A Call for Change:
The Military Extraterritorial Jurisdiction Act
First Lieutenant James E. Hartney*
I. INTRODUCTION
Notwithstanding moral obligations, the inability to prosecute crimes negatively affects a state's international reputation. For over forty years, overseas crimes committed by American civilians accompanying the military went unpunished. The Military Extraterritorial Jurisdiction Act of 2000[1] ("MEJA") closed the gap. While this was the MEJA's original intent, it also established federal criminal jurisdiction over felony crimes committed overseas by former military members with absolutely no remaining ties to the service.[2] This paper will analyze the road to the MEJA and the first MEJA cases involving such former military members, and it will ultimately prove this aspect of the Act must be addressed by legislatures for the following reasons: 1) federal courts are ill-equipped to administer justice to this unique subset of United States citizens; 2) the MEJA was never intended to be used this way; and 3) the MEJA's inadequacy and a lack of alternatives requires that action be taken to ensure justice.
II. MEJA CASE LAW
Until the MEJA, federal criminal courts lacked jurisdiction to prosecute crimes of civilians overseas. In Toth v. Quarles, the defendant, Robert Toth, had been discharged for five months when he was arrested for murder,[3] but the courts prevented a court-martial and his crimes went unpunished.[4] While on patrol, he found a Korean national, brought him back to base and shot him based on an order from his superior.[5] Toth argued his lack of sufficient connection to the military prevented a court-martial.[6] In the Supreme Court's decision, Justice Black wrote, "[w]e hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution."[7]
As in Toth, Reid v. Covert[8] was also a challenge to military courts and their jurisdiction over civilians which, again, allowed civilians to literally get away with murder. In two separate cases,[9] Clarice Covert and Dorothy Krueger, both civilians, were charged with murdering their husbands.[10] Both of their husbands were military personnel accompanied by their wives and stationed overseas.[11] The military based its case on Article 2(11) of the Uniform Code of Military Justice ("UCMJ") for jurisdiction.[12] Under Article 2(11), cadets, aviation cadets and midshipmen are "[s]ubject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States. . . ." [13] Both women argued Article 2(11) was unconstitutional.[14] Justice Black, again, wrote the opinion of the court: "under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States."[15] Years later, United States legislators demanded a solution in preventing the outcomes of the DynCorp scandal in Bosnia and U.S. v. Gatlin.[16]
In 2000, private civilian contractors working for DynCorp Inc. went unpunished for trafficking women in Bosnia.[17] An employee, Ben Johnston, reported of co-workers talking openly of owning young girls.[18] Kevin Werner admitted to "buying a prostitute and an illegal gun."[19] Separate investigations by the U.S. and Bosnia confirmed the reports; however, the men avoided prosecution.[20] Title 18 of the United States Code (Crimes and Criminal Procedure) prevented federal prosecution because of a lack of extraterritorial jurisdiction.[21] Furthermore, the Dayton Accords prevented prosecution by Bosnian courts.[22] The Accords state:
The Parties [signatories of the treaty to include Bosnia] shall accord the IPTF [International Police Task Force] Commissioner, IPTF personnel, and their families the privileges and immunities described in Sections 18 and 19 of the 1946 Convention on the Privileges and Immunities of the United Nations. In particular, they shall enjoy inviolability, shall not be subject to any form of arrest or detention, and shall have absolute immunity from criminal jurisdiction.[23]
While section 19 relates directly to the immunity of the Secretary General and Assistants to the Secretary General, only Section 18 of the 1946 Convention on the Privileges and Immunities of the United Nations suffices to be mentioned: "[o]fficials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity."[24] Therefore, as members of the immune IPTF,[25] no court had jurisdiction over their crimes. If this case was not enough to invoke change, then U.S. v. Gatlin[26] was.
