Strange how some of our discussions precede some timely real-world situaiton
http://nl.newsbank.com/nl-search/we/Archives?p_action=doc&p_docid=125DBF7DAEC46980&p_docnum=1 (http://nl.newsbank.com/nl-search/we/Archives?p_action=doc&p_docid=125DBF7DAEC46980&p_docnum=1)
Quote from: Review Journal"January 20, 2009
Copyright © Las Vegas Review-Journal
LV man confined in Iraq
Keith Rogers
By KEITH ROGERS
LAS VEGAS REVIEW-JOURNAL
A Las Vegas man who works for a contractor in Iraq faces a rare civilian court-martial and is confined at an overseas air base in violation of his constitutional rights, one of his attorneys said Monday.
If the military is allowed to pursue a court-martial against Justin M. Price, the 29-year-old would be the first U.S. civilian in 38 years to be tried under the Uniform Code of Military Justice, a defense attorney said.
Price is described in court documents as a civilian employee of Battlespace Flight Services, a Las Vegas-based company. He was taken into custody in November by Air Force authorities on allegations that he set fire to a Predator spy plane.
"At some point during the maintenance operations, a small fire began under the Predator," said a petition filed Friday on Price's behalf in U.S. District Court for the District of Columbia. "The fire was quickly extinguished but not before an indeterminate amount of damage was caused to the exterior of the Predator."
Price's attorney did not elaborate on the details of what his client is accused of doing. Air Force prosecutors have said that charges likely to include arson and reckless endangerment "will be filed imminently" for a general court-martial, according to the petition. Price's defense team contends that the Department of Defense and the Air Force lack "constitutional and statutory power" to court-martial Price, who is "a full-fledged civilian."
The 37-page petition naming Secretary of Defense Robert Gates as respondent seeks Price's release from confinement in Iraq through a writ of habeas corpus, which orders a person in custody to be brought before a court.
Price, a former Air Force staff sergeant who was honorably discharged in 2007, performed mechanical support services on unmanned Predator planes in Iraq beginning Sept. 14. He "worked 12-hour shifts for 63 days without any time off," according to the petition.
Although Price was confined on Nov. 21, no criminal charges have been filed against him.
He was supposed to return to the United States on Saturday, said Michael Navarre, one of Price's three attorneys .
"What we're asking for is for the court to free him from any restrictions so he can return," Navarre said.
Wife Calene Price said she only knows "bits and pieces" of what happened to her husband, who last saw her and his 9-year-old stepdaughter in September.
"I just want him to come home," she said.
The Las Vegas Review-Journal faxed a copy of the petition to Pentagon officials, who had no comment Monday.
Navarre explained that the Air Force is trying to use an article of the Uniform Code of Military Justice that was changed in recent years to allow courts-martial of civilians who are involved in "contingency operations" and not just wars declared by Congress.
Contact reporter Keith Rogers at krogers@reviewjournal.com or 702-383-0308.
Link doesn't work.
Doing that sort of thing in a combat zone, he's lucky he isn't being tried as a spy or as a combatant.
Looks like he wanted a day off after 63 days of 12 hour shifts without a break. I am sure he is resting now....
As I understand it the UCMJ is designed as laws that apply to the military no matter where they are in the world. Here in CONUS, National Guard members are typically under title 32 and not subject to the UCMJ. When overseas or on federal duty they are on title 10 orders and therefore subject to the provisions of the UCMJ. However, if this guy was a civilian contractor and willfully damaged US property in a war zone, he will most likely face a military tribunal, much like any POW accused of war crimes, as in post war Germany or now at Gitmo. This of course is just an educated guess and any real answer would be from a military lawyer.
There is
always a difference between what the law says and how it is implemented and interpreted. Barracks lawyers tend to forget this when they start quoting laws. That is why the lawyers make big bucks and cases continually go to the Supreme Court. If Price damaged the Predator, he needs to be punished for it. I am sure charges will be filed in federal court against him.
Quote from: Las Vegas Sun
Civilian from Vegas won't face court martial, will return home
By Megan McCloskey
Fri, Jan 23, 2009 (2 a.m.)
