Civilian Contractors under

Military Law
MARC LINDEMANN
© 2007 Marc Lindemann

O ver the course of its efforts to stabilize Iraq and Afghanistan, the United
States has increasingly relied upon the work of civilian contractors. By
the US Central Command’s count at the end of 2006, there were nearly 100,000
contractors operating in Iraq alone.1 An estimated 30,000—more than the num-
ber of non-US Coalition forces in Iraq—provide armed military services such
as personal and site security.2 The insertion of five words into Congress’s fiscal
year 2007 defense authorization act may now subject every civilian contractor
operating in a combat zone to the discipline of the Uniform Code of Military
Justice (UCMJ). This legislation ostensibly brings long-overdue regulation to
contractor behavior, but it also raises a number of questions regarding interpre-
tation and enforcement. By drawing on the lessons of past efforts to control
contractors, the military should be able to craft a workable standard for the ex-
ercise of its expanded UCMJ jurisdiction.

Expertise for a Price

Civilian contractors have frequently played an important role in Amer-
ican military operations. George Washington hired civilians to haul the Conti-
nental Army’s equipment; supply vendors followed the Union and Confederate
armies during the Civil War. Indeed, today’s military recognizes the use of
civilian contractors as a force multiplier in stabilization efforts.3 Although some-
times expensive, contractors are capable of supplying immediate expertise and
manpower much more rapidly than the military can grow subject matter experts.
In the second half of the twentieth century, a combination of technol-
ogy, budget constraints, and personnel shortages forced the military to rely

Autumn 2007 83
heavily on contractors for support services and even low-intensity combat
skills. Technological innovation increasingly required the presence of con-
tractors on the battlefield to maintain and repair their companies’ sophisti-
cated equipment, leading Business Week to label Vietnam a “war by contract”
in March 1965. 4 The contractor facilities that exist on military installations
today are legacies of that development. Even greater reliance on contractors
came as a direct result of downsizing following the Cold War. This was a pe-
riod when the military outsourced many of its basic support operations to ci-
vilian contractors.
Even as the military turned over its support services to civilians,
companies such as Blackwater USA began to offer more combat-related spe-
cialties. Brookings Institution fellow P. W. Singer has ably chronicled the rise
of private military firms (PMFs), private-sector organizations that provide
military services to people, corporations, and governments. Singer notes that
although PMFs fiercely fight the label of “mercenaries,” they also advertise
themselves as being capable of supplying an alternative means of furthering
US interests abroad. In recent years, PMFs have grown in size and power. At a
conference in Jordan last year, Blackwater USA Vice Chairman J. Cofer
Black announced that his firm can “have a small, nimble, brigade-size force
ready to move into a troubled region on short notice.” 5
Recent scholarship on the privatization of military force has empha-
sized the distinction between PMFs, such as Blackwater USA, and more
logistics-oriented organizations, such as Kellogg, Brown, & Root (KBR). 6
Yet just as the difference between service support and combat arms can van-
ish on the asymmetric battlefield, the gap between PMFs and logistical con-
tractors has narrowed. Given the current operational environment, military
support personnel and their civilian counterparts are as vulnerable, if not
more so, to attacks than combat units on patrol. The Geneva Conventions
characterize contractors who accompany forces as noncombatants, but con-
tractor tasks in today’s combat zones bring these civilians into situations that
force them to act in self defense.
From the onset of the Coalition’s presence in Iraq, the United States
has depended on PMFs and their logistics-oriented brethren to supplement

Captain Marc Lindemann served as a platoon leader for personal security missions
in central Iraq from 2005 to 2006. He holds a B.A. and M.A. in history from Yale Univer-
sity and a J.D. from Harvard Law School. Prior to entering the military, he worked as an
attorney in New York City. He is currently assigned to the 1st Battalion, 258th Field Artil-
lery of the New York Army National Guard.