A civilian, Milton Gatlin, evaded prosecution for molesting his step-daughter while he and his enlisted wife resided on a U.S. military installation in Germany.[27] With his wife deployed to Bosnia, Gatlin began having regular sexual intercourse with his step-daughter, Claudia, over a period of at least four months.[28] Upon returning to the U.S., Claudia gave birth to a child confirmed to be fathered by Gatlin.[29] Gatlin pleaded guilty; but, similar to the Bosnia case, the U.S. federal courts lacked extraterritorial jurisdiction.[30] Justice Cabranes noted the lack of accountability in the justice system:
Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a "jurisdictional gap"--that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States. . . . On more than thirty occasions, Congress itself has considered, but failed to act on, bills that would close the jurisdictional gap.[31]
The court forwarded the opinion to legislative committees hoping to generate legislation to fill the gap.[32] Four months later, the Military Extraterritorial Jurisdiction Act of 2000 was born.[33]
The Act establishes jurisdiction over felony offenses committed by those "employed by or accompanying the Armed Forces outside the United States," and over "member[s] of the Armed Forces subject to chapter 47 of title 10" of the UCMJ.[34] The original act defines "employed by the Armed Forces outside the United States" as:
(A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department) as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a subcontractor at any tier);
(B) present or residing outside the United States in connection with such employment; and
(C) not a national of or ordinarily resident in the host nation.[35]
Upon approval of the Attorney General, jurisdiction is forfeited if the host government "has prosecuted or is prosecuting" the alleged acts.[36] The Act relinquishes jurisdiction over a military member "unless such member ceases to be subject to [the UCMJ]."[37] Three years later, the MEJA was put to the test.[38]
III. CLOSING THE GAP
Latasha Arnt, a civilian accompanying her husband, Staff Sergeant ("SSgt") Anthony Arnt, was found guilty of killing her husband during his tour in Turkey; and successful prosecution ensued.[39] After drinking at a friend's house, SSgt Arnt returned home where a verbal conflict began.[40] He slapped and choked his wife, and threatened to kill her if she left him.[41] The conflict moved to the kitchen where Arnt fatally stabbed her husband.[42] She was found guilty and sentenced to eight years in prison.[43] Upon appeal, the U.S. Court of Appeals confirmed adequate jurisdiction.[44]
While the Arnt case proved a victory for the MEJA, an unforeseen loophole remained. Incredibly, civilian contractors involved with the Abu Ghraib prison scandal in Iraq were never prosecuted. The Investigation of the 800th Military Police Brigade (the Taguba Report) notes that detainees were, among other things, forced to "masturbate themselves while being photographed and videotaped," and sodomized with various objects including a broom stick.[45] Twelve service members were indicted, yet Army Lieutenant Colonel ("LTC") Steven Jordan was the only officer, and the last, to go to trial.[46] Army Specialists ("SPC") Charles Graner and Lynndie England received the most severe punishments - ten and three years, respectively.[47] The Taguba Report notes two civilian contractors, Stephen Stefanowics and John Israel, from CACI International who played significant roles in the abuse.[48] Another civilian working as a translator for Titan Corporation, Adel Nakhla, was simply named a suspect.[49] Israel subsequently lied about his role in the interrogations and lacked a security clearance, required for sensitive operations of this type, needed to carry out such examinations.[50] Stefanowics made numerous false statements about specific interrogations and, "[a]llowed and/or instructed MPs, who were not trained in interrogation techniques, to facilitate interrogations by ‘setting conditions' which were neither authorized and in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse."[51] It is important to note that, each contractor avoided criminal prosecution.[52]
Amending the MEJA was the only immediate option available to address these injustices. In the original Act, the definition of "employed by the Armed Forces outside the United States" included only the Department of Defense ("DoD") contractors and subcontractors.[53] However, the two companies involved at Abu Ghraib, CACI and Titan, were contracted by the Department of the Interior.[54] Thus, no jurisdiction existed. In response, President Bush signed the 2005 National Defense Authorization Act in October 2004 which applied extraterritorial jurisdiction to any person employed as "a civilian employee of" or "a contractor (including a subcontractor at any tier) of," or "an employee of a contractor (including a subcontractor at any tier) of:"[55]
(I) the Department of Defense (including a nonappropriated fund instrumentality of the Department); or
(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.[56]
With this amendment, the MEJA now brings forth jurisdiction over all civilians supporting the DoD overseas.[57] Extending the reach of federal courts is undoubtedly a welcome change; however, the trials of two ex-military enlisted soldiers prove that the Act requires closer scrutiny.
