1 What the hell is with this non-Weinergate stuff?

2

Simple answer.... no...

The UCMJ falls under the guise of Congress's ability to Regulate the Military, a strict Constitutional power.

Parts of the UCMJ are directly contradictory to US Rights... you have no Freedom of Speech under the UCMJ... you have no Habeus Corpus (it just becomes an order to confine)... but Military members sign a CONTRACT saying the will abide by the UCMJ...

Civilians on military installations? are not under Military discipline, nor contract, and thus have NOT voluntarily put themselves under those much more stringent rules.

3

I think CRIMINAL activity by civilian contractors, especially on a military installation overseas should fall under UCMJ. however, there are certain other ways to deal with AWOL or "back-talk" such as having the individual removed from the base and sent home.

So I'm in the "sometimes yes, sometimes no" camp.

4 I'd be inclined to give the choice of venue to the accused.

5

In the Purchase Order/Contract between the Military and the contractor is there a clause that states they can be tried under the UCMJ?

If not, then no they shouldn't be tried under it.

 

6 I would view that under how they changed the UCMJ. If I am not mistaken it was originally written and approved by congress. If congress made the change to the UCMJ and it was signed into law via that route then sure, he can be prosecuted under it.

The Constitution guarantees your day in court, or "due process". It doesn't say which court that occurs in.

7 as a Marine and civillian contractor in Afghanistan, I will say no to civillian cases under UCMJ. Insubordination, AWOL...they are fired and sent home like any employer would have done in the world before it became illegal to fire anyone for any reason. Crimes against the US, theft...treason etc. They should be held by the military authorities and brought home to face the federal charges.

8

Obama's economic speech is on now. Plenty of cheering so far. Obama's giving props. Maybe he's at a funeral. For the US economy...

 

9 From the linked article we have this:

Ali's appeal is before the Army Court of Criminal Appeals. He was convicted under rules issued after Congress amended the Uniform Code of Military Justice in 2006 to allow courts-martial of civilians in Iraq and Afghanistan.

So he can be tried there and I don't see the challenge requiring it to go to the Supremes.

10 As messy as it will no doubt be I think the whole issue of disciplining contractors, including how they are to be tried for alleged crimes, will have to be spelled out in the individual support contracts they perform under. 

11 The answer is no.

What is the motivation for trying civilian contractors under UCMJ?  Because the existing law from 2000 is only "infrequently used"?  Well maybe it's time to use it instead.

12

I worked for an Air Force Officer once and he was an idiot. Not ever again will I work with the Government.

13

Let me broaden this a little bit:

Let's say you're driving down the road in your new Cruze, and all of a sudden, the steering wheel pops off.  Hilarity and some greivous bodily injury ensues.  While your car insurance company may or may not put your car right (based on your policy), you decide to go after Chevy for damages.  Of which there are some.

Who is Chevy?  Is Chevy your dealership, in your town?  If so, the jurisdiction is local.  Is Chevy the national corproate headquarters?  If so, the jurisdiction is there.  Is Chevy the government?  Then you go to D.C.  Is Chevy's part of the blame here dependent upon where the car was assembled?  Then you go to Mexico or something to sue them.  But what if the fault is in the steering wheel and column?  Then you have to sue them where those parts are manufactured.  Cambodia, perhaps.  Chevy's lawyers could have you literally running around the globe trying to find out where to even start your suit.  Time and money are on Chevy's, and in a broader sense, the defense's side.

At issue here is jurisdiction.  And it's not just an issue for the military.  Many kinds of criminal and civil cases can be held up by arguments of jurisdiction.  In our increasingly-globalized economy, this trend will continue.

Whether we like it or not, the wizards of smart are more likely to hand these kinds of things off repeatedly than to stay and hash them out where and when it's convenient for the aggreived party or defendant in a criminal matter to do so.

In the case of the military, I like that they're cutting this bullshit and making policy as they go, and not waiting on the trial lawyers and the ACLU to draft legislation for the Democrats to ram through the next time they have the chance.  If their rulings are later found to be unconstitutional, then fine.  But for now, the military has decided what happens to people working for it in undefined jurisdictions, and that's the right call to make.  For now.