84 Parameters
the force of uniformed service members. Coalition Provisional Authority
(CPA) Administrator L. Paul Bremer III hired Blackwater USA personnel to
provide security for his administration. Military and contractor missions of-
ten overlapped during the Coalition’s stabilization efforts, making uniformed
and non-uniformed personnel interchangeable. In personal security missions
for the US State Department, soldiers work alongside private-contractor per-
sonnel. State Department officials might rely upon Blackwater USA one day
and a US Army escort the next. American soldiers even receive missions to
recover disabled PMF vehicles in Baghdad.
Other government agencies also rely on PMFs such as Triple Can-
opy and Aegis to perform combat-related functions that, in another age, ser-
vice members would have performed. The US government is calling upon
contractors to operate weapon systems, interrogate prisoners, and drive con-
voys through high-risk areas. These combat-zone contracts have proven par-
ticularly lucrative. The State Department is giving DynCorp International
$1.8 billion to train the Iraqi police and security forces, a mission shared with
the US Army’s Special Police Transition Teams. 7 The United States has
awarded $16 billion to Halliburton—which recently spun off its subsidiary,
KBR—for services in Iraq ranging from food preparation to laundry. 8
With the overlapping of military and contractor missions, the line
between service members and contractors has blurred. As a result, it has be-
come even more essential for contractors to understand and follow the appli-
cable Rules of Engagement.9 If a contractor violates the Rules of Engagement
while attempting to protect people or property, the indigenous population will
not care whether he is a member of the US armed forces or merely a civilian
proxy. As Major General William L. Nash, USA Ret., noted, “If you’re trying
to win hearts and minds and the contractor is driving 90 miles per hour
through the streets and running over kids, that’s not helping the image of the
American army. The Iraqis aren’t going to distinguish between a contractor
and a soldier.”10
For the first three years of Operation Iraqi Freedom, the US govern-
ment did not have an accurate count of its contractors and is only starting to
determine the approximate number present in today’s Iraq. As recently as De-
cember 2006, the Iraq Study Group estimated there were only 5,000 civilian
contractors in Iraq.11 The same month, however, Central Command issued the
results of its own internal review: About 100,000 government contractors,
not counting subcontractors, were operating in Iraq. 12 Then, in February
2007, the Associated Press reported 120,000 contractors in Iraq. 13 The De-
partment of Defense (DOD) does not track contractor casualties, but at least
917 contractors have died and some 12,000 have been wounded in support of
Operation Iraqi Freedom.14

Autumn 2007 85
 The military’s dependence upon contractors shows little sign of
abating. The US Army predicts that “the future battlefield will require
ever-increasing numbers of often critically important contractor employ-
ees.”15 In the first Gulf War, there were an estimated 9,200 contractors, less
than one-tenth of the current number in Iraq.16 The sheer size of the balloon-
ing contractor force in stability operations requires a renewed emphasis on
accountability.17

Controlling Contractors
The United States has a long history of applying military law to con-
tractor organizations and personnel, albeit in limited circumstances. As cur-
rent US Army doctrine on the subject notes, the regulation of contractor
behavior is particularly important during wartime. “To fully integrate con-
tractor support into the theater operational support structure, proper military
oversight of contractors is imperative.” 18 The Articles of War, the legal frame-
work that preceded the UCMJ, extended military law to, “in time of war[,] all
such retainers and persons accompanying or serving with the armies of the
United States in the field.”19 With the UCMJ’s institution in 1950, “persons
serving with or accompanying an armed force in the field” were subject to the
UCMJ “[i]n time of war.” 20 Even in peacetime, “[s]ubject to any treaty or
agreement” or “any accepted rule of international law,” the UCMJ extended
court-martial jurisdiction to “persons serving with, employed by, or accom-
panying the armed forces outside the United States and outside the Common-
wealth of Puerto Rico, Guam, and the Virgin Islands.”21
Over the next two decades, however, US courts eviscerated the por-
tions of the UCMJ that ostensibly applied to contractors working for the
armed forces. Beginning in 1957, the US Supreme Court repeatedly rejected
as unconstitutional the notion that the military could exert court-martial juris-
diction over civilians in peacetime. 22 Furthermore, military courts interpreted
the UCMJ’s definition of “war” to mean one that Congress has formally de-
clared. In 1970, the Court of Military Appeals overturned the conviction of a
civilian contractor in Saigon because the Vietnam War did not meet this stan-
dard.23 Contractors fell into a legal limbo in which their behavior went largely
unregulated. At most, the military could only ask a contracting company to
fire, demote, or send home an unsatisfactory employee. 24
In the absence of a legal mechanism for controlling contractor activ-
ity, the military has attempted to formulate a coherent doctrine governing
contractor oversight. This doctrine, however, has been more of a concession
of the difficulties inherent in the regulation of contractor conduct than a guide
to resolving the problem. “Currently, there is no specifically identified force