Steven Green, an Iraq war veteran and the first person to be federally indicted under the MEJA, is serving a life sentence for his role in the "Mahmudiyah Killings."[58] He was convicted for murdering a family of four Iraqi nationals.[59] On March 12, 2006, soldiers in Green's platoon drank alcohol and conspired to rape a nearby Iraqi girl.[60] The group, including Green's immediate supervisor, changed clothes, gathered weapons and went to the family's residence.[61] The father, mother, and 6-year-old daughter were gathered in a room where Green closed the door and murdered them with an automatic rifle.[62] Abeer Qassim al-Janabi could only scream in terror as her family members were murdered.[63] Afterwards, Green and another soldier raped, murdered and burned Abeer Qassim al-Janabi, a 14 year old girl.[64] Prior to leaving, the group set fire to the home.[65] Initially blamed on insurgents, the truth became known months after Green was discharged.[66]
Former Marine Sergeant Jose Nazario was the second former member of the military to be tried under the MEJA. Sergeant Nazario was charged with killing two Iraqi detainees and ordering subordinates to do the same during the Second Battle of Fallujah.[67] On November 9, 2004, his squad received hostile fire from a nearby house while "clear[ing] the city of insurgents as they advanced."[68] One squad member was killed.[69] The men searched the house and "detained four males . . ." who possessed weapons and ammunition.[70] Nazario coordinated with his commander who relayed to Nazario that they needed to "‘take care of them', so they could move with the rest of their advancing unit."[71] Nazario moved two detainees to a separate room, shot them, and ordered two squad members to do the same.[72] Nazario was held accountable with a criminal complaint filed three years after his separation from the military.[73] He was tried under the MEJA in federal court and subsequently acquitted of all charges.[74]
IV. CHALLENGES OF TRYING FORMER MILITARY MEMBERS
IN FEDERAL COURTS
Although still a citizen, a military member in combat is far removed from civilians who would represent him or her as peers in a federal jury. Olivia Miller writes, "[u]nlike ‘communities' comprised of racial, religious, or political groups, only the military ‘community' is so distinct that it precipitates the necessity for an independent judicial system, a legal system in which trials are judged solely by like members of the defendant's military community."[75] Hence, the MEJA produced juries inconsistent with Nazario's and Green's communities.[76] The Supreme Court in Toth v. Quarles, stated the following:
It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc.[77]
Scott Wendelsdorf, Green's lead defense attorney, mentioned the jurors often wondered why the trial was not in a military court.[78] He said it weighed heavily on their ability to judge Green's actions.[79] Wendelsdorf argues the jury was competent in establishing Green's guilt, but he contends a military jury would be much more adequate in choosing between the death penalty and life in prison.[80] Similarly, Nazario's jury lacked understanding of both military jargon and lifestyle, creating frustration in the courtroom.[81] At one point, a juror complained she was unable to keep up with military acronyms, and court reporters were overextended by the high volume of information.[82] Nazario's lead defense attorney, Kevin McDermott, spoke with jurors after the trial and recalled that "[t]he concept [of judging combat actions] gave them [the jury] a nightmare. [The jury] did not believe it was fair for them to judge Sgt Nazario's actions."[83] This illustrates the jury was not only misrepresentative, but also intimidated. Olivia Miller writes that court-martial juries are "comprised of individuals who all adhere to the military values, but whom simultaneously hold unique beliefs and ideologies."[84] Such a jury, then, would ensure these "beliefs and ideologies" were upheld in the verdict without feeling intimidated. Green's sentence spared his life while Nazario's acquittal was a victory for the defense team. But neither guaranteed justice.[85]
Insufficient evidence from combat zones will also plague federal courts. Olivia Miller writes, "[a]lthough Sgt. Nazario faced life imprisonment . . . no crime scene was preserved, no physical evidence existed, nor did the prosecution present any DNA . . . . [T]he building where the crime allegedly was committed was destroyed, and the identity of the victims is unknown . . . ."[86] Kevin McDermott asserted, "the government has the burden of proof and if they can't meet it, that should be the end of it."[87] Furthermore, he argues:
MEJA prosecutions in general, and the Nazario case in particular, present insurmountable challenges to successful prosecutions. . . . Removing military aspects completely from the Nazario case, the U.S. government sought to convict a man of killing another human being without producing a body, the alleged victims' I.D., any eyewitness testimony, or a shred of physical evidence. The Constitutional implications were and continue to be enormous, as long as MEJA remains on the books.[88]
Considering the unpredictable and unstable environments created by war, this undoubtedly will be a major problem for future combat cases.
Another challenge to such trials is that alleged acts are committed under one judicial system but prosecuted and tried in another, thus compromising legal consistency. Green and Nazario were the only members of their military cohorts to be tried in federal courts.[89] The MEJA states that "[n]o prosecution may be commenced against a member of the Armed Forces subject to [the UCMJ] under this section unless an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter."[90] Thus, each member of the groups could have been tried in a federal court. Wendelsdorf's attempt to do so was rejected, subjecting Green to an entirely different judicial system. Green also attempted to reenlist to be tried in a court-martial, but this was also denied by the court and United States Army.[91] Along the same lines of inconsistency, if Nazario was convicted of manslaughter under military proceedings he would be sentenced "as a court-martial may direct."[92] However, he was federally indicted on "Discharging Firearm During a Crime of Violence," which requires a minimum sentence of ten years.[93] Legal inconsistencies, inadequate juries and poor evidence prove federal proceedings present unique challenges when applied to ex-military members for actions in the field. Considering such difficulties, one must question whether or not the MEJA was intended to be used this way.
