Monday, June 25, 2001

Key cases in
military justice ...

Until recently, civilians working with or accompanying military members overseas during wartime were subject to court-martial by military authorities.

Maj. Susan Gibson wrote about the issue in the 1995 edition of Military Law Review, citing numerous instances of military justice meted out to civilians.

Military lawyers convicted a Civil War-era civilian paymaster for tampering with the ledgers and two civilians for desertion during World War I.

A pivotal case addressing the issue developed in 1952. At a U.S. military housing area in Tokyo, 40-year-old Dorothy Krueger Smith fatally stabbed her sleeping husband, U.S. Army Col. Aubrey Smith. A military court-martial panel sentenced Smith to life in prison. Her father, retired Gen. Walter Krueger, filed an appeal on her behalf, arguing a military court had no jurisdiction over a civilian dependent.

The U.S. Supreme Court rejected the appeal, ruling the military had jurisdiction over Smith. A year later, with fresh arguments and a new justice seated, the court changed its position and Smith was released.

Smith’s case, and one involving a woman convicted by the Army of killing her sergeant husband in Germany, sounded the death knell for U.S. court-martial authority over civilians.

As recently as the Vietnam War, a civilian was court-martialed by the military in an isolated case of justice misapplied. An Army contractor was convicted of conspiring to steal 36,000 U.S. government batteries. He was freed after a military appeals court ruled Vietnam didn’t count as a war.

— Wayne Specht

Civilians who commit crimes while serving overseas no longer have a legal loophole to fall through.

A new law, the Military Extraterritorial Jurisdiction Act of 2000, establishes federal jurisdiction over offenses committed overseas by U.S. civilians employed by or accompanying the armed forces as well as certain military servicemembers.

“It covers a major loophole for offenses that carry punishment of more than a year … it’s not a cure-all, but a significant step in the right direction,” said Lt. Col. Donald Plude, deputy staff judge advocate for U.S. Forces Japan and 5th Air Force headquarters at Yokota Air Base.

Previously, civilians could not be tried in the United States for many different offenses committed overseas.

The act became law in December, but Plude said his office is waiting to learn how to implement it.

“That’s been the holdup — the Defense Department has yet to come out with the implementing regulation,” he said. “… The devil’s in the details as to how to actually implement the procedural aspects, such as how to get U.S. Marshals over here and so forth.”

From a technical standpoint, Plude said, action could be taken if a case covered by it comes along.

The law applies to civilian employees, contractors and family members, and to servicemembers who separate from active duty before being identified and prosecuted, said Lt. Col. Douglas Anderson of the Air Force judge advocate general’s international and operations law division.

There have been numerous instances involving civilians serving in the Far East who literally got away with murder, or escaped punishment for committing other serious crimes.

In 1996, a Misawa Air Base civilian raped a 12-year-old American girl. Japanese authorities, citing it as an American “problem,” didn’t prosecute. All military officials could do was to ship him back to the States.

In another incident, a teen-age son of a military family at Kadena Air Base, Okinawa, who was linked to assaults and 38 burglaries escaped prosecution. A disciplinary board sent him to the States.

Not being able to punish those who commit felonies overseas has vexed military commanders for years.

A former commander of Kadena’s 18th Wing, Brig. Gen. James Smith, told a House committee last year that a task force commander on a deployment could only hand a civilian accused of misconduct relatively minor administrative sanctions.

The new law “addresses a serious morale and good order and discipline problem that had been highlighted by PACAF commanders for many years,” said Col. Thomas Strand, Staff Judge Advocate for Pacific Air Forces in Hawaii.

He said PACAF bases have seen cases involving allegations of murder, attempted murder and grand larceny for which dependents or other civilians accompanying the forces could have been charged.

“We’ve sometimes encountered local host nation reluctance from law enforcement officials and prosecutors in cases involving only U.S. citizens or other foreigners, even where the case was aggravated and the evidence readily available,” he said.

Anderson noted if a civilian committed a federal crime that had no extraterritorial effect and the host nation chose not to prosecute, the United States had no authority to pursue criminal charges. In 1995, Congress directed the departments of defense and justice to review and make recommendations to determine appropriate measures to extend criminal jurisdiction over civilians outside the United States.

With the consent of the host nation and applicable international agreements, the act allows the United States to use federal authorities overseas to arrest and detain suspected criminals. It also permits initial pretrial proceedings to be conducted over the telephone.

Provided a federal magistrate orders it and the host nation agrees, “the act now authorizes U.S. authorities to remove the person to the United States to be tried in federal district court when the host nation chooses not to prosecute,” Anderson said.

“We have initiated discussions with the Office of the U.S. Attorney in Honolulu,” Strand said, “to establish procedures necessary to implement the law in future appropriate cases.”

New law closes civilians’ legal loophole on crimes committed abroad

New law closes civilians’ legal
loophole on crimes committed abroad