind of thing.
I’m sure Chinese history books will speak somewhat highly of him.
Blue Shark
You Write:
“how long is it going to take to clean up all the bullshit like this?”
…WHO do you expect to clean up?
…Will you vote for them?
…Will you use your blog to promote them?
…Who did you vote for? (twice?)(Not that it counted)
…You share culpability.
…Thank you for rejecting the kool-aid after what 4-5 years?
grumpy realist
Op Ed in FT this morning talking about how China is liable to overtake us in S&T spending within a few years.
Well, the US had a good 200 years, but it looks like we’re about to run out of road.
Can you imagine what we could have accomplished had we put the same money that we’ve squandered in Iraq on S&T and energy independence?
Can you imagine how far we could have gotten had our administration not pandered to the creationists, bible-thumpers and other illogicals?
Enjoy learning Chinese, people.
AnneJ
But back to the topic again: any suggestions on how it would be possible to hold contractors in Iraq to the law?
demimondian
It would have helped to be a bit clearer about the persons covered by the changes. That said, I don’t think that the concern about embeddeds and the like is kind of overblown; they already give up a bunch of rights to be there, anyway.
Zifnab
我在近义词之你
Zifnab
If they break the law, we hang them? That seems to be a popular mode of justice at the moment.
RSA
“Off with their heads” makes a good slogan for more than one reason.
KCinDC
Well, I don’t know enough about the UCMJ, but if an embedded journalist did commit a war crime I’d want them to be prosecutable under some law as well. Military contractors may be more likely to commit crimes, but no one should be above the law.
KCinDC
Now, if it means we’re going to start prosecuting journalists under the UCMJ for adultery or homosexual activity, that’s something else, but I don’t want contractors subjected to that either.
Punchy
Seriously, this IS the answer. Something tells me these idiots would cease with the drive-by’s and pot-shots, stop stealing from the Iraqis, and in general stay in bounds of the law if they knew their lawbreaking would lead them to an Iraqi prison.
I’m quite sure these mercenaries have seen power drills, drill bits, and electrical wire before, although probably not applied to their genetials. Yet.
ThymeZone
Okay, cut the pig latin.
demimondian
Oh, it’s easy, TZ. “dedere aut judicare” means “Dead like Judy Kerry”, just like it’s spelled.
Zombie Santa Claus
What does this mean?
ThymeZone
我在近义词之你
A seven letter word for “Darrell?”
Let’s see … a … blank blank …h ….blank blank …e.
Armhole?
(Actually, it’s what happens why you try to cut and paste Chinese characters without support for the characters).
KCinDC
I don’t know what Zifnab saw or you’re seeing, TZ, but I see what appear to be seven Chinese characters. Don’t know what they mean, though. Google translation says it means “I Synonyms 之 you”, which doesn’t help much.
ThymeZone
Seven empty boxes.
demimondian
You must not have the Traditional Chinese font pack installed; I’m seeing seven hanja.
Punchy
According to my rough translation, it reads “doghouse, church-with-overhang, T-bar, jumping jack, lotsa boxes, Z, stick-figure-with-three-arms”
Sank you.
ThymeZone
Correct. Why would I want to do that?
BadTux
I’m going to join those who say that this is a good move, as long as qualified to apply only to those are “security contractors”. We are using mercenaries — err, “private contractors” — in Iraq as proxies for American soldiers, to do things like guard diplomats, guard oil pipelines, etc. These guys are carrying guns. They’re acting as soldiers and are operating in a combat zone. They should be treated as soldiers under military law.
If we simply add the caveats “if you are carrying a gun and are in a combat zone, you are subject to military law”, I think that covers it.
demimondian
Well, so that you don’t strings of empty boxes when the exalted language of the middle kingdom appears on your screen.
demimondian
Roughly translated, it seems to mean something on the order of “I am nearer to righteousness than you”.
ThymeZone
I’d get pictographs, which mean about as much to me as empty boxes.
ThymeZone
Are.
But anyway, who isn’t?
demimondian
I *said* it was a rough translation, OK? It was hard enough to work backwards from the ideographs; I don’t speak Chinese at all.
poppinfresh
我在近义词之你 doesn’t mean anything intelligible, unless its some advanced grammar I haven’t studied yet. If he was trying to say “I agree” or “I hear ya, man”, which is the most likely candidate given the context, it’d have been “我同意你的看法”. What he said had a really obscure grammar particle that you normally only find in wenyawen, or literary Chinese. I smell Babelfish :)
/chinese student nerddom OFF
In the spirit of JC’s site, another reformed hawk would like to explain to people what he was thinking, since I often hear left-leaning types asking “how could they (by which you mean me) have supported the war”. So, without further ado, my purging confessional.