V. THE MEJA'S INTENT
The MEJA clearly states its intentions on establishing jurisdiction over former military members; however, cases such as Toth v. Quarles, Reid v. Covert, and U.S. v. Gatlin illustrated an urgent need to prosecute civilians - overshadowing the military aspects of the bill. Upon the first introduction of the MEJA in 1999, Senator Jeff Sessions set the stage with the following:
Mr. President, I rise to introduce the Military and Extraterritorial Jurisdiction Act of 1999. This bill will close a legal loophole through which civilians who commit crimes while accompanying the Armed Forces overseas evade punishment. Today, when a civilian accompanies the military outside the United States, whether a relative, a dependent, or a civilian contractor--and there are many--the civilian is not subject to prosecution under the Uniform Code of Military Justice and does not fall under any of the general Federal criminal laws.[94]
Notably, he made no mention about the importance of prosecuting former military members.[95] During hearings in the Senate in 2000, Senator Sessions, introduced the bill again with the following remarks:
This legislation closes a legal loophole which prevented effective prosecution of certain crime[s] committed by civilians accompanying the Armed Forces overseas. When civilian dependents, contractors, and Federal employees go overseas with the military, the Uniform Code of Military Justice and the Federal criminal code generally do not apply to them. Therefore, if one of these civilians commits a criminal act--even a serious one such as rape or child molestation--then he or she could be beyond the reach of Federal law if the foreign authorities refuse or neglect to prosecute. Surprisingly, host countries often choose to not prosecute American civilians, especially where the crime was committed against another American or against property owned by an American or the U.S. Government. That is why this legislation is needed.[96]
The bill was introduced twice with respect to the jurisdictional gap regarding civilians - not the military.
Senator Sessions also references a report prepared by House Representative Bill McCollum.[97] The report clearly introduces establishing such jurisdiction over former military men and women.[98] However, it is written scantily, and the report fails to cite a single case.[99] On the other hand, the case for jurisdiction over civilians is overtly clear: "Each year, numerous incidents of rape, sexual abuse, aggravated assault, arson, robbery, drug distribution, and a variety of fraud and property crimes committed by American civilians abroad go unpunished because the host nation chooses to waive jurisdiction over these crimes."[100] Furthermore, in the recommendations section, the report states:
In 1979, the General Accounting Office issued a report on the problem. It found that in 1977, 343,000 civilians had accompanied the forces abroad in a 12 month period and, during that year, host countries waived their right of prosecution in 59 serious cases (involving rape, manslaughter, arson, robbery, and burglary) and in 54 less serious cases (involving simple assault, drug abuse, drunkenness). It also found that host countries exercised their jurisdiction in 200 serious cases. In the report, the GAO recommended that Congress enact legislation to extend criminal jurisdiction over U.S. citizens accompanying the forces overseas.[101]
The recommendation also cites Judge Cabranes' decision in U.S. v. Gatlin and the dire need to prosecute civilians overseas.[102] The report is heavily biased towards emphasizing the grave consequences of the jurisdictional gap between U.S. federal criminal courts and civilians overseas - not former military members. The report fails to cite any occurrence of an ex-service member committing a crime and evading prosecution.[103] Furthermore, the report does not indicate any consequences of establishing such jurisdiction; nor is any research cited.[104]
Senator Patrick Leahy spoke after Senator Sessions with similar effect.[105] After thanking his colleagues and emphasizing the importance of the bill, he states:
With foreign nations often not interested in prosecuting crimes against Americans, particularly when committed by an American, the result is a jurisdictional gap that allows some civilians to literally get away with murder. . . . I am glad this legislation will pass this Congress because the gap that has allowed individuals accompanying our military personnel overseas to go unpunished for heinous crimes must be closed.[106]
The Senator does mention that Reid v. Covert and Toth v. Quarles, "made clear that court-martial jurisdiction may not be constitutionally applied to crimes committed in peacetime by persons accompanying the armed forces overseas, or to crimes committed by a former member of the armed forces."[107] However, Senator Leahy is satisfied with such jurisdiction being applied when the U.S. is conducting "contingency operations."[108] He closes by saying that "[t]he inaction of the Congress on closing the jurisdictional gap that has existed over the criminal actions of civilians on military installations overseas has been the source of terrible injustice." Lastly, he cites U.S. v. Gatlin[109] as a "wake up call."[110] In all of the above cases, vast amounts of research regarding unpunished civilian crimes overseas provided more than sufficient evidence to close the gap. Subjecting ex-service members to the Act failed to be fully considered and implications thereof were ignored. Simply put, the MEJA was never intended, nor was its design adequate for the prosecution of former military members for crimes committed while serving on active duty.