86 Parameters
structure nor detailed policy on how to establish contractor management
oversight within an [Area of Responsibility]. Consolidated contractor man-
agement is the goal, but reality is that it has been, and continues to be, accom-
plished through a rather convoluted system.” 25
Until the passage of the fiscal year 2007 defense authorization act,
the military explicitly exempted contractors from the UCMJ, vesting limited
authority over contractors in the contracting officer and the contracting offi-
cer’s representative (COR). In this system, the primary responsibility for
controlling contractor conduct rested with the contracting company. “Man-
agement of contractor activities is accomplished through the responsible con-
tracting organization, not the chain of command. Commanders do not have
direct control over contractors or their employees (contractor employees are
not the same as government employees); only contractors manage, supervise,
and give directions to their employees.” 26 Although federal regulation re-
quired contractor employees to comply with the directives of an area’s com-
batant commander, offenders normally faced removal from the country,
rather than prosecution. 27
In 2000, Congress sought to rein in civilian contractors by passing
the Military Extraterritorial Jurisdiction Act (MEJA). Under MEJA, DOD
contractors “employed by or accompanying the Armed Forces” could be
brought back to the United States and tried in federal court for any crime that
would be a felony under US law.28 MEJA entrusted the US Department of Jus-
tice with the prosecution of these crimes. Military and civilian lawyers alike
heralded the 2000 law as a means of regulating contractors’ actions in a the-
ater of operations.29 In practice, however, MEJA has had little visible effect.
Given the evidentiary difficulties facing stateside civilian prosecutors with
regard to criminal investigations in overseas combat zones, it is no surprise
that US Attorneys have been hesitant to prosecute under MEJA.30 The holes in
MEJA became especially apparent during the Abu Ghraib scandal of 2004,
when a civilian interrogator from Titan Corporation and a civilian interpreter
from CACI International faced no punishment, despite their implication in
the official report.31 These civilians were technically working for the US De-
partment of the Interior, rather than the DOD, thus shielding them from
MEJA’s reach. Their military colleagues had no such protection from courts-
martial, however.
Since MEJA, the US government and its representatives in Iraq have
applied limited and sometimes contradictory methods of keeping contractors
in line. In 2001, the USA Patriot Act granted federal jurisdiction over crimes
committed by or against American citizens on certain US government prop-
erty. Not all combat-zone offenses occur within the walls of an embassy com-
pound, however. The stateside enforcement problems that plagued MEJA have