Las Vegan Justin Price won't be court martialed in connection with a fire that damaged a Predator drone at an air base in Iraq, military authorities said Thursday.
The decision was made by Defense Secretary Robert Gates — eight days ago.
But it was unclear whether word has reached Price. His wife and his lawyers didn't know until the Sun told them Thursday.
The reason for the lapse went unexplained.
Lt. Col. Todd McDowell, spokesman for Air Force headquarters, said the commanders in Iraq now know about Gate's order and are making arrangements for Price to return home.
The Sun wrote about Price's case in Thursday's newspaper. Lawyers for the 29-year-old aircraft mechanic were contesting the threatened court martial, claiming it was unconstitutional for the military to prosecute a civilian.
Gates' media affairs office on Thursday wasn't immediately able to answer questions about the status of the case, but Price's defense lawyers said military prosecutors had told them charges of arson and reckless endangerment would be filed soon.
On Thursday, Air Force Lt. Col. Patrick Ryder, a spokesman for Gates, told the Sun the defense secretary had pulled the plug on a court martial. He did not explain the reasons behind Gates' decision. The Justice Department previously decided to not pursue charges against Price, citing lack of evidence.
Calene Price said she is excited at the news her husband is coming home soon, but "not until I see him at the airport will I be totally relieved."
Details of the incident that put Price in the hot seat have been sketchy at best.
Calene Price said her husband told her the fire was an accident, but she doesn't know any more than that. Price's lawyers declined to fill in the gaps in advance of a trial.
This much was revealed in court filings challenging the court martial: On Nov. 17, Price and three other employees of the Las Vegas-based Battlespace Flight Services were working on a Predator when a fire started underneath the drone. It was quickly extinguished, but the exterior of the aircraft was damaged. The fire was first investigated for safety reasons, but after statements from all four employees were obtained, a criminal investigation was opened into Price's actions. He was being investigated for possible arson and reckless endangerment and has been held at the base on pretrial restriction since Nov. 21.
Price, who had been in Iraq since September doing maintenance work on the Predators, is still employed by Battlespace but was assigned desk work, according to his wife. The company has been supportive of him through the ordeal, she said.
Price's defense lawyers said they still don't have official word that he won't be prosecuted in military court.
Under the military code of justice, if a civilian serving with the armed forces in a military operation is accused of a crime, the case must first be sent to the Justice Department, as Price's was on Dec. 8. Eleven days later the Justice Department declined to prosecute Price.
The Air Force's efforts to try Price in military court were halted by Gates' order on Jan. 15.
Price's lawyers filed a petition in federal court last week challenging the court martial as unconstitutional. The case, which is now most likely moot, would have been the first test of a 2006 amendment extending the military's jurisdiction over civilians.
Well, they may not be able to court martial him, but they sure can bring Federal charges of Destruction of Government Property and possibly Arson.
And I believe the penalties for those charges are much worse then what he was facing if they had just Court Martialed him.
A craftsman always uses the right tool for the job. ;D
The problem with filing in Federal court is the issue of Venue. A person has a Constitutional right to have his trial in the same district wherein the crime shall have occurred. THAT's why Congress passed the UCMJ with jurisdiction encompassing civilians accompanying a US force.
Also, if Guardsmen are on Title 32 duty, so-called "State Active Duty," crimes they commit can be tried under the state codes of military justice. If they commit crimes while on IDT status, or weekend drill, they ARE subject to the UCMJ. Also when they are on their two-week annual training.
Then the SECDEF must be wrong not to courtmartial him in Iraq. He really needs someone to explain the law to him.
Quote from: Short Field on January 26, 2009, 02:43:46 AM
Then the SECDEF must be wrong not to courtmartial him in Iraq. He really needs someone to explain the law to him.
But he is being tried overseas, just because it says overseas, that does not mean it is not in Iraq.
I think the SECDEF decided not to pursue the trial due to the the negetive publicity and the implecations that this would have to other defense contractors in the AOR.
