Civilian Military Contractors on Trial: The Case for Upholding the Amended Exceptional Jurisdiction Clause of the Uniform Code of Military Justice

"I call it a massacre," said a Kurdish witness to the afternoon carnage in the streets of Baghdad, "[t]hey used the law of the jungle." American soldiers and military officials were equally appalled at the aftermath: the plume of smoke over Nisour Square having dissipated, only the bullet-riddled, lifeless bodies of unarmed civilians remained. A banner proclaiming "[t]he Creators of Life are always Victorious" fluttered eerily overhead, an optimist's hope for Iraqi reconstruction diminished by the tumult below. This catastrophe was not, however, the work of terrorists. Rather, the deaths occurred at the hands of employees of Blackwater USA, a private security company under contract with the U.S. Department of State, whose primary mission in Iraq is to protect U.S. diplomats. Although five Blackwater guards were indicted in December 2008 for their roles in the attacks, private military and security firms generally continue to operate with relative impunity amidst regulatory frameworks that are porous, impracticable, and rarely utilized. The solution with the greatest enforcement capability - a 2006 amendment to the Uniform Code of Military Justice (UCMJ), which extends military courts-martial to civilian contractors participating in contingency operations - faces constitutional questions and, as of the time of this writing, a failure of executive branch implementation. The resulting lacuna is startling: there are nearly 160,000 private American contractors working in Iraq, an estimated 30,000 of which provide armed military services, but there has currently been only one prosecution for an act of violence. This Article argues that the recent change in the UCMJ should survive constitutional attack, and that subjecting employees of private military firms to courts-martial is the only sensible and practical means to ensure battlefield discipline and accountability. Part II of this Article discusses the background of the use of private military firms by the United States, and traces the development of the domestic legal framework, culminating in the recent UCMJ amendment, applicable to the industry. Part III analyzes the constitutional issues presented by the new UCMJ provision, which subjects certain civilians to the jurisdiction of military courts-martial. Finally, Part IV argues that courts facing the inevitable challenge to the new UCMJ provision should uphold the law on a number of bases. First, the founding generation's fear of broadly subjecting civilians to draconian military justice is not applicable to the contemporary courts-martial system. Second, the Constitution does not foreclose military trials of certain civilians; the historical record details numerous occasions, dating back to the Revolutionary War, in which civilians with close connections to the armed services were held accountable by courts-martial. Finally, a late twentieth-century opinion from the Court of Military Appeals, which effectively overturned generations of precedent and principle, was wrongly decided and anomalous, and should not foreclose current legislative attempts to hold civilians who accompany the armed forces during contingency operations responsible for illegal conduct.