Civilians and the UCMJ

[lordmonar]

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

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.

[jimmydeanno]

Link doesn't work.

[RiverAux]

Doing that sort of thing in a combat zone, he's lucky he isn't being tried as a spy or as a combatant.

[Short Field]

Looks like he wanted a day off after 63 days of 12 hour shifts without a break.  I am sure he is resting now....

[CrewDog]

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.

[Short Field]

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.

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.

[PHall]

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.

[Short Field]

A craftsman always uses the right tool for the job.    

[JohnKachenmeister]

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.

[Short Field]

Then the SECDEF must be wrong not to courtmartial him in Iraq.  He really needs someone to explain the law to him.

[RogueLeader]

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.

[lordmonar]

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.

[Major Carrales]

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.

[JohnKachenmeister]

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.

[Hawk200]

Those 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.

[PHall]

IIRC, the DC District Court handles all Federal trials for stuff that american citizens do overseas.

[hatentx]

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.

[Gunner C]

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

[sarmed1]

If they commit crimes while on IDT status, or weekend drill, they ARE subject to the UCMJ.

that would not be entirely acurate......

State 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

[RiverAux]

Those 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.