14 It's an interesting question, certainly.  I think that Romeo13's answer @2 bears some further investigation, though.

My default is that he's probably right- HOWEVER- I think that's a bad state of affairs.  When the crime takes place an ocean away, it is really hard for US courts to be effective, and we really don't want our own people at the mercy of the Iraqi court system.

I think that, to address the concerns about the UCMJ not applying to civilians, that part of the standard Military Contract would contain some legalese that means "When you're over-seas working for the US Military, you are subject to the Uniform Code of Military Justice.  For these purposes, your corporate chain-of-command will act as your normal chain-of-command, and your corporate designee will report to [whoever].  When employed by the Military in domestic operations, you'll be subject to normal civilian courts."

15 And I'm going to put on my tinfoil hat for a moment:

This is a slippery slope towards outlawing domestic dissent against any military action.  Don't antiwar protests "undermine the war effort" or "give aid and comfort to the enemy"?  I disagree strongly with the antiwar Iraq whackjobs but I would like my liberty to protest against some military action that I disapprove of.

16 I don't really understand why there are so many civilians on military installations these days. I grew up on military bases and you just didn't run into civilians. Nowadays, they are all over them. WTF?

17 NO. If there are loopholes about this sort of thing in civilian law then Congress can close them and the courts can rule on it.

Baby-steps toward martial law is still martial law.

18 But what has all this to do with Anthony's Weiner?

19 Spies caught during wartime were always tried by court martial. Hang 'em. NOW!!!!

20 18 NO. If there are loopholes about this sort of thing in civilian law then Congress can close them and the courts can rule on it. Congress DID close the loopholes. They made it possible to use military courts to prosecute contractors overseas.

21
The one thing I know well is that if I am innocent I would much rather have a court martial than be tried in a civilian court.

22 I don't really understand why there are so many civilians on military installations these days. I grew up on military bases and you just didn't run into civilians. Nowadays, they are all over them. WTF?

Posted by: maddogg at June 03, 2011 01:30 PM (OlN4e)

Roger that.  Outsourcing, they tell me.  Security guards at the gate instead of MPs is the most jarring.  Just ain't the same............

23 I've been abroad as a contractor and specifically had SOFA status applied to me by contract and a signed statement. Don't we already had a Federal bench, the national security circuit, that could handle these few cases. Congress can give that circuit standing in cases of US Government employees overseas. That court can draw upon the UCMJ and its body of precedent as a source -- why reinvent the wheel for a rare circumstance.

24 One of the primary driving factors behind the adoption of the Posse Commitatus act was to prevent US civilians from being tried by court martial. But that is strictly a domestic law. I was just about to comment on that when I got to this part. If military operations are staying out of US territory, then I think that overseas violations of people working for the military should be handled by the military. I don't think that warrants court-martials for anything short of capital crimes, though (murder, rape, etc.) For anything under that level, firing and sending them home should do it.

25 How do you punish a wiseass soldier if KP and chow are handled by civilians?

26 Hmm. I wonder if making a distinction between contractors under arms and other contractors would cut the Gordian knot. If you're a contractor under arms, you're under the UCMJ; otherwise, you get tried in a US civilian court. OR, maybe bring a civilian court out to the military. Call it the Court of Contractor Justice or some such.

27 27:

Yup.

Carry a gun for work = UCMJ
Carry a spatula or shovel = Civilian Court

28 Posse Commitatus doesn't even apply in DC.  It's just for citizens within the several states.

29 In saner days, if a conscientious objector was driving an ambulance for the Army and committed a crime, was he subject to court martial or civilian court?

The answer to the post lies in the answer to that question.

30 But what if the fault is in the steering wheel and column?

To your point trying to figure out who really owns the business that make steering gear for Chevy can be confusing.

31

 How do you punish a wiseass soldier if KP and chow are handled by civilians ?

punish ? No such word in today's Army. They may get re-trained or counseled. Maybe forced to hold up a stress card...but punish ? Never.

32 maddogg and stan -- cost and numbers, the military has to keep the sworn ranks doing the jobs that only the military can do -- everything else can be done cheaper (w/o incurring retirement) and with more flexibility (add 10 more guards during ramadan, or 4 cooks during the holidays).

33

OMG.  Bless her little heart, the retardette on Rush is suggesting that a federal lottery will pay for the national debt.

Yet more evidence that government-sanctioned gambling is a tax on people who are bad at math.

34

No - if the civies are doing non-combat administrative/support jobs.