Autumn 2007 87
dogged the USA Patriot Act, as well; there has only been one successful prose-
cution of an Afghanistan- or Iraq-based government contractor under the USA
Patriot Act.32 By contrast, US officials in Iraq have largely left contractor disci-
pline in the hands of the contracting companies and have even worked to en-
sure that contractors are safe from prosecution in Iraqi courts. In June 2003,
CPA Administrator Bremer issued an order that granted civilian contractors
sweeping immunity against local prosecution. A year later, he extended the
contractors’ protection until the election of a transitional Iraqi government,
which in turn adopted Bremer’s order during the subsequent transfer of author-
ity. Although the current Iraqi administration has challenged this provision, the
United States has continued to insist that an absolute bar exists to local criminal
prosecution.33 The Iraqi government could theoretically end this immunity, but
the specter of local prosecution is often unconvincing during stabilization ef-
forts in areas with emerging legal systems.
Given the Department of Justice’s inaction under MEJA, Congress
awarded the role of enforcing contractor discipline to the military. Under the
2007 defense authorization act, Congress added five words to the UCMJ, ex-
panding the Code’s jurisdiction to civilian contractors “[i]n time of declared
war or a contingency operation (emphasis added).” 34 By statutory definition,
a “contingency operation” is an “operation in which members of the armed
forces are or may become involved in military actions, operations, or hostili-
ties against an enemy of the United States or against an opposing military
force” or an operation that involves the federal callup of the reserves or Na-
tional Guard.35 Operation Iraqi Freedom and Operation Enduring Freedom
are contingency operations, according to this definition. 36 Senator Lindsey
Graham, one of the change’s architects, has stated that this modification of
the UCMJ would “give military commanders a more fair and efficient means
of discipline on the battlefield” by placing “civilian contractors accompany-
ing the armed forces in the field under court-martial jurisdiction during con-
tingency operations as well as in times of declared war.” 37
The expansion of the UCMJ’s jurisdiction now provides a means of
regulating contractor behavior, whatever the contracting company’s mission
is in the combat zone. In doing so, the 2007 legislation has fundamentally
changed the military-civilian relationship in stability operations. To ensure
contractor accountability in present and future stability operations, the mili-
tary needs to define the limits of the UCMJ’s jurisdiction, in terms of person-
nel, substance, and enforcement authority.

Casting a Wider Net

Although the UCMJ’s jurisdiction now clearly extends to military
contractors in Iraq and Afghanistan, the 2007 defense authorization act has

88 Parameters
the potential for a far greater reach. MEJA restricted prosecution under US
law to contractors working for the DOD, but the 2007 act does not make any
such distinction. A mass of federal officials and agencies—and their own
contractors—deploys with the military force during stability operations.
These personnel often work alongside service members in their day-to-day
missions. As such, the military must assess what constitutes a person “accom-
panying” US troops during contingency operations such as Operation Iraqi
Freedom and Operation Enduring Freedom.
In applying the UCMJ to civilians, there are three degrees of inclu-
siveness that may govern jurisdiction. First, the military might, as a matter of
policy, limit its prosecutions to DOD contractors. While in keeping with Con-
gress’s earlier MEJA legislation, such a limitation would run counter to the
legislative intent behind the 2007 act. MEJA was not applicable to the civilian
contractors in the Abu Ghraib scandal because the DOD had not technically
hired them, even though they performed military functions. According to
Senator Graham, the recent change in UCMJ jurisdiction was intended to
curb contractor abuses such as Abu Ghraib.38 Thus, at the very least, non-
DOD contractors actively involved in military operations should now be sub-
ject to UCMJ authority.
Second, the military might choose to apply the UCMJ to all civilian
contractors in a combat zone, regardless of the government agency that hired
them. Such an approach would solve the problem posed by the civilian of-
fenders at Abu Ghraib; a contractor’s mere presence in the combat zone
would be sufficient to trigger UCMJ jurisdiction. Although there would be in-
evitable turf wars between the military and other federal agencies, the alter-
native has already failed; these other agencies have demonstrated that they
cannot adequately police the activities of their own contractors.
Third, the military may take a newly expansive view of those per-
sons “accompanying an armed force in the field.”39 This choice would extend
the UCMJ to all US representatives, not just contractors, in a combat zone.
Under this interpretation, the phalanx of federal officials, journalists, and
nongovernmental organization representatives that accompany the armed
forces during stability operations would have to adhere to the UCMJ. Al-
though these different groups are often working toward the same goal, the
prospect of UCMJ prosecution would give the military leverage in its deal-
ings with the other players on the battlefield. Previously, military leaders
could only exert soft control over their civilian colleagues in a combat zone,
relying on persuasion and horse trading to convince civilian officials to sup-
port the military’s objectives. The extension of UCMJ jurisdiction could but-
tress the military’s authority in a theater of operations, making the military
the sole clearinghouse for combat-zone justice. If a Department of the Inte-

