Copyright (c) 2000 American Bar Association
Public Contract Law Journal
29 Pub. Cont. L.J. 233
LENGTH: 19686 words
RUCK UP: AN INTRODUCTION TO THE LEGAL ISSUES ASSOCIATED WITH CIVILIAN CONTRACTORS ON THE BATTLEFIELD
Michael J. Davidson
Michael Davidson is a Lieutenant Colonel in the U.S. Army JAG Corps. The opinions reflected in this article are those solely of the author and do not represent the position of any agency of the U.S. Government.
[*233] I. Introduction
The military is becoming increasingly dependent on U.S. civilian contractors to support its operations overseas. Civilian commercial airlines fly troops and cargo to and from overseas locations, where other civilian contractors support the military's logistical needs. Currently, contractors support U.S. military forces in such far-flung places as Bosnia, Albania, Qatar, and Kuwait.
Generally, contract support falls into four broad categories: (1) system contractors who service specific weapon systems or complex items of equipment; (2) contingency contractors who either receive a contract to support a specific operation or who provide logistical planning and support for potential operations under the Army's Logistics Civil Augmentation Program (LOGCAP); n1 (3) contractors who provide base operations support to remote overseas installations; and (4) contracts for various transportation services. However, much of the work required under these contracts place contractor [*234] employees in foreign countries where limited infrastructure and few protective international agreements exist and the potential for armed conflict looms constantly.
Joe A. Fortner and Ron Jaeckle, Institutionalizing Contractors on the Battlefield
, ARMY LOGISTICIAN, Nov.-Dec. 1998, at 11-12.
Government contract practitioners should become familiar with the legal issues arising in this ever-expanding area of federal procurement law, because the trend is to increase the military's reliance on contractors n2 and because such contracts are extremely lucrative for both companies n3 and their employees. n4 Additionally, professional military officers and others concerned about the welfare of our armed forces should also be familiar with the difficulties and risks that increased reliance on contractor support poses to the U.S. military forces when deployed to hostile overseas environments. Although all branches of the armed forces are involved with privatization and outsourcing of military functions, the Army has the greatest experience and has generated the most guidance in this area. Thus, this Article necessarily favors discussions involving the Army.
Bill McAllister, Shedding Reserve on Defense: OMB to Let Military Contract Out Thousands of Jobs
, WASH. POST, June 22, 1999, at 15 (suggesting that new Office of Management and Budget (OMB) rules may force military to contract out thousands of combat support positions); Steven Watkins
, AF Pushes Ahead with Acquisition Reform
, FED. TIMES, May 10, 1999, at 3 (stating that the Air Force intends to "provide better contracting support to deploying air forces by including contract personnel in deployments"); Major General Norman E. Williams and Jon M. Schandelmeir, Contractors on the Battlefield
, ARMY 33, Jan. 1999 (stating that "there is a trend toward using more contractors for sustainment"); ARMY MATERIAL COMMAND, PAMPHLET NO. 715-18, AMC CONTRACTOR DEPLOYMENT GUIDE FOR CONTRACTING OFFICERS, 1-1 (July 1996) (stating that "the use of contractors in the theater of operations is expected to increase") [hereafter AMC PAM 715-18].
n3 By 2004, one of the leading companies in this area, Brown and Root Service Corp. of Houston, Texas, will have been awarded Army contracts expected to be worth in excess of $ 2 billion. See Ron Laurenzo, Private Firm Continues Unrivaled Army Support, DEF. WK., May 10, 1999, at 5. See also Bryant Jordan, Civilians Could Play Large Part in Moving Refugees, AIR FORCE TIMES, Apr. 26, 1999, at 17 (stating that "for 1999, the mobility command will pay a minimum of $ 345 million to the long-range [civilian commercial] carriers and expects to award an additional $ 362 million in business above the guaranteed figure").
n4 Much of the income earned by U.S. citizens working for a contractor overseas is exempt from U.S. taxation. See 22 U.S.C. § 911 (1998).
II. Historical Background
U.S. military forces have relied to some extent on contractors for goods and services in every major war since the American Revolution. During the latter part of this century, however, contractors have increasingly found themselves in close proximity to hostile enemy forces.
As the U.S. military began its massive buildup in Vietnam, the Department of Defense (DoD) elected to employ U.S. contractors to perform various [*235] support functions. n5 Contractor support became critical to the war effort. By 1969, the peak fiscal year for Vietnam-based procurements, the Army Procurement Agency (Vietnam) awarded $ 236 million worth of contracts, n6 and U.S. contractors had approximately 9,000 civilian employees in that country. n7 Civilian contractors performed such diverse tasks as operation of electrical plants, aircraft maintenance and repair, field support of complex equipment, stevedore work, trucking services, intracoastal barge movement, beach and port clearance, vessel maintenance, facilities engineering support, and airfield and port facility construction. n8
n5 See MAJOR GENERAL GEORGE S. PRUGH, VIETNAM STUDIES: LAW AT WAR: VIETNAM 1964-1973, 96 (1991).
n6 See LTG JOSEPH M. HEISER, JR., VIETNAM STUDIES: LOGISTICAL SUPPORT 88 (1974).
n7 See PRUGH, supra note 5, at 88.
n8 See HEISER, supra note 6, at 45, 139, 161-164, 192; LTG CARROLL H. DUNN, VIETNAM STUDIES: BASE DEVELOPMENT IN SOUTH VIETNAM 1965-1970, 25 (1972).
