Are Iraq Contractors Subject to U.S. Law?

By
Friday, December 26, 2008 at 6:00 am

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.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

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.”

But were the Blackwater guards, hired to protect State Department employees, “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.

Comments

23 Comments

Mark
Comment posted December 26, 2008 @ 6:56 am

gotta love loopholes


John Wrenn
Comment posted December 26, 2008 @ 9:22 am

Once the administration rushed to Democracy and supported the Iraq elections as a sovereign government, the mission stopped being a military mission and it became a state department job.

There are four parts of national power – Diplomatic, Informational (or intelligence), Military and Economic. The acronym DIME is used, and there is a reason the D is first…

Since the Iraqi elections, the military is supporting the State Department and non DoD contractors are not liable under either MEJA or the new SOFA


Hawaiian style
Comment posted December 26, 2008 @ 11:34 am

If US law does not apply do we have extradition with Iraq? (That's extradition not rendition).

Lets let the Iraqi government try them.


marc
Comment posted December 26, 2008 @ 2:54 pm

CPA Order 17 has always permitted U.S. authorities the right to waive immunity and turn security contractors over to the Iraqi judicial system. This would be a simple solution in this case if MEJA does not apply. It would also be the right thing to do if we are serious about having any kind of future relationship with the people of Iraq.


jtackett
Comment posted December 26, 2008 @ 3:52 pm

blackwater is not a military of any government, therefore, they are merely terrorists and extortionists. why aren't they one of our tagets in our “war on terrorism”?


kyle
Comment posted December 26, 2008 @ 11:58 pm

don't be silly.


Gary
Comment posted December 27, 2008 @ 6:33 am

Why don't some of you whiners pick up a rifle and go stand up for something…..ANYTHING! Easier to sit on your a$$ and let someone else get dirty I guess.

Out


Hawaiian style
Comment posted December 27, 2008 @ 11:18 am

Gary,

Who says we haven't?


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Pingback posted December 28, 2008 @ 8:04 am

[...] The Washington Independent » Are Iraq Contractors Subject to U.S. Law? [...]


Gary
Comment posted December 28, 2008 @ 9:03 am

Your response says that.

If you had, you wouldn't pose the question.

Out


Hawaiian style
Comment posted December 28, 2008 @ 11:02 am

Where were you during Tet?


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Pingback posted December 28, 2008 @ 12:09 pm

[...] Are Iraq Contractors Subject to US Law? – Daphne Eviatar/Washington Independent [...]


Gary
Comment posted December 29, 2008 @ 4:54 am

So we should have allowed the Vietnamese Government to try Americans for alleged offenses committed there? Lt Calley? Mi Lai? Many others????

Wasn't there…….but it was a war………as this is.

No Soldier, Sailor , Airman or Marine should ever be deserted by his country for political expediency. If they have jurisdiction….try them….if not… exonerate them!

Moving on

Out


Hawaiian style
Comment posted December 29, 2008 @ 10:31 am

You are equating US troops with mercs that want to be free of any oversight.

But more than that you are making unfounded assumptions about the writers here.

Make room in your lexicon for other opinions, for a loyal opposition, its the American Way.


Pam
Comment posted January 6, 2009 @ 7:31 pm

You have got to be kidding me. These are American Citizens. Since when no matter where you are, does an American citizen not need to obey the law of their country or at the very least the law of the country they are currently inhabiting??? Sure the government will let these Rambo wanna be's off, BUT…

We have two border patrol officers that will rot in their cells if Bush get's his way. Where is the justice in that????


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Hawaiian style
Comment posted January 7, 2009 @ 12:35 pm

Pam,

You are right. Any citizen implicitly agrees to follow the laws of a foreign country it he voluntarily enters it. Blackwater is living in the Bush world of preemptive war (a rose by any other name is still terrorism).

In the past when a foreign country detained a US national we petitioned for extradition through the embassy etc. In today's world Bush may have shot his mercs in the foot by creating his illegal enemy combatant philosophy, and his actions here in the US. Using his EC rationale he can imprison ANY one including US citizens indefinitely without habeas corpus, etc. (Fortunately the Supreme Court is starting to reject this totally unconstitutional fiction.)

As to Bush and justice they are a fiction. His justice department was by his actions and desires simply a bully outfit at the command of Rove and Bush.


Hawaiianstyle
Comment posted January 7, 2009 @ 8:35 pm

Pam,

You are right. Any citizen implicitly agrees to follow the laws of a foreign country it he voluntarily enters it. Blackwater is living in the Bush world of preemptive war (a rose by any other name is still terrorism).

In the past when a foreign country detained a US national we petitioned for extradition through the embassy etc. In today's world Bush may have shot his mercs in the foot by creating his illegal enemy combatant philosophy, and his actions here in the US. Using his EC rationale he can imprison ANY one including US citizens indefinitely without habeas corpus, etc. (Fortunately the Supreme Court is starting to reject this totally unconstitutional fiction.)

As to Bush and justice they are a fiction. His justice department was by his actions and desires simply a bully outfit at the command of Rove and Bush.


Video: Will Blackwater be Brought to Justice?
Pingback posted January 20, 2009 @ 2:15 pm

[...] shooting, including a medical student and his mother who were out running errands.  Then, I read Daphne Eviatar’s recent piece in The Washington Independent and realized Blackwater’s defense is stronger than I originally [...]


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