Amending the military Extraterritorial Jurisdiction Act of 2000: rushing to close an unforeseen loophole

Army Lawyer, June, 2005 by Glenn R. Schmitt

It would have been helpful had Congress used more specific terminology in the amendment. At the very least, the Senate should have provided examples in a legislative history on this portion of its version of the DOD Authorization Act as to the types of support it intended would fall within or outside this new provision. Without such guidance from the legislative branch, it will be left to the courts to parse the meaning of these phrases. A reasonable interpretation of this phrase, in light of the floor debate and the world events that prompted this amendment, would be to apply this new part of MEJA only when a person's activities have, as their principal purpose, the intent to assist the mission of the DOD.

Another, and possibly more vexing, problem with MEJA, as amended, is that it now applies to employees of "any provisional authority" and to contractors and their employees of"any provisional authority." (29) Given the focus of the drafters of this provision on the Abu Ghraib abuses, it seems certain that they had the Coalition Provisional Authority (CPA) in Iraq in mind when using this language. (30) But making this new term a part of MEJA calls into question the legal status of a provisional authority. The Government's view of just what the CPA was is muddled. The U.S. Congress, in an act to supply funding to the CPA, referred to it alternately as a U.S. Government entity and a creation of the U.N. (31) Similarly, the former general counsel of the CPA has described it as both an organization of the U.S. government and an international entity. (32) However, the Office of Management and Budget and other agencies of the Executive Branch have stated that the U.N. created the CPA. (33) And the U.S. Army Legal Services Agency has gone so far as to assert that the CPA is not a Federal agency, instead referring to it as "multi-national coalition" (34) Despite these references to the U.N.'s role, a close reading of the United Nations Security Council resolutions to which these agencies point as having created the CPA does not lend much support for that position. In those resolutions, the Security Council speaks about the CPA as if it already existed and does not use any language which might be interpreted as creating it. (35)

Even in early 2005, after sovereignty had been "restored" to Iraq, and the CPA no longer existed and had turned its the role over to the U.S Mission in Iraq, (36) the official position of the Executive Branch on what the CPA had been remained uncertain. In a lawsuit brought by whistle-blowers under the False Claim Act (37) against an American company that had received millions in dollars from the CPA, the issue arose as to whether the act applied to funds paid by the CPA under contracts it had entered into. (38) As the case progressed, the judge specifically ordered the lawyers for the Federal government to state the government's position on whether the CPA was a U.S. Government entity. (39) In its brief to the court answering that question, (40) the government took the position, apparently for the first time, that "the CPA was created by the Commander of the Coalition Forces in Iraq, General Tommy Franks." (41) The Government's lawyers went on to explain that "General Franks established the CPA under the laws of war to perform civil government functions in liberated Iraq during the brief occupation." (42) Perhaps to explain the role of the UN in all of this, they noted that the "establishment of the CPA by the Coalition was formally recognized by" the United Nations in Security Council Resolution 1483. (43)