Throughout the Vietnam conflict, the U.S. military emphasized competition in its procurement: n9 "contracts were solicited, negotiated, executed, and administered in a combat zone, all of the procurement actions taken were in accordance with Armed Services Procurement Regulations and pertinent Army procedures and instructions." n10 The military authorized no deviations or waivers from stateside procurement procedures. n11 The most frequently awarded contract was the cost-plus-fee type. n12 Reflecting upon military operations in Southeast Asia, the Army included among its lessons learned that contractor support in a war zone was "feasible and workable" n13 and that military logistics needed a preplanned methodology for using such support. n14
n9 See HEISER, supra note 6, at 119 (stating that the "emphasis at the highest levels of government [is] on obtaining maximum competition . . .").
n10 Id. at 89.
n11 See id.
n12 See DUNN, supra note 8, at 26.
n13 HEISER, supra note 6, at 260.
n14 See Major Camile M. Nichols, The Logistics Civil Augmentation Program, MIL. REV., Mar.-Apr. 1996, at 65.
The need for civilian contractor support was again emphasized during our last major ground war. During Operation Desert Shield, approximately 800 civilian contractor employees were deployed to the Persian Gulf. n15 This number rose to 950 by the time Allied forces launched offensive operations during Operation Desert Storm. n16
n15 See Major Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 MIL. L. REV. 114, 148 (1995).
n16 See id. "Contractors maintained highly technical weapon systems such as Apache helicopters, Bradley Fighting Vehicles, Abrams tanks, laser target designators, multiple launch rocket systems, and Patriot missiles." Id. Cf. U.S. Apache Gunships Hold Dress Rehearsal, ATLANTA J.-CONST., May 15, 1999, at A10 (stating that "because of highly sophisticated avionics, navigation system, as well as other technology, the Apaches needed a large staff of technicians to keep them in operation during the Iraq war").
[*236] Since the Gulf War, the military has increasingly relied on civilian contractors to meet its logistical needs in unsettled regions of the world, most notably in the Middle East, the Horn of Africa, and the Balkans, primarily due to increasing budgetary pressures and a concurrently downsized military force structure. An example will serve to illustrate the military's increased reliance on contractors. The Army established a "prepositioned storage site and logistics base" at Camp Doha, in Kuwait, shortly after the war ended. The base was positioned only forty-five miles from the Iraqi border. n17 In September 1994, to support its forward presence in Kuwait, the Army awarded a $ 240 million cost-plus-fixed fee/award fee combat service support contract to ITT Federal Services International. n18 ITT maintained prepositioned equipment for a brigade-sized task force, provided quality-of-life facilities and services, and served as the camp's security guard force. n19
n17 See Captain Clementine Owens, Logistics Between the Gulf and Sand, ARMY LOGISTICIAN, Sept.-Oct. 1997, at 17.
n18 See id. at 18.
n19 See id.
At the time that this Article was written, the greatest contractual support effort was in the Balkans. Initially, the Army contracted support services for Bosnia under the LOGCAP program. After the original contractor, Brown and Root Services Corporation of Houston, Texas, lost the follow-on LOGCAP contract competition in 1997, the Army elected to award a solesource contract to Brown and Root to ensure continuity of the support effort in Bosnia. n20 Currently, civilian contractors in Bosnia provide over fifty types of support ranging from exercise machines to helicopter maintenance. n21
LTC Darrel A. Williamson, Contracted Logistics in Bosnia
, ARMY LOGISTICIAN, May-June 1998, at 21.
n21 See Ron Laurenzo, When Contractors Work the Front Lines, DEF. Wk., April 5, 1999, at 8.
When U.S. forces began to build up in Albania in support of military operations against Serbia, the Army relied on the previously awarded contract to call on Brown and Root to provide logistical support. n22 The company built base camps, directed ground traffic, unloaded cargo from arriving aircraft, and provided maintenance and transportation services. n23 After the hostilities ended and the United States decided to commit peacekeeping troops to Kosovo, Brown and Root was called in again to build base camps. n24
n22 See Brown & Root Supports U.S. Forces in Albania, FED. TIMES, May 10, 1999, at 13.
n23 See id.; see also Laurenzo, supra note 3, at 5.
n24 See Kevin Dougherty, Base Camps' Budget at $ 50 Million, EUROPEAN STARS AND STRIPES, June 23, 1999, at 3.
[*237] III. LOGCAP
In the wake of Vietnam, military logisticians recognized that they needed to plan for the use of civilian contractors in future operations. By 1985, with a shrinking budget and limited logistical capability, Army planners concluded that contractors were necessary to fill the gaps in the Army's logistical support plan. n25 The LOGCAP program was born.
n25 See GENERAL ACCOUNTING OFFICE, CONTINGENCY OPERATIONS: OPPORTUNITIES TO IMPROVE THE LOGISTICS CIVIL AUGMENTATION PROGRAM 2 (1997) (GAO/NSIAD-97-63) [hereinafter GAO Report].
