Group Faults Justice for Not Prosecuting Security Contractors for Criminal Misconduct

Geoffrey Emeigh, BNA Federal Contracts Report

A report released Jan. 16 by the nonprofit group Human Rights First called on the Justice Department to exercise existing legal authorities to hold private security contractors working in Iraq and Afghanistan accountable under U.S. laws for criminal activities. ‘‘While imperfect and meriting reform, we conclude that there is substantial basis in existing U.S. criminal law to allow full investigations and prosecutions in most cases of serious criminal misconduct by private security contractors in Iraq and Afghanistan,’’ the group said in a newly released report.

The report is the latest to address the much publicized issue of whether the government is doing enough to ensure private security contractors operating in the two countries, especially in Iraq, are subject to sufficient legal oversight and scrutiny. The issue reached a boiling point after a Sept. 16, 2007, shooting incident involving Blackwater personnel in Baghdad that left a number of Iraqi civilians dead. ‘‘The failure to establish a meaningful system of accountability for these contractors has undermined U.S. national security interests,’’ the report said.

DOJ ‘AWOL’ on Security Contractor Accountability. Unveiling the report at the National Press Club in Washington, D.C., one of the report’s authors expounded on the need for the U.S. government to end the legal impunity of its private security contractors working in Iraq, Afghanistan, and elsewhere.

‘‘The bottom line here is that the Justice Department has gone AWOL,’’ said Scott Horton, an expert on torture under international law and adjunct professor at Columbia University School of Law.

The department has not completed a single prosecution of private contractor personnel implicated in the deaths of Iraqi civilians, Horton said. ‘‘That shows essentially a failure in accountability.’’

According to the report, DOJ has been largely indifferent to the issue of contractor criminal accountability. While the Sept. 16 Blackwater shooting incident ‘‘forced the issue onto policy makers’ agenda, … even the fact that senior officials, including the Attorney General, have yet to address the core problem of impunity,’’ the report said.

DOJ Strongly Disagrees with Report.

Responding to the report’s claims that DOJ is not doing enough to pursue criminal prosecutions of private security contractors for alleged misconduct, DOJ spokesman Paul Bresson told BNA in a telephone interview that the department has a number of such cases under investigation. The idea the department is not actively working these cases ‘‘is simply untrue,’’ he said.

Bresson said the authority to oversee the daily operations of contractors rests with the department awarding the contract. When alleged cases of contractor misconduct are referred to DOJ, he added, they are often complex in nature, and involve difficult circumstances that slow criminal case work, such as language barriers, logistical support challenges, and getting witnesses willing to speak with government investigators.

‘‘We strongly disagree with the report’s conclusions,’’ Bresson said.

Report Recommendations.

The 126-page report makes several recommendations for improving private security contractor legal accountability, including:

  • amending the Military Extraterritorial Jurisdiction Act (MEJA) to serve as the ‘‘principle mechanism’’ for holding contractors working abroad for the government responsible for criminal misconduct and human rights violations, and expanding the list of serious federal offenses subject to prosecution under MEJA;
  • establishing an office within DOJ’s Criminal Investigation Division with appropriate resources to make the prosecution of contractors fielded abroad a priority;
  • developing Defense Department regulations and amending the Manual for Courts-Martial to implement the recent expansion of the Uniform Code of Military Justice (UCMJ)—provided for under the fiscal 2007 defense authorization act (Pub. L. No. 109-364)—to apply to private security contractors by the end of 2008;
  • requiring DOD and DOJ develop formal coordination processes for the investigation of contractor criminal misconduct overseas; and
  • requiring the State Department to negotiate agreements with so-called ‘‘third countries’’—countries other than the United States and host countries Iraq and Afghanistan—regarding the creation of criminal jurisdiction over their own nationals working as private security contractors on U.S. government contracts so the U.S. government can defer to the third country’s jurisdiction when necessary.

With regard to contracting policy, the report recommends that all U.S. government agency contracts (and subcontracts) with private security contractors should include provisions requiring that the contractor:

  • maintain vetting, training, supervision, and disciplinary systems to ensure respect for humanitarian and human rights law and the investigation and, if appropriate, imposition of sanctions for any law of war and human rights violations;
  • cooperate with U.S. government and other relevant law enforcement authorities investigating alleged criminal violations of humanitarian and human rights laws, including retaining, in country, individual contractor personnel who are under investigation; and
  • be subject to possible fine, contract suspension and/or termination, and debarment for violation of such contract provisions.

