ETHICS CORNER DEFENSE CONTRACTING
Revised Rules for Battlefield Contractors
The expansion of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) and the Uniform Code of Military Justice (UCMJ) has complicated the legal environment for U.S. contractors co-located with military forces abroad.
Contractor employees and subcontractors at all levels may now be subject to host nation laws, U.S. federal criminal law through MEJA and the UCMJ. In addition to this new jurisdiction over individual employees, contractors must now adhere to MEJA and UCMJ employee notification requirements.
Recently approved clauses in the Federal Acquisition Regulations and Defense Federal Acquisition Regulations Supplement require contractors to notify employees before deployment that MEJA and UCMJ potentially apply to them. FAR 52.225-19, which is titled “Contractor personnel in a designated operational area or supporting a diplomatic or consular mission outside the United States,” requires contractors supporting the Defense Department abroad to give employees MEJA notifications. DFARS 252.225-7040, titled “Contractor personnel authorized to accompany U.S. armed forces deployed outside the United States,” requires contractors to give employees both MEJA and UCMJ notifications. These clauses both contain subcontract flow-down provisions.
MEJA, which applied only to Defense Department contractors when first enacted in 2000, was later expanded through the fiscal 2005 Defense Authorization Act to apply to contractors of all federal agencies supporting the Defense Department. In February 2006, Defense regulation on MEJA was further clarified. MEJA is a “gap-filling” statute, creating U.S. criminal jurisdiction for felony-level offenses to cover contractor employees in Iraq and Afghanistan who previously were outside the U.S. criminal jurisdiction.
MEJA jurisdiction applies to all civilians who are employed by and are accompanying the armed forces, to include employees of contractors and subcontractors (at any tier) of any federal agency, or any provisional authority, if such employees are supporting the Defense Department’s overseas mission.
However, there is a specific exception to MEJA jurisdiction for employees who are nationals or residents of the host nation where the alleged offense occurs. Unlike host country nationals or residents, MEJA does apply to third-country nationals — those individuals who are neither U.S. nor host country nationals. If the “nexus to the United States” of third country nationals is unclear, the MEJA regulations require analysis as to whether sufficient connections with the United States exist to establish U.S. criminal jurisdiction.
The UCMJ is inherently extraterritorial, as it applies to service members worldwide. In 2006, the fiscal 2007 Defense Authorization Act amended the UCMJ as to civilians “serving with or accompanying an armed force in the field” to include those serving in time of “declared war, or a contingency operation,” thereby significantly broadening UCMJ application.
Unlike MEJA, which applies only to felony-level federal offenses, the entire UCMJ applies to civilian contractors in contingency operations. Apart from creating concurrent jurisdiction for more serious offenses (some overlapping MEJA), applying the entire UCMJ to civilian contractors creates a procedure for enforcing lesser offenses committed abroad by employees, thereby facilitating contractor workforce discipline.
Two recent memoranda by Secretary of Defense Robert Gates (March 2008) and Deputy Secretary of Defense Gordon England (September 2007) provide guidance as to whether MEJA or UCMJ applies, and actions required in the interim. The memoranda acknowledge that, on the ground, during contingency operations, the complex legal questions of MEJA and UCMJ jurisdiction as they relate to a single person are often blurred. As such, the Gates memorandum instructs military law enforcement officers and military criminal investigators to apprehend those subject to the UCMJ, and arrest and temporarily detain those falling under MEJA.
Many issues remain to be sorted out concerning the expansion of the acquisition regulations and recent Pentagon guidelines covering MEJA and the UCMJ.
To comply with FAR 52.225-19, DFARS 252.225-7040 and related guidelines, some contractors have developed clear, albeit detailed written notification explaining MEJA and UCMJ jurisdiction both in English and other languages applicable to the workforce as well as accompanying independent contractors and consultants. Some also are requiring all such persons to sign and date the notification, and are documenting relevant personnel records. In addition to these measures, contractors periodically should train their managers in these new laws, add these new requirements to their compliance manuals, and ensure that notification forms and training are updated as the rules evolve.
John G. Stafford is a shareholder (firstname.lastname@example.org) and David P. Goodwin (email@example.com) is an associate with the international law firm of Greenberg Traurig LLP government contracts practice group. The views expressed are solely those of the authors.