When the war in Iraq was drumming up, I was maybe 55% on the side of doing it; not strongly in favor, but more for than against. Why?
1) The arguments of the radical antiwar left against military action in Afghanistan damaged their credibility with me personally. “Oh, more of the same bitching arguments.” Not the biggest reason by a longshot, but if I’m going to ‘fess up about how I supported this clusterfuck it’s got to be said.
2) Saddam was not the nicest guy, yadda yadda. Since it embaresses me how much the administration belabors this point I won’t say anymore about it.
3) Unlike most people, I’m fine with blood for oil. Considering the oil industry has the U.S. government by the balls and we won’t be switching to a new power source any time soon, oil is valuable and as good a reason for blood as anything ELSE we kill/die for. I’m practical, and moderately imperialistic in the sense that at the time I imagined the American government to be a superior alternative to other potential hegemons (note the past tense here, BushCo has painfully disabused me of this notion). Believe me, I know more than ANYONE (since it’s the focus of my life at present) how badly the Chinese would love to invade Iraq for the oil if they had an excuse, or Russia if they didn’t have so much of their own to bully the rest of the world with.
And guess what? Most Americans agree and will go to war for oil in a second. History proves this- why do Americans care more about the independance of Kuwait than a genocide in Darfur?
TOO BAD WE SCREWED THE POOCH AND SENT OIL PRICES THROUGH THE ROOF.
3) “I mean, it’s not like they’d reduce troops levels in Afghanistan for Iraq, right? That would be silly!”
I AM SO FUCKING DUMB. Ahem.
4) My support was conditional on a competent administration being set up to prevent ethnic tension. Honestly I was more worried about the Kurdish issue and how it might draw in Turkey, but unlike apparently every single person sent to Iraq, I actually knew there was more than one kind of Iraqi and Chalabi was a buttsniffer who nobody respected and would cock the whole show up. Turns out the Iraqi shiites hate Iraqi sunnis more than Iranians, which I underestimated, but that would have been managable if the aforementioned competent people had been sent in. If I’d known then what was happening (see Packer’s “The Assasin’s Gate”), I’d have been wearing a gasmask and a Che Guevara tshirt along with the rest of you moonies, believe me. What a bunch of criminal morons. I knew Bush was a monkey, but I believed that SOMEONE in the administration or the Pentagon or somewhere, anywhere in the chain of command had brains. Oops.
There are more, but those are a few good ones off the top of my head. So, um, I’m sorry about that whole supporting the death-throes of Pax Americana.
My bad.
poppinfresh
Oh, nearer to righteousness? That’s a weird way of saying it, FYI. Wish there was an edit button…
TenguPhule
My personal objections to Afghanistan were more along the lines of ‘Given what I know about Bush’s history and Afghanistan’s history, he’s going to fuck it up.’
I had no love for the Taliban, but the Northern Alliance was (and still is) worse. After all, the Taliban was able to come into power specifically because the people there preferred its terror and stability to the terror, anarchy and highway robbery of the Warlords.
And now ironically it’s coming full circle there.
Veeshir
I’m breaking my own rule, I’m not reading the previous comments, not for any reason that has to do with the comments or the commenters, but because I want to ask John a question.
John, when did you go insane?
The UCMJ isn’t some capricious thing, you make it sound as if being under the UCMJ is akin to being declared a non-person or that now any NGO-type will be shipped off to Gitmo for spitting on the sidewalk.
One could imagine a situation in which a commander is unhappy with what a reporter is writing and could use the UCMJ to pressure the reporter,”
Yup, and one could imagine Americans seriously thinking the President of the United States was going to declare martial law and negate any elections he doesn…..
Oh right, insane. That was my point.
TenguPhule
Fixed.
Veeshir, blind but sure.
Veeshir
the government imprisoning reporters for not revealing their sources in an investigation that could prove highly damaging to the party in power….
I assume that’s the Plame deal.
Man, are you still waiting for Fitzmas?
That’s pretty darn funny.