VI. LACK OF ALTERNATIVES
It is well established that a court-martial for former service members is unconstitutional. Toth v. Quarles states that "[t]here can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts."[111] Through the passing of the MEJA (albeit by oversight), Congress saw fit to try a former member of the military in a federal court. As previously shown, this solution is inadequate. Toth v. Quarles and Reid v. Covert illustrate that civilians like Nazario and Green were never intended to be court-martialed. A third case, U.S. v. Averette, ruled that a civilian may be tried by a court-martial only if Congress has declared war.[112] History shows such declarations are rare. Since U.S. federal courts are inadequate, prosecution must originate elsewhere.
However, there are problems associated with foreign courts that are acknowledged in both Bill McCollum's report and the testimonies of Senator Sessions. Some nations such as Bosnia and Iraq are corrupt or lack resources; thus, they might be unable or unwilling to prosecute crimes.[113] Similar to Bosnia, Iraq granted stabilizing forces immunity from criminal courts - thus, Nazario evaded prosecution in their courts.[114] Also, crimes committed by foreign nationals may not be a priority in failing or failed states.[115] Thus, as Senator Sessions mentioned, host-nation prosecution is unreliable.[116] In regards to the International Criminal Court ("ICC"), the U.S. is skeptical of subjecting its citizens to its jurisdiction. In 2002, President Bush enacted The American Servicemembers' Protection Act which, among other things, "[p]rohibits U.S. cooperation with the International Criminal Court."[117] It also "authorizes the President to use all means necessary (including the provision of legal assistance) to bring about the release of covered U.S. persons and covered allied persons held captive by, on behalf, or at the request of the Court."[118] Military courts, federal courts, the ICC, and host nations are thus insufficient means for administering justice.
VII. FINDING A SOLUTION
Congress must address the MEJA's inadequate form of prosecution for former servicemen and women simply because no viable solution exists. Based on the decisions of Toth v. Quarles and Reid v. Covert, such citizens cannot be court-martialed so long as they have no ties to the military.[119] Retired military or those on reserve status may be brought back on active duty for a trial, but those completely separated from military service, such as Green and Nazario, lack this option. Even Green's attempt to voluntarily reenlist was denied.
Considering the inadequacies of federal courts, military courts, the ICC and host nations, one might see immunity as an option. Kevin McDermott, who is working with legislatures, mentioned that this may be the future of the MEJA as such jurisdiction never existed in the past.[120] However, this may create a widely-known and exploitable loophole. Darren Wolff, co-counsel to Green, mentioned the possibility of allowing ex-service members to choose between the federal and military systems.[121] However, the accused could exploit a potentially intimidated jury and gain an unjust acquittal. This author argues that a court-martial would offer the best way to administer justice, but its question of constitutionality presents an interesting legal problem for the Supreme Court.
VIII. CONCLUSION
In prosecuting ex-service members, the MEJA must be addressed because of three reasons: unique challenges make federal courts unable to administer justice to this unique group of citizens; it was never intended to be used to try former service members; and, there is a noticeable lack of alternatives. While there are victories for the MEJA, the trials of Green and Nazario, the first of their kind, highlighted great challenges to administering true justice. As the Supreme Court stated in Toth v. Quarles, there is no requirement that a civilian ex-servicemen be tried at all; but if we choose the contrary, ensuring fairness to our men and women who make such great sacrifices for this country is a moral obligation.[122]
* The views expressed in this manuscript do not reflect those of the United States Air Force or the United States Military. First Lieutenant James E. Hartney (B.S., Mathematics, Arizona State University (2006); is pursuing M.A., Diplomacy with a concentration in Terrorism, Norwich University (proj. grad, 2010) and serves as a United States Air Force instructor pilot.
[1] Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261-3267 (2000), available at http://www.pubklaw.com/hi/pl106-523.pdf (last visited Feb. 10, 2010) [hereinafter MEJA].
[2] See id.; The Uniform Code of Military Justice ("UCMJ") provides that, "[m]embers of a reserve component on inactive duty" and those "Retired members of a regular component of the armed forces who are entitled to pay" are subject to the UCMJ and may be court-martialed. 10 U.S.C. § 802(a)(3)-(4) (2000). Therefore, the term "former" includes only those ex-service members with no connection to the military in any manner subject to the UCMJ. Id.
[3] United States ex rel. Toth v. Quarles, 350 U.S. 11, 13 (1955).
[4] See Toth v. Quarles - A Gap in Jurisdiction, Law.jrank.org, at http://law.jrank.org/pages/25482/Toth-v-Quarles-Gap-In-Jurisdiction.html (last visited Feb. 10, 2010).
[5] See Toth v. Quarles - A Death in Korea, Law.jrank.org, at http://law.jrank.org/pages/25481/Toth-v-Quarles-Death-In-Korea.html (last visited Feb. 10, 2010).
[6] See id.