Autumn 2007 89
rior contractor was subject to the UCMJ by virtue of his presence in the com-
bat zone, the government administrator who hired him and supervises him
might be, as well. In order to foster a good working relationship between dif-
ferent federal organizations, the military, and the media within a combat
zone, however, this third option may not be feasible.
The amendment has turned the concept of civilian control of the mil-
itary on its head, as Congress has, in effect, placed more than 100,000 civil-
ians under the jurisdiction of military courts. The military needs to be
judicious in determining how to apply the UCMJ to these civilians, many of
whom have never even looked at the UCMJ, much less lived under its disci-
pline. Of the three options above, the second option—that of regulating all
contractors in Iraq, regardless of employer—appears to be the most effective.
Military leaders should ensure that contracting firms educate their employees
about the UCMJ prior to their employment in a combat zone. Unfortunately,
this added level of accountability and potential legal liability may dissuade
some civilians from serving in a combat zone, and the price of contractor ser-
vices may consequently increase. Nevertheless, the cost of unregulated con-
tractor behavior could be significantly greater in terms of undermining US
stabilization efforts.

Setting Classes of Offenses

On its face, the 2007 defense authorization act applies the whole of
the UCMJ to contractors. The five-word change in Article 2 of the UCMJ
does not distinguish between different classes of offenses. Yet the UCMJ ar-
ticulates a code of behavior as much as it does a system of justice. The mili-
tary ethics enshrined in the UCMJ do not necessarily or neatly translate into
what contractors may expect from the civilian legal system. In the day-to-day
affairs of the civilian world, disrespect toward a senior fellow employee does
not result in judicial punishment. Civilians may go to a bar for a few beers af-
ter work, whereas a soldier’s consumption of alcohol in a combat zone may
violate General Order Number One and result in a court-martial.
As noted earlier, when Congress first enacted the UCMJ in 1950,
legislators had anticipated the application of military law to civilians. While
the courts exempted civilians from court-martial jurisdiction during peace-
time and undeclared wars, the introduction to each punitive article of the
UCMJ does state whether that article applies to “any person” or “any member
of the armed services,” for example. The offense of absence without leave ex-
pressly applies to “[a]ny member of the armed forces,” whereas the offense of
murder applies to “[a]ny person.”40 Upon closer reading of the UCMJ, how-
ever, there are a number of “any-person” offenses that might be problematic

90 Parameters
when applied to civilian contractors, including misbehavior before the en-
emy, misconduct as a prisoner, and provoking speech or gestures. 41
MEJA is a potential source of guidance in creating a feasible system
for UCMJ enforcement. In 2000, MEJA extended civilian prosecution of war-
time offenses to felonies, criminal behavior “punishable by imprisonment for
more than one year if the conduct had been engaged in within the special mar-
itime and territorial jurisdiction of the United States.”42 A similar principle
could govern the enforcement of the UCMJ with regard to civilians. As a mat-
ter of policy, the military might limit enforcement of the UCMJ to civilians in
cases where the offense was punishable as an equivalent felony in a civilian
court. Military prosecution of civilians seems appropriate for combat-zone
crimes such as rape, murder, and robbery, but not for contempt toward offi-
cials, misconduct as a prisoner, or malingering.
Thus, the military has the option of classifying the offenses under
the UCMJ into felony and non-felony categories. Ultimately, the military
should undertake a revision of its contractor-related doctrine, distinguishing
between different types of offenses and clearly stating the ones for which ci-
vilians “accompanying an armed force” may face prosecution. It will also be
important to include a description of these offenses in military contracts to
ensure that the civilians involved understand the extent of their exposure to
the UCMJ.
The question of whether contractors would have to obey orders from
military personnel still remains. Although there may not be an obvious civilian
equivalent, a combat environment raises particular concerns about deference to
on-the-ground military authority. The discussion of placing contractors within a
chain of command is tied up in the question of who will have the authority to en-
force contractor discipline during wartime and contingency operations.