One problem this action brought to surface is that contractors in the AOR are not told that they are subject to UCMJ when they go down range.
I forsee a week long inprocessing class for all contractors going down range getting them up to speed on this.
As I see it, when it come to CAP, the UCMJ is for the military and Civilians who serve the Military in their COMBAT role. Thus the contractors and other support personnel involved in ACTIVE military service roles.
However, CAP is not such an activity. It is a volunteer organization, build along military lines and traditions coming from a Civil Defense tradition. It is a benevolent organization what is now a corporation and USAF Auxiliary.
My conclusion would be that the Civilian courts are where we would, and should be tried.
This might change under "wartime" conditions...then again so would the clock, autombile gas usage and a host of other things we are not likely to see soon.
Quote from: Major Carrales on January 26, 2009, 03:17:39 AM
As I see it, when it come to CAP, the UCMJ is for the military and Civilians who serve the Military in their COMBAT role. Thus the contractors and other support personnel involved in ACTIVE military service roles.
However, CAP is not such an activity. It is a volunteer organization, build along military lines and traditions coming from a Civil Defense tradition. It is a benevolent organization what is now a corporation and USAF Auxiliary.
My conclusion would be that the Civilian courts are where we would, and should be tried.
This might change under "wartime" conditions...then again so would the clock, autombile gas usage and a host of other things we are not likely to see soon.
You are right, CAP members in any status are not subject to the UCMJ. The only provision that MIGHT bring us under UCMJ jurisdiction would be the part about "Civilians accompanying an armed force..." As long as we are accompanying the armed force in the US, we would still fall under local or federal civilian courts. However...
Those CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.
Also, CAP is Congressionally chartered to carry out the "Non-combat missions and programs of the Air Force." There is nothing in Federal law that I am aware of restricting CAP operations to the US. We could, under existing law, be given an overseas non-combat mission that MIGHT place us under UCMJ jurisdiction.
Quote from: JohnKachenmeister on January 26, 2009, 04:03:39 AMThose CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.
I doubt that. Seems like the fact that we're a corporation and volunteer (and paying for it to boot) there probably wouldn't be any real avenue to charge a CAP member under it. Now, if the state paid the yearly dues and had specific criteria for enlistment, it might be a case worth mentioning.
IIRC, the DC District Court handles all Federal trials for stuff that american citizens do overseas.
And civilian contractor while overseas know that they are bound to the UCMJ if working for the US government along with any SOFAs that maybe in place. A little common scents would tell them that. If I rape a soldier while I am in Iraq who is going to arrest me? Oh yeah the MPs will. While all aspects my not be enforced or apply it is still UCMJ.
Quote from: JohnKachenmeister on January 26, 2009, 04:03:39 AM
Quote from: Major Carrales on January 26, 2009, 03:17:39 AM
Those CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.
Attachment to a unit usually isn't for administration and UCMJ (or state equiv). Some command relationship other than attachment would need to be established.
Gunner
QuoteIf they commit crimes while on IDT status, or weekend drill, they ARE subject to the UCMJ.
that would not be entirely acurate......
QuoteState police at Jonestown on Wednesday accused Alan Ledford, 26, of South Coopersburg, and Sean McMenamin, 24, of Pottstown, of rape. Along with Matthew Taggart, 23, of Springfield, they face sexual assault and related charges following an alleged incident Dec. 15 in a barracks on Clement Avenue.
I cant find the same cite I saw before, but basically they are being charged as civilians not as military (ie UCMJ) because federal status only applies to the "2 weeks" part of NG service or title 10 mobilization, the rest of the time you are a "state" soldier.
mk
QuoteThose CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.
There are not any CAP Wings "attached" to National Guard units. Having some sort of office in the structure of the local NG organization doesn't mean that the Wing is attached to the NG since there is no command relationship. Even if state money is flowing to that CAP Wing through the NG, the NG has no authority to tell CAP to do anything, though it would have the power to specify what the Wing can spend its state money on.
It seems that This blog repeats itself because of members who do not keep current in events or they are new.
