Lack of extraterritorial jurisdiction over civilians: A new look at an old problem

Military Law Review

Volumn , Issue 148, 1995, Pages 114-184

  Gibson, Susan S ^a  

^a NONE

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EID: 0029465891     PISSN: 00264040     EISSN: None     Source Type: Journal    
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References (415)

1. See, e.g., Reid v. Covert, 354 U.S. 1, 35 (1957).
2. H.R. 808, 104th Cong., 1st Sess. (1995); S. 74 104th Cong., 1st Sess. (1995); S. 288, 104th Cong., 1st Sess. (1995); H.R. 4531, 103d Cong., 2d Sess. (1994); S. 129, 103d Cong., 1st Sess. (1993); H.R. 5808, 102d Cong., 2d Sess. (1992); S. 182, 102d Cong., 1st Sess. (1991); S. 147, 101st Cong., 1st Sess. (1989); H.R. 255, 99th Cong., 1st Sess. (1985); S. 1, 94th Cong., 1st Sess. (1975) and H.R. 3907, 94th Cong., 1st Sess. (1975); S. 1744 & 1745, 92nd Cong., 1st Sess. (1971); H.R. 18857, 91st Cong., 2d Sess. (1970); H.R. 18548 & 18548, 91st Cong., 2d Sess. (1970); S. 2007, 90th Cong., 1st Sess. (1967); H.R. 226, 90th Cong., 1st Sess. (1967); S.761 & S.762, 89th Cong., 2d Sess. (1966). See also Hearings Before Subcomm. on Constitutional Rights of the Senate Judiciary Comm., 87th Cong., 2d Sess. 848-852 (1962) (Army presented draft legislation to Department of Justice to extend district court jurisdiction over civilians and ex-soldiers).
3. 354 U.S. 1 (1957).
4. Id. at 35 (quoting WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS (2d ed. 1920) [hereinafter WINTHROP]).
5. See, e.g., JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES OF AMERICA 6 (1995) [hereinafter NATIONAL MILITARY STRATEGY]; DEP'T OF ARMY, PROGRAM ANALYSIS AND EVALUATION DIRECTORATE, AMERICA'S ARMY - PROJECTING DECISIVE POWER 7 (1994) [hereinafter PROJECTING POWER]; DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS, ch. 3 (June 1993) [hereinafter FM 100-5].
6. See, e.g., JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES OF AMERICA 6 (1995) [hereinafter NATIONAL MILITARY STRATEGY]; DEP'T OF ARMY, PROGRAM ANALYSIS AND EVALUATION DIRECTORATE, AMERICA'S ARMY - PROJECTING DECISIVE POWER 7 (1994) [hereinafter PROJECTING POWER]; DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS, ch. 3 (June 1993) [hereinafter FM 100-5].
7. See, e.g., JOINT CHIEFS OF STAFF, NATIONAL MILITARY STRATEGY OF THE UNITED STATES OF AMERICA 6 (1995) [hereinafter NATIONAL MILITARY STRATEGY]; DEP'T OF ARMY, PROGRAM ANALYSIS AND EVALUATION DIRECTORATE, AMERICA'S ARMY - PROJECTING DECISIVE POWER 7 (1994) [hereinafter PROJECTING POWER]; DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS, ch. 3 (June 1993) [hereinafter FM 100-5].
8. See, e.g., THE FIRST INFORMATION WAR (Alan D. Campen ed. 1992); ALVIN & HEIDI TOFFLER, WAR AND ANTI-WAR (1993).
9. See, e.g., THE FIRST INFORMATION WAR (Alan D. Campen ed. 1992); ALVIN & HEIDI TOFFLER, WAR AND ANTI-WAR (1993).
10. E.g., Elroy Garcia, Storm Civilians, SOLDIERS, Aug. 1991, at 10 (indicating approximately 1600 Army civilian employees deployed to Persian Gulf for Operations Desert Shield and Storm); Telephone Interview with Major Daniel M. Wiley, Office of the Deputy Chief of Staff for Personnel, Headquarters, Army Materiel Command (Mar. 13, 1995) (stating 169 Army Material Command (AMC) civilians deployed for Operation Vigilant Warrior in Persian Gulf, Fall 1994; 94 AMC civilians deployed to Haiti in 1994-95); Memorandum, Headquarters Third Infantry Div., Office of the Staff Judge Advocate, Nuremberg Law Center, to Judge Advocate, USAREUR and 7th Army, subject: After Action Report: Task Force Able Sentry (16 May 1994) [hereinafter AAR: Task Force Able Sentry] (indicating that at least two Army civilians deployed to the Former Yugoslav Republic of Macedonia).
11. See, e.g., NATIONAL MILITARY STRATEGY, supra note 5, at 8-12; FM 100-5, supra note 5, ch. 13; JOINT CHIEFS OF STAFF, PUBLICATION 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR (1994).
12. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, art. 130, 6 U.S.T. 3316, 75 U.N.T.S. 134 [hereinafter Geneva POW Convention]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, art. 147, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Civilians Convention]; See also similar articles in Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Shipwrecked Convention]; and Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Wounded Convention]. All Geneva Conventions of 1949 are reprinted in DEP'T OF ARMY, PAMPHLET 27-1, TREATIES GOVERNING LAND WARFARE (Dec. 1956) [hereinafter DA PAM. 27-1]. See also Question of Responsibility for Attacks on United Nations and Associated Personnel and Measures to Ensure that Those Responsible for Such Attacks are Brought to Justice: Report of the Sixth Committee, U.N. GAOR, 49th Sess., Agenda Item 141, U.N. Doc. A/49/742 (1994) [hereinafter UN Protection of Peacekeepers Convention]. The Convention on the Safety of United Nations and Associated Personnel, which was opened for signature on Dec. 2, 1994, is an annex to the report.
13. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, art. 130, 6 U.S.T. 3316, 75 U.N.T.S. 134 [hereinafter Geneva POW Convention]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, art. 147, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Civilians Convention]; See also similar articles in Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Shipwrecked Convention]; and Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Wounded Convention]. All Geneva Conventions of 1949 are reprinted in DEP'T OF ARMY, PAMPHLET 27-1, TREATIES GOVERNING LAND WARFARE (Dec. 1956) [hereinafter DA PAM. 27-1]. See also Question of Responsibility for Attacks on United Nations and Associated Personnel and Measures to Ensure that Those Responsible for Such Attacks are Brought to Justice: Report of the Sixth Committee, U.N. GAOR, 49th Sess., Agenda Item 141, U.N. Doc. A/49/742 (1994) [hereinafter UN Protection of Peacekeepers Convention]. The Convention on the Safety of United Nations and Associated Personnel, which was opened for signature on Dec. 2, 1994, is an annex to the report.
14. See, e.g., Geneva POW Convention, supra note 9, art. 2. All four Conventions have the same article 2 language: "[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties."
15. See, e.g., Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, U.N. SCOR, U.N. Doc. S/25704 (1993); reprinted in 32 I.L.M. 1159 (1993). The Security Council established the tribunal by resolution dated May 25, 1993; S. Res. 827; U.N. SCOR, 3217th mtg., U.N. Doc. S/RES/ 827 91993), reprinted in 32 I.L.M. 1203 (1993) [hereinafter Int'l Tribunal for Yugoslavia].
16. The Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393, permitted direct petitions to the United States Supreme Court from the Court of Appeals for the Armed Forces. See also UCMJ art. 67a (1988). Previously, civil courts could only consider military habeas corpus petitions on the limited issues of jurisdiction and unlawful punishment. See Burns v. Wilson, 346 U.S. 137 (1953); Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).
17. See, e.g., Weiss v. United States, 114 S. Ct. 752 (1994). "Today's decision upholds a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history . . . ." Id. at 769 (Ginsburg, J. concurring).
18. Article of War art. 32 (1775) provided that "[a]ll suttlers and retainers to a camp, and all persons whatsoever, serving with the continental army in the field, though not [e]nlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army." Article of War art. 2(d) (1948) provided military jurisdiction over "[a]ll retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles." Intervening versions of the Articles of War had the same or similar language. See also WINTHROP, supra note 4, at 953 (appendix containing versions of the Articles of War from 1775 to 1892).
19. UCMJ arts. 2(a)(10), 2(a)(11) (1950). These UCMJ provisions have not been changed since Congress enacted them in 1950. See UCMJ arts. 2(a)(10), 2(a)(11) (1988).
20. See, e.g., Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 199 U.N.T.S. 67 [hereinafter NATO SOFA] reprinted in DEP'T OF ARMY, PAMPHLET 27-24, SELECTED INTERNATIONAL AGREEMENTS, VOL. II, at 2-1 (1976) [hereinafter DA PAM. 27-24].
21. 354 U.S. 1 (1957).
22. See id. (no court-martial jurisdiction over dependent wives for capital offenses committed overseas in peacetime); Kinsella v. Singleton, 361 U.S. 234 (1960) (no court-martial jurisdiction over civilian dependents for noncapital offenses); Grisham v. Hagan, 361 U.S. 278 (1960) (no jurisdiction over civilian employees for capital offenses); McElroy v. Guagliardo, 361 U.S. 281 (1960) (no jurisdiction over civilian employees for noncapital offenses).
23. Note that on October 5, 1994, the President signed into law Senate Bill 2182, Defense Authorization Act for Fiscal Year 1995, which redesignated the United States Court of Military Appeals as the United States Court of Appeals for the Armed Forces. See Nat'l. Def. Auth. Act for Fiscal year 1995, Pub. L. No. 103-337, 108 Stat. 2663, 2831 (to be codified at 10 U.S.C. § 941). This article will refer to the court by its name at the time of the decision.
24. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970).
25. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
26. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
27. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
28. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
29. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
30. See, e.g., Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. R. 273 (1967); Robinson O. Everett & Laurent R. Hourcle, Crime Without Punishment - Ex-Servicemen, Civilian Employees and Dependents, 13 JAG L. REV. 184 (1971) [hereinafter Everett, Crime Without Punishment]; Robinson O. Everett, Military Jurisdiction Over Civilians, 1960 DUKE L.J. 366 (1960) [hereinafter Everett, Military Jurisdiction]; Robert Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961); Gregory A. McClelland, The Problem of Jurisdiction Over Civilians Accompanying the Forces Overseas - Still With Us, 117 MIL. L. REV. 153 (1987); Note, Criminal Jurisdiction Over Civilians Accompanying American Armed Forces Overseas, 71 HARV. L. REV. 712 (1958).
31. H.R. 808, 104th Cong., 1st Sess. (1995); S. 74 104th Cong., 1st Sess. (1995); S. 288, 104th Cong., 1st Sess. (1995); H.R. 4531, 103d Cong., 2d Sess. (1994); S. 129, 103d Cong., 1st Sess. (1993); H.R. 5808, 102d Cong., 2d Sess. (1992); S. 182, 102d Cong., 1st Sess. (1991); S. 147, 101st Cong., 1st Sess. (1989); H.R. 255, 99th Cong., 1st Sess. (1985); S. 1, 94th Cong., 1st Sess. (1975) and H.R. 3907, 94th Cong. 1st Sess. (1975); S. 1744 & 1745, 92nd Cong., 1st Sess. (1971); H.R. 18857, 91st Cong., 2d Sess. (1970); H.R. 18548 & 18548, 91st Cong., 2d Sess. (1970); S. 2007, 90th Cong., 1st Sess. (1967); H.R. 226, 90th Cong., 1st Sess. (1967); S.761 & S.762, 89th Cong., 2d Sess. (1966). See also Hearings Before Subcomm. on Constitutional Rights of the Senate Judiciary Comm., 87th Cong., 2d Sess. 848-852 (1962) (Army presented draft legislation to Department of Justice to extend district court jurisdiction over civilians and ex-soldiers).
32. H.R. 808, 104th Cong., 1st Sess. (1995); S. 74 104th Cong., 1st Sess. (1995); S. 288, 104th Cong., 1st Sess. (1995); H.R. 4531, 103d Cong., 2d Sess. (1994); S. 129, 103d Cong., 1st Sess. (1993); H.R. 5808, 102d Cong., 2d Sess. (1992); S. 182, 102d Cong., 1st Sess. (1991); S. 147, 101st Cong., 1st Sess. (1989); H.R. 255, 99th Cong., 1st Sess. (1985); S. 1, 94th Cong., 1st Sess. (1975) and H.R. 3907, 94th Cong. 1st Sess. (1975); S. 1744 & 1745, 92nd Cong., 1st Sess. (1971); H.R. 18857, 91st Cong., 2d Sess. (1970); H.R. 18548 & 18548, 91st Cong., 2d Sess. (1970); S. 2007, 90th Cong., 1st Sess. (1967); H.R. 226, 90th Cong., 1st Sess. (1967); S.761 & S.762, 89th Cong., 2d Sess. (1966). See also Hearings Before Subcomm. on Constitutional Rights of the Senate Judiciary Comm., 87th Cong., 2d Sess. 848-852 (1962) (Army presented draft legislation to Department of Justice to extend district court jurisdiction over civilians and ex-soldiers).
33. See id.
34. Proposed Amendments to the Uniform Code of Military Justice, reprinted in Dep't of Defense Legislative Reference Service, Misc. 2625(014) (Dec. 2, 1994 (9:30 am)) at 1-2 [hereinafter Proposed UCMJ Amendments]. This legislation was introduced in both the House and Senate as H.R. 1530, 104th Cong., 1st Sess. (1995) and S.1026, 104th Cong., 1st Sess. (1995). The Senate has recommended a study to be finalized by January 1997.
35. Many of the authors cited supra note 21 argued that the Supreme Court's civilian jurisdiction analysis was incorrect, and each of the Court's civilian jurisdiction cases contains strong and well-reasoned dissents. See, e.g., Everett, Military Jurisdiction, supra note 21; McElroy v. Guagliardo, 361 U.S. 234 (1960) (consolidated concurring and dissenting opinions). However, over 35 years later, the precedents stand as law, regardless of the logic of these many arguments.
36. MANUAL FOR COURTS-MARTIAL, United States, pt. I, Preamble, para. 2 (1984) [hereinafter MCM]. See also McClelland, supra note 21, at 161-62.
37. U.S. CONST. art. I, § 8, cl. 14.
38. Congress originally enacted the UCMJ on May 5, 1950, and it is contained in 64 Stat. 108, 50 U.S.C. §§ 551-736 (1952).
39. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304 (1946) (defining limits of martial law imposed in Hawaii after attack on Pearl Harbor); Ex parte Milligan, 71 U.S. 2 (1866) (upholding martial law imposed in Indiana during Civil War). For a discussion of the distinction between military law and martial law, see Ex parte Jochen, 257 F. 200 (S.D. Tex. 1919).
40. Madsen v. Kinsella, 343 U.S. 341 (1952) (upholding jurisdiction over US military wife tried by military commission in occupied Germany in 1950 for murder of her husband).
41. 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 2, 36 Stat. 2277, T.S. No. 539, reprinted in DA PAM. 27-1, supra note 9, at 2. ("Territory is considered occupied when it is actually placed under the authority of the hostile army."). But see DEP'T OF DEFENSE, FINAL REPORT TO CONGRESS, CONDUCT OF THE PERSIAN GULF WAR 610 (1992) (indicating that coalition forces "acted briefly as an occupying power" in Iraq).
42. Ex parte Quirin, 317 U.S. 1 (1942) (upholding tribunal over four German saboteurs taken into custody in New York City after landing by submarine; in habeas petition, one contended that he was a United States citizen and could not be tried by military commission; Court found his citizenship to be irrelevant).
43. In re Yamashita, 327 U.S. 1 (1946) (upholding jurisdiction over Japanese general tried by military commission for violations of law of war committed in the Philippines during World War II).
44. Madsen v. Kinsella, 343 U.S. 341, 348 (1952). For a discussion of the uses of military tribunals, see Robinson O. Everett & Scott L. Silliman, Forums for Punishing Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509 (1994); Mark S. Martins, National Forums for Punishing Offenses Against International Law: Might Our Own Soldiers Have Their Day in the Same Court?, Paper presented at the Conference on Deterring Humanitarian Law Violations, Charlottesville, Virginia (Nov. 5, 1994) (on file with the Center for Law and Military Operations, The Judge Advocate General's School, Charlottesville, Virginia).
45. Madsen v. Kinsella, 343 U.S. 341, 348 (1952). For a discussion of the uses of military tribunals, see Robinson O. Everett & Scott L. Silliman, Forums for Punishing Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509 (1994); Mark S. Martins, National Forums for Punishing Offenses Against International Law: Might Our Own Soldiers Have Their Day in the Same Court?, Paper presented at the Conference on Deterring Humanitarian Law Violations, Charlottesville, Virginia (Nov. 5, 1994) (on file with the Center for Law and Military Operations, The Judge Advocate General's School, Charlottesville, Virginia).
46. Art. of War art. XXXII (1775) reprinted in WINTHROP, supra note 4, at 954.
47. Frederick B. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 HARV. L. REV. 1 (1958). See also WINTHROP, supra note 4, at 103.
48. "All sutlers and retainers to the camp, and all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war." Art. of War, art. 60 (1806), reprinted in WINTHROP, supra note 4, at 980.
49. WINTHROP, supra note 4, at 98.
50. Art. of War (1916). See also FREDERICK B. WIENER, CIVILIANS UNDER MILITARY JUSTICE 227-31 (1967).
51. Art. of War art. 2(d) (1948). The wording of Art. 2(d) was first adopted in the 1916 Articles of War.
52. See Art. of War 1920 and 1948. See also WIENER, supra note 39, at 227-28.
53. See WIENER, supra note 39, at 229 & n.8.
54. Op. JAG, Army, as digested in Dig. Ops. JAG 1880, at 102. See also Hines v. Mikell, 259 F. 28, 34 (1919) (discussing the case of Dr. Bryan).
55. Ex parte Henderson, 11 F. Cas. 1067 (D. Ky. 1878) (No. 6349).
56. Id. at 1069.
57. 100 U.S. 13 (1876)
58. Id. at 20.
59. Id. at 22. The Court also noted that Reed had signed a letter agreeing "to be subject to the laws and regulations for the government of the Navy and the discipline of the vessel." Justice Clark would later comment on this fact from Reed and propose that all civilians consent to court-martial jurisdiction as a condition of employment. McElroy v. Gualiardo, 361 U.S. 281, 286 (1960).
60. 257 F. 200 (S.D. Tex. 1919).
61. Id. at 204.
62. Id. at 202.
63. Under Article 2 of the 1916 Articles of War, during wartime it was immaterial whether the service was within or outside of the United States.
64. Jochen, 257 F. at 203.
65. Ex parte Falls, 251 F. 415 (D.N.J. 1918); McCune v. Kilpatrick, 53 F. Supp. 80 (E.D. Va. 1943). In McCune, the court looked at the additional issue raised by the fact that McCune was never informed that he would be subject to military jurisdiction. The court was unmoved and held that his knowledge was irrelevant; all that mattered was that he was serving "in the field." McCune, 53 F. Supp. at 84-85.
66. Hines v. Mikell, 259 F. 28 (4th Cir. 1919).
67. 256 F. 58 (D. Mass. 1919).
68. Id. at 59. The court further explained that "[t]o hold otherwise would be to subject to military law a very large body of civilian employees, never directly coming in contact with military authority, and not heretofore generally supposed to be subject thereto." Id.