Yes - if they are mercenaries who do fighting work.

 

35 Yes, Jean, I'm just longing for the Good Old Days.

Civilians were doing KP on posts in Germany as long ago as the 60s.  By the 70s and 80s it was mostly Italians, Spaniards, and Yugos getting their hands wet

36 Getting rid of the draft had a lot to do with changing to civilian contractors I would think.

Now the don't have to give room, board, health care, and VA benefits to the guy who cleans the grill in the mess hall.

37

Yet more evidence that government-sanctioned gambling is a tax on people who are bad at math.

Posted by: Truman North at June 03, 2011 01:42 PM (K2wpv)

Who better to tax?  They're the least unhappy about the proposition.

 

38

Who better to tax?  They're the least unhappy about the proposition.

I didn't object to the idea; but let me suggest that raising money via a lottery is like satisfying your hunger by eating your own arm.

39

It's too bad we couldn't come up with some sort of document that would stipulate beyond a doubt who would fall under who's jurisdiction when performing military contract work overseas.

Maybe it could be signed by a member of the military's legal division and also by the contracting company and the individual too. Hey! Let's get it notarized while we're at it. Witnesses are all legal and stuff, or so I'm told.

Now what to call this groundbreakingly new concept in legal law-type thingys...

40 38:

The slaves in Athens volunteered to row the triremes against Sparta for a vague promise of some freedom and citizenship in the future.

Nowadays Americans are trading freedom and individuality for the promise of some free cheese and a check every month.

41 This is a return to the historic American understanding that "persons accompanying the armed forces" (e.g., contractors, camp followers, civilian employees) were subject to military jurisdiction. When the UCMJ was adopted by Congress (it's a federal statute, that was an update on previous statutes) in the early 50's, this understanding was specifically included in the jurisdiction articles. Then in the 50's the Supreme Court mucked this up, in cases involving military dependents in civilized countries. I seem to recall that one was an Air Force wife who killed her husband in England; the court obviously thought English civilian justice would work fine for a wife who hadn't signed up for military law. Contractors in Iraq are at the other end of the spectrum; there was at least for a time no serious functioning civilian government, and we would not have wanted Americans to be subject to the whims of what did exist. Removing individuals to the US for trial of ordinary criminal offenses is clearly expensive and disruptive to the point of being impractical. The question of what articles can apply to civilians is dealt with in the UCMJ. Some articles (e.g., murder), apply to all persons "subject to the UCMJ;" others, like AWOL or disrespect to officers, only apply to military personnel.

42

Fred, try some line breaks

lol

43 If you're in Syria and you want to use the Internets to organize protests or look at goat pron, you're SOL:

Internet access in Syria goes down amidst protests - PCMag http://bit.ly/kFPqGO

44 How did we try people who committed crimes that had been granted letters of marque and reprisal, in the early days of the US?  That would seem to me to be similar to this.

45 45 How did we try people who committed crimes that had been granted letters of marque and reprisal, in the early days of the US? That would seem to me to be similar to this. Posted by: Wikitorix at June 03, 2011 01:53 PM (0BezK) Probably just found them guilty and gave them the lash and/or a shot to the head. Those were simpler times.

46  How do you punish a wiseass soldier if KP and chow are handled by civilians ?<<< I never once sent a soldier on KP as punishment. But I hotboxed 'em like a fucking cheap cigarette with PT until my rage boner went away. And spare me the fucking "Army stress card" bullshit, jarhead. There was never any such thing. Why don't you get whoever translates your gruntings and types them into the computer for you look that shit up on Snopes? Shit. And now I have to wait for this message to travel all the way to your primitive Marine forebrain.

47 OMG.  Bless her little heart, the retardette on Rush is suggesting that a federal lottery will pay for the national debt.

the sad part is, she could actually be right.  Have you ever wondered why there are so many old people at casinos?  Instead of mailing out SS checks, the government could just send out lotto tickets.

48 33 maddogg and stan -- cost and numbers, the military has to keep the sworn ranks doing the jobs that only the military can do -- everything else can be done cheaper (w/o incurring retirement) and with more flexibility (add 10 more guards during ramadan, or 4 cooks during the holidays).

Posted by: Jean at June 03, 2011 01:42 PM (WkuV6)

I should have mentioned that to my Dad when I was 13. Have you ever mopped a C-130 hanger after a hanger party? Its big, really big.