LOGCAP involves a combination of advanced acquisition and logistics planning to provide "for the use of civilian contractors during wartime and unforeseen military emergencies" in order to supplement the Army's logistic and service support capability. n26 LOGCAP permits the military to plan for future crises and to make use of extensive civilian resources both in the United States and overseas. n27 The LOGCAP program evolved from an Army program with the ability to procure several contracts into "a single, centrally managed worldwide planning and services contract" that is available for use by the other branches of the military. n28 Although they have previously relied on the LOGCAP program for support, the Navy and Air Force have elected to create their own contractor support programs. n29
n26 LOGISTICS CIVIL AUGMENTATION PROGRAM, GLOSSARY, DEP'T OF ARMY, REG. NO. 700-137 (16 Dec. 1985) [hereinafter AR 700-137].
n27 See GAO REPORT, supra note 25, at 2.
n28 Id. Originally, Army components of unified commands contracted for services, but this system was changed in 1992 to permit centralized procurements. See id.
n29 See id. at 5. The Navy awarded a LOGCAP-type contract in August 1995 and used it for the first time to repair hurricane damage to one of its domestic bases. See id. The Navy and Air Force posit that separate programs will enhance "contractor responsiveness and control. . . ." Id.
A LOGCAP contract requires the contractor to plan for and deliver logistical services on short notice anywhere in the world in any type of contingency operation or military conflict. n30 Initial LOGCAP tasks are defined broadly, with requirements and specifications changing on a frequent basis until conditions stabilize. n31 Indeed, during the U.S. military's initial entry into Bosnia, the LOGCAP required a contractor to begin performance before the Army's requirements were fully defined. n32
n30 See Fortner and Jaeckle, supra note 1, at 12; Nichols, supra note 14, at 66.
n31 See Alan I. Moses, Contingency Funding Logistics Civilian Augmentation, RESOURCE MGMT. 28 (3rd qtr. 1998).
n32 See id.
Although LOGCAP has existed as a formalized concept since 1985, the Army did not award its first LOGCAP procurement until August 1992. n33 This contract was a base-plus-four-option-years, cost-plus-award-fee contract [*238] to Brown and Root Services Corporation. n34 Shortly thereafter, President Bush announced that U.S. forces would be dispatched on a humanitarian mission to Somalia. n35 Tasked with establishing the initial U.S. presence and securing the area for subsequent Army-directed humanitarian relief efforts, the Marine Corps asked for LOGCAP support. n36 Brown and Root employees arrived in Somalia within a day of the Marine arrival, operated with minimal warning and no advanced planning for logistical support to this area, and remained until the end of the U.S. military presence in March 1994. n37 The ultimate cost for civilian contractor support under the LOGCAP contract was $ 104 million. n38
note 14, at 66.
n34 See id. The contractor earned a base fee of 1 percent of the estimated contract cost and up to 9 percent of the cost estimate as an incentive fee. See GAO REPORT, supra note 25, at 2 n.1.
n35 See id. at 67.
n36 See id.
n37 See id.
n38 See id.
The LOGCAP program was a resounding success. Contractor services provided in Somalia included "base camp construction, maintenance and repair, food supply and service; laundry service, field showers and latrines; generator servicing and power production; water production and distribution; portable toilet servicing; solid waste management; bulk petroleum handling; and transportation and linguistic support." n39
n39 Id. at 67-68.
Since Somalia, LOGCAP has been used successfully in Rwanda, Haiti, Saudi Arabia, Kuwait, Italy, and Bosnia. n40 In Bosnia, LOGCAP contractors provided an extensive array of services. These services included construction and maintenance of base camps and shower facilities, food service, shuttle bus service, mail delivery, the delivery of both bulk fuel and water, and railhead and seaport operations. n41
GAO REPORT, supra
note 25, at 7.
n41 See id.
Although an extremely flexible procurement tool, LOGCAP suffers from a major shortcoming -- utilization of expensive cost-plus-award-fee contracts. Prior to its deployment to Bosnia in 1995, the Army paid over $ 250 million for its logistical support, n42 and by the end of the first year of use in the Balkans, LOGCAP costs totaled another $ 459 million. n43
n42 See Laurenzo, supra note 3, at 5.
n43 See Moses, supra note 31, at 28. Additionally, the hectic and unsettled nature of the operation made capturing costs difficult, and due to ever-changing government taskings, standards, and scopes of work, the contractor's weekly cost projections fluctuated wildly. See id.
IV. Criminal Jurisdiction
An issue that will arise in any future military operation for both military and contractor legal advisors is the scope of domestic and foreign criminal [*239] jurisdiction over civilian contractor employees who engage in misconduct. Although foreign jurisdiction is limited only by international agreement, U.S. jurisdiction is extremely limited, particularly for the military, whose courts-martial jurisdiction suffered a major setback during the Vietnam era.
Between November 1966 and August 1968, military authorities in Vietnam reviewed sixteen civilian cases for prosecution, received State Department authority to pursue six, and ultimately tried four. n44 One of the civilians tried and convicted by a general court-martial was William Averette, an employee of an Army contractor. Averette was convicted of conspiracy to commit larceny and of the attempted larceny of 36,000 batteries owned by the United States, n45 and sentenced to one year's confinement and a $ 500 fine. n46 Military jurisdiction was predicated on Article 2(10) of the Uniform Code of Military Justice (UCMJ). n47 The UCMJ subjects to military law "[in] time of war, persons serving with or accompanying an armed force in the field." n48 In United States v. Averette, n49 however, the U.S. Court of Military Appeals held that the phrase "in time of war" meant "a war formally declared by Congress." n50 The military was without jurisdiction to prosecute Averette because the Vietnam conflict was not a declared war. Thus, the court reversed the conviction and ordered all charges dismissed. n51
n44 See PRUGH, supra note 5, at 109. The State Department authorized the military to obtain a waiver of jurisdiction from the Vietnamese in six cases, but various problems arose, thereby causing the military to drop charges against two of the civilians accused of the crime. See id. One of the four civilians actually tried by court-martial was Merchant Seaman James H. Latney, who was convicted of unpremeditated murder and sentenced to fifteen years' confinement. See LTC GARY D. SOLIS, MARINES AND MILITARY LAW IN VIETNAM: TRIAL BY FIRE 99-103 (1989).
