UCMJ vs. MEJA: A Championship Fight!

One of the most contentious points regarding the private security industry is that of accountability. No one point is more debated and discussed.

For the purposes of today's post, we will not consider international accountability. Today, we will consider the Military Extraterritorial Jurisdiction Act (2004) (MEJA) and the Uniform Code of Military Justice (UCMJ). For most professionals in the private security industry, the UCMJ is nothing new; as former military members, it is the Code by which they lived by for the term of their enlistments and commissions. But MEJA may be something new for most.

Senator Lindsey Graham (R-SC) recently had inserted into the UCMJ (Art. 2) five words that would see the Code applied to contractors not only in time of war, but also in "contingency operations". With this, of course, now comes the legal debate over just what that means, when it means it, how it means it, and to whom it means it. Whew...

Some military legal scholars believe that the UCMJ has always applied to contractors and even third-country nationals when you consider the black-letter of the law. In fact, the debate in military legal circles is not UCMJ vs. MEJA, but how they co-exist to provide an over-arching accountability system. However, the Pentagon has yet to create and publish implementing instructions for use of the UCMJ for contractors.

Since I am not a lawyer (but I did stay in a Holiday Inn last night) I will proffer some basic questions that I think most will ask (in no specific order):

1. What is a "contingency operation" and what does it mean to "accompany the force"?

2. What articles of the UCMJ would actually apply to contractors?

3. Can contractors be given Non-judicial punishment (NJP)? If so, how will money be taken from them, how will extra duties be assigned (since they should be assigned toward correcting the perceived deficiency). AND, will NJP authority be delegated to the CEOs of contracted companies?

4. What if an "offense" conflicts with the terms and conditions of a contract?

5. What if someone is working for a federal agency other than the DoD? Can they be charged under the UCMJ?

6. Is it even constitutional to try a civilian in a military court?

7. Is the JAG Corps ready for an increase in workload? Do they want it?

8. Is a "fair trial" still guaranteed for a civilian?

9. Are all other federal civilian employees covered by the UCMJ?

And finally....

10. Does applying the UCMJ to civilians also indemnify them from tort actions as it does active-duty servicemembers?

Like I said, I am not a lawyer, and these questions may be easily answered, but they are certainly worth asking...

The industry evolves in accountability just as it does in service. Everyone agrees that bad actors should be held accountable for bad actions.

Let us know what you think...