49 Hey, Army/Marines blog fight! Woohooo!

50

Contractors, including the Private Military Companies--i.e. mercenaries--do many things the military does not do.  You don't have to train even a PMC guy in combined-arms tactics, since he's going to be guarding convoys or fixed locations or training indiges.  Working for thirdworld cesspools, he'll be in ops and intel, logistics and transport, maybe flying helicopters in a low-threat environment.

 Blackwater once talked about putting together an offensive outfit but I don't know what came of it.

You use a civilian gate guard--got through that at Ft. Hood some years ago, not slack at all--because you don't want to spend a bunch of money training MPs--used frequently as Infantry--when all you need  is to check ID at the gates.  And chasing tail lights on post doesn't need all the other stuff.

Ditto KP and garbage pickup and barracks maintenance.

Now, if you want real fighting guys and can't get them except at the rates of pay the top classes of mercs--speaking of the loyal ones like Blackwater and Dyncorp--get then raise military pay for combat guys with certain high levels of experience, schooling and demonstrated performance.

Having said that, prosecuting a Filipino for screwing up on a base in Iraq is a question.  Did he mess with the US effort?  Assault a female soldier?  Assault a female contractor?  Assault a female local working on the base?  A female civilian off the base?  IMHO, you could make a case for each situation having different jurisdictions.

A puzzlement, in other words.

51

Hmmm... another interesting problem...

Status of Forces Agreements are treaties which sort this type of thing out... ie, where civys will be tried, and under what circumstances.

As this guy was a US employee, but NOT a US Citizen... it gets even murkier.

Ewwww... and another interesting wrinkle... what Geneva Category does a Non Gun carrying Civilian Interpreter fall into?  The standard for Uniformed Combatant is a Uniform, and Under Military Discipline (ie a Military Chain of Command)...

52 45:

Didn't they just recently find the Letters of Marque for Captain Kidd?

Clerical error killed him. He swore at trial he was a sanctioned privateer, but couldn't produce the papers.

53 My father always thought Clinton, as commander in chief, should've been prosecuted under the UCMJ for sodomy.

54 hit a nerve did I ?  at ease over there. The whole of the military has been dumbed down. It's just that my experience in Afghanistan showed me that discipline and punishement are not what they once were. There really was no reason to get all personal about, so go fuck yourself. OK ?

55 Working for US but not US citizen = tried by his native country, maybe. Or, if he wears a uniform to conform with the Geneva Conventions, maybe he automatically falls under the UCMJ. Jeez, too much thinking for a Friday.

56 Getting rid of the draft had a lot to do with changing to civilian contractors I would think. No, sifty. Immediately after the first Gulf War, endstrength for active duty Army was dramatically slashed. I was in during the drawdown. We went from having all GI-run DFACs to a mess sergeant with civilian employees to all civilians. A lot of the organic support jobs got eliminated and contracted out. So when my brother went to Croatia for a rotation, it wasn't the engineer batt building barracks, it was KBR (a subsidiary of HALLIBURTON!!!) Performing that role, and doing the chow and laundry. The Laundry and Bath Specialist - I wonder if that MOS exists anymore.

57

Should contractors be under military law?  Sometimes.  Should be specified in their contract. Discipline? Not usually.  If so, what portions of the UCMJ should apply to them?  Need some framework for establishing "crimes."  UCMJ gives the military's framework.  Do we charge a contractor under UCMJ for insubordination if they talk smack to an officer? Charge them with AWOL if they skip work?  No, charge them with non-performance on their contract and don't pay them.  What are the limits of power for the Armed Forces, and how much responsibility do the services bear for persons not in the military?  Could spend years on this question, and some military lawyers have.

Overseas, the military has to have the authority to maintain control within areas that have no other functioning government.  This is the general idea that drove the change to the UCMJ a few years ago.  Once we establish other forms of government, you can start talking about jurisdiction.  If you set up a US magistrate circuit for Iraq, then US civilian cases should be handled there. 

The rules that contractors have to abide by, and whose jurisdiction they are under, need to be specified in their contracts (and usually are).  Third Country Nationals present a whole nother set of issues, as the US has no claim to civilian jurisdiction over them.  A military government (by any other name) can claim that jurisdiction, and make the claim stick.  And, most people would rather be punished by an American court than an Afghan or Iraqi court.   