The report further recommends that, if the Executive Branch fails to act in this regard, Congress should step in and mandate ‘‘this minimum degree of consistency in all U.S. government agency contracts’’ with private security contractors.

DOD Implementation of UCMJ.

Another speaker at the Human Rights First event, Retired Rear Adm. John Hutson spoke to the report’s recommendation regarding DOD implementation of the recent expansion of the UCMJ to apply to contractors accompanying deployed forces. DOD could implement the UCMJ ‘‘in order to close that potential loophole’’ between military law and MEJA under which private security contractors ordinarily would not be prosecuted for offenses having an adverse impact on the military—for example, not following orders—but for which military personnel would face courts-martial, Hutson said.

Private security contractors, often young and energetic individuals working under stressful conditions, might not feel as compelled to abide by laws and rules of conduct as military personnel who receive training on the importance of order and discipline, especially through their military chain of command, Horton suggested.

For private security contractors, unlike military personnel, ‘‘there’s not a chain of command; there’s not accountability,’’ Hutson said. ‘‘We really need to get this right, now’’ in order to preserve the reputation and effectiveness of U.S. fighting forces that today are dependent on contractors to support DOD missions, he added.

However, Jeff Green of J.A. Green & Co., a government relations and strategic planning firm, expressed reservations about DOD’s implementation of UCMJ, describing it as an inappropriate means of holding defense contractors accountable for misconduct. ‘‘The tools are in place under MEJA, … so let’s use that as an approach,’’ Green said.

Horton acknowledged that there are constitutional issues regarding whether civilians can actually be tried by military courts-martial through the implementation of the UCMJ.

‘‘I think we have to state that it’s really the exceptional cases where this would apply,’’ Horton said. As examples of such cases, the report refers to contractor personnel directly involved in hostile activities or conduct which compromises and threatens military interests.

Price: MEJA Expansion Bill Slowed by White House.

Kevin Lanigan, director of Human Rights First’s Law and Security program, said that MEJA as it now exists, and other criminal law statutes such as the War Crimes Act and the Torture Act, together provide a sufficient legal framework for the criminal prosecution of private security contractors.

However, Lanigan encouraged further expanding MEJA as recommended by the report, and said Congress can force the DOJ to make these criminal prosecutions a priority.

Rep. David Price (D-N.C.), also speaking at the press event, said the House ‘‘took a major step forward’’ Oct. 58 (Vol. 89, No. 3) NEWS 1-22-08 COPYRIGHT  2008 BY THE BUREAU OF NATIONAL AFFAIRS, INC. FCR ISSN 0014-9063 4, 2007, in passing his ‘‘MEJA Expansion and Enforcement Act’’ (H.R. 2740).

The bill would expand the boundaries of U.S. court jurisdiction over federal contractor personnel who commit criminal acts while working in or near military contingency operations and to strengthen the Justice Department’s ability to investigate those cases when warranted (88 FCR 308, 10/9/07).

A companion measure (S. 2147) introduced by Sen. Barack Obama (D-Ill.) ‘‘has been slowed by the initial opposition from the White House, which from the beginning has shown little or no interest in addressing this fundamental issue of justice,’’ Price said.

Price said the MEJA expansion bill is ‘‘timely, urgent, and critically important, and I sincerely hope that the Senate will act soon and that the Administration will cooperate with our efforts along the way.’’

Also at the event, Rep. Christopher Shays (R-Conn.) said it is important for military personnel operating in combat areas to understand that they are not subject to a different set of rules for legal accountability than contractors. ‘‘It would be a huge mistake to think that we could do without contractors,’’ Shays said. But the government must ensure that they are playing by rules that Americans want them to work under, he said.

Price’s bill has the formal support of the International Peace Operations Association, a large Washingtonbased trade group that represents security contractor firm interests. Addressing attendees at the event, IPOA founder and president Doug Brooks said his group ‘‘largely agrees’’ with many of the report’s recommendations. ‘‘Accountability is critical and beneficial to the industry,’’ Brooks said.