Enforcing the UCMJ

The military already has a system in place for the limited supervi-
sion of contractor activities. The chain of command’s influence, however, has
previously stopped at the four corners of a civilian’s contract. “Only the con-
tractor can directly supervise its employees. The military chain of command
exercises management control through the contract.” 43
Currently, the two military representatives who provide oversight
for a contract’s performance are the contracting officer and COR. Con-
tracting officers have the legal authority to enter and end contracts with PMFs
and logistics-oriented companies; they may be military members or DOD ci-
vilian employees. The designated COR monitors day-to-day operations of
the contractors, acting, in accordance with doctrine, “as the eyes and ears of

Autumn 2007 91
the contracting officer.” 44 The COR usually comes from the unit that requires
the contractor’s services, serving as a liaison between the contractor, sup-
ported unit, and contracting officer. The COR does not, however, have the
power to change the terms of the contract and cannot direct the contractor’s
activities.
Under the latest expansion of UCMJ jurisdiction, a military officer
may no longer merely be the customer of contractors; he or she now may be
their commander. In one interpretation of the legislative change, the chain
of command might extend from the COR to the senior contractor to the ju-
nior contractors. As the contracting officer’s agent on the ground, the COR
has the responsibility of ensuring that contractors are obeying the applica-
ble portions of the UCMJ during their operations. Instead of merely observ-
ing contractor activity, the COR may play an active role in enforcing the
UCMJ, preventing contractors from engaging in criminal behavior. Without
the power to issue enforceable orders, a COR would only be able to stand by
and observe such activity, eventually reporting what he or she saw to the
contracting officer. By empowering a COR to issue such orders, the military
would add another layer of accountability to contractor operations. A COR
would also have the duty of reporting any criminal activity to Judge Advo-
cate General officers, thus initiating any necessary prosecution. 45 Yet if the
COR receives the ability to issue certain orders to contractors on the battle-
field, he or she should operate under the oversight of other, more senior mili-
tary officers.
According to past doctrine, the contracting officer is not necessarily
a military officer. Optimally, however, the COR belongs to the unit that needs
the contractor’s services, thus providing an immediate supervisor in the COR
and a readymade chain of command—the COR’s unit leadership—to review
the COR’s decisions. Thus, in addition to being the contracting officer’s rep-
resentative, a COR is, by virtue of coming from the supported unit, a repre-
sentative of an area’s combatant commander. The military should take pains
to ensure that senior military officers who outrank the COR, but who are out-
side the chain of command, cannot interfere with contractor assets they do not
“own.” Furthermore, the issuance of enforceable military orders should not
extend beyond preventing criminal activity and upholding the Rules of En-
gagement. The contracting officer must ensure that contractors understand
the chain of command involved in the prevention and prosecution of applica-
ble UCMJ offenses.

Conclusion
Since the Vietnam era, the military has struggled to develop a
means of regulating contractor behavior in combat zones. With careful

92 Parameters
interpretation, the new limits of UCMJ jurisdiction have the potential to
prevent contractors from engaging in criminal activities. In keeping with
congressional intent, the military can control DOD and non-DOD con-
tractors alike by preventing and punishing combat-zone violations of the
Rules of Engagement and offenses that would be felonies in civilian courts.
Furthermore, by giving the COR the ability to issue enforceable orders
relating to the Rules of Engagement and certain UCMJ offenses, the
military can increase the accountability of contractors and ensure their
prosecution in appropriate cases. Contractors constitute a significant por-
tion of today’s force in military operations; as representatives of the United
States’ efforts, they now are subject to the most basic standards of military
behavior.

