For decades, contractors outside the jurisdiction of the U.S. could fall under the military’s Uniform Code of Military Justice (UCMJ) but only following a formal declaration of war by Congress. (The last one? 1942.) Not any longer.
Legislation was enacted in the 2007 Defense Authorization Act that placed contractors and others who go to the field with the military under the UCMJ. This “new” law simply changed existing language, replacing the word “war” with “declared war or contingency operation.” The new language potentially places tens of thousands of contractors under the same set of laws governing the military. The clause was added by Sen. Lindsey Graham (R-S.C.), who is also an Air Force Reserve colonel and JAG officer.
Prior to this change, parties relied on the civilian Military Extraterritorial Jurisdiction Act (MEJA) to go after bad actors. Opinions on MEJA seem divided, but bringing all contractors in Iraq and Afghanistan, for example, under the UCMJ might not be such a good thing, according to one former prosecutor. It is his experience that it is better for the commander to have problem contractors removed from theater. The responsibilities for pretrial confinement, convening a court marital, and detailing personnel for a court martial can be burdensome, inefficient, and costly. The one exception: oversight of the civilian “gunslingers,” he notes.