This thread discusses UCMJ having authority over civilian workers in time of war or national emergency.
I suggest you google it because several years ago congress approved changes and signed by president Bush that allows this. Look it up.
I really don't want to do it because we went into it in ad nauseum, and it seems that some people use this blog for their education rather then do their own research.
Quote from: Hawk200 on January 26, 2009, 04:38:29 AM
Quote from: JohnKachenmeister on January 26, 2009, 04:03:39 AMThose CAP wings which are attached to National Guard units MAY fall under the state codes of military justice.
I doubt that. Seems like the fact that we're a corporation and volunteer (and paying for it to boot) there probably wouldn't be any real avenue to charge a CAP member under it. Now, if the state paid the yearly dues and had specific criteria for enlistment, it might be a case worth mentioning.
I'm really not sure, Hawk. In some states, the relationship with the NG is basically the same as an MOU, in which case we would be acting as a corporation. In other states, the state law places CAP under the AG. I'm really not sure if state military law covers them or not.
Quote from: sarmed1 on January 27, 2009, 01:54:56 PM
QuoteIf they commit crimes while on IDT status, or weekend drill, they ARE subject to the UCMJ.
that would not be entirely acurate......
QuoteState police at Jonestown on Wednesday accused Alan Ledford, 26, of South Coopersburg, and Sean McMenamin, 24, of Pottstown, of rape. Along with Matthew Taggart, 23, of Springfield, they face sexual assault and related charges following an alleged incident Dec. 15 in a barracks on Clement Avenue.
I cant find the same cite I saw before, but basically they are being charged as civilians not as military (ie UCMJ) because federal status only applies to the "2 weeks" part of NG service or title 10 mobilization, the rest of the time you are a "state" soldier.
mk
The authority exists to use the UCMJ, but that does not mean that it is always the best tool. Being subject to the UCMJ does not provide exemption from civil law.
When I was a 2LT, I and my MP's apprehended 6 NG soldiers who had committed an armed robbery of three active duty soldiers on a National Guard post. The mix of jurisdictions generated a big meeting, where it was decided (between me, the PM, the AD unit commander, and the NG SJA) that the best course of action was to turn the thugs over to civil authority.
I used the UCMJ during IDT weekends as a company commander of a USAR unit only for pure "Military offenses." AWOL, and stuff like that. It was way easier to turn actual crimes over to civil authorities for prosecution.
Quote from: JohnKachenmeister on January 27, 2009, 03:56:34 PM
In other states, the state law places CAP under the AG. I'm really not sure if state military law covers them or not.
No, no, no, no. CAP is not "under" the AG no matter what the state law says about having an office in the AG department that deals with CAP issues, even if the local Wing Commander is head of that office. The AG still can't tell that Wing Commander do do a darn thing and has no command authority over CAP.
Quote from: RiverAux on January 27, 2009, 06:11:52 PM
Quote from: JohnKachenmeister on January 27, 2009, 03:56:34 PM
In other states, the state law places CAP under the AG. I'm really not sure if state military law covers them or not.
No, no, no, no. CAP is not "under" the AG no matter what the state law says about having an office in the AG department that deals with CAP issues, even if the local Wing Commander is head of that office. The AG still can't tell that Wing Commander do do a darn thing and has no command authority over CAP.
That may be the case in your state, but in the 52 wings of CAP there are variations on the theme. Colorado, for example, (and all I know is what I get from their website) places CAP as a co-equal subordinate agency with the Army Guard and Air Guard under the Adjutant General. I think Kentucky places CAP under the "Military Department of Kentucky" under the supervision of the Asst. AG for Air.
What I do not know is if any of these relationships translate into criminal jurisdiction under the state codes of military justice at any time. I know such prosecutions are so rare that I have never heard of one, but then, they are very rare even among guardsmen. Filing civil charges or seeking administrative remedies to misconduct is way easier.
No state law can give command of a private organization to the state government and CAP regulations specifically preclude such an arrangement. Those offices are there to provide support for CAP and/or coordinate actions between CAP and the state -- nothing more.