69. In re DiBartolo, 50 F. Supp. 929 (S.D.N.Y. 1943).
70. Perlstein v. United States, 151 F.2d 167 (3d Cir. 1945).
71. Id. at 169.
72. DiBartolo, 50 F. Supp. at 932. See also McCune v. Kilpatrick, 53 F. Supp. 80, 83-84 (E.D. Va. 1943). "The civil courts may not surrender a civilian to the jurisdiction of the military for expediency, convenience or even necessity, for to do so would destroy those constitutional rights and privileges guaranteed to citizens of this country." Contra Robert Girard, The Constitution and Court Martial of Civilians Accompanying the Armed Forces - A Preliminary Analysis, 13 STAN. L. REV. 461 (1961). According to Girard, the federal courts' "wartime acceptance of military jurisdiction seems too uncritical. Few explicitly considered the constitutional issues involved, and then only in the most fragmentary way." Id. at 498.
73. See, e.g., Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952); Korematsu v. United States, 323 U.S. 214 (1944); The Prize Cases, 67 U.S. (2 Black) 635 (1862).
74. UCMJ art. 18 (1988) also grants court-martial jurisdiction over civilians "who by the law of war [are] subject to trial by a military tribunal." See supra notes 169-71 and accompanying text.
75. 96 CONG. REC. 1360 (1950), reprinted in CONG. FLOOR DEBATE ON UNIFORM CODE OF MILITARY JUSTICE 202 (1949) (reprint available in the library of The Judge Advocate General's School, United States Army, Charlottesville, Virginia).
76. Reid v. Covert, 351 U.S. 487 (1956); Kinsella v. Krueger, 351 U.S. 470 (1956). These two cases were consolidated for reargument the following year, and the Supreme Court reversed in Reid v. Covert, 354 U.S. 1 (1957). Throughout this article, the first cases will be indicated by the names Covert and Krueger, while the second, consolidated opinion will be indicated by the name Reid.
77. Krueger, 351 U.S. at 474.
78. Id. at 475 (quoting Balzac v. Puerto Rico, 258 U.S. 298, 304-05 (1922)).
79. Id. at 476 (quoting U.S. CONST. art. I, § 8, cl. 14).
80. Id. at 476.
81. Id. at 481.
82. Id. at 483-85.
83. Id. at 482.
84. Id. at 485-86.
85. Id.
86. Justice Brennan replaced Justice Minton prior to reargument.
87. Reid v. Covert, 354 U.S. 1 (1957).
88. Id. at 5.
89. Kinsella v. Singleton, 361 U.S. 234 (1960) (no court-martial jurisdiction over civilian dependents for noncapital offenses) [hereinafter cited under name of Singleton to avoid confusion with Kinsella v. Rrueger]; Grisham v. Hagan, 361 U.S. 278 (1960) (no jurisdiction over civilian employees for capital offenses); McElroy v. Guagliardo, 361 U.S. 281 (1960) (no jurisdiction over civilian employees for noncapital offenses). For an interesting discussion on how the order of the cases (dependent wife capital case first) possibly affected the outcome of the Court's reasoning, see Everett, Military Jurisdiction, supra note 21, at 411-12.
90. Kinsella v. Singleton, 361 U.S. 234 (1960) (no court-martial jurisdiction over civilian dependents for noncapital offenses) [hereinafter cited under name of Singleton to avoid confusion with Kinsella v. Rrueger]; Grisham v. Hagan, 361 U.S. 278 (1960) (no jurisdiction over civilian employees for capital offenses); McElroy v. Guagliardo, 361 U.S. 281 (1960) (no jurisdiction over civilian employees for noncapital offenses). For an interesting discussion on how the order of the cases (dependent wife capital case first) possibly affected the outcome of the Court's reasoning, see Everett, Military Jurisdiction, supra note 21, at 411-12.
91. Justice Black announced the opinion of the Court, with Chief Justice Warren and Justices Douglas and Brennan joining; Justices Frankfurter and Harlan each concurred in the result; Justices Clark and Burton joined in dissent, and Justice Whittaker took no part in the case. Reid, 354 U.S. at 1.
92. 361 U.S. 234 (1960).
93. Four Justices filed separate concurring and dissenting opinions. Justice Harlan, joined by Justice Frankfurter, dissented to the cases striking down jurisdiction in noncapital cases, and concurred in the cases striking down jurisdiction in the capital case. Justice Whittaker, joined by Justice Stewart, concurred in the case striking down jurisdiction over dependents and dissented in the cases striking down jurisdiction over employees. McElroy v. Guagliardo, 361 U.S. 234 (1960) (consolidated dissenting and concurring opinion for McElroy, Singleton, and Grisham). Interestingly, the majority opinions were written by Justice Clark, one of the dissenters in the second Reid case. By 1960, he apparently considered himself bound by stare decisis.
94. See Reid, 354 U.S. at 19; Singleton, 361 U.S. at 248-49.
95. Singleton, 361 U.S. at 247.
96. Id. at 246.
97. U.S. CONST. amend. V.
98. Singleton, 361 U.S. at 241.
99. Id. (quoting Justice Frankfurter's concurring opinion in Reid, 254 U.S. at 46-47).
100. Id.
101. Justice Whittaker's concurring and dissenting opinion addressed many of the balancing concerns in the civilian employee cases: the closer ties with the military, the history of jurisdiction over civilian employees, and the "practical necessities and the lack of alternatives" to court-martial. McElroy, 361 U.S. at 259-77 (consolidated dissenting and concurring opinions).
102. 361 U.S. 278 (1960) (Grisham was found guilty of unpremeditated murder and sentenced to life).
103. Id. at 280.
104. Id.
105. 361 U.S. 281 (1960).
106. Id. at 284.
107. Id (quoting Reid, 354 U.S. at 64 (Frankfurter, J. concurring)).
108. Id.
109. Id. at 285-86.
110. Id.
111. 100 U.S. 13 (1879).
112. McElroy, 361 U.S. at 285 (quoting Ex parte Reed, 100 U.S. 13, 19 (1879)).
113. Reed, 100 U.S. at 21-22.
114. United States v. Hudson and Goodwin, 10 U.S. (7 Cranch) 32 (1812). "Of all the Courts which the United States may . . . constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution . . . . All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer." Id. at 33.
115. See In re Berue, 54 F. Supp. 252 (1944). "It is elementary that consent cannot confer jurisdiction." Id. at 256. This is why jurisdiction can always be raised on appeal; it is never "waived."
116. Patton v. United States, 281 U.S. 276 (1930) (allowing defendant to waive his right to jury trial). Even though the Court will allow defendants to waive these rights at trial, the question remains whether the right to indictment and jury trial can be waived by contract. Waiver by contract would also raise other issues, such as whether the employee would have the right to the advice of counsel before signing the waiver or whether employment could be conditioned upon the waiver of these constitutional rights.
117. The Court decided Reed in 1879, long before its cases concerning "knowing and voluntary" waivers of constitutional rights. See also Peter D. Ehrenhaft, Policing Civilians Accompanying the United States Armed Forces Overseas: Can United States Commissioners Fill the Jurisdictional Gap?, 36 GEO. WASH. L. REV. 273, 281 (1967) (discussing the problem of "advance waiver of procedural rights" and jurisdiction).
118. McElroy v. Gualiardo, 361 U.S. 281, 286 (1960).
119. Professor Everett made the following comment about Justice Clark's suggestion: "Thus, the culmination of a series of cases which express a desire to protect American citizens from the alleged abuses of courts-martial is the suggestion that more American citizens be drafted into the armed services, where they will be subject not only to courts-martial, but also to all other liabilities and responsibilities of a serviceman." Everett, Military Jurisdiction, supra note 21, at 409.
120. Professor Everett made the following comment about Justice Clark's suggestion: "Thus, the culmination of a series of cases which express a desire to protect American citizens from the alleged abuses of courts-martial is the suggestion that more American citizens be drafted into the armed services, where they will be subject not only to courts-martial, but also to all other liabilities and responsibilities of a serviceman." Everett, Military Jurisdiction, supra note 21, at 409.
121. 395 U.S. 258 (1969). In O'Callahan, the Court limited court-martial jurisdiction over service members to cases that were sufficiently "service-connected." In 1987, O'Callahan was overruled by Solorio v. United States, 483 U.S. 435 (1987), and the military once again exercised jurisdiction over service members based on their military status alone.
122. 41 C.M.R. 363 (C.M.A. 1970).
123. Id. at 363.
124. 350 U.S. 11 (1955) (overturning court-martial jurisdiction over ex-serviceman for murder committed in Korea while on active duty; discharge from the military terminated military jurisdiction).
125. 416 F. 2d 821 (D.C. Cir. 1969).
126. Id. at 823.
127. Id.
128. Id.
129. O'Callahan v. Parker, 395 U.S. 258, 265 (1969) (quoting Toth v. Quarles, 350 U.S. 11, 22-23 (1955)).
130. Averette, 41 C.M.R. at 365.
131. Id.
132. MCM, supra note 26, R.C.M. 103(19). See also MCM, supra note 26, R.C.M. 103(9) discussion (noting that "'time of war' as used in Article 106 may be narrower than in other punitive articles, at least in its application to civilians"). Along with jurisdiction over civilians, several other MCM provisions are affected by "time of war." Under Article 43, the statute of limitations for several offenses is affected. Desertion (art. 85), disobedience of an officer (art. 90), and misbehavior of a sentinel (art. 113) become capital offenses. Three offenses exist only during time of war: improper use of countersign (art. 101); misconduct as a prisoner (art. 105); and spying (art. 106). "Time of war" can also be used as an aggravating factor for sentencing in other articles.
133. United States v. Castillo, 34 M.J. 1160, 1168 (N.M.C.M.R. 1992); see also Message, Headquarters, Dep't of Army, DAJA-CL, subject: Time of War Under the UCMJ and MCM (081900Z Feb 91) ("For purposes of the UCMJ and the MCM, Operation Desert Storm, in and of itself, does not warrant a finding that time of war exists . . . .").
