Are Iraq Contractors Subject to US Law?
http://www.truthout.org/122608B
Daphne Eviatar, The Washington Independent: "Earlier this month, the
Department of Justice announced to great fanfare that it had indicted
five guards employed by the private security firm Blackwater
Worldwide
for their role in a Baghdad shooting that left 17 Iraqis dead last
year. A sixth guard had pled guilty to manslaughter and weapons
violations. But lawyers for the five men indicted in the first case
of
its kind appear to have a strong defense, regardless of the
circumstances of the shooting: private security guards contracting
with the Department of State may not be subject to American law." And
despite a new Status of Forces Agreement negotiated between the United
States and the Iraqi government that would seem to make future
contractors subject to Iraqi law, guards like the Blackwater men hired
by the State Department may glide through a large loophole in that new
agreement as well.
The reasons are a bit complicated.
Normally, United States criminal law does not apply beyond US
borders. But under the Military Extraterritorial Jurisdiction Act, or
MEJA, the United States can prosecute any crime that would be a felony
in the US if it was committed by a member of the Armed Forces, or
someone "employed by or accompanying the Armed Forces outside the
United States." In 2004, responding to the revelations that private
contractors hired by the CIA had gruesomely abused prisoners at the
Abu Ghraib prison in Iraq, Congress amended the law to cover
contractors from other federal agencies, but "only to the extent such
employment relates to supporting the mission of the Department of
Defense."
"We think that supporting the mission of the U.S. military does
not include the work that our clients were doing for the Department of
State," said David Schertler, a lawyer defending one of the Blackwater
guards. "They were employed as security by the state department to
protect Department of State officials. The state department has a
different mission."
The Department of Justice disagrees. Its announcement of the
indictment on December 8 carefully stated that the Blackwater guards
were hired "to provide personal security services related to
supporting the mission of the Department of Defense in the Republic of
Iraq, within the meaning of MEJA."
But some military law experts are not convinced.
"I don't think that the Blackwater people who are involved in the
Nasur square incident fall within MEJA," said Eugene Fidell, President
of the National Institute of Military Justice and lecturer at Yale Law
School. "I think the indictment has to be dismissed."
Because this is the first indictment of a state department
contractor under the 2004 law, it's what's known as a matter of first
impression - in other words, it hasn't yet been decided by the courts.
But neither the law itself nor the legislative history offers much
guidance.
Glenn Schmitt, former Chief Counsel of the Subcommittee on Crime
of the House Judiciary Committee, wrote about the amendments to MEJA
in Army Lawyer in 2005. "Congress failed to define the phrase
'supporting the mission of the Department of Defense' supplied in the
bill, leaving unanswered the question of just how broadly the terms
'supporting' and 'mission' are to be interpreted," he wrote.
Because the 2004 provision was proposed as an amendment to a
defense authorization bill rather than on its own, there was little
discussion over its meaning in the Senate and no conference report
explaining the new language, Schmitt adds.
According to the government, the five Blackwater guards indicted
were part of a Tactical Response Team called Raven 23, whose role was
to provide back-up support for another Blackwater team. They were
responding to the explosion of an improvised explosive device near the
other Blackwater guards, who were there to guard a State Department
employee. The indictment charges that the five guards opened fire,
allegedly unprovoked, on Iraqi civilians, killing 14 and wounding 20.
(News reports have indicated that there were 17 deaths, and the
Department of Justice has said its investigation is ongoing.)
Responding in part to this incident, which enraged local Iraqis,
the Iraqi government has insisted that in the future, American
contractors must be subject to prosecution under Iraqi law.
They haven't been since June 2004, when Paul Bremer, then the the
United States administrator for Iraq, issued Coalition Provisional
Authority (CPA) Order 17, which states that "Contractors shall not be
subject to Iraqi laws or regulations in matters relating to the terms
and conditions of their Contract." CPA Order 17 also made contractors
"immune from Iraqi legal process," and from any form of arrest or
detention. That immunity remains in effect, writes Schmitt, until it's
revoked or superseded by the Iraqi Government.
The Iraqi government has now purported to do just that. But a
close reading of the new Status of Forces Agreement, or SOFA, suggests
that State Department contractors such as the Blackwater guards
indicted for the shootings still won't be subject to any law at all.
The SOFA was drafted to provide a legal basis to continue U.S.
military operations in Iraq beyond December 31, 2008, when the United
Nations mandate expires. And mostly, it's garnered attention for its
pledge to withdraw US forces from Iraq by the end of 2011.
But another important part of the agreement concerns the thousands
of private contractors working for the US government in Iraq.
The new SOFA, ratified by the Iraqi parliament on November 27,
2008, grants Iraq "the primary right to exercise jurisdiction over
United States contractors and United States contractor employees."
That would seem to answer the question. Yet the definitions
section of the agreement adds an important wrinkle:
"United States contractors" and "United States contractor
employees" mean non-Iraqi persons or legal entities, and their
employees, who are citizens of the United States or a third country
and who are in Iraq to supply goods, services, and security in Iraq to
or on behalf of the United States Forces under a contract or
subcontract with or for the United States Forces.
In other words, the new SOFA seems to have created the same legal
loophole as the 2004 amendment to the Military Extraterritorial
Jurisdiction Act: it only covers contractors working "on behalf of" or
"under contract with" the United States military.
"It's a problem," said Fidell. "We've got something like 190,000
contractors in Iraq, and some of them are not Department of Defense
contractors. The one thing you want to know is, whose rules apply?"
It may be that no rules apply at all.
When the Justice Department in early December announced the
indictment of the five Blackwater guards, Patrick Rowan, Assistant
Attorney General for National Security said: "Today's indictment and
guilty plea demonstrate that those who engage in unprovoked and
illegal attacks on civilians, whether during times of conflict or
times of peace, will be held accountable."
Not necessarily.
--~--~---------~--~----~------------~-------~--~----~
Thanks for being part of "PoliticalForum" at Google Groups.
For options & help see http://groups.google.com/group/PoliticalForum
* Visit our other community at http://www.PoliticalForum.com/
* It's active and moderated. Register and vote in our polls.
* Read the latest breaking news, and more.
-~----------~----~----~----~------~----~------~--~---