n45 See id. at 168.
n46 See id. at 109-10.
n47 10 U.S.C. § 802(a)(10).
n48 Id. Cf. Perlstein v. United States, 151 F.2d 167 (3d Cir. 1945) (upholding military jurisdiction over civilian contract employee who stole jewelry while employed on a World Ward II Army contract in Eritrea).
n49 19 C.M.A. 363, 41 C.M.R. 363 (1970).
n50 41 C.M.R. at 365.
n51 See id. at 365-66.
Federal criminal jurisdiction is slightly less limited. n52 Federal criminal law is presumed not to enjoy extraterritorial application, n53 and only a limited [*240] number of criminal statutes extend to U.S. nationals engaging in misconduct overseas. n54 Significantly, 18 U.S.C. § 7 contains one of the broadest grants of federal criminal jurisdiction overseas. This section extends federal criminal jurisdiction to certain crimes committed within the "special maritime and territorial jurisdiction of the United States," including "most common law felonies such as assault, theft, robbery, murder, and manslaughter." n55 Generally, to fall within this jurisdictional category, an overseas crime must be committed (1) on the high seas or "within the admiralty and maritime jurisdiction of the United States"; (2) on a U.S. vessel; (3) on "lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof"; (4) in U.S. aircraft flying over the high seas; (5) on spacecraft; (6) at a location outside the jurisdiction of any other country involving an offense against a U.S. national; or (7) on a foreign vessel departing from or arriving in the United States. n56 Within this jurisdictional ambit, case law has included crimes committed at a U.S. embassy and at the U.S. Naval Base, Guantanamo Bay, Cuba. n57
n52 See Gibson, supra note 15, at 135 (stating that "the United States cannot generally try citizens for felonies they commit on foreign territory"); Nick Adde, Overseas Civilians Could Face Military Courts, ARMY TIMES, June 21, 1999, at 24 (stating that "in most cases, U.S. federal criminal laws do not apply to civilian crimes that occur overseas").
n53 See United States v. Dawn, 129 F.3d 878, 882 (7th Cir. 1997); United States v. Kolly, 48 M.J. 795, 796 (N.M. Ct. Crim.App. 1998) (stating that "federal criminal statutes are generally presumed not to apply extraterritorially"). See also Major Mark R. Ruppert, Criminal Jurisdiction over Environmental Offenses Committed Overseas: How to Maximize and When to Say "No," 40 AIR FORCE L. REV. 1, 14 (1996) (stating that there is a "rebuttable presumption that U.S. laws apply only territorially"). Contra United States v. Felix-Gutierrez, 940 F.2d 1200, 1204-05 n.3 (9th Cir. 1991), cert. denied, 508 U.S. 906 (1993).
n54 See Gibson, supra note 15, at 134-34 n.140 (stating that "Congress has passed some criminal statutes that have extraterritorial effect, but they are limited in scope") (citing 18 U.S.C. § 1116, murder of internationally protected person; 18 U.S.C. § 2331, international terrorism; and 18 U.S.C. § 7, special maritime and territorial jurisdiction.); accord Ruppert, supra note 53, at 18.
n55 Gibson, supra note 15, at 135. See also 18 U.S.C. § 81, arson; 18 U.S.C. § 113, assault; 18 U.S.C. § 114, maiming.
n56 18 U.S.C.A. § 7 (West 1969 & Supp. 1999).
n57 See United States v. Erdos, 474 F.2d 157 (4th Cir. 1973) (holding that "18 U.S.C. § 7(3) is a proper grant of 'special' territorial jurisdiction embracing an embassy in a foreign country acquired for the use of the United States and under its concurrent jurisdiction"); Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028, 1040 (E.D.N.Y. 1993) ("The U.S. Naval Base at Guantanamo Bay, Cuba, is subject to the exclusive jurisdiction and control of the United States where the criminal and civil laws of the United States apply."). But cf. Ruppert, supra note 53, at 19 (18 U.S.C. § 7 does not extend to military bases overseas).
