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January 04, 2007


Given what crimes US soldiers are allowed/encouraged to commit without any threat of court martial, I'm not quite as impressed by this as you are - but I agree it is a major step to have military contractors subject to some law, rather than (as at present) permitted to do anything they like with absolute impunity.

"The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land."

From a procedural point of view this isn't surprising at all, even if you give lots of time to review a bill. Federal law has so many interlocking definitions that major changes can happen unnoticed very easily. It is quite possible for a huge change in policy to be effectively thrown in by a single Congressman, with no other Congressman realizing its impact until long after the bill is passed. That is just what happens in a super-complex system.

Don't be too sure which side won in getting that language into the bill. I am going on vague memory here, but it seems to me that there is usually some kind of statement of applicable law built into defense service contracts. In Iraq, I seem to recall hearing, there were end-runs and/or honest SNAFUs that led to mismatches between the use of some contractors and the nominally authorizing government department or subdepartment, so that the wrong law or no law at all applied. This legislation appears to patch that bug, and any similar future bugs -- but on the other hand, it may well be that the CMJ is better for many contractors than the prior norm.

I also predict a great deal of litigation as to what "in the field" means. For instance, was Abu Ghraib a field-of-combat prison, or was it far enough behind the front lines or long enough after "major combat operations in Iraq are over" that it doesn't count? I would need to study the USC and military law precedent a lot more closely before I ventured to guess.

Even with the change in law, will the DoJ prosecute? I would expect very little to actually change, even thought the potential is there for prosecution.

Interesting points all. Trilobite, anyone who's actually been in Iraq or followed the news closely would find it hard to argue that there is such a thing as NOT being 'in the field', since U.S. personnel anywhere in the country are subject to attack, including in the Green Zone.

Wait, I thought the whole world was a battlefield in this new kind of war. Isn't that why little old ladies in Switzerland can be enemy combatants?

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