134. See DEP'T OF ARMY, PAMPHLET 27-161-2, INTERNATIONAL LAW, vol. I, 16-25 (Oct. 1962).
135. U.N. CHARTER art. 1.
136. S.C. Res. 940, U.N. SCOR, 3413th mtg., U.N. Doc. S/RES/940 (1994) (authorizing States to "form a multinational force" and "to use all necessary means" to return the "legitimately elected President" to Haiti); S.C. Res. 678, U.N. SCOR, 2963d mtg., U.N. Doc. S/RES/678 (1990) (authorizing member states to "use all necessary means . . . to restore international peace and security in the area").
137. See In re Berue, 554 F. Supp. 252 (1944). In Berue, the court took "judicial notice of the fact that the United States of America [was] at war with the Axis Powers." Id. at 254.
138. 474 F.2d 157 (4th Cir.), cert. denied, 414 U.S. 876 (1973). The court held that 18 U.S.C. § 7, which extends United States jurisdiction over "[any] lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof," granted jurisdiction over a United States citizen who was accused of murdering another citizen on embassy grounds.
139. Hudson v. Goodwin, 10 U.S. (7 Cranch) 32, 33 (1812).
140. Id.
141. Id.
142. 746 F. Supp. 1506 (S.D. Fla. 1990).
143. Id. at 1512.
144. See, e.g., Skiriotes v. Florida, 313 U.S. 69, 73 (1941) ("The United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed."). See also Lauritzen v. Larsen, 345 U.S. 571 (1953); Noriega, 746 F. Supp. at 1512 n.4, and authorities cited therein.
145. United States v. Bowman, 260 U.S. 94 (1922).
146. 18 U.S.C.A. § 7 (West 1994).
147. Id.
148. See generally Everett, Crime Without Punishment, supra note 21; Note, Jurisdictional Problems Related to the Prosecution of Former Servicemen for Violations of the Law of War, 56 VA. L. REV. 947 (1970); Cf. Jordan Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing statutes to trials of civilians."
149. See generally Everett, Crime Without Punishment, supra note 21; Note, Jurisdictional Problems Related to the Prosecution of Former Servicemen for Violations of the Law of War, 56 VA. L. REV. 947 (1970); Cf. Jordan Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing statutes to trials of civilians."
150. See generally Everett, Crime Without Punishment, supra note 21; Note, Jurisdictional Problems Related to the Prosecution of Former Servicemen for Violations of the Law of War, 56 VA. L. REV. 947 (1970); Cf. Jordan Paust, After My Lai: The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEX. L. REV. 6 (1971). Paust argues that a "federal district court may apply the international law of war under existing statutes to trials of civilians."
151. Toth v. Quarles, 350 U.S. 11, 20 (1955).
152. Id. at 21.
153. Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804). Perhaps the most famous recent application of long arm jurisdiction was seen when the United States tried Panamanian General Manuel Noriega in federal court for an "international conspiracy to import cocaine . . . into the United States." United States v. Noriega, 746 F. Supp. 1506, 1510 (S.D. Fla. 1990).
154. United States v. Bowman, 260 U.S. 94, 98 (1922).
155. Id. Congress has passed some criminal statutes that have extraterritorial effect, but they tend to be limited in scope. See, e.g., 18 U.S.C.S. § 1116 (Law. Co-op. 1994) (murder of internationally protected persons); 18 U.S.C.S. § 2331 (Law. Co-op. 1994) (international terrorism); 18 U.S.C.A. § 7 (West 1994) (special maritime and territorial jurisdiction).
156. See bills cited supra note 2.
157. See, e.g., Audit Report, Dep't of Defense Office of the Inspector General, Report 91-105, subject: Civilian Contractor Overseas Support During Hostilities (June 26, 1991); E.A. Gates & Gary V. Casida, Report to the Judge Advocate General by the Wartime Legislation Team (Sept. 1983) (unpublished report, on file with The Judge Advocate General's School, United States Army, Charlottesville, Virginia) [hereinafter WALT Report].
158. See sources cited supra note 21. See also Paust, supra note 135; Note, Jurisdictional Problems Related to the Prosecution of Former Servicemen for Violations of the Law of War, supra note 135.
159. S. 74, 104th Cong., 1st Sess. (1995); S. 288, 104th Cong., 1st Sess. (1995); H.R. 808, 104th Cong., 1st Sess. (1995).
160. See infra notes 318-27, 333-38 and accompanying text.
161. E. A. Gates and Gary V. Casida, Report to the Judge Advocate General by the Wartime Legislation Team, 104 MIL. L. REV. 139 (1984).
162. The full report, with all appendices, is over four inches thick. WALT Report, supra note 142.
163. Gates and Casida, supra note 146, at 148.
164. Proposed UCMJ Amendments, supra note 24.
165. Id.
166. United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970).
167. Haiti changed from a military operation "against an enemy" to a peacekeeping operation while personnel were in the air en route to Haiti. See, e.g., Mission to Haiti; Words of Clinton and His Envoys: A Chance to Restore Democracy, N.Y. TIMES, Sept. 20, 1994, at A14.
168. There were 799 civilian contractors and 461 Department of the Army civilians deployed on Operation Desert Shield between November 1, 1990, and January 15, 1991. Logistics Management Institute, Contractor Support During Operation Desert Shield/Storm, briefing slides, Lieutenant General Mears (10 May 1993) (on file with Office of the Deputy Chief of Staff for Logistics, Director of Plans and Operations, DALO-PLP, United States Army, Pentagon) [hereinafter Contractor Support].
169. See Int'l Tribunal for Yugoslavia, supra note 11.
170. See generally Everett & Silliman, supra note 34; Martins, supra note 34. In November 1994, the University of Virginia School of Law Center for National Security Law and the Duke University School of Law Center on Law, Ethics and National Security cosponsored a forum on "Deterring Humanitarian Law Violations: Strengthening Enforcement." One of the panel discussions focused on National Tribunals and Military Commissions as an enforcement mechanism. Panel Discussion, Presenter, Robinson O. Everett, Discussants Lieutenant Colonel Steven Lepper and Major Mark Martins, at The Judge Advocate General's School, Charlottesville, Virginia (Nov. 5, 1994).
171. Madsen v. Kinsella, 343 U.S. 341 (1952); Ex parte Quirin, 317 U.S. 1 (1942).
172. Madsen, 343 U.S. at 346 (emphasis added).
173. Quirin, 317 U.S. at 1 (upholding military commission trial of German saboteurs); In re Yamashita, 327 U.S. 1 (1946) (upholding military commission trial of Japanese General for war crimes).
174. Madsen, 343 U.S. 341 (upholding trial of military wife by military commission in occupied Germany). The Court noted that the "President has the . . . responsibility . . . of governing any territory occupied by the United States by force of arms." Id. at 348.
175. Duncan v. Kahanamoku, 327 U.S. 304 (1946). In Duncan, the Court was examining the use of martial law to try United States civilians in Hawaii during World War II. In narrowing the issue, the Court recognized the "well-established power of the military to exercise jurisdiction over . . . [persons] charged with violating the laws of war. We are not concerned with the recognized power of the military to try civilians in tribunals established as a part of a temporary military government over occupied enemy territory . . . ." See also Madsen, 343 U.S. at 341; Yamashita, 327 U.S. at 1; Quirin, 317 U.S. at 1.
176. See sources cited supra note 160. See also UCMJ art. 18 (1988) ("courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal") (emphasis added)); UCMJ art. 106 (1988) ("Any person who in time of war is found . . . acting as a spy . . . shall be tried by a general court-martial or by a military commission . . . .") (emphasis added)).
177. The Geneva Conventions of 1949 apply "to all cases of declared war or of any other armed conflict which may arise between two or more" states. Geneva POW Convention, supra note 9, art. 2; Geneva Civilians Convention, supra note 9, art. 2. The same language is found in art. 2 of all four conventions.
178. FM 100-5, supra note 5, ch. 13; see also DEP'T OF ARMY, FIELD MANUAL 100-23, PEACE OPERATIONS (Dec. 1994) [hereinafter FM 100-23].
179. The coalition forces were technically "occupiers" in Iraq during the Persian Gulf conflict. DEP'T OF DEFENSE, FINAL REPORT TO CONGRESS, CONDUCT OF THE PERSIAN GULF WAR 610 (1992). However, the military did not set up any occupation courts or military tribunals. If current events are any indication, future tribunals will be conducted under UN auspices, particularly for UN operations.
180. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, para. 355 (July 1956) [hereinafter FM 27-10].
181. Id.
182. See In re Ross, 140 U.S. 453 (1891).
183. Constitutionally, tribunals do not have the same legitimacy as courts-martial. Tribunals are formed under the President's authority as Commander-in-Chief. Courts-martial are formed under Congress's express Article I power to regulate the military and conducted pursuant to rules promulgated by the President under his authority as Commander-in-Chief. Because the President and Congress act together to form courts-martial, courts-martial have greater constitutional validity than tribunals. See generally Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J. concurring).
184. UCMJ art. 18 (1988). See also UCMJ art. 21 (1988) ("The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.").
185. United States v. Averette, 41 C.M.R. 363, 365 (C.M.A. 1970).
186. Cf. Everett & Silliman, supra note 34, at 510. The authors theorize that tribunals can be used during peacekeeping and peace-enforcement operations. However, the use they advocate is limited to prosecuting foreign nationals. Note also that "war crimes" is a very narrow class of crimes under the Geneva Conventions. Crimes against United States coalition-forces personnel or friendly host nation personnel do not constitute "war crimes" (e.g., if a United States civilian shot a Saudi soldier or Kuwaiti civilian during Operation Desert Storm, it would not be a war crime).
187. Geneva POW Convention, supra note 9, art. 129. The other three Conventions contain identical language. Geneva Civilians Convention, supra note 9, art. 146; Geneva Shipwrecked Convention, supra note 9, art. 50; Geneva Wounded Convention, supra note 9, art. 49.
188. See Geneva Conventions at articles cited supra note 172. Grave breaches are offenses such as murder, torture, willful assault, depriving a POW or a civilian of a fair trial, and unlawful deportation or transfer of civilians. See, e.g., Geneva POW Convention, supra note 9, art. 130; Geneva Civilians Convention, supra note 9, art. 147.