Although efforts are underfoot to expand criminal jurisdiction over civilians overseas, n58 the general rule is that neither the UCMJ nor federal criminal law has jurisdiction over U.S. civilians who commit crimes on foreign soil. n59 A significant exception to this rule (permitting military court-martial of U.S. civilian contractor employees) exists in Article 2(4) of the UCMJ. This article authorizes military prosecution of "retired members of a regular component of the armed forces" who are entitled to receive a military pension. n60 To illustrate, in Sands v. Colby, n61 a retired Army sergeant major working as a [*241] civilian employee of the U.S. Military Training Mission in Saudi Arabia was prosecuted for the crime of murder by a military court-martial after killing his wife in that country. n62 Similarly, retired members of the U.S. Navy and Marine Corps who are transferred to the Fleet Reserve or the Fleet Marine Corps Reserve, respectively, are also subject to military court-martial. n63 This exception to the jurisdictional bar to trying American civilians in U.S. courts for misconduct overseas is significant because a large percentage of civilian contractor employees who work on DoD contracts are retired military. n64
n58 Senators Jeff Sessions and Mike DeWine have proposed legislation making Department of Defense (DoD) civilian employees and contractors subject to the Uniform Code of Military Justice and other civilians subject to federal criminal jurisdiction. See Nick Adde, U.S. May Prosecute Dependents Overseas, AIR FORCE TIMES, May 31, 1999, at 16.
n59 See Gibson, supra note 15, at 114.
n60 10 U.S.C. § 802(a)(4). The military also enjoys jurisdiction over "members of the Fleet reserve and Fleet Marine Corps reserve." 10 U.S.C. § 802(a)(6).
n61 35 M.J. 620 (A.C.M.R. 1992).
n62 See id.
n63 See 10 U.S.C. § 802(a)(6). See also United States v. Overton, 24 M.J. 309 (C.M.A.), cert. denied, 484 U.S. 976 (1987) (court-martialing of a Marine gunnery sergeant). Retired members of the sea services in the Fleet Reserve and Fleet Marine Corps Reserve may be recalled to active duty during periods of national emergency. See id. (citing 10 U.S.C. § 6485(a)).
n64 See Laurenzo, supra note 3, at 5 (stating that "typically, logistics providers such as Brown & Root and DynCorp employ former officers -- often retired Army Colonels -- to run their foreign operations . . ."); Laurenzo, supra note 21, at 8 (finding that "a majority of the contractors are ex-military people . . .").
A second exception is found in the recently enacted War Crimes Act of 1996. n65 This act provides for federal criminal jurisdiction over members of the armed forces and U.S. nationals who commit war crimes either in the United States or abroad. n66 Unlike Article 2 of the UCMJ, this statute is not predicated on a congressionally declared war. Further, the term "war crime" is broadly defined to include (1) grave breaches of the Geneva Conventions of 1949 and any protocol to which the United States is a party; (2) acts prohibited by specified provisions of the Hague Convention of 1907; (3) violations of common Article 3 of the Geneva Conventions, which article applies to noninternational armed conflict; and (4) the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. n67
Pub. L. No. 104-192, codified at 18 U.S.C. § 2441.
n66 See id.
n67 See 18 U.S.C. § 2441(c).
Although U.S. courts possess only limited jurisdiction over misconduct committed by U.S. contractor employees on foreign soil, the same cannot be said for the courts of the nation in which the contract is performed. Absent protective language in an international agreement, U.S. civilian contractor employees remain subject to the criminal laws of the host nation in which they work. n68
note 15, at 115.
The absence of a legal protective umbrella for U.S. contractors overseas is a significant and recurring problem. In Vietnam, for example, U.S. contractor employees were subject to Vietnamese law, although Vietnamese officials were often hesitant to exercise their jurisdiction. n69 More recently, contractors [*242] were not included in the omnibus agreement with Hungary, where U.S. forces and supporting contractors were deployed in support of Operation Joint Endeavor in Bosnia. n70 Contractors can expect to deploy on short notice with no Status Of Forces Agreement (SOFA) or other international agreements addressing criminal and civil jurisdiction. Indeed, the LOGCAP program was specifically designed for use primarily in countries where no formal treaties or international agreements with the United States exist. n71 In Somalia, not only were international agreements nonexistent, "there was no local law or government at any level." n72
note 5, at 92 (noting that contractor employees are subject to Vietnamese law; however, "the Vietnamese . . . were not eager to try U.S. civilians in cases where no serious bodily harm was inflicted on Vietnamese citizens, or where legal proof might be difficult to obtain as in black market activities or currency manipulation cases, or where the major harm caused by the offense was to the United States, as in cases of theft of U.S. property."). But cf.
note 44, at 99 (noting that two U.S. civilian contract employees were awaiting trial by the Vietnamese, one employee for negligent homicide and one for aggravated assault).
n70 See David L. Young, Planning: The Key to Contractors on the Battlefield, ARMY LOGISTICIAN, May-June 1999, at 10, 11.
n71 See AR 700-137, P2.1(b).
n72 Major Timothy P. Bulman, A Dangerous Guessing Game Disguised as Enlightened Policy: United States Law of War Obligations During Military Operations Other Than War, 159 MIL. L. REV. 152, 168 (1999) (emphasis added).
In the absence of criminal jurisdiction, the U.S. Government must rely on its arsenal of administrative sanctions to deal with contractor employee misconduct. Overseas officials may withdraw all privileges, such as the use of medical facilities, dining facilities, and base exchanges; bar the individual from entry upon the installation; and invoke any contractual remedies. Further, the Government may request that the contractor employee be suspended or debarred from all current and future federal contracts. n73
n73 See FAR 9.406 (debarment) and FAR 9.407 (suspension).