NOTES

1. See Renae Merle, “Census Counts 100,000 Contractors in Iraq,” The Washington Post, 5 December
2006, D1. As the contractor presence in Afghanistan is even less documented than in Iraq, this article will fo-
cus on contractor support during Operation Iraqi Freedom. For a discussion of the relative numbers of con-
tractors in each country, see Jennifer Elsea and Nina M. Serafino, “Private Security Contractors in Iraq:
Background, Legal Status, and Other Issues,” Congressional Research Service, 28 May 2004, http://
opencrs.cdt.org/rpts/RL32419_20040528.pdf.
2. See, e.g., T. Christian Miller, “Private Contractors Outnumber U.S. Troops in Iraq,” Los Angeles Times,
4 July 2007, A1 (maintaining that 180,000 civilians are now working in Iraq under US contracts).
3. See, e.g., Michael R. Rampy, “Paradox or Paradigm? Operational Contractor Support,” Military Re-
view, 85 (May-June 2005), 72-75; see also US Department of the Army, Field Manual 3-07, Stability Opera-
tions and Support Operations, February 2003, sec. 2-44 (“[c]ommanders can expect that contractors will be in-
volved in stability operations and support operations”).
4. “Vietnam: How Business Fights the ‘War by Contract,’” Business Week, 5 March 1965, 58-62, cited in
Stephen J. Zamparelli, “Contractors on the Battlefield: What Have We Signed Up For?” Air Force Journal of
Logistics, 23 (Fall 1999), 10.
5. Bill Sizemore, “Blackwater USA Says It Can Supply Forces for Conflicts,” The Virginian-Pilot, 30
March 2006, http://content.hamptonroads.com/story.cfm?story=102251&ran=202519&tref=po.
6. See, e.g., Deborah D. Avant, The Market for Force (New York: Cambridge Univ. Press, 2005); P. W. Singer,
Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, N.Y.: Cornell Univ. Press, 2003).
7. See Griff Witte and Renae Merle, “Reports Fault Oversight of Iraq Police Program,” The Washington
Post, 31 January 2007, D01.
8. See Clifford Krauss, “Halliburton Moving C.E.O. from Houston to Dubai,” The New York Times, 12
March 2007, A16.
9. See, e.g., Steve Fainaru and Saad al-Izzi, “U.S. Security Contractors Open Fire in Baghdad,” The Wash-
ington Post, 27 May 2007, A1.
10. Merle, “Census Counts 100,000 Contractors in Iraq,” D1.
11. James A. Baker III and Lee H. Hamilton, The Iraq Study Group Report, 12, http://www.usip.org/
isg/iraq_study_group_report/report/1206/iraq_study_group_report.pdf.
12. Merle, “Census Counts 100,000 Contractors in Iraq,” D1.
13. Michelle Roberts, “Nearly 800 Contractors Killed in Iraq,” Associated Press, 23 February 2007.
14. John M. Broder and James Risen, “Death Toll for Contractors Reaches New High in Iraq,” The New York
Times, 19 May 2007, A1. As several commentators have noted, these casualties may be more politically palatable
than those of service members. See, e.g., P. W. Singer, “Outsourcing War,” Foreign Affairs, 84 (March-April
2005), 119-32.
15. US Department of the Army, Field Manual 3-100.21, Contractors on the Battlefield, January 2003,
Preface.
16. Merle, “Census Counts 100,000 Contractors in Iraq,” D1.
17. According to FM 3-100.21, sec. 4-22, “Currently, there are no standard joint or Armywide deployed
contractor visibility nor contractor-employee accountability procedures outside of this manual. However, con-