189. Id. See also PICTET, COMMENTARY, IV GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR, INTERNATIONAL COMMITTEE OF THE RED CROSS, GENEVA 590-94 (1958). "Most national laws and international treaties . . . refuse the extradition of accused who are nationals of the State detaining them. In such cases Article 146 clearly implies that the State detaining the accused person must bring him before its own courts." PICTET, supra, at 593.
190. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, art. 87, 16 I.L.M. 1391, 1125 U.N.T.S., (emphasis added) [hereinafter Protocol I], reprinted in DEP'T OF ARMY, PAMPHLET 27-1-1, PROTOCOLS TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (Sep. 1979). The United States signed Protocol I on December 12, 1977, subject to three understandings that are not relevant here. The United States has not yet ratified Protocol I. In 1993, the United States promised to review the decision not to ratify Protocol I, and a review is ongoing. Int'l Law Div. Note, Law of War Treaty Developments, ARMY LAW., Aug. 1994, at 57.
191. REPORT OF THE COMMITTEE ON FOREIGN RELATIONS, GENEVA CONVENTIONS FOR THE PROTECTION OF WAR VICTIMS, S. EXEC. REP. No. 9, 84th Cong., 1st Sess. at 27 (1955).
192. U.S. CONST., art. I, § 8, cl. 10.
193. Id. art. I, § 8, cl. 14.
194. Cf. HOWARD S. LEVIE, TERRORISM IN WAR - THE LAW OF WAR CRIMES (1993). "One wonders what presently extant provision of Federal criminal law provides for punishing a person who is charged with 'compelling a prisoner of war to serve in the forces of a hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial' . . . ." Id. at 237.
195. United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970) (holding that UCMJ art. 2 "time of war" jurisdiction requires congressionally declared war).
196. UNITED STATES ARMY MATERIEL COMMAND, AMC CIVILIAN DEPLOYMENT GUIDE 41 (Mar. 1994) [hereinafter AMC CIVILIAN DEPLOYMENT GUIDE]. This position is supported by the language in art. 4, para. A(4) of the Geneva POW Convention, supra note 9, which states that "[p]ersons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors [etc.] . . . [who] have received authorization from the armed forces which they accompany" are treated as POWs if captured. The paragraph goes on to require that these persons be issued Geneva ID cards.
197. See also Stephen R. Sarnoski, The Status Under International Law of Civilian Persons Serving with or Accompanying Armed Forces in the Field, ARMY LAW., Dec. 1994, at 29;
198. Memorandum, Office of The Judge Advocate General, DAJA-KL, to Deputy Chief of Staff for Logistics, subject: Contractor Personnel in Contingency Operations, para. 1b (25 Mar. 1992).
199. DEP'T OF DEFENSE DIRECTIVE 1404.10, EMERGENCY-ESSENTIAL (E-E) DOD U.S. CITIZEN CIVILIAN EMPLOYEES, para. D3 (Apr. 10, 1992) [hereinafter DOD Dir. 1404.10].
200. See, e.g., Geneva POW Convention, supra note 9, art. 129. See also LEVIE, supra note 179. When the International Committee of the Red Cross inquired about the United States ability to prosecute violators, the American Red Cross answered that "in the unlikely event that a person might not be punishable . . . because of a lack of jurisdiction . . . it is the U.S. Government's opinion that such person could be turned over to another [nation]." Id. at 237.
201. Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, opened for signature Dec. 14, 1973, 28 U.S.T. 1975, art. 1. (entered into force 1977; ratified by the United States 1976).
202. Id. art. 2.
203. Id. art. 3.
204. Id. art. 7. See also id. art. 6.
205. 18 U.S.C.S. § 1116 (Law. Co-op. 1994).
206. UN Protection of Peacekeepers Convention, supra note 9.
207. Id. art. 8.
208. Id. art. 9.
209. Id.
210. Id. art. 10, para. 4.
211. Id. See also id. art. 15 ("To the extent that the crimes set out in article 9 are not extraditable offences in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein.").
212. See U.S. Dep't of State, Dep't of State Dispatch, Treaty Actions, vol. 6, no. 7, (Feb. 13, 1995), available in LEXIS, Nexis Library, Current News File (indicating that the United States signed the Convention on Dec. 19, 1994).
213. Telephone Interview with Lieutenant Colonel Steven J. Lepper, Deputy Legal Counsel to the Chairman of the Joint Chiefs of Staff (Mar. 22, 1995).
214. Int'l Tribunal for Yugoslavia, supra note 11.
215. For a discussion of grave breaches, see supra note 173.
216. Int'l Tribunal for Yugoslavia, supra note 11, reprinted in 32 I.L.M. 1159, 1192-1194 [all subsequent cites to I.L.M. pagination].
217. Id.
218. Id. arts. 9 & 10, at 1994-95.
219. Id. art. 9, at 1194. The tribunal is authorized to request primary jurisdiction (art. 9), and states must transfer an accused to the tribunal upon its request (art. 29).
220. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991: Rules of Procedure and Evidence, Rule 9, U.N. Doc. IT/32 (1994), reprinted in 33 I.L.M. 484 (1994). The rules were adopted February 11, 1994, and entered into force on March 14, 1994.
221. Id. rule 11.
222. S.C. Res 955, SCOR, 3453d mtg., U.N. Doc. S/Res/955 (1994); reprinted in United Nations: Security Council Resolution 955 (1994) Establishing the International Tribunal for Rwanda, 33 I.L.M. 1598, 1600 (1994) [hereinafter Int'l Tribunal for Rwanda]. The statute governing the tribunal is annexed to the Security Council Resolution.
223. Id. art. 4. The provisions of Article 3 are common to all four Geneva Conventions of 1949; they set basic humanitarian standards. Common article 3 applies "[i]n the case of armed conflict not of an international character." See, e.g., Geneva Civilians Convention, supra note 9, art. 3.
224. See Int'l Tribunal for Rwanda, supra note 205, arts. 5-9.
225. James Crawford, The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L. L. 140, 141 (1994).
226. Report of the International Law Commission, 43d Sess., 29 April-19 July 1991, 46th Sess., Supp. (No. 10), U.N. Doc. A/46/10, reprinted in COMMENTARIES ON THE INTERNATIONAL LAW COMMISSION'S 1991 DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND (M. Cherif Bassiouni ed., 1993).
227. Report of the International Law Commission, 43d Sess., 29 April-19 July 1991, 46th Sess., Supp. (No. 10), U.N. Doc. A/46/10, reprinted in COMMENTARIES ON THE INTERNATIONAL LAW COMMISSION'S 1991 DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND (M. Cherif Bassiouni ed., 1993).
228. Id. art. 6.
229. Id.
230. The Geneva Conventions, supra note 9, also allow the United States to turn those individuals over to a third country for prosecution of violations of the Conventions. See, e.g., Geneva Civilians Convention, supra note 9, art. 146. The remaining three Conventions have similar provisions.
231. There are other nongovernmental civilians, such as reporters and relief and aid society personnel, who follow, or even precede, military deployments. However, a discussion of their role and place during modern deployments is beyond the scope of this article. For a discussion regarding the military's ability to control reporters during deployments, see Nation Magazine v. Department of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991) (court discusses, without deciding, military's ability to limit press access to the battlefield).
232. From 1989 to 1996, the Army will decrease its troops in Europe from 213,000 to 65,000 personnel. PROJECTING POWER, supra note 5, at 7.
233. See Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 (1960).
234. See bills cited supra note 2.
235. Contractor Support, supra note 153.
236. Id.
237. Id.
238. Id.
239. Garcia, supra note 7, at 10.
240. Telephone Interview with Major Daniel M. Wiley, Office of the Deputy Chief of Staff for Personnel, Headquarters, Army Materiel Command (Mar. 13, 1995).
241. Id.
242. McElroy v. Gualiardo, 361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960).
243. United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970) (interpreting UCMJ art. 2(a)(10), which states that "[i]n time of war, persons serving with or accompanying an armed force in the field" are subject to court-martial).
244. PROJECTING POWER, supra note 5, at 7.
245. Id.
246. Id.
247. Id.
248. Id.
249. DEPARTMENT OF THE ARMY, ARMY FOCUS 1994 - FORCE XXI 9 (1994) [hereinafter ARMY FOCUS 1994].
250. PROJECTING POWER, supra note 5, at 8.
251. ARMY Focus 1994, supra note 231, at 10.
252. PROJECTlNG POWER, supra note 5, at 8.
253. Id. at 7.
254. ARMY FOCUS 1994, supra note 231, at 9.
255. NATO SOFA, supra note 16. Similar agreements are in effect in Korea and Japan, see infra note 274.
256. ARMY FOCUS 1994, supra note 231, at 10.
257. See, e.g., Brian H. Brady, The Agreement Relating to a United States Military Training Mission in Saudi Arabia: Extrapolated to Deployed Forces?, ARMY LAW., Jan. 1995, at 14. See also numerous Judge Advocate After Action Reports on file with the Center for Law and Military Operations, The Judge Advocate General's School, Charlottesville, Virginia [hereinafter CLAMO].
258. FM 100-5, supra note 5, at 12-2.
259. Memorandum, Office of the Deputy Chief of Staff for Operations and Plans, DAMO-FDF, to Commander, United States Army Materiel Command, subject: Logistics Support Element (LSE) (2 Feb. 1994). This memorandum approved the LSE concept plan and ordered its implementation.
260. Id.
261. Id.
262. Jon M. Schandelmeier, The Logistics Support Element, ARMY LOGISTICIAN, July-Aug. 1994, at 19; Message, Army Material Command, Operations Support Directorate (101500Z Feb 94), subject: Logistics Support Element (LSE) [hereinafter LSE message].
