[Timber Loftis]

ABA Journal Article

LAW CURBS CONTRACTORS IN IRAQ
Statute Fills Void in Prosecution for Abuses During Conflict

BY CHRIS LOMBARDI

For almost a half a century, federal court rulings shielded civilian employees working for the U.S. military from prosecution for crimes committed abroad.

That case law, dating back at least to a 1957 U.S. Supreme Court decision, gave civilian contractors standing equivalent to the families of military personnel. They were removed from the threat of prosecution under the Uniform Code of Military Justice without providing for prosecution in other jurisdictions. The code would apply only during a period of declared war, a description left hazy by a 1970 Supreme Court case.

But a law passed by Congress in 2000 may be used to prosecute civilians working in Iraq who have been charged with crimes there, including those involved in the offenses uncovered at Abu Ghraib prison.

The Military Extraterritorial Jurisdiction Act sought to remedy what one expert calls "a half-century of jurisdictional oversight." It was aimed primarily at protecting the families of military personnel from domestic abuse and other related acts by subjecting offenders to charges in U.S. courts.

Under MEJA, American citizens "accompanying the armed forces," whether spouses or employees of a civilian contractor or subcontractor, may be detained by military police and brought back to the United States for trial in federal court for any crime that would be a felony back home.

That, experts say, would apply to contractors involved in any phase of the Iraqi conflict, but particularly to those involved in the prison abuse scandal. "The acts described in the media violate a lot of federal and state laws," says Ken Hurwitz of Human Rights First (formerly the Lawyers Committee for Human Rights), an advocacy group based in New York and Washington, D.C.

"Given that the abuses at Abu Ghraib can be classified as battery, sexual assault, kidnapping and torture, MEJA certainly could apply," Hurwitz says.

Although agreeing to the application of MEJA, Anthony D’Amato, international law professor at Northwestern University and former defense attorney at the International Criminal Tribunal for the Former Yugoslavia, says the law is likely to be used as a last resort. "If you can’t find a remedy anywhere else, the federal courts take over," he says.

However, the U.S. Justice Department has not said publicly whether or how it will employ the law. When asked whether Justice had jurisdiction over these civilians, Attorney General John Ashcroft this month told a reporter, "There are measures included in the law enacted regarding extraterritorial jurisdiction that provide a basis for investigation and activity on the part of the Justice Department."

Asked about the remarks, department spokesman Mark Carollo says, "That’s as far as we’re going right now."

The law is particularly timely because of the huge growth in the military’s use of civilian contractors. According to a study issued in January by the Brookings Institution, a nonprofit research firm, the ratio of private contractors to U.S. military personnel is about 10 times the ratio during the 1991 Persian Gulf conflict. Brookings researcher Peter Singer estimates that there are about 30,000 contract employees in Iraq working for private military firms that were hired to handle security.

"Employees of private military companies handled everything from feeding and housing U.S. troops to maintaining sophisticated weapons systems like the B-2 stealth bomber," according to Singer. He adds that the ambiguous legal status of such companies is increasingly dangerous.

It is an ambiguity that MEJA was designed to erase. Civilian contractors have been able to operate with little fear of sanction because of a series of Supreme Court rulings going back at least to Reid v. Covert, 354 U.S. 1 (1957). That decision held that the Uniform Code of Military Justice did not cover crimes committed by spouses of military personnel. Other cases extended the exemption to civilians.

"In both capital and noncapital cases, the court held that courts-martial had no jurisdiction to try civilian employees during peacetime," according to a 1999 Military Law Review article by Maj. Joseph Perlak, counsel at the Marine Corps Systems Command at Quantico, Va.

A U.S. Court of Military Appeals addressed the issue of peacetime in United States v. Averette, 19 U.S.C.M.A. 363 (1970), which held that a civilian employee of an Army contractor was not subject to trial by court-martial. The court also said that the section of the UCMJ governing those accompanying the armed forces applied only during a war formally declared by Congress.

Hurwitz argues the UCMJ would authorize a civilian contractor in Iraq to be tried by court-martial under the laws of war in the instance where the prosecution is for grave war crimes, but he admits his theory has not yet been tested.

Although MEJA clarified much of the existing case law, questions remain. Among those issues is local prosecution, which appears not to be an option even if Iraq had a top-class judicial system. The Coalition Provisional Authority stated in a public notice in June 2003, "With regard to criminal, civil, administrative or other legal process, they will remain subject to the exclusive jurisdiction of the state contributing them to the Coalition."

Nor is prosecution before the International Criminal Court a likely option, Hurwitz says. That’s because neither Iraq nor the United States ratified the international statute creating the court, which is empowered to try individuals for crimes against humanity.

Stephen Saltzburg, a former Justice Department official in the Clinton administration, wonders about the logistics of prosecutions under MEJA. For example, he points to Crawford v. Washington, No. 02-9410, the Supreme Court’s March ruling that fortified the confrontation clause regarding witness testimony. "You can’t use testimonials any more," Saltzburg says. "You’d have to fly the witnesses to the United States."

This is not a prospect that disturbs Hurwitz–nor D’Amato, who sees such prosecutions as a natural implementation of international law and the Geneva Convention, which provides for humane treatment for prisoners of war. "The Geneva Convention is the supreme law of the land," D’Amato says. "Even higher than Congress."

©2004 ABA Journal