Autumn 2007 93
tractor visibility and contractor-employee accountability is needed to ensure that the overall contractor pres-
ence in a theater is synchronized with the combat forces being supported.”
18. Ibid., sec. 1-23.
19. The Articles of War (Washington: US Government Printing Office, 1920), Article 2(d), http://
www.loc.gov/rr/frd/Military_Law/pdf/RAW-vol2.pdf#page=39.
20. Uniform Code of Military Justice, Article 2(a)(10), http://www.au.af.mil/au/awc/awcgate/ucmj.htm.
21. Ibid., Article 2(a)(11).
22. See, e.g., Reid v. Covert, 354 U.S. 1, 40-41 (1957), http://supreme.justia.com/us/354/1/case.html;
McElroy v. United States ex rel. Guagliardo, decided and reported with Wilson v. Bohlender, 361 U.S. 281 (1960)
(no court-martial jurisdiction over civilian employee committing a non-capital offense during peacetime),
http://supreme.justia.com/us/361/281/case.html; Grisham v. Hagan, 361 U.S. 278 (1960) (civilian employee
committing capital offense not subject to military jurisdiction during peacetime), http://supreme.justia.com/
us/361/278/case.html.
23. See United States v. Averette, 41 C.M.R. 363 (1970).
24. See Zamparelli; see also Kenneth A. Romaine, “Developing Lieutenants in a Transforming Army,”
Military Review, 84 (July-August 2004), 75 (“The Army must teach lieutenants how to influence these people
even though they do not have any real authority over them. Influencing people outside of the military organiza-
tion requires seeing others’ perspectives, tolerating ambiguity, having a variety of leadership techniques, and
being persuasive.”).
25. FM 3-100.21, sec. 1-24; see also sec. 2-25 (“Contractor accountability has been, and continues to be, a
significant challenge to commanders at all levels.”)
26. Ibid., sec. 1-22.
27. See Code of Federal Regulations, Title 48, sec. 5152.225-74-9000(b), 1 October 2005.
28. US Code, Title 18, sec. 3261(a)(1).
29. See, e.g., Joseph R. Perlak, “The Military Extraterritorial Jurisdiction Act of 2000: Implications for
Contractor Personnel,” Military Law Review, 169 (September 2001), 93-141, http://www.loc.gov/rr/frd/Mili-
tary_Law/Military_Law_Review/pdf-files/277085~1.pdf; Chris Lombardi, “Law Curbs Contractors in Iraq,”
ABA Journal eReport, 14 May 2004, http://www.scrivovivo.net/chris/my14iraq.html.
30. One of the only successful MEJA prosecutions involved a civilian network administrator working for
the armed forces at the Baghdad Central Confinement Facility in Abu Ghraib. See “Abu Ghraib Contractor Sen-
tenced for Child Porn,” Associated Press, 25 May 2007, http://www.msnbc.msn.com/id/18866442/.
31. See Farah Stockman, “Contractors in War Zones Lose Immunity,” Boston Globe, 7 January 2007,
http://www.boston.com/news/world/articles/2007/01/07/contractors_in_war_zones_lose_immunity. Of the 44
incidents that the US Army investigated, 14 involved improper behavior by civilian contractors. See “AR 15-6 In-
vestigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,” 23 August 2004,
http://www.washingtonpost.com/wp-srv/nationi/documents/fay_report_8-25-04.pdf.
32. Andrea Weigl, “Passaro Will Serve 8 Years for Beating,” News & Observer, 14 February 2007,
http://www.newsobserver.com/497/story/543038.html; see also Scott Horton, “Providing Accountability for
Private Military Contractors: Testimony Before the House Judiciary Committee,” 19 June 2007, http://
www.harpers.org/archive/2007/06/hbc-90000309.
33. See Patrick Radden Keefe, “Iraq: America’s Private Armies,” New York Review of Books, 12 August
2004, http://www.patrickraddenkeefe.com/articles/media/NYRB_20040812.pdf; and Horton.
34. Public Law 109-364, 17 October 2006, sec. 552, codified in US Code, Title 10, sec. 802(a)(10).
35. US Code, Title 10, sec. 101(a)(13).
36. Moreover, another section of the 2007 defense authorization act explicitly locates these two conflicts
within the “contingency operation” classification. Public Law 109-364, sec. 355(b)(2).
37. William Matthews, “Contractor Crackdown,” Armed Forces Journal, February 2007, http://
www.armedforcesjournal.com/2007/02/2471808; see also Griff Witte, “New Law Could Subject Civilians to
Military Trial,” The Washington Post, 15 January 2007, A1.
38. Matthews.
39. UCMJ, Article 2(a)(10).
40. Compare UCMJ, Article 86(a) with UCMJ, Article 118(a).
41. UCMJ, Articles. 99, 105, and 117.
42. US Code, Title 18, sec. 3261(a).
43. FM 3-100.21, sec. 1-25.
44. Ibid., sec. 1-16.
45. In a combat zone, the relative accessibility of Judge Advocate General defense counsel, prosecutors,
and judges, as opposed to representatives of the civilian legal system, may also result in more timely and effec-
tive justice. Recent discussions about strengthening MEJA must take into account the difficulties in acquiring
the necessary witnesses and evidence from overseas. See, e.g., Horton.

94 Parameters