263. Id. See also AMC CIVILIAN DEPLOYMENT GUIDE, supra note 181, at 7 ("When fully deployed, the LSE will have limited depot capability consisting of approximately 1300 personnel, the majority being civilians.").
264. LSE Message, supra note 244.
265. DOD DIR. 1404.10, supra note 182, para. D1 (civilians deployed only if they are "specifically required to ensure the success of combat operations or the availability of combat-essential systems").
266. Id. para. 9h.
267. Id. The Directive states that civilians should be given "protective equipment." Other references indicate that civilians will be issued chemical defensive equipment (chemical protective masks and protective clothing), and that they may also be issued military uniforms, canteens, ponchos, and other items of military individual equipment. AMC CIVILIAN DEPLOYMENT GUIDE, supra note 181, at 27 and app. A.
268. DOD DIR. 1404.10, supra note 182, para. 9c.
269. Id. para. 9b.
270. Id. para. 9h.
271. Telephone interview with Colonel John D. Altenburg Jr., Staff Judge Advocate, XVIII Airborne Corps and Fort Bragg (Mar. 23, 1995). According to Colonel Altenburg, commanders are also concerned about their ability to verify that civilians are appropriately trained on the weapons and on the rules of engagement.
272. AMC CIVILIAN DEPLOYMENT GUIDE, supra note 181, at 37. As discussed supra note 169-71 and accompanying text, UCMJ art. 18 (1988) grants court-martial jurisdiction over "any person who by the law of war is subject to trial by a military tribunal." Consequently, the AMC CIVILIAN DEPLOYMENT GUIDE may not be entirely accurate - the military may be able to court-martial a civilian in some circumstance short of a declared war.
273. Id.
274. See generally 5 U.S.C.S. §§ 7511-7514 (Law. Co-op. 1994); 5 C.F.R. § 752.401 et. seq. (1995) (outlining civilian employee removal procedures).
275. There is the possibility of using a military tribunal or a court-martial under UCMJ art. 18 (1988) to try cases that occur during international armed conflict. See supra notes 169-71 and accompanying text.
276. Garcia, supra note 7, at 10.
277. Steven J. Lepper, A Primer on Foreign Criminal Jurisdiction, 1994 A.F.L. Rev. 169, 181.
278. See, e.g., Crime and Punishment: Should America be More Like Singapore?, NEWSWEEK, Apr. 18, 1994, at 18.
279. Geneva Conventions, supra note 9. Under Article 2, the Conventions apply "to all cases of declared war or of any other armed conflict which may arise between two or more" States, and to "all cases of partial or total occupation of the territory" of another State. Under Article 3, basic humanitarian rights are protected during noninternational armed conflict, like civil war. Articles 2 and 3 are identical in all four Conventions.
280. Joint Chiefs of Staff, Publication 3-07, Joint Doctrine for Military Operations Other than War (1994) [hereinafter Joint Pub. 3-07]. "[T]hese operations by definition do not involve combat . . . ." Id. at I-10
281. Id. at I-10.
282. Id. at I-9
283. Id. at I-11. See also FM 100-23, supra note 163, listing other operations, such as preventive diplomacy (deployment to deter violence), observation missions to monitor truces and cease-fires, and supervision of protected zones.
284. Joint Pub 3-07, supra note 262, at I-11.
285. See Geneva Conventions, supra note 9, art. 3 (listing basic humanitarian principles that apply during non-international armed conflicts).
286. See discussion of proposed change to UCMJ art. 2, supra notes 149-52 and accompanying text.
287. Schooner Exchange v. M'Fadden, 11 U.S. (7 Cranch) 116, 136 (1812).
288. See Coleman v. Tennessee, 97 U.S. 509 (1878). "The fact that war is waged between two countries negatives the possibility of jurisdiction being exercised by the tribunals of the one country over persons engaged in the military service of the other . . . . Aside from this want of jurisdiction, there would be something incongruous and absurd in permitting an officer or soldier of an invading army to be tried by his enemy, whose country he had invaded." Id. at 516.
289. Id. See also Lepper, supra note 259, at 170-71.
290. According to the 1907 Hague Convention, supra note 31, art. 42, "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army." The Geneva Civilians Convention, supra note 9, art. 64, requires the occupying power to keep the laws of the occupied territory in effect if they do not jeopardize the security of the occupying force. See also FM 27-10, supra note 165, para. 374. Personnel of the occupying force are not subject to the laws of the occupied territory unless the force consents to the jurisdiction.
291. See MCM, supra note 26, R.C.M. 201(d) discussion. It is interesting to note that in the Schooner Exchange case, the Court held that under customary international law in 1812, if a friendly force entered the territory of a friendly country, those forces are entitled to a form of sovereign immunity, or "free passage," that "implies a waiver of all jurisdiction over the troops during their passage." Schooner Exchange, 11 U.S. at 139-40. However, by 1957 the Supreme Court was citing the Schooner Exchange to uphold Japan's jurisdiction over a United States soldier, under the theory that a sovereign nation has exclusive jurisdiction within its borders unless it waives that jurisdiction. Wilson v. Girard, 354 U.S. at 529. See also Lepper, supra note 259, at 170-71.
292. Convention on Privileges and Immunities, supra note 285, § 27.
293. Id. § 47(b).
294. Id. § 47(a).
295. Id. §§ 47(a), 53.
296. Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992).
297. See Lepper, supra note 259, at 181; Brady, supra note 239, at 18.
298. See Lepper, supra note 259, at 181 and sources cited therein; Sands, 35 M.J. at 620.
299. UCMJ art. 2(a)(4) (1988) provides jurisdiction over "[r]etired members of a regular component of the armed forces who are entitled to pay." The Army court relied on United States v. Overton, 24 M.J. 309 (C.M.A.), cert. denied, 484 U.S. 976 (1987), which upheld UCMJ art 2 (a)(2), to extend court-martial jurisdiction over a retired Marine who had transferred to the Marine Corps Reserves.
300. McElroy v. Gualiardo, 361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Kinsella v. Singleton, 361 U.S. 234 (1960); Reid v. Covert, 354 U.S. 1 (1957).
301. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) (deciding that under Article III, Congress can withdraw a particular class of cases from Supreme Court review). See also U.S. CONST, art. III. Except for those cases listed under the Supreme Court's jurisdiction in Article III, Congress has the power to form (or not form) "inferior Courts" and to regulate appellate jurisdiction. See also Hudson v. Goodwin, 10 U.S. (7 Cranch) 32, 33 (1812) (confirming that lower federal courts are created by Congress and "possess no jurisdiction but what is given them by the power that creates them").
302. See 8 U.S.C.A. § 1101(22) (West 1970) (defining "national of the United States" as a "citizen of the United States, or a person who, though not a citizen of the United States, owes permanent allegiance to the United States").
303. See, e.g., Skiriotes v. Florida, 313 U.S. 69, 73 (1941) (stating that "[t]he United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed"); Cook v. Tait, 265 U.S. 47 (1924) (upholding Congress's power to subject a citizen residing abroad to United States income tax).
304. Blackmer v. United States, 234 U.S. 421 (1932).
305. For examples of statutes extending federal court criminal jurisdiction based on nationality or universality, see 18 U.S.C.S. § 1116 (Law. Co-op. 1994); 18 U.S.C.S § 2331 (Law. Co-op. 1994).
306. See, e.g., 18 U.S.C.S. § 1116 (Law. Co-op. 1994) (criminalizing offenses against internationally protected persons "irrespective of the place where the offense was committed or the nationality of the . . . alleged offender").
307. See supra note 299 (definition of "national of the United States").
308. See Toth v. Quarles, 350 U.S. 11 (1955) (holding that discharged soldiers cannot be court-martialed for crimes committed while on active duty; in dicta, the Court noted that Congress could provide for ex-servicemen to be tried in federal district court).
309. Note, however, that the Geneva Conventions (and many other treaties) are not self-executing; that is, they cannot be enforced without proper legislation to criminalize the grave breaches. Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985). Furthermore, as early as 1812, the Supreme Court held that there was no common law federal jurisdiction for criminal offenses. "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offense." United States v. Hudson & Goodwin, 10 U.S. (7 Cranch) 32 (1812). See also U.S. CONST. art. I, § 9, cl. 3 (prohibition on ex post facto laws).
310. McElroy v. Gualiardo, 361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); Kinsella v. Singleton, 361 U.S. 234 (1960); Reid v. Covert, 354 U.S. 1 (1957).
311. Kinsell, 361 U.S. at 245-46.
312. See bills cited supra note 2.
313. See Toth v. Quarles, 350 U.S. 11 (1955) (denying court-martial jurisdiction over discharged soldier accused of murder). It is "wholly within the constitutional power of Congress to . . . provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services." Id. at 21.
314. Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992). See supra notes 293-96 and accompanying text.
315. See bills cited supra note 2.
316. S. 74, 104th Cong., 1st Sess. (1995); S. 129, 104th Cong., 1st Sess. (1993); S. 182, 102d Cong., 1st Sess. (1991); S. 147, 101st Cong., 1st Sess. (1989).
317. S. 74, 104th Cong., 1st Sess. (1995).
318. Id. See also 18 U.S.C.S. § 7 (Law. Co-op. 1994) (defining special maritime and territorial jurisdiction crimes).
319. See bills cited supra note 2.
320. During the peacekeeping mission in Macedonia, an American civilian employee violated the commander's policy against consuming alcoholic beverages. The employee was sent home early and was given a letter of reprimand. See AAR: Task Force Able Sentry, supra note 7.
321. See generally GERHARD VON GLAHN, LAW AMONG NATIONS, ch. 12 (Extradition) (6th ed. 1992); Alona E. Evans, Extradition and Rendition: Problems of Choice, in INTERNATIONAL ASPECTS OF CRIMINAL LAW: ENFORCING UNITED STATES LAW IN THE WORLD COMMUNITY 1 (Richard B. Lillich ed., 1981) [hereinafter INT'L ASPECTS OF CRIM. LAW].
