Have We Closed the Barn Door Yet? A Look at the Current Loopholes in the Military Extraterritorial Jurisdiction Act

Article excerpt

I.   INTRODUCTION
II.  THE HISTORY OF RECEDING MILITARY JURISDICTION
     OVER U.S. CIVILIANS
     A. How Was the Barn Door Opened in the First
        Place?
     B. What Is the Significance of the Evolution in
        Courts-Martial Jurisdiction?
     C. Did This Jurisdictional Gap Somehow Go
        Undetected Until 2000?
III. MEJA: A STEP TO LATCH THE BARN DOOR SHUT
     A. The Provisions of MEJA
     B. Is MEJA an Improvement?
     C. The Latch has Already Been Tightened Once
IV.  IS THE BARN DOOR TRULY SHUT?: TIGHTENING THE
     LATCH
     A. MEJA Only Applies to Members of the Military
        and Civilians Supporting the Department of
        Defense Mission
     B. Crimes Punishable by One Year or Less are
        Outside the Coverage of MEJA
     C. Implementing Regulations Have Not Been
        Enacted
     D. Citizens and Those Ordinarily Resident in the
        Host Nation Are Excluded
     E. Civilians Must Be Employed by a U.S. Federal
        Agency
V. CONCLUSION

The Military Extraterritorial Jurisdiction Act (MEJA), (1) was passed in 2000 to fill the jurisdictional gap that existed where host nation countries could not or would not prosecute crimes Americans. (2) This most often occurred when the committed by crime was committed only against an American or American property. (3) The Act, its application, and its shortcomings have gained widespread media attention from the prisoner abuse scandal at Abu Ghraib prison and the realization that civilian contractors may be responsible for some of the abuses, yet are immune from any criminal liability. (4) Discussing whether or not the barn door has finally been shut begs the questions: which horses were escaping from which barn, and why was the door open in the first place?

I. INTRODUCTION

Broadly speaking, the horses are U.S. citizens who commit crimes abroad, and the goal is to keep them within a barn where they may be prosecuted by the United States, if the host nation cannot or will not adequately prosecute the individuals. More realistically though, the horses have been defined narrowly as only two groups of people: those employed by or accompanying the Armed Forces outside the United States and those who are members of the Armed Forces. (5) This narrowing of applicability will be addressed later in this article, as it contributes to the gaps that still remain.

The U.S. Constitution is the document that builds the walls and roof of this particular barn. Specifically, it is the interplay of Article I courts with Article III courts, the Fifth Amendment, and the Sixth Amendment that truly provides the structure of the barn. (6) Article I, Section 8, Clause 14 of the Constitution allows Congress "to make rules for the Government and regulation of the land and naval Forces," as supplemented by the Necessary and Proper Clause of Article I, Section 8, Clause 18. (7) Article III provides for trial by jury; the Fifth Amendment requires indictment by a grand jury; and the Sixth Amendment guarantees the right to a speedy and public trial. (8) In essence, the barn is constructed by whichever of these provisions grants Congress the authority to extend jurisdiction to individuals accompanying or employed by U.S. Armed Forces outside the United States.

MEJA begins to close the jurisdictional gap. Part II of this article addresses the history of military jurisdiction over U.S. civilians and previous attempts to address the issue. Part III discusses the provisions of MEJA and how it has been used to narrow the jurisdictional gap. Finally, Part IV applies MEJA to current situations and analyzes the remaining jurisdictional gaps.

II. THE HISTORY OF RECEDING MILITARY JURISDICTION OVER U.S. CIVILIANS

A. How Was the Barn Door Opened in the First Place?

The barn door initially cracked open when the Supreme Court was forced to call into question "the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. …