[7] Quarles, 350 U.S. at 23.
[8] See Reid v. Covert, 354 U.S. 1, 3 (1957).
[9] The Supreme Court made one decision for two cases because of their similarities. See id. at 4.
[10] Id.
[11] Id.
[12] Id. at 16.
[13] 10 U.S.C. § 802(a)(11).
[14] See Reid, 354 U.S. at 4-5.
[15] Id. at 40-41.
[16] See Robert Capps, Crime Without Punishment, Salon.com, Jun. 27, 2002, at
http://dir.salon.com/story/news/feature/2002/06/27/military/print.html (last visited Feb. 10, 2010) [hereinafter
Crime]; United States v. Gatlin, 216 F.3d 207, 209 (2nd Cir. 2000).
[17] See Capps, Crime, supra note 16.
[18] See Robert Capps, Outside the Law, Salon.com, Jun. 26, 2002, at
http://dir.salon.com/story/news/feature/2002/06/27/military/print.html ( last visited Feb. 10, 2010) [hereinafter
Outside].
[19] Id.
[20] Capps, Crime, supra note 16.
[21] See Elizabeth K. Waits, Avoiding the "Legal Bermuda Triangle": The Military Extraterritorial
Jurisdiction Act's Unprecedented Expansion of U.S. Criminal Jurisdiction over Foreign Nationals, 23 Ariz. J. Int'l
& Comp. L. 494, 494-542, (2006), available at
http://www.law.arizona.edu/Journals/AJICL/AJICL2006/vol232/Waits%20note.pdf.
[22] Capps, Crime, supra note 16.
[23] Dayton Peace Accords, 14 Dec. 1995, Bosn. & Herz.-Croat.-F.R. Yugo., annex 11 art. 2(6), Dec. 14, 1995,
U.S. Department of State Dispatch Supplement, vol. 7, no. 1 (1996), available at
http://www.state.gov/www/regions/eur/bosnia/bosagree.html (last visited Aug. 20, 2009).
[24] G.A. Res. 22, U.N. GAOR 6th Comm., 1st Sess., 31st plen. mtg., at §18, U.N. Doc. A/RES/22 A (I) (1946),
available at http://www.un.org/Depts/dhl/resguide/resins.htm (last modified 17 Jul. 2009).
[25] Capps, Crime, supra note 16.
[26] See Gatlin, 216 F.3d at 223.
[27] Id. at 209.
[28] Id. at 210.
[29] Id.
[30] Id. at 223.
[31] Id. at 209.
[32] Id. at 223.
[33] 18 U.S.C. §§ 3261-3267 (2000).
[34] Id. § 3261.
[35] Id. § 3267(1).
[36] Id. § 3261(b).
[37] Id. § 3261(d).
[38] See United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007) (defendant challenges District Court decision under
MEJA after conviction of voluntary manslaughter while accompanying the armed forces).
[39] Id. at 1160.
[40] Matt Krasnowski, Jury Weighs Fate of Woman Who Killed Husband in Turkey, San Diego Union Tribune, July 24, 2004, available at http://legacy.signonsandiego.com/uniontrib/20040724/news_1n24stab.html (last visited Feb. 10, 2010).
[41] Id.
[42] Id.
[43] Arnt, supra note 38, at 1159.
[44] Id. at 1162.
[45] U.S. Army, Article 15-6 Investigation of the 800th Military Police Brigade 16-17 (2004) available at
http://www.npr.org/iraq/2004/prison_abuse_report.pdf (last visited Feb. 10, 2010).
[46] David Dishneau, Abu Ghraib Officer's Sentence: Reprimand, USAToday.com, Aug.29 2007, available at
http://www.usatoday.com/news/nation/2007-08-28-1387601335_x.htm (last visited Feb. 10, 2010).
[47] Id.
[48] U.S. Army supra note 43, at 48.
[49] Id. at 17.
[50] Id. at 48.
[51] Id.
[52] Griff Witte, New Law Could Subject Civilians to Military Trial, Washington Post, Jan. 15, 2007, available at
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/14/AR2007011400906_pf.html (last visited Feb. 10, 2010).
[53] 18 U.S.C. § 3267 (2000).