322. See generally GERHARD VON GLAHN, LAW AMONG NATIONS, ch. 12 (Extradition) (6th ed. 1992); Alona E. Evans, Extradition and Rendition: Problems of Choice, in INTERNATIONAL ASPECTS OF CRIMINAL LAW: ENFORCING UNITED STATES LAW IN THE WORLD COMMUNITY 1 (Richard B. Lillich ed., 1981) [hereinafter INT'L ASPECTS OF CRIM. LAW].
323. 18 U.S.C.S. § 3181 (Law. Co-op. 1994).
324. Under the theory of double criminality, an act must be criminal in the country requesting extradition and the country where the accused is found. G. Nicholas Herman, et. al., Double Criminality and Complex Crimes, in INTERNATIONAL CRIMINAL LAW: A GUIDE TO U.S. PRACTICE AND PROCEDURE 365 (Ved P. Nanda & M Cherif Bassiouni eds., 1987) [hereinafter INT'L CRIM. LAW: A GUIDE]. In addition, some extradition treaties also contain a limited list of extraditable crimes. See VON GLAHN, supra note 318, at 285.
325. VON GLAHN, supra note 318, at 286-87. See also 76 AM. J. INT'L L. 154 (1982) (summarizing modern extradition procedures).
326. See generally sources cited supra note 318. See also Paul B. Stephan III, Constitutional Limits on International Rendition of Criminal Suspects, in INT'L ASPECTS OF CRIM. LAW, supra note 318, at 34; and G. Nicholas Herman, et. al., Double Criminality and Complex Crimes, in INT'L CRIM. LAW: A GUIDE, supra note 320, at 365.
327. See generally sources cited supra note 318. See also Paul B. Stephan III, Constitutional Limits on International Rendition of Criminal Suspects, in INT'L ASPECTS OF CRIM. LAW, supra note 318, at 34; and G. Nicholas Herman, et. al., Double Criminality and Complex Crimes, in INT'L CRIM. LAW: A GUIDE, supra note 320, at 365.
328. 112 S. Ct. 2188 (1992).
329. Ker v. Illinois, 119 U.S. 436 (1886).
330. "The District Court concluded that [United States] DEA agents were responsible for respondent's abduction, although they were not personally involved in it." Alvarez-Machain, 112 S. Ct. at 2190.
331. Id. at 2193. The Court also rejected the argument that the kidnapping violated customary international law and that the extradition treaty must be interpreted consistent with international law. Id. at 2195.
332. Frisbie v. Collins, 342 U.S. 519 (1952).
333. 18 U.S.C.S § 3041 (Law. Co-op. 1994) lists authorized magistrates. Military magistrates are not federal magistrates within the meaning of the statute. See also DEP'T OF ARMY REG. 27-10, MILITARY JUSTICE, ch. 9 (8 Aug. 1994) [hereinafter AR 27-10]. Paragraph 9-1b of the regulation states that "[t]here is no relationship between the Military Magistrate Program and DA's implementation of the Federal Magistrate System to dispose judicially of . . . minor offenses committed on military installations." This passage indicates that the Army does not consider a military magistrate to have the powers of a federal magistrate.
334. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Under the federal rules, the court can extend many of the time limits if the government can prove extraordinary circumstances that require the extension in the interests of justice, FED. R. CRIM. P. 5(c) or if the government can prove that the defendant was absent or unavailable, 18 U.S.C.A. § 3161(h)(3) (West 1993). Yet, as every trial practitioner knows, when the government must prove something like "extraordinary circumstances" or "unavailability," the case is put at risk. There is never a guarantee that the judge will agree with the government's assessment of the circumstances. Federal law also provides special rules for extradition cases. However, the majority of the rules apply to the extradition of persons from the United States to other countries. See generally 18 U.S.C.A. §§ 3181-3196 (West 1993). The statutes that address extradition to the United States speak in terms of returning that person "to the jurisdiction from which he has fled." 18 U.S.C.A. § 3183 (West 1993).
335. FED. R. CRIM. P. 5(c). During a deployment overseas, it is unlikely that a civilian defense counsel will be available. If there is a defense counsel present, chances are she or he will be a military attorney who is only authorized to represent military personnel. AR 27-10, supra note 328, para. 6-2. Although the regulation could be changed to allow military counsel to represent civilians, once an attorney-client relationship is formed, that counsel may be required to continue that representation. If trial is then held in federal court in the United States, that military counsel would no longer be available to perform services for the deployed soldiers.
336. Senator Inouye's bill would allow the military police to "apprehend and detain" any person subject to jurisdiction under the bill. S. 74, 104th Cong., 1st Sess. (1995).
337. U.S. CONST. amend. VIII states that "excessive bail shall not be required." The Supreme Court has held that an accused has a right to be released on bail if he can give "adequate assurance that he will stand trial." Stack v. Boyle, 342 U.S. 1 (1951).
338. U.S. CONST. amend. VI.
339. FED. R. CRIM. P. 17.
340. Id. 17(e)(2) provides that a "subpoena directed to a witness in a foreign country shall issue . . . and be served as provided in Title 28, U.S.C. § 1783." The statutory provision only provides for a subpoena over United States "citizens or nationals in a foreign country." 28 U.S.C.S. § 1783 (Law. Co-op. 1994).
341. Id. Cf. Bruce Zagaris & Constantine G. Papavizas, Recent Decisions by United States Courts on the Exercise of Subpoena Powers to Secure Evidence Abroad in Criminal Matters, in INT'L CRIM. LAW: A GUIDE, supra note 320, at 301;
342. Sigmund Timberg, Obtaining Foreign Discovery and Evidence in U.S. Antitrust Cases: The Uranium Cartel Maelstrom, in INT'L ASPECTS OF CRIM. LAW, supra note 318, at 90. These two articles explore the reach of United States subpoena power over foreign nationals and foreign corporations that have connections to the United States. Both articles point out that many nations consider United States efforts to enforce its subpoena power abroad to be an affront to their national sovereignty.
343. 18 U.S.C.A. § 3507 (West 1993).
344. See generally Idaho v. Wright, 497 U.S. 805 (1990); Ohio v. Roberts, 448 U.S. 56 (1980) (defining extent of defendant's confrontation rights in criminal prosecutions).
345. Technically, courts-martial are not "standing courts," because each court-martial is "created" when it is convened. See MCM, supra note 26, R.C.M. 503(a). Practically, the procedures for convening a court-martial are quite simple, and the MCM provides rules of procedure and evidence for all courts-martial.
346. UCMJ art. 7 (1988) grants "[c]ommissioned officers, warrant officers, petty officers, and noncommissioned officers [the] authority to . . . apprehend persons subject to this chapter." See also MCM, supra note 26, R.C.M. 302. The UN Model SOFA authorizes the host government to arrest civilians who are members of the peacekeeping operation, and then to turn them over to the custody of a UN representative. UN Model SOFA, supra note 274, paras. 41, 42. Similarly, the NATO SOFA provides for "[t]he authorities of the receiving and sending States [to] assist each other in the arrest of members of a force or civilian component . . . and handing hemover to the authority which is to exercise jurisdiction." NATO SOFA, supra note 16, art. VII5(a).
347. The NATO SOFA, supra note 16, art. VII1(a), states that "the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State" (emphasis added); the Korean SOFA, supra note 274, does not explicitly provide for courts-martial to be held in Korea. However, art. XXII implies that such is the case, through provisions for custody and for investigatory assistance. Likewise, the UN Model SOFA, supra note 274, arts. 41, 44 implies that courts-martial can be held in the host nation. Common sense would also imply that a grant of jurisdiction to the military authorities also carries with it the concomitant grant of authority to exercise that jurisdiction through a court-martial. See also Schooner Exchange, 11 U.S. (7 Cranch) 116, 140 (1812) ("The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require."). While the waiver of all jurisdiction is no longer implied, the logic of the Court's argument still holds: when a commander is given jurisdiction, that grant of jurisdiction implies that the commander has the right to discipline his army.
348. During Operations Desert Shield and Desert Storm, "[t]here was a widely perceived lack of command and control over contractors." Contractor Support, supra note 153.
349. See supra notes 172-212 and accompanying text.
350. U.S. CONST. art. I, § 8, cl. 14.
351. Id. amend. V.
352. See bills cited supra note 2.
353. In Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992), Sands filed a writ of mandamus and a stay of proceedings (after arraignment but before trial) to challenge the jurisdiction of the court-martial. See cases cited in Sands for court's authority to issue writs of mandamus for lack of jurisdiction. Id. at 621. If the military judge at trial finds no jurisdiction, the government can file an interlocutory appeal. UCMJ art. 62 (1988).
354. Toth v. Quarles, 350 U.S. 11, 23 (1955).
355. Reid v. Covert, 354 U.S. 1, 14 (1957).
356. Id. at 35-36. See also Weiss v. United States, 114 S. Ct. 752 (1994). "The care the Court has taken to analyze petitioners' claims demonstrates once again that men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service. Today's decision upholds a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history." Id. at 769 (Ginsburg, J. concurring).
357. 417 U.S. 733 (1974)
358. Id. at 758.
359. Id.
360. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (Army uniform regulations survived freedom of religion challenge; military can prevent wearing of yarmulke; Court deferred to professional judgment of commanders about need for uniformity); Brown v. Glines, 444 U.S. 348 (1980) (Air Force regulation requiring prior approval before a petition could be circulated on post survived freedom of speech and association challenge; allowed because of commander's need to ensure that speech does not interfere with overriding military mission); Korematsu v. United States, 323 U.S. 214 (1944) (Japanese internment during World War II allowed under war and emergency powers); Katcoff v. March, 755 F.2d 223 (2d Cir. 1985) (Army Chaplain Corps does not violate separation of church and state; allowed because of military necessity to support free exercise of religion, especially during overseas deployments); Nation Magazine v. Department of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991) (military logistic or security concerns may allow military to limit journalists' access to information). But see Anderson v. Laird, 466 F.2d 283 (D.C. Dir. 1972) (mandatory chapel attendance at West Point struck down; court could not find legitimate mission-related reason for attendance that could override freedom of religion and entanglement challenge).