 

58 Could it be done in a way that is consistent with a persons constitutional/civil rights? I don't think that part would be difficult. The only important things to me are consent, due process and trial by a jury of peers. Have contractors sign (as part of their contract) a statement accepting the UCMJ in any area they agree to work in that gives combat pay. I think it is pretty evident that the military Courts Martial system has an acceptable level of due process protections. The jury has to be made of the peer type of the folks being tried. If you primarily work and live with contractors then the jury needs to be primarily contractors. If you work and live primarily with soldiers then the jury can be primarily made up of soldiers. All that having been said, there are significant parts of the UCMJ that really should not be applied to civilians in most cases. That is the part of this that makes me pretty nervous. Insubordination is one example that comes to mind.

59 I don't have a problem with contractors being under the UCMJ - if and only if its contractual.  Not some "oh by the way" thingy later. AND then the military would be obligated to provide counsel.

Let it be known and understood.  You take the money, you are under our rules.

Sign and be aware.

60 The Laundry and Bath Specialist - I wonder if that MOS exists anymore.

Casey Ryback: [Krill has informed Ryback that all the men in the Forecastle are about to drown] We've got to save them.
Granger: You know they're gonna have a trap for us.
Casey Ryback: Yeah, but they're expecting *me*, not all of us.
Tackman: All of what? I do laundry. I was ironing during the Gulf War. I ain't cut out for this hero bullshit.
Casey Ryback: You're in the Navy, remember? It's not a job, it's an adventure!

61 Fun Fact: Marines aren't based at Ft. Benning, GA due to the protected local population of red-headed woodpeckers. Wooden boots don't hold up well in humid environments and that would be the only way to keep the woodpeckers off Marines' skulls. Yeah. I'm "at ease" and swinging to the left, high-speed.

62 US Constitution

Article IV Section 3
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

I would argue, if we are occupying territory, that it is at least temporarily a US Sovereign territory, giving the US federal jurisdiction, and allowing Congress to establish whatever rules for courts and court jurisdiction they deem fit; Whether Courts Martial or dragging them back to the US for civilian court.

Courts Marshall have rules of evidence that follows civilian court, as well as, the same burden of proof (Presumed innocent until proven beyond a reasonable doubt to be guilty) the only real difference is the 2/3 rds voting rule that prevents a hung jury. Meaning that if 1/2 say guilty and 1/2 say not guilty, a verdict of not guilty is entered, regardless as to whether agreement can be reached. If 2/3rds say guilty and 1/3 say not guilty, a guilty verdict is entered. If you modified this rule (Which is in place to expedite military trials) to the unanimous one way or the other rule for civilian trials, then a Courts Martial would almost exactly mimic the rights and burdens of a federal court, and given the makeup of military officials who are the representation (attorneys), members (jury), and judge, Courts Martial would be the ideal place to hear civilian contractor crimes related to events that occur while in a war zone.

63 I should have mentioned that to my Dad when I was 13. Have you ever mopped a C-130 hanger after a hanger party? Its big, really big. Posted by: maddogg You were a contractor, low bidder, too.

64 O/T:  Sorry to interrupt your discussion but in the open thread from truman at post #169 someone dropped a link to a fascinating video and I'm curious, who is that woman?

65 A country's civilians should only be tried by their country's military if that military has successfully staged a coup or is acting as hand maidens to the country's dictator..

Personally, given the Kangaroo Political Witch Trial that the U.S. Army gave LTC Lakin I would not want them anywhere near me.

66 No. If you're not military, then you don't fall under a Code of Military Justice. You don't become military by virtue of working for someone contracted by the military. It's impossible for a civilian to be guilty of insubordination. If you're accused of an actual crime and arrested, then you get your day in court like everyone else. If that's back home, then so be it. If it's not worth the trouble, then it's not worth the trouble. I can see where this would be pretty inconvenient for the armed services, but that's an argument against certain sorts of civilian contractors in war zones, and not a justification for pretending civilians aren't civilians.

67 Kangaroo Political Witch Trial that the U.S. Army gave LTC Lakin

What for refusing orders? It was cut and dry. Guess what: as a military member, you don't have the right to refuse orders and challenge the qualifications of a President the State Department has determined is qualified per federal law. Not a big surprise there.