As a historical illustration, U.S. military authorities relied on a Vietnamese citizen arrest law to apprehend contractor employees engaged in misconduct and to issue and enforce "police regulations." n74 Misbehaving employees also lost military privileges and were barred from employment on U.S. contracts in Vietnam. The Military Assistance Command Vietnam's (MACV) administrative debarment program was based on Defense Procurement Circular 73 (DPC-73). Formalized in 1969 and made a mandatory clause in all government contracts, DPC-73 required all contractor employees to obey MACV rules and standards of conduct. n75 Contractors agreed to terminate the employment of any employee debarred by MACV. n76 The number of debarred individuals grew from seventy-five in January 1968 to 943 by April 1971. n77 The vast majority of debarments -- over 90 percent -- were for "currency manipulation, smuggling, or postal and black market violations." n78
n74 PRUGH, supra
note 5, at 109. However, the police regulations could not be in conflict with either U.S. or Vietnamese laws. See id.
n75 See id. at 110.
n76 See id.
n77 See id.
n78 Id. at 111. Other bases for debarment included "firearms violations, larceny of government property, and serious driving offenses." Id.
[*243] V. Legal Status Under International Law
Throughout history, U.S. civilian contractor employees have performed their jobs under dangerous conditions and can be expected to do so again in the future. More than 1,000 civilian construction workers were stranded with the Marines when Japanese forces attacked Wake Island in December 1941. n79 In Vietnam, U.S. civilians worked on major construction projects in combat areas, occasionally working alongside military engineer soldiers. n80 During Desert Storm, thirty-four contractor employees actually crossed into Iraq with U.S. forces during the ground offensive. n81 Currently, U.S. contractor employees support U.S. forces in Kuwait -- a country still designated as a hostile-fire area. Because contractors may be unwilling participants in military combat operations, a discussion of their legal status under international law is germane.
n79 See LTC FRANK O. HOUGH ET AL., PEARL HARBOR TO GUADALCANAL: HISTORY OF U.S. MARINE CORPS OPERATIONS IN WORLD WAR II 95 (1958). During the ensuing battle "approximately ten percent of the civilians volunteered for military or defensive duties, and some attempted to enlist." Id. at 110 n.16. Several civilian construction workers openly engaged the invading Japanese forces, manning anti-aircraft guns, or directly attacking Japanese soldiers with small arms and hand grenades. See id. at 127, 135, and 137. Following the Japanese conquest of Wake Island, the Japanese treated captured civilians no differently -- or better -- than captured U.S. servicemen. See E. BARTLETT KERR, SURRENDER & SURVIVAL: THE EXPERIENCES OF AMERICAN POWS IN THE PACIFIC 1941-1945, 38-41 (1985).
n80 See DUNN, supra note 8, at 42.
n81 See Gibson, supra note 15, at 148.
During international armed conflicts, n82 the Geneva Convention Relative to the Treatment of Prisoners of War provides prisoner of war (POW) status to several categories of persons found on the battlefield, including civilian contractors accompanying a military unit who are captured by enemy forces. n83 As a condition precedent to POW status, the contractor employees must be authorized to accompany the friendly military unit. n84 Friendly forces are required to issue identity cards to contractor employees as proof of their protected status. n85 Possession of such a card, however, is not "an indispensable condition of the right to be treated as a prisoner of war but a supplementary safeguard." n86 Contractor employees who lose or who were never issued an [*244] identification card retain their POW status until a final status determination is made by "a competent tribunal." n87
n82 International armed conflicts are characterized by "state versus state conflict." Major Richard M. Whitaker, Civilian Protection Law in Military Operations: An Essay
, ARMY LAW. 3, 4 n.14 (Nov. 1996).
n83 See Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 4(A)(4) ("Persons who accompany the armed forces without actually being members thereof, such as . . . supply contractors. . . .") [hereinafter Geneva Convention].
n84 See Geneva Convention, art. 4(A)(4) ("Provided that they have received authorization from the armed forces which they accompany. . . ."). See also JEAN S. PICTET, COMMENTARY, III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, INTERNATIONAL RED CROSS, GENEVA, ART. 4, 65 (1960) ("The application of this provision is therefore dependent on authorization to accompany the armed forces. . . .").
n85 See Geneva Convention, art. 4(A)(4).
n86 PICTET, supra note 84, at 65; Geneva Convention, art. 4(A)(4). See also Dep't of the Army Policy Memorandum -- Contractors on the Battlefield (Dec. 12. 1997) (providing that "when the United States is a participant in an international armed conflict, contractors are entitled to be protected as Prisoners of War (POWs) if captured by a force that is a Geneva/Hague Convention signatory. To ensure proper treatment, contractors will be provided with a Geneva Conventions (DD Form 489) or similar Identification Card."
n87 Geneva Convention, art. 5; PICTET, supra note 84, at 77.
A well-known military maxim applies with equal force to captured civilian contractor employees: rank has its privileges. The detaining power may require that certain classes of POWs, once captured, work in areas having no direct military character or purposes. n88 Permissible classes of work include agriculture; certain industries; transportation and handling of nonmilitary stores; commercial businesses; arts and crafts; domestic service; public utilities; and camp administration, installation, and maintenance. n89 Noncommissioned officers, however, can be required to serve as supervisors but cannot be compelled to perform manual labor. n90 Officers or POWs of equivalent rank may not be required to work at all. n91 Additionally, the POW's rank determines the amount of advanced pay that the POW may receive while in captivity. A Category I may receive the equivalent of eight Swiss francs. n92 By contrast, Category IV, the highest possible category for a contractor employee, may receive up to the equivalent of sixty Swiss francs. n93
n88 See Geneva Convention, art. 50.
n89 See id.
n90 See Geneva Convention, art. 49; PICTET, supra note 84, at 262 (noting that "the term 'supervisory work' is generally recognized as denoting administrative tasks which usually consist of directing the other ranks; it obviously excludes all manual labour").
n91 See id. (noting that "officers may not be compelled to work").
n92 See Geneva Convention, art. 60.
n93 See id.