361. Parker, 417 U.S. at 743 (quoting Toth v. Quarles, 350 U.S. 11, 17 (1955)).
362. See cases cited supra note 363. The extreme high point of deference to the military came in Korematsu, 323 U.S. at 214 (the Japanese internment case). In his concurring opinion, Justice Frankfurter described the interface between war powers and the Constitution: "If a military order . . . does not transcend the means appropriate for conducting war, such action by the military is . . . constitutional." Id. at 225 (Frankfurter, J. concurring). While the Korematsu case has been discredited over the years because of its extreme deference to the military, the underlying principles still hold.
363. Kinsella v. Singleton, 361 U.S. 234, 241 (1960) (quoting Reid v. Covert, 354 U.S. 1, 46-47 (1957)).
364. 343 U.S. 579 (1952).
365. Id. at 587.
366. Id. at 635 (Jackson, J. concurring).
367. Id. at 636 (Jackson, J. concurring).
368. U.S. CONST. art. I § 8, cl. 12.
369. Id. art. I § 8, cl. 14.
370. Id. art II §§ 1, 2.
371. Id. art II § 2, cl. 2. See also United States v. Curtiss-Wright, 299 U.S. 304 (1936) (classic commentary on the expansiveness of President's foreign affairs power).
372. Note that the Fifth Amendment does not speak about persons in the land and naval forces; it speaks about cases arising in the land and naval forces. U.S. CONST. amend. V.
373. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857).
374. See DOD DIR. 1404.10, supra note 182, para. D1 (civilians are deployed only if they are "specifically required to ensure the success of combat operations or the availability of combat-essential systems").
375. Reid v. Covert, 354 U.S. 1 (1957). See also LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 228 (2d ed. 1988).
376. For an interesting essay on the impact of media and propaganda on modern warfare, see TOFFLER, supra note 6, ch. 18. See also Brigadier General Michael C. Wholley, Director, Judge Advocate Division, Headquarters Marine Corps, Address at The Judge Advocate General's School, United States Army, Charlottesville, Virginia. (Mar. 24, 1995). Brigadier General Wholley noted that CNN is now with the military on every operation. As he stated, "it should not make a difference in how we operate - it just makes it more important to do it right." He also commented that United States military operations are judged on the moral component of the operation as well as whether they achieve their military objectives.
377. See generally Walter T. Cox III, The Army, The Courts, and the Constitution: The Evolution of Military Justice, Speech delivered at the United States Army History Institute (Mar. 19, 1987), reprinted in 118 MIL. L. REV. 1 (1987); Gates & Casida, supra note 146, at 140.
378. 395 U.S. 258 (1969).
379. Id. at 272.
380. Id. at 265.
381. Id. at 266.
382. Solorio v. United States, 483 U.S. 435 (1987).
383. Id. at 447-48.
384. Wiess v. United States, 114 S. Ct. 752, 754-55 (1994).
385. Id. at 759.
386. Id. at 762.
387. O'Callahan v. Parker, 395 U.S. 258, 265 (1969).
388. 114 S. Ct. 2350 (1994).
389. After noting that the COMA applied the Supreme Court's Fifth Amendment cases to all military prosecutions, the Supreme Court "proceed[ed] on the assumption that our precedents apply to courts-martial just as they apply to state and federal criminal prosecutions." Id. at 2354 n.*.
390. UCMJ art. 67a (1988). See also Cox, supra note 380, at n.14 (discussing the Military Justice Act of 1983, which allows direct petitions to the Supreme Court).
391. Dynes v. Hoover, 61 U.S.(20 How.) 65, 82-83 (1857).
392. See generally Cox, supra note 380; Gates & Casida, supra note 146, at 140; John R. Howell, TDS: The Establishment of the U.S. Army Trial Defense Service, 100 MIL. L. REV. 4 (1983) (discussing numerous improvements, such as UCMJ art. 31 right against self-incrimination, right to representation, creation of an independent trial judiciary, and direct review by civilian judges of COMA and by the Supreme Court).
393. Weiss v. United States, 114 S. Ct. 752, 761 (1994) (quoting In re Murchison, 349 U.S. 133, 136 (1955)).
394. 50 U.S.C.S. §§ 1541-1548 (Law. Co-op. 1994). The War Powers Resolution has never been tested in court, and many scholars question whether it is constitutional. However, the most serious constitutional issues stem from the fact that the Resolution is seen as a congressional attempt to limit the President's war powers or that it could be viewed as a legislative veto. The War Powers Resolution sets up a classic power struggle between the President and Congress. These particular constitutional concerns will not, however, affect any expansion of jurisdiction during military deployments based on the War Powers Resolution triggering factors. In the area of jurisdiction, there will not be a power struggle; Congress and the President would be working together to exert their combined powers to expand jurisdiction. For a general discussion of the constitutional issues raised by the War Powers Resolution, see STEPHEN DYCUS, ET AL., NATIONAL SECURITY LAW 119-37 (1990), and sources cited therein.
395. 50 U.S.C.S. §§ 1541-1548 (Law. Co-op. 1994). The War Powers Resolution has never been tested in court, and many scholars question whether it is constitutional. However, the most serious constitutional issues stem from the fact that the Resolution is seen as a congressional attempt to limit the President's war powers or that it could be viewed as a legislative veto. The War Powers Resolution sets up a classic power struggle between the President and Congress. These particular constitutional concerns will not, however, affect any expansion of jurisdiction during military deployments based on the War Powers Resolution triggering factors. In the area of jurisdiction, there will not be a power struggle; Congress and the President would be working together to exert their combined powers to expand jurisdiction. For a general discussion of the constitutional issues raised by the War Powers Resolution, see STEPHEN DYCUS, ET AL., NATIONAL SECURITY LAW 119-37 (1990), and sources cited therein.
396. 850 U.S.C.S. § 1541(a) (Law. Co-op. 1994).
397. See, e.g., Ellen C. Collier, Library of Congress, Congressional Research Service, The War Powers Resolution: Fifteen Years of Experience (Aug. 3, 1988) (listing all War Powers Resolution Reports from 1973-1991).
398. But see Crockett v. Reagan, 558 F. Supp. 893, aff'd per curiam, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984) (29 members of Congress brought suit to force President to submit War Powers Resolution Reports to Congress regarding deployment of forces to El Salvador; case presents political question not subject to judicial review; may have been different if Congress had acted as a whole).
399. See President's Letter to Congressional Leaders on Haiti, 30 WEEKLY COMP. PRES. DOC. 1823 (Sept. 21, 1994); President's Letter to Congressional Leaders on Rwanda, 30 WEEKLY COMP. PRES. DOC. 1602 (Aug. 1, 1994); President's Letter to Congressional Leaders on the Former Yugoslav Republic of Macedonia, T29 WEEKLY COMP. PRES. DOC. 1302 (July 9, 1993); President's Letter to Congressional Leaders on the Situation in Somalia, 28 WEEKLY COMP. PRES. DOC. 2338 (Dec. 10, 1992); Collier, supra note 399 (listing presidential War Powers reports from 1973-1991, including reports for Grenada, Panama, Desert Shield, and Desert Storm).
400. Congress has "pre-authorized" deployments under the UN Participation Act, 22 U.S.C.S. § 287d-1 (Law. Co-op. 1994), for missions that "are specifically directed to the peaceful settlement of disputes." Consequently, the President may not be required to report under the War Powers Resolution. However, troops on these operations are armed for combat (self-defense), and the deployment should still fall within the War Powers Resolution factors. To dispel any doubts, the jurisdictional statute or implementing regulations should specifically include peacekeeping missions authorized under the UN Participation Act. United Nation deployments under 22 U.S.C. § 287d easily fall within the War Powers Resolution factors. Section 287d actions fall under U.N. CHARTER art. 42 ("actions to maintain or restore international peace and security").
401. 50 U.S.C.S. § 1543(a)(2) (Law. Co-op. 1984).
402. AR 27-10, supra note 328, para. 5-2b(3).
403. Id.
404. Id. para. 21-8a.
405. DOD DIR. 1404.10, supra note 182, at 9h. See also AMC CIVILIAN DEPLOYMENT GUIDE, supra note 181, at 39 (requires civilians to receive training on the UCMJ, Geneva Conventions, Code of Conduct, Rules of Engagement, and Status of Forces agreements).
406. Parker v. Levy, 417 U.S. 733 (1974).
407. Id. at 751.
408. Id. (quoting UCMJ art 137(a)(1)).
409. In re Berue, 54 F. Supp. 252, 256 (S.D. Ohio 1944). In another World War II case, a ship's cook fared no better with his lack of knowledge argument: "The history of the application of military law to civilians does not disclose . . . a case in which . . . it was necessary to establish such knowledge in order to prove military jurisdiction over civilians. Congress did not say all persons knowingly accompanying or serving the army in the field." McKune v. Kilpatrick, 53 F. Supp. 80, 89 (E.D. Va. 1943).
410. Toth v. Quarles, 350 U.S. 11 (1955).
411. Id. at 13. Jurisdiction was based on UCMJ art. 3(a) (1950), which stated that "any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States . . . shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status." Id. at n.2.
412. Id. at 13-14.
413. Id. at 14.
414. Id. at 15.
415. But see Perlstein v. United States, 151 F.2d 167 (3d Cir. 1945). Termination of employment did not defeat jurisdiction over a civilian contractor during World War II. The ex-contractor was charged with stealing some jewelry while he was awaiting military transportation to return to the States. The court found that the language of article 2 of the Articles of War was controlling. That statute granted jurisdiction over all civilians who were "accompanying or serving with the armies . . . in time of war." Consequently, the military retained jurisdiction because the ex-contractor was still "'accompanying' the Army at the time of the offense." Id. at 168-69.