All and Nothing: A Framework to Reconcile the Differences in Constitutional Rights Afforded to Foreign National Contractors Abroad

Abstract

With the fall of the Soviet Union, the War on Terror, and the subsequent wars in Afghanistan and Iraq, the United States military has undergone both structural and conceptual adjustments to defend against the amorphous and asymmetric threats of the twenty-first century. The evolution from massive standing armies designed for traditional and symmetric war to leaner, quicker, and more proficient expeditionary forces reflects the realities of the modern geopolitical dynamic. Yet these changes have resulted in a personnel and operational void that has hampered the United States military’s ability to support long-term operations. The private contractor has stepped in to fill this void — accounting for fifty-nine percent of Department of Defense personnel in Afghanistan during 2010. The rise of the private contractor has resulted in a subtle yet significant development in the rights afforded to those prosecuted under the United States’ extraterritorial criminal jurisdiction while accompanying the military abroad. This Comment provides a framework that reconciles two courts' contrary conclusions and argues that Boumediene’s functional approach prompts the conclusion that foreign national contractors at U.S. military facilities abroad are operating in a sphere of de facto United States sovereignty vis-a-vis criminal jurisdiction. Thus, foreign national contractors should generally be afforded constitutional protections such as the Fifth and Sixth Amendments.