The drafters of the Geneva Conventions did not delineate the status of contractor employees beyond generically conferring POW status on such employees. Prisoners with a status equivalent to that of an officer include journalists and war correspondents and, "in some armies, certain noncommissioned officers . . . [are] considered to be of equivalent status to officers without having all the prerogatives of the latter." n94
n94 PICTET, supra note 84, at 250.
Article 43 of the Geneva Convention Relating to the Treatment of POWs (GPW) requires each country involved in an international conflict to provide information to opposing countries concerning the titles and ranks of all persons entitled to POW status, including civilian contractors. n95 The purpose of this exchange is "to ensure equality of treatment between prisoners of equivalent rank." n96 Department of Defense Instruction 1000.1 n97 contains [*245] equivalent rank guidance, providing that "contractor representatives and employees . . . will be assigned by the DoD Component concerned to an appropriate category, normally in the range of Categories I [below the rank of Sergeant] through IV [Field Grade Officer], based upon the individual's standing in his profession or line of work and the difficulty and responsibility of the duties to be performed." n98 This rank equivalency should appear on the individual's identity card. Designated rank equivalencies, however, do not serve as a grant of authority to civilians over military service members. n99
Geneva Convention, art. 43.
n97 See Dep't of Defense Instruction No. 1000.1, Identity Cards Required by the Geneva Conventions (Jan. 30, 1974, with changes to June 5, 1991) [hereinafter DoD Inst. 1000.1].
n98 Id. at enclosure 3 P d.
n99 See id. P VI. B.
Significantly, civilian contractor employees may lose their protected status as POWs if they engage enemy forces and are subsequently captured. Although afforded POW status, contractor employees are still civilians. n100 When these civilians take up arms against the enemy, they become a form of combatant, the legality of whose actions depends upon whether or not they satisfy the criteria for recognition as another type of POW under Article 4, GPW. If these civilians do not meet the GPW criteria, they are subject to the capturing force's laws and may be tried and sentenced in accordance with those laws. n101 An enemy tribunal stands on relatively secure legal ground in determining that a captured contractor employee dressed in a military-issued or military-style uniform who carries a weapon and services a piece of sophisticated military equipment, or performs some other military-oriented task, is no longer a mere civilian accompanying the force but is actually participating in hostilities on behalf of the United States.
Lieutenant Commander Stephen R. Sarnoski, The Status under International Law of Civilian Persons Serving with or Accompanying Armed Forces in the Field
, ARMY LAW. 29, 31 (July 1994) (noting that "persons serving with or accompanying the armed forces are civilians who
, by virtue of their peculiar status with regard to the parties to an armed conflict, are afforded privileged treatment as prisoners of war on falling into enemy hands").
n101 See DEP'T OF ARMY, FIELD MANUAL NO. 27-10, THE LAW OF LAND WARFARE (1956), at 34, P80 (stating that "persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents [see Geneva Convention, art. 4] are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.") [hereinafter FM 27-10]. See also FM 27-10 at 34, P81 (same standard applied for acts committed "about or behind the lines of the enemy . . .").
The law in this area is less clear for noninternational armed conflicts, such as civil wars, and for conflicts not rising to the level of an armed conflict, categorized by the U.S. military as Military Operations Other Than War (MOOTW). n102 The only provision of the Geneva Conventions addressing [*246] internal armed conflicts is Article 3. This article merely requires "humane" treatment for those persons who are no longer actively engaged in the hostilities. n103 Although not specifically mentioned, contractor employees falling into captivity are entitled to "humane" treatment, assuming that the belligerent force elects to follow international law.
n102 See DEP'T OF ARMY, FIELD MANUAL NO. 100-5, OPERATIONS, 2-0 (14 June 1993) [hereinafter FM 100-5]. FM 100-5 defines Military Operations Other Than War (MOOTW) as "military activities during peacetime and conflict that do not necessarily involve armed clashes between two organized forces." Unfortunately, the dividing line between MOOTW and a higher order of armed conflict is not always clear. Operation Just Cause (the invasion of Panama) and Operation Urgent Fury (the invasion of Grenada) were initially considered by the Army to be MOOTW operations. Whitaker, supra note 82, at 34 n.261. The United States eventually conceded that "'de facto hostilities existed and that the article 2 threshold was satisfied'" for Urgent Fury; and, although the United States characterized Operation Just Cause as a noninternational conflict, that characterization was rejected by the federal judge overseeing the trial of Panamanian General Noriega. Whitaker, supra note 82, at 4 n.14 (citing United States v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992)). The Army's doctrinal manual itself notes that MOOTW "may precede and/or follow war or occur simultaneously with war in the same theater." FM 100-5 at 13-1.
n103 See, e.g., Geneva Convention, art. 3. Persons no longer participating in hostilities include, but are not limited to, "members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. . . ." Id.
