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Wednesday, January 21, 2009

Civilian Contractors and the Limits of Military Jurisdiction

With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone. Although the contractor in question was formerly enlisted in the U.S. Air Force, there is no question that he is not currently a member of the U.S. military.

As such, subjecting him to military jurisdiction seems to run right into a long line of Supreme Court decisions suggesting that the Constitution categorically bars the exercise of military jurisdiction over civilians (indeed, this is part of the argument in al Marri). The government will argue, I'm sure, that contractors performing what are effectively military-like functions (such as the maintenance work the petitioner was contracted to perform here) should fall on the other side of that line (especially in light of a 2006 amendment to the UCMJ that supports such a reading), but the Court's most recent pronouncement on the subject -- its 1987 decision in Solorio -- seemed to suggest that form matters much more than function. There, the Court overruled the so-called "service connection" test, holding that servicemembers could be subjected to military jurisdiction for any offense committed while in military service, because the Constitution draws such a bright line between servicemembers and civilians.

Moreover, although these facts seem to present the perfect case for reliance upon the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"), the Justice Department declined to pursue charges against the petitioner in the civilian courts, sending the case back to the Air Force. Suffice it to say, this should be a really interesting -- and potentially important -- case going forward...

Posted by Steve Vladeck on January 21, 2009 at 04:26 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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