What a difference five words make. Prior to the John Warner National Defense Authorization Act for Fiscal Year 2007, P.L. 109-364 ("2007 Defense Authorization Act"), the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq. (UCMJ), applied to "persons serving with or accompanying an armed force in the field" in "time of war," and the phrase "time of war" had been interpreted to mean only a war formally declared by Congress. See United States v. Averette, 19 C.M.A. 363 (1970). Because Congress has not formally declared war in over 65 years, the UCMJ, as a practical matter, had not been applied to civilians, including civilian contractors, in years.
Buried among the thousands of provisions of the 2007 Defense Authorization Act, Section 552 expanded UCMJ jurisdiction to apply "[i]n time of declared war or a contingency operation" to "persons serving with or accompanying an armed force in the field." 10 U.S.C. § 802(a)(10) (new text emphasized). A "contingency operation" is defined more broadly than a declared war and includes, for example, a military operation designated by the Secretary of Defense as an operation in which the Armed Forces may become involved in hostilities or military actions against an enemy of the United States or against an opposing military force, or that results in a call, order, or retention on active duty members of the uniformed services by the President during a time of war or national emergency. See 10 U.S.C. § 101(a)(13). Thus, contractors can now be subject to prosecution by court-martial for violating the UCMJ if they serve with or accompany an armed force in the field in a contingency operation, such as Operation Iraqi Freedom or Operation Enduring Freedom in Afghanistan. Given that the definition of "contingency operation" includes "a national emergency," the law may also be read as applying to contractors supporting disaster recovery efforts such as the one undertaken for Hurricane Katrina.
The expansion of UCMJ jurisdiction has potentially sweeping implications and raises numerous questions. Determining whether a contractor is "serving with or accompanying" an armed force "in the field," for example, is far from straightforward and may not necessarily depend on the location of the contractor or the tactical significance of the contractor's activities. Furthermore, even if Congress only intended contractors to be subject to military jurisdiction for the most serious of crimes, amended UCMJ Article 2(a)(10) is not limited in its potential application. Contractors conceivably could be subject to court-martial for disrespect toward a superior commissioned officer (Article 89), failure to obey a lawful order (Article 92), or even violation of the "catch-all" General Article (Article 134).
Another potential impact from this expansion of UCMJ jurisdiction is the further blurring of the lines of authority regarding contractor performance. Traditionally, "[o]nly contracting officers acting within the scope of their authority are empowered to execute contract modifications on behalf of the Government." FAR 43.102(a). But under the new DFARS clause governing contractor personnel authorized to accompany the Armed Forces deployed outside the United States, DoD contractors must comply with "[o]rders, directives, and instructions issued by the Combatant Commander, including those relating to force protection, security, health, safety, or relations and interaction with local nationals." DFARS 252.225-7040(d)(4). Now, failure to obey such orders arguably could subject a contractor and its employees to prosecution under the UCMJ. As a result, contractors may be required—on pain of court-martial—to perform additional work regardless of whether a Contracting Officer has authorized them to do so.