![handle is hein.journals/natislaw6 and id is 1 raw text is:
APPLYING THE UCMJ TO CONTRACTORS
Applying the UCMJ to Contractors
in Contingency Operations
Adam R. Pearlman*
I. INTRODUCTION
Civilian contractors play a pivotal role in contingency operations, particularly in the field of
the formerly-monikered War on Terror, as they provide vital support to our military forces engaged
in combat operations, including a cost-effective means of facilitating swift force multiplication and
necessary technological expertise while working alongside military forces.' Due to the expanding
role contractors play in combat missions, and because of certain contractors' activities in Iraq
between 2003 and 2005, Congress sought to increase contractor accountability in field operations by
amending the Uniform Code of Military Justice (UCMJ) in 2006 to extend military commanders'
authority to prosecute by court-martial certain defense contractors serving with the armed forces.
As part of the John Warner National Defense Authorization Act for Fiscal Year 2007,2 the Warner
Amendment to section 802(a)(10) of the UCMJ provides that: [i]n time of declared war or a
contingency operation, persons serving with or accompanying an armed force in the field can be
tried and punished for violations of the UCMJ.3 The first contractor to be tried under the amended
provision was charged with stabbing a co-worker and pleaded guilty on June 24, 2008.
Historically, between the Revolutionary War and the Supreme Court's decision in Reid
v. Covert,5 civilians had been subject to prosecution by court-martial in certain instances. The
Articles of War, as the precursor to the UCMJ, authorized court-martial jurisdiction over civilians
Associate Deputy General Counsel, United States Department of Defense; Special Advisor, International and National
Security Law Practice Group, The Federalist Society for Law and Public Policy Studies; Co-Editor, The U.S. Intelligence
Community Law Sourcebook. B.A., UCLA; J.D., The George Washington University Law School; M.S.S.I., National
Intelligence University. The author is grateful for the insights of W Hartmann Young. The views expressed in this Article
are those of the author alone and do not necessarily reflect the official policy or position of the Department of Defense or
the U.S. Government.
1 See Memorandum from the Deputy Sec'y of Def. on Management of DoD Contractors and Contractor Personnel
Accompanying U.S. Armed Forces in Contingency Operations Outside the United States (Sept. 25, 2007), http://www.
usdoj.gov/criminal/dss/docs/09-25-07dodmanagecontract-ucmj.pdf [hereinafter Sept. 2007 Memo]; see also Ctr. for Law
and Military Operations, FORGED IN THE FIRE: LEGAL LESSONs LEARNED DURING MILITARY OPERATIONs 204 (2d ed.
2008).
2 John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, 120 Stat. 2083 (2006)
(codified as 10 U.S.C. § 802(a)(10)).
10 U.S.C. § 802(a)(10) (2008).
See David C. Hammond, The First Prosecution of a Contractor Under the UCMJ: Lessons for Service Contractors, SERVICE
CONTRACTOR, Fall 2008, at 33, https://www.crowell.com/documents/The-First-Prosecution-of-a-Contractor-Under-the-
UCMJ.pdf.
5 354 U.S. 1 (1957).
I
Vol. 6, No. 1I](ViewImageLocal?handle=hein.journals/natislaw6&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most