[54] See, e.g., Glenn R. Schmitt, Amending the Military Extraterritorial Jurisdiction Act of 2000: Rushing to Close an
Unforeseen Loophole, The Army Lawyer 41, 42 (June 2005) available at
http://www.loc.gov/rr/frd/Military_Law/pdf/06-2005.pdf (last visited Mar. 16, 2010); Scott Shane, Some U.S. Prison
Contractors May Avoid Charges, Baltimore Sun, May 24, 2004, available at
http://www.baltimoresun.com/news/bal-te.contractor24may24,0,478317.story (last visited Feb. 10, 2010); André
Verlöy and Daniel Politi, Contracting Intelligence: Department of Interior Releases Abu Ghraib Contract, Center
for Public Integrity, July 28, 2004, available at http://projects.publicintegrity.org/wow/report.aspx?aid=361 (last
visited Feb. 10, 2010); Interior Dept.Halts Iraq Interrogator Contracts, MSNBC.com, May 25 2004, at
http://www.msnbc.msn.com/id/5060959 (last visited Mar. 16 2010).
[55] Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. Pub. L. No. 108-375, 118 Stat.
1811, § 1088 (2004), available at http://www.dod.mil/dodgc/olc/docs/PL108-375.pdf (last visited Feb. 10, 2010).
[56]18 U.S.C. § 3267 (2004) (emphasis added).
[57] Id. at § 3261.
[58] Brett Barrouquere, Steven Green Spared Death Penalty for Iraqi Rape, Murders, Huffington Post, May 21,
2009, at http://www.huffingtonpost.com/2009/05/21/steven-green-spared_death_n_206538.html (last visited Feb.
10, 2010).
[59] David Alsup, A Day in the Trial of Ex-Soldier Convicted of Murder in Iraq, CNN.com, May 17, 2009 at
http://www.cnn.com/2009/CRIME/05/17/iraq.soldier.sentencing/index.html (last visited Feb. 10, 2010).
[60] See, Barrouquere, supra note 59; Andrew Wolfson, Murders, Rape in Iraq Lead to Kentucky Court, Courier-Journal.com, Apr. 12, 2009, at http://www.courier-journal.com/article/20090412/NEWS01/90411008/1010/Murders+rape+in+Iraq+lead+to+Kentucky+court (last visited Feb. 10, 2010).
[61] See United States v. Green, No. 3:06-mj-00230-TBR, at 3 (W.D. Ky. 2006), available at http://www.kywd.uscourts.gov/3-06-00230/pdf/entry36.pdf (last visited Feb. 10, 2010).
[62] See Wolfson, supra note 59.
[63] Id.
[64] Id.
[65] Id.
[66] See id. Green's heinous actions are his own; however, there are strong allegations that the tragedy could have been prevented. Allegedly, the Army drastically lowered its recruiting standards for him; his military commanders kept him in the field even after he was diagnosed with "homicidal ideations" against Iraqi civilians; and, with no one held accountable for their abysmal care, the government used the MEJA to try Green in a federal court. See Wolfson, supra note 5. See also Allen Breed, Ex-GI Accused in Iraq Rape Had Rocky Past, Washington Post, July 6, 2006, at http://www.washingtonpost.com/wp-dyn/content/article/2006/07/06/AR2006070600150.html (last visited Feb. 10, 2010).
[67] Criminal Compl., United States v. Nazario, No. ED CR 07-127-SGL, (C.D. Cal 2007), available at
http://warchronicle.com/TheyAreNotKillers/Fallujah04/070816nazariocomplaint.pdf (last visited Feb. 10, 2010)
[hereinafter Nazario].
[68] Id. at 3.
[69] Id.
[70] Id. at 4.
[71] Id. at 3-4.
[72] Id. at 4.
[73] Nazario, supra note 68, at 1.
[74] Johnny Dwyer, Former Marine Jose Nazario Acquitted of All Charges in Fallujah Killings: Would Have Been First American Serviceman Convicted in Civilian Court for Battlefield Crimes, LA Weekly, Dec. 30, 2008, at http://www.laweekly.com/2009-01-01/news/former-marine-jose-nazario-acquitted-of-all-charges-in-fallujah-killings-would-have-been-first-american-serviceman-convicted-in-civilian-court-for-battlefield-crimes/ (last visited Feb. 10, 2010).
[75] See Olivia Zimmerman Miller, Murder or Authorized Combat Action: Who Decides? Why Civilian Court is the Improper Forum to Prosecute Former Military Service Members Accused of Combat Crimes, at 64 [hereinafter Miller] (unpublished manuscript, on file with author). Sergeant Nazario's actions are his responsibility; but, like Green, there is potential that they could have been prevented. While more research is required, this author found small indicators of an overly-aggressive command climate precipitated by his commanders; most notably Marine Major General (now General) James Mattis. See also Patrecia Slayden Hollis, Second Battle of Fallujah - Urban Operations in a New Kind of War, Field Artillery Journal, Mar.-Apr. 2006 at 4, available at http://sill-www.army.mil/FAMAG/2006/MAR_APR_2006/MAR_APR_06_PAGES_4_9.pdf (last visited Feb. 10, 2010); Robert D. Kaplan, Five Days in Fallujah, Atlantic, July/August 2004, at http://www.theatlantic.com/doc/200407/Kaplan (last visited Feb. 10, 2010); Eric Schmitt, General Is Scolded for Saying, "It's Fun to Shoot Some People," N.Y. Times, Feb. 4, 2005, available at http://www.nytimes.com/2005/02/04/politics/04marine.html (last visited Feb. 10, 2010).