68 if you're accused of an actual crime and arrested, then you get your day in court like everyone else. If that's back home, then so be it. If it's not worth the trouble, then it's not worth the trouble.

You miss the problem. It's not about getting "a day in court" it's about determining which court actually has jurisdiction. You could argue that in a temporary US Possession like a war zone, it's murky. Can a Courts Martial try a civilian? Absolutely, and they do, if given jurisdiction. What gives a Courts Martial jurisdiction? Congress. What gives Congress the power to grant the Military jurisdiction? The Constitution as I stated above. Congress get's to do whatever they want with "Possessions"

But it goes without saying. IF you want to keep all your rights. You can't leave the States portion of the US.

Specific civilians under the UCMJ and therefore subject to Courts Martial Jurisdiction include.

Retired members of a regular component of the armed forces who are entitled to pay.

Retired members of a reserve component who are receiving hospitalization from an armed force.

Persons in custody of the armed forces serving a sentence imposed by a court-martial.

Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

In time of war, persons serving with or accompanying an armed force in the field.

Subject to any treaty or agreement which the United States is or may be a party to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

69

I think the Supreme Court answered this - for the most part - in ex parte Milligan where it said that the government couldn't use military trials to try civilians IF civilian courts were still operating. Milligan involved four US citizens who were arrested during the Civil War and accused of attempting to liberate imprisoned Confederate soldiers and start an insurrection in Indiana and Ohio.

Now that applied to US civilians but I'm pretty sure that they would apply it to foreign civilians held by the government.

If our civilian courts are still in operation and it's a civilian, I think military trials are unconstitutional.

 

70 Do any of you people actually read the posts and the links?

Congress changed the law.

71

Do any of you people actually read the posts and the links?

Congress changed the law.

Yes, but is the law constitutional?

That's the question.

It seems to me that Milligan says no. If civilian courts are still operating and habeas has not been suspended, civilians - US or foreign - must be tried in civilian courts.

 

 

72 IF civilian courts were still operating

Now that applied to US civilians but I'm pretty sure that they would apply it to foreign civilians held by the government.



US Citizens captured and detained within the "States" portion of the United States (Indiana), not in a "Possession" There are no civilian courts that operate in or on a military held "Possession" of the US. Making Milligan non-applicable.

73

US Citizens captured and detained within the "States" portion of the United States (Indiana), not in a "Possession" There are no civilian courts that operate in or on a military held "Possession" of the US. Making Milligan non-applicable.

The key point in Milligan was that US civilian courts were still in operation at the time of the trial. And the individuals were civilians not citizens.

No one thinks that if an American civilian were arrested for stealing a computer from a US military base in Afghanistan that he could be placed before a US military court in Afghanistan (or here). He obviously would be tried in a US civilian court.

The issue isn't where the civilian is captured. The issue is whether civilian courts are still in operation. If they are, the accussed must be tried there and not in a military court. In this case, the US government would have to issue charges and ask the Afghan government for permission to extradite the individual here.

I'm absolutely certain - for what's that worth which is zip - that the Supreme Court would disallow the use of military courts to try civilians - US or foreign - if civilian courts were still in operation.

74

And the individuals were civilians not citizens.

Correction: My error. Civilians AND US citizens.

IOW, non-combatants.

 

75 All of the rulings and court actions in that era are suspect. I suspect that ex parte Milligan would be overuled under new court actions.

In any case, in 1866 there was no UCMJ and no federal law that allowed the Army to try civilians. It was being done solely based on "they wanted to".

Congress does have the power to set up courts below the Supreme Court, commonly called Article III courts. When congress legislates Military Tribunals and specifies that under specific cases civilian contractors can be tried in those tribunals they are acting in their Article III capacity.   

76

 I suspect that ex parte Milligan would be overuled under new court actions.

You think the Court today would rule that it's Constitutional to try US civilians in military courts when the civilian courts are still in operation?

And habeas hasn't been suspended?

The critical part in Milligan for me was that the Court ruled that you can't use military tribunals IF the civilian courts are still functioning. Even in the middle of the Civil War.

Gosh, I think there's no way they would overturn that.

77 As I said, congress had not authorized military tribunals for civilians in 1866. They have in 2006. That is a major difference.