Protocol II to the Geneva Conventions, n104 specifically designed to regulate noninternational armed conflicts, supplements that body of law. Although the United States signed the Protocol in 1977, it has not yet ratified it. Approximately 136 nations, however, have signed that treaty into law. n105 Accordingly, most, if not all, of Protocol II enjoys the status of customary international law and thereby binds the conduct of the international community. n106
n104 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, reprinted in DEP'T OF ARMY, PAMPHLET NO. 27-1-1, PROTOCOLS TO THE GENEVA CONVENTIONS OF 12 AUGUST 1979 (Sept. 1979).
n105 See Whitaker, supra note 82, at 33.
n106 See id. at 33 n.250 (stating that the "United States considers virtually all of Protocol II . . . to reflect customary international law").
Article 4, Protocol II, expands the common protections of Article 3 by providing that all persons under a nation's control are entitled to be "treated humanely" and "are entitled to respect for their person, honour and convictions and religious practices." n107 Conduct specifically prohibited by this treaty includes violent behavior that could affect a person physically or mentally, collective punishment, hostage taking, terrorist acts, humiliating or degrading treatment including sexual assaults, any form of slavery, pillage, and threats to engage in prohibited conduct. n108 If taken into captivity because of involvement in the armed conflict, contractor employees are entitled to certain basic rights. These rights include the provision of food and water and working conditions comparable to those of the local civilian populace, segregation by gender, basic mail privileges, necessary medical care, and evacuation away from the combat zone. n109
n107 Protocol II, art. 4.
n108 See id. art. 4(2).
n109 See id. art. 5, 7.
[*247] The protections of Protocol II, however, are not easily invoked. For the treaty to be applicable, at least one of the warring parties must be a bona fide government and the opposing force must be organized, under responsible command, in control over some portion of territory, and capable of implementing the Protocol. n110
n110 See id.
art. 1(1). See also
Ewen Allison et al., Gray Areas in International Humanitarian Law, in
CRIMES OF WAR 158 (1999) (stating that "to apply Protocol II, at least one of the parties to the conflict must be a government, defined as a generally recognized regime that has a right and duty to exert authority over a population and provide for its needs").
In a recent controversial decision, n111 the International Court of Justice's Appeals Chamber posited that some aspects of customary international law extend to internal conflicts. n112 In Prosecutor v. Dusko Tadic, n113 the defense appealed to the Appeals Chamber from a jurisdictional determination of the United Nations International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia. n114 Prior to Tadic, protections for civilians during internal armed conflicts were generally considered limited to the provisions of common Article 3 of the Geneva Conventions and to the Geneva Protocol II of 1977. n115 In Tadic, however, the Appeals Chamber held that, assuming the existence of an "armed conflict," n116 many aspects of customary international law -- including general rules for the protection of civilians -- apply to internal conflicts. n117 In short, the court extended the reach [*248] of rules and principles of war normally applicable only during international conflicts to civil wars and other internal conflicts. n118
n111 One legal commentator described the Appeals Chamber's ruling as "noteworthy, if not revolutionary. . . ." Bulman, supra
note 72, at 163.
n112 See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Oct. 2, 1995), reprinted in 35 I.L.M. 32, 69 (1996) (finding that "it cannot be denied that customary rules have developed to govern internal strife"). See also Bulman, supra note 72, at 167. This decision was subsequently followed in Prosecutor v. Furundzija, Case No. IT-95-17/1-T (1998), reprinted in 38 I.L.M. 317 (1999).
n113 35 I.L.M. 32 (1996).
n114 See Tadic, 35 I.L.M. at 53.
n115 See Bulman, supra note 72, at 162.
n116 Tadic, 35 I.L.M. at 54, P67 (stating that "for there to be a violation of [international humanitarian law] there must be an armed conflict"). The court defined an armed conflict as existing "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." Id. at 54, P70.
n117 See id. at 64, PP105, 66, PP112-3; 69-70, P127. See also Allison, supra note 110, at 158 (noting that "the Appeals Chamber found that leading principles of international humanitarian law apply to [mixed armed] conflicts." An example of these mixed or "internationalized internal" conflicts occurs when "troops from a foreign country . . . fight alongside rebels or government troops involved in internal hostilities." Id. Significantly, the court extended only a portion of the law of war for international conflict into the internal conflict arena and limited the extension to "the general essence of those rules, and not the detailed regulation they may contain. . . ." Bulman, supra note 72, at 163 and n.53. See also Allison et al., supra note 110, at 158 (noting that "yet these specific principles and rules for international armed conflict are not transposed word-for-word into the laws of internal armed conflict") (emphasis in original).
n118 See Bulman, supra note 72, at 163.
Finally, some military operations involving U.S. forces fall below the threshold of "armed conflict" that is contained under the military's expansive MOOTW umbrella. Such operations include humanitarian relief, nation assistance, peacekeeping, insurgency or counterinsurgency support, peace enforcement, shows of force, and raids. n119 In a MOOTW scenario, the normal protections afforded by the laws of war are considered inapplicable unless a participating force elects to be bound by them as a matter of policy. n120 Accordingly, depending on the type of operation and the nature of the hostile force, a civilian contract employee captured while supporting U.S. forces might not enjoy any protections under international law.
n119 See FM 100-5, supra note 102, at 13-0, 13-4-8.
n120 See Whitaker, supra note 82, at 34 (noting that "in the [M]OOTW environment, where no nation is bound by law of war treaties, the United States frequently applies these treaties by analogy.").