[76] Miller, supra note 76, at 65-68.
[77] Quarles, supra note 3, at 18.
[78] Telephone Interview with Scott Wendelsdorf, Co- counsel for Steven Green (Aug. 17, 2009).
[79] Id.
[80] Id.
[81] Miller, supra note 76, at 45.
[82] Id.
[83] Telephone Interview with Kevin McDermott, Counsel for Jose Nazario (Fall 2009). See also Miller, supra note 76, at 51.
[84] Miller, supra note 76, at 64.
[85] This author makes no judgments on Green's life sentence as a lack of justice. Rather, a court-martial could have been more apt to subject him to the death penalty.
[86] Miller, supra note 76, at 46.
[87] McDermott, supra note 84.
[88] Id.
[89] Wendelsdorf, supra note 79.
[90] 18 U.S.C. § 3621(d)(2).
[91]Wendelsdorf, supra note 77.
[92] 10 U.S.C. § 919 (1956).
[93] Nazario, supra note 68, First Superseding Indictment, at ¶ 11; 18 U.S.C. § 924(a)(2) (2006).
[94] 145 Cong. Rec. S3634 (daily ed. Apr. 13, 1999) (statement of Sen. Sessions).
[95] Id.
[96] 146 Cong. Rec. S11183 (daily ed. Oct. 26, 2000) (statement of Sen. Sessions) (emphasis added).
[97] Id.
[98] H.R. Rep. no. 106-778, pt. 1, at 1 (2000).
[99] See id. at 5.
[100] Id. at 7 (emphasis added).
[101] Id. at 8 (emphasis added).
[102] Id. at 9. See also United States v. Gatlin, 216 F.3d 207 (2nd Cir. 2000) (Court forwarded the decision to the legislatures in regards to the jurisdictional gap with respect to civilians. Jurisdiction over military members is not mentioned.
[103] H.R. Rep. no. 106-778, pt. 1, at 9.
[104] See id.
[105] 146 Cong. Rec. S11183 (daily ed. Oct. 26, 2000) (statement of Sen. Leahy).
[106] Id.
[107] Id.
[108] Id.
[109] Gatlin, supra note 103, recall that the court found that extraterritorial jurisdiction did not exist to prosecute a civilian for sexually abusing his stepdaughter while he was accompanying his military wife overseas.
[110] 146 Cong. Rec. S11183, supra note 97.
[111] Quarles, supra note 3, at 21.
[112] United States v. Averette, 19 C.M.A 363, 365, 41 C.M.R. 363 (1970). In 2006 The UCMJ was amended to read, "[i]n time of declared war or a contingency operation, persons servicing with or accompanying an armed force in the field [shall be subject to this chapter.]" 10 U.S.C. § 802(a)(10) (emphasis added). A Canadian-Iraq contractor working in Iraq was recently pled guilty to several offenses in a U.S. military court. The constitutionality of § 802(a)(10) remains unchallenged. Contractor Convicted in Rare Court-Martial, Associated Press, Military Times, Jun. 23, 2008, available at http://www.militarytimes.com/news/2008/06/ap_contractor_courtmartial_062208/ (last visited Feb. 10, 2010).
[113] Capps, Crime, supra note 16.
[114] Paul L Bremer, Coalition Provisional Authority Order Number 17 (Revised), Jun. 27, 2004, available at http://www.cpa-iraq.org/regulations/20040627_CPAORD_17_Status_of_Coalition__Rev__with_Annex_A.pdf (last visited Feb. 10, 2010).
[115] Capps, Crime, supra note 16.
[116] 146 Cong. Rec. S11183 (daily ed. Oct. 26, 2000).
[117] See 22 U.S.C. § 7423(b)-(h).
[118] See 22 U.S.C. § 7427.
[119] The UCMJ provides that "members of a reserve component while on inactive-duty" and those "Retired members of a regular component of the armed forces who are entitled to pay" are subject to the UCMJ and may be court-martialed. 10 U.S.C.
§ 802(a)(3)-(4). The term "former" includes only those ex-service members with no connection to the military in any manner subject to the UCMJ. See id. at § 802(c).
[120] McDermott, supra note 84.
[121] Telephone Interview with Darren Wolff, Co-Counsel for Steven Green (Aug. 18, 2009).
[122] Quarles, supra note 3, at 21.
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