Prosecuting Military Contractors: More a Problem of Law in Action Than Law on the Books

[ProSense]

Monday, October 01, 2007

Prosecuting Military Contractors: More a Problem of Law in Action Than Law on the Books

Laura Dickinson

First of all, thanks to Jack for offering me the opportunity to write a series of posts concerning the increasing use of military contractors both by the United States and by other countries and international organizations. My discussion will mostly track arguments I make in my forthcoming book, Outsourcing War and Peace.

In this first foray, I want to address both Sandy’s earlier post concerning privatization as evasion of accountability and David’s post outlining the limitations of the various criminal liability provisions, and I want to suggest that there is in fact a workable legal framework potentially available. David has admirably detailed some of that framework in his post, but I think it's important to stress that, while there are still some loopholes (which Congress is working hard to close) in SMTJ/MEJA, the problem is actually less with the formal legal framework than with its enforcement. (And by the way, I think there's a strong argument that CPA Order 17 shouldn’t be read to immunize contractors for abuses of force. First, Clause 4.3 contains the proviso “pursuant to the terms and conditions of a contract,” and I don’t think the contracts should be read to authorize criminal acts. Second, under international law a grant of immunity of this sort can’t immunize actors (state or non-state) against war crimes. To me that follows from the Nuremberg principle. And though there is arguably an idea of diplomatic immunity from prosecution before national (as opposed to international) tribunals, contractors would likely be ineligible for such immunity. Now, this is not to say that the Blackwater employees in this case committed war crimes, only to say that we shouldn’t assume that Order 17 completely disables criminal liability. And while I wouldn't necessarily advocate prosecution in Iraq, given the current state of the Iraqi legal system, that again is more a problem of enforcement than legal infrastructure.) Thus, I think we need to pay greater attention to encouraging enforcement of the law that does exist, rather than focusing (as the public discourse currently tends to do) only on the possible shortcomings of that legal framework.

Lack of enforcement is, of course, partly a question of political will, which is difficult to overcome. Nevertheless, it is possible to create organizational structures that will increase transparency and enable more effective congressional oversight and public pressure, and I think that is where we should be training our efforts. For example, right now the responsibility for prosecuting contractors engaged in abuses is diffused among individual US Attorneys’ offices, which results in a fragmented enforcement system and little oversight. Instead, I think we ought to centralize prosecutorial authority within a specialized office in the DOJ, and we ought to mandate that that DOJ office provide regular reports to Congress. Likewise, there should be a high-level inter-agency working group at the National Security Council responsible for harmonizing contracting rules and standards among the agencies and reporting to Congress. The State Department reports annually on the number of human rights violations committed in countries around the world; we should have at least as good a reporting system with regard to our own contractors. And while an administration bent on hiding potential abuses could undoubtedly try to “cook the books” to avoid oversight, just the process of reporting and its accompanying publicity and potential public pressure might have some impact (certainly more than the current system whereby no one outside of DOJ oversees the individual prosecutorial decisions of US Attorneys’ offices).

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Another important way of catalyzing enforcement is to make sure that there are more civilian investigators, whether members of DOJ prosecutorial staff or FBI officers. For example, there might be dedicated units within both organizations focused on investigating alleged contractor abuse, much the same way that an office to hunt down former Nazis was established within the DOJ. In addition, DOJ and the FBI must give individuals better incentives to actually go to Iraq to perform investigations; right now civilians are loath to go, for obvious reasons.

Turning to the possibility of military prosecution under the UCMJ, David has already laid out some of the key issues, but I wanted to add two points. First, if the military were to implement UCMJ prosecutorial authority over extreme cases of abuse of force by contractors, just the potential for military prosecutions might act as a catalyst for DOJ action, much the same way that potential International Criminal Court prosecutions are intended to catalyze domestic war crimes prosecutions. Thus, even if no actual UCMJ prosecutions took place, just the threat of them might spur civilian criminal enforcement activities.

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