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123 Chapter Seven “Why Can’t We Just Shoot Them All?” MEJA and the First Prosecutions in Federal District Courts The government finally closed the jurisdictional gaps arising from Toth, Covert, and their progeny with the passage of the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 and of an amendment to the National Defense Authorization Act of 2006. These two legislative measures take different routes to plug the gaps I have considered. MEJA fulfilled the half-century-old proposal by Army Judge Advocate General Thomas H. Green by providing for federal district court jurisdiction over acts committed by civilians that would have been violations of the UCMJ had the perpetrators been subject to that law and by allowing military veterans to be tried in civilian courts for acts they committed overseas while in the armed forces. The 2006 law takes a different approach by expanding the reach of the UCMJ. Confronting the reality that a substantial proportion of the U.S. military mission in Iraq and Afghanistan was being performed by private contractors, the amendment to the National Defense Authorization Act for Fiscal Year 2007 changed the language of Article 2(a)(10) of the UCMJ, which had provided for court-martial jurisdiction over civilians accompanying the armed forces “in time of war.” This phrase was changed to “in time of declared war or contingency operations.”1 By expanding the reach of the UCMJ to “contingency operations,” i.e., military operations other than declared wars, Congress nullified Averette. MEJA and the amended UCMJ establish concurrent jurisdiction over civilian contractors serving with the armed forces, and, as such, they require civilian and military authorities to decide the best venue—a military or civilian court—in which to try civilian contractors and others serving alongside the armed forces in operations like those in Iraq and Afghanistan.2 Chapter Seven 124 There have been very few prosecutions under MEJA, and skeptics believe this can be explained in large part because of the burden on the budgets and energies of the U.S. district attorneys who would have to conduct the prosecutions and because of the numerous obstacles posed by having to conduct investigations in war zones thousands of miles from the United States.3 Experience seems to bear out the concerns expressed decades earlier in the debates about the bills Ervin proposed, namely, the administrative strains those measures would have imposed on the government. Courts-martial in the vicinity of alleged crimes will not be hampered in the same way, but a judgment of the constitutionality of extending court-martial jurisdiction over civilians serving alongside the armed forces in “contingency operations” may rest on whether there is a sufficiently compelling interest to override the Covert line of precedents. Although the extension of court-martial jurisdiction over civilian contractors offers an alternative means of prosecuting those who are suspected of committing crimes in overseas operations, the existence of MEJA will make it more difficult to demonstrate the necessity for courtmartial jurisdiction over civilian contractors who come within the reach of MEJA because that law makes available another path to prosecution, that of civilian courts.4 After Ervin’s last initiative, a number of bills were proposed to close the jurisdictional gaps affecting military veterans and civilians accompanying the armed forces.5 For example, Bennett offered H.R. 763, to be designated the “Foreign Crimes Act of 1977,” whose language met the previous Department of Defense (DoD) objections and recommendations and addressed both jurisdictional gaps—the ones arising from Toth and Covert—in a single bill.6 Bennett ’s new bill, however, fared no better than his and Ervin’s earlier proposals. Bennett and his colleagues were baffled about why the bill did not pass. Bennett remarked, “In all of the years I introduced it, I have never had anyone tell me it shouldn’t be passed. Obviously someone who commits murder and gets by with it, that is something we should not allow.” The Yale University law professor Eugene Fidell, a leading expert in military law, similarly expresses surprise (leavened with irony) that an issue that had excited a good deal of scholarly commentary escaped a legislative fix for decades: “It would seem— shockingly—that our legislators do not read the law reviews, since nothing happened in Congress.” Some legislators were just as nonplussed as Fidell. Rep. Joshua Eilberg, a Democrat who represented a district in Philadelphia, said, “It is remarkable that Congress hasn’t moved to close this gap yet.” Bennett’s response...


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