78 Areo, Milligan was discussing courts martial in the US, where the civilian US government still held control, as opposed to rebel forces. They didn't address the possibility of operations overseas. Vic, I'm curious, do military tribunals fall under article 3, or under Congress' authority to regulate the military?

79 Vic, I'm curious, do military tribunals fall under article 3, or under Congress' authority to regulate the military?

I would say both.

80 He obviously would be tried in a US civilian court. The issue isn't where the civilian is captured. The issue is whether civilian courts are still in operation.

Since US or other civilian courts do not have recognized jurisdiction, they are "non-operational". Congress would have to extend their jurisdiction for that purpose. Also Courts Martial does not, nor can it, infringe upon Constitutional rights, but, the UCMJ can and does, presumably articles of the UCMJ which would infringe on the rights of a regular citizen could not be applied to a civilian. But no part of the Constitution nor any Supreme court case disallows use of a military court for criminals captured in areas not part of US Federal, or State, Court jurisdiction. This is the sort of logic that allows terrorists captured on foriegn soil to be tried by military tribunal though they do not meet the requirements to be considered lawful combatants.

81

As I said, congress had not authorized military tribunals for civilians in 1866. They have in 2006. That is a major difference.

Yes but authorization doesn't mean Constitutional.

For example, we have the right to be judged by a jury of our peers. I don't see how being tried in front of all military men and women would pass that requirement.

And I don't even think you can use the US criminal code in a military court anyway. Two different codes.

 

 

82

Since US or other civilian courts do not have recognized jurisdiction, they are "non-operational".

That's not true. For example, the US government indicted Bin Laden when he lived in Afghanistan under the Taliban.

If he had been captured in 1998, he would have been tried before US Federal Courts.

Second: Military courts don't afford the same protections that civilian courts do. It's why, in part, the Court ruled in Milligan that it was unconstitutional to use them when the civilian courts were still running.

I do agree that there has never been to my knowledge a Court ruling that says the US government may not use military courts to try foreign civilian/non-combatant nationals overseas.

 

 

83

That's not true. For example, the US government indicted Bin Laden when he lived in Afghanistan under the Taliban.

If he had been captured in 1998, he would have been tried before US Federal Courts.

Um no.

That indictment was for crimes performed within the US. by agents of the accused e.g. the Terrorist attack on New York.

Had it been a terrorist attack on a US Army position in Afghanistan, the Federal court would have lacked the jurisdiction to issue an indictment.

84 Yes but authorization doesn't mean Constitutional. But the Constitution specifically gives Congress the power to set jurisdiction.

85

OTOH, since Afghanistan is (I guess) an active war zone I imagine military courts could be used.

Shorter me: I don't know.

Probably obvious from my comments.

86 Areo, the whole point of the post is that this sort of question will arise. And someone better be thinking about it. And we as citizens (and commenters on a smart military blog) should discuss it.

87

That indictment was for crimes performed within the US. by agents of the accused e.g. the Terrorist attack on New York.

Sorry, I was referring to the indictments handed down in 1998.

Bin Laden was indicted by the Clinton Admininstration for his involvement in the USS Cole bombing off Yemen and the Embassy bombings in Kenya and Tanzania. Both were attacks, of course, overseas and not here.

I'll also note that, for example, the Libyan government was indicted for the Lockerbie bombing.

88

Harry Smith: "Did Alaa Mohammed Ali say anything while he stabbed the other translator?"

Eyewitness:"There are reports, unconfirmed, that he was shouting ,'Allahu Akbar!' "

Harry Smith "Really? (Loud sigh)

89 Bin Laden was indicted by the Clinton Admininstration for his involvement in the USS Cole bombing off Yemen and the Embassy bombings in Kenya and Tanzania. Both were attacks, of course, overseas and not here. Really? USS Cole was attacked in Dec. 2000, IIRC.

90 68Kangaroo Political Witch Trial that the U.S. Army gave LTC Lakin

What for refusing orders? It was cut and dry. Guess what: as a military member, you don't have the right to refuse orders and challenge the qualifications of a President the State Department has determined is qualified per federal law. Not a big surprise there.

Posted by: MikeTheMoose at June 03, 2011 02:40 PM (0q2P7)

May want to discuss that with Lt. Calley of My Lai fame...

Used to be that way... but they murked up the waters when they decided that it was your DUTY to disobey unlawful orders...

