U.S. Military Contractors operating in combat zones are now subject to the Uniform Code of Military Justice (UCMJ). Congress quietly made this change as part of the FY 2007 Military Authorization Act.
The provision makes a very small, but important change to Article 2 of the UCMJ. Under previous law, the UCMJ only applied to civilians in combat areas during periods of war declared by Congress.
Paragraph a (10) of Article 2 originally read, "(10) In time of war, persons serving with or accompanying an armed force in the field."
In a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970).
The new provision changes this paragraph to read: "In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field."
The law also defines "contingency operation."
The term "contingency operation" means a military operation that --
(A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.
This means that civilian contractors in locations such as Iraq or Afghanistan can now be court-martialed or punished under the provisions of Article 15 if they violate any of the punitive articles of the UCMJ. For example, a civilian contractor who mouths off to a commissioned officer in Iraq could conceivably be court-martialed and sentenced to prison for up to one year for violating Article 89, Disrespect toward a superior commissioned officer.
The legal change is the work of Sen. Lindsey Graham, R-S.C., who said it would “give military commanders a more fair and efficient means of discipline on the battlefield” by placing “civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.”
The change was intended to close a legal loophole that has enabled contract personnel to escape punishment for violating the law, Peter Singer, a military scholar at the Brookings Institution, told the Army Times.