Quote from: RiverAux on January 27, 2009, 10:33:22 PM
No state law can give command of a private organization to the state government and CAP regulations specifically preclude such an arrangement. Those offices are there to provide support for CAP and/or coordinate actions between CAP and the state -- nothing more.
I think your analysis is off the mark. First, we are not a private organization. Even outside of our role as an instrumentality of the federal government, we are a public charter corporation. Since we are chartered to, in part, provide services to state and local governments, state laws creating situations where CAP is utilized in that role would not conflict with our federal charter.
I really don't know of any regulation in CAP which would preclude CAP from being activated as an instrumentality of state government under the AG. Since at least a handful of states already have CAP functioning as an element of the state's national guard, it is POSSIBLE that there might be some state military justice jurisdiction over CAP members mobilized on state missions.
I have never served in any of those states, so I cannot say if such is the case or not, but I think the law certainly would allow for such a condition to exist.
Such was (is?) the case in Iowa, was that when being used as a State Asset, Cap Members had some of the samethings as NG troops. We had the option, as individual members, of accepting the call. At no time were we under UCMJ or state equivalent. The State called, we answered, and no change in the game we played.
I just looked up the law in Kentucky, and it now gets even more confusing.
The CAP is, by law, under the Military Affairs Dept. of Kentucky. The KCMJ states that it has jurisdiction over any person in "The National Guard or active militia," except those persons called into federal service.
The law further defines "Active militia" as "any volunteer defense force other than the National Guard."
So I think the case could be made either way...
CAP may come under the KCMJ when serving on duty as an asset of the state, but not when serving as an asset of the federal government, or...
CAP is not a "Volunteer defense force" within the meaning of the KCMJ, and would not fall under such jurisdiction.
In any case, any act of misconduct by a CAP member on duty would be way easier to resolve with civil charges, but it is an interesting consideration.
QuoteSince we are chartered to, in part, provide services to state and local governments, state laws creating situations where CAP is utilized in that role would not conflict with our federal charter.
There is a vast difference between using CAP for state missions, which is very common, and there being a command relationship. The Governor of a state cannot call a Wing Commander and order them to launch a mission or to fire a squadron commander or to change the sort of uniform worn by CAP members in that state. The Governor can request that CAP perform a mission for the state, which if CAP NHQ or the AF (depending on the mission) says okay, CAP will then perform it.
QuoteI really don't know of any regulation in CAP which would preclude CAP from being activated as an instrumentality of state government under the AG.
Here are a few. Somewhere there is a more comprehensive statement regarding control of CAP assets, but I can't find it, but these more or less make the point.
CAPR 60-3 1-9
Quoteg. Basic policies of CAP directives remain in effect while acting under a joint agreement such as with the American Red Cross or state emergency response agency.
CAPR 60-3 1-15
Quote
e. The CAP incident commander or agency liaison will coordinate with the controlling agency while any assistants appointed will coordinate with the incident commander. Unless relieved by the appointing authority, the designated incident commander or agency liaison will make the final decision on all matters pertaining to CAP participation in the mission.
Also keep in mind that in every state there is an MOU between the state and CAP which lays out exactly how command and control over CAP is maintained and I don't think you're going to find one that says that the state can order CAP to pick up a gum wrapper much less launch a mission.
Now, keep in mind that I'm not saying that CAP can willy-nilly go do missions. The appropriate state or local agency can definetely tell CAP whether or not they can participate in a mission. However, if they say CAP can participate, at any time CAP can pull out of that mission or tell the overall IC that CAP will or will not carry out any particular task based on our own regulations and the CAP IC's judgement. And when it comes right down to it, every CAP member has the right to quit right on the spot if they don't want to do something. No state law is going to change all that.
I know that you wish this could be the case (since you started a thread based on this premise a while back), but it could only be done if federal laws were changed and even no CAP member would fall under the state version of military law unless CAP members were also required to be members of a state militia unit such as a State Defense Force. I'm not actually opposed to such a thing, but the state alone doesn't have the power to make it happen.