Which, an order from someone who does not legally hold position over you, would be.

91 Romeo13, when Congress certified the Electoral College's votes, that pretty much meant Larkin was in no position to question the legitimacy of the President. His only option THEN would be to submit his resignation.

92 92Romeo13, when Congress certified the Electoral College's votes, that pretty much meant Larkin was in no position to question the legitimacy of the President. His only option THEN would be to submit his resignation.

Posted by: XBradTC at June 03, 2011 05:21 PM (i0OL9)

Sorry, but I disaggree.  The Congress is not the sole arbiter of what the Constitution says, or whether they themselves are following the Constitution.

"IF" they voted for someone who was not Constitutionaly qualified, there should be a means of Redress... some method whereby WE the People can ask that question.

However the current Court system has decided that WE have no 'standing' to even ask Constitutional Questions... yet if we are a Sovereign people, and the Government belongs to us, then we should.

In this case... even though we have the Right to Petition for Redress, there is no Mechanism whereby we can....

Larkin was attempting find a mechanism.... by showing 'Standing' so the question of legitimacy could be asked, but the Court did not even allow him to ASK that question... so I submit his Right to Petition for Redress was abrogated.

Boils down to a simple truth.... when only ONE entity involved in a Multi entity contract, becomes the Sole Arbiter of the terms of the Contract... eventually that entity WILL take advantage of that power, to the detriment of the others.... and in the US Constitutions case, its taken a bit over 200 years to get to a place where the Origional intent, is no longer followed...

93 OK, this comment is just to take it to 100 comments, including spam.

94 This discussion seems to be moving towards what I think is a pretty sound solution.  If the act would be a crime under civilian law, the military has first jurisdiction, but can pass it back to the civilian courts in some jurisdiction where the accused is "based."  It should not do this if the action was taken in a combat or combat-like situation.  If the act would be a crime under the UCMJ but not in civilian life, then it must be treated under some provision of the contractor's contract.

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96 Obama and his entire cabnet should all be impeached

97 US Supreme Court in OÂ’Callahan v. Parker (395 U. S. 258 (1969))http://tinyurl.com/3j3bmh3
landmark ruling, in each and every item the
ruling held with regard to who can and can not be
court martialed:
1. held that there was not the remotest connec-
tion between OÂ’CallahanÂ’s military duty and the
crime in question, and that as a consequence a
general court-martial was without jurisdiction to
try him, ”but rather [he] was entitled to trial by
the civilian courts.”
2. held that court-martial jurisdiction cannot be
extended to reach any person not a member of
the Armed Forces at the times of both the offense
and the trial. Thus, discharged/retired soldiers
cannot be court-martialed for offenses commit-
ted while in service. Toth v. Quarles, [350 U.S.
11]
3. held that the fact that courts-martial have no
jurisdiction over nonsoldiers, whatever their of-
fense, does not necessarily imply that they have
unlimited jurisdiction over soldiers, regardless of
the nature of the offenses charged.
4. held that liability to trial by court-martial is a
question of ”status” - ”whether the accused in
the court-martial proceeding is a person who can
be regarded as falling within the term ‘land and
naval Forces.Â’ But that is merely the beginning
of the inquiry, not its end. ”Status” is neces-
sary for jurisdiction; but it does not follow that ascertainment of ”status” completes the inquiry,
regardless of the nature, time, and place of the
offense. [395 U.S. 258, 268]




5. The OÂ’Callahan CourtÂ’s historical foundation for
its holding rests on the view that ”both in Eng-
land prior to the American Revolution and in our
own national history, military trial of soldiers
committing civilian offenses has been viewed
with suspicion.
6. The 17th century conflict over the proper role
of courts-martial in the enforcement of the do-
mestic criminal law was not, however, merely a
dispute over what organ of government had juris-
diction. It also involved substantive disapproval
of the general use of military courts for trial of
ordinary crimes.
7. The Military tribunals have no expertise what-
ever to bring to bear on the determination
whether a common everyday practice carried on
by civilians becomes service connected when car-
ried on by servicemen. Mr Justice Douglas al-
ludes to ”so called Military Justice”, and ”trav-
esties of justice perpetrated” and the circum-
stances that ”courts-martial as an institu-
tion are singularly inept in dealing with
the nice subtleties of constitutional law.”

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