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Problems With Iraq Contractors Present Legal PuzzleExperts say Blackwater convoy shootings are at the crossroads between three key legal regimes
Under what law or laws could the Blackwater private security guards be held accountable for September's convoy shootings in Iraq? A group of attorneys and academics with varied specialties are working quietly with each other, with Congress and with the Defense Department to find a solution to this legal puzzle. Iraq veteran Phillip Carter of McKenna Long & Aldridge says three legal regimes could provide criminal jurisdiction: "Blackwater happened exactly on the seam of those three jurisdictional vehicles."
The National Law Journal2007-10-26 12:00:00 AM
One thing that Iraq veteran Phillip Carter of McKenna Long & Aldridge knows for certain is that, on the ground in chaotic Baghdad, FBI agents investigating the Blackwater convoy shootings in September face daunting obstacles.
First, the FBI is late to the game. "Some of the witnesses have already been interviewed by the Iraqi government and some already have said what they want to say in the media. That's a problem," said Carter, a government contracts and international law attorney in McKenna's Los Angeles office.
Second, he said, Iraqis are generally reluctant to interact with Americans because they fear being kidnapped or killed by retaliating insurgents. Third, it will be nearly impossible to reconstruct the scene or collect any physical evidence given the passage of time. Fourth, "just the sheer confusion of the battlefield," Carter said, makes eyewitness testimony -- American or Iraqi -- so unreliable.
And finally, under what law or laws could the Blackwater private security guards be held accountable if necessary?
The Blackwater incident aside, the recent history of congressional efforts to deal with legal problems arising from the growing number of private security contractors working for the federal government can be summed up as follows:
"They fix the thing that immediately went wrong, but they don't do it in a comprehensive way to eliminate the possibility for evading what they've just done," said Kim Lane Scheppele, director of the Program in Law and Public Affairs at Princeton University's Woodrow Wilson School.
Scheppele and Carter may be on opposite sides of the country, but they are among a group of attorneys and academics -- some with specialties in government contracts, international law, military law and other areas -- working quietly with each other, with Congress and with the Defense Department to find an effective solution to this legal puzzle. Their backgrounds are necessarily varied.
"This is a very complicated area," said James J. McCullough, partner in the Washington office of New York-based Fried, Frank, Harris, Shriver & Jacobson, where he heads the firm's government contracts practice. "You've got all these overlapping bodies of law that don't often intersect and don't fit well together."
And for those plumbing this area for answers, the question is not only one of law or laws on the books, but also one of enforcement, or, in the words of one scholar, "law in action."
McKenna's Carter compares the three key legal regimes that could provide criminal jurisdiction in private security contractor crimes to a Venn diagram of three circles that barely touch. The three are the Uniform Code of Military Justice (UCMJ), the Special Maritime and Territorial Jurisdiction (SMTJ) and the Military Extraterritorial Jurisdiction Act (MEJA).
"Blackwater happened exactly on the seam of those three jurisdictional vehicles," Carter said.
But how? The answer lies in Congress' historical approach to problems under those vehicles, according to Scheppele and others: plugging the gaps one at a time.
A series of court decisions after World War II, generally involving crimes by the spouses or ex-spouses of military personnel, led to the general belief that civilians could not be prosecuted under the UCMJ.
The SMTJ and the MEJA were written before the wars in Iraq and Afghanistan and envisioned contractors in different roles and places. The SMTJ regulates civilians on military premises, noted Scheppele. It was the "fix" for those early court decisions involving the UCMJ and murdering spouses and it is not really a part of the current legal debate.
But contractors were not just working on military bases; they also were accompanying troops into zones of fighting. For a long time, contractors accompanying the troops were governed by Status of Forces Agreements (explicit agreements between the United States and a national government covering who handles crimes committed off a U.S. base).
"What happens if you've got civilians who can't be prosecuted under the UCMJ, are not on base so they don't fall under SMTJ, and there's no status of forces agreement, as in Iraq?" asked Scheppele. "Congress tried to plug that gap with MEJA and that's the one that really matters now."
MEJA, which applies to all offenses committed outside the United States with potential imprisonment of one year or more, initially covered only Defense Department civilian employees and its contractors and their employees. But then the Abu Ghraib prisoner abuse scandal occurred.
Some of the interrogators were contractors working under Department of Interior -- not Defense -- contracts. MEJA then was amended in 2005 to cover contractors supporting Defense Department missions even if not under Defense contracts.
"But even that may not cover Blackwater in the latest incident because it could argue it was supporting the State Department in its mission to protect State Department employees," said Fried Frank's McCullough.
Congress is moving to put all armed contractors operating in combat zones under military control, acting on a Pentagon recommendation that could run into resistance at the State Department.
Sen. Carl Levin, chairman of the Senate Armed Services Committee, told reporters Wednesday he is confident the House will go along with the idea and include it in a final bill sent to President Bush.
Secretary of State Condoleezza Rice this month ordered new rules for the private guards that cover the use of deadly force.
At a hearing by a congressional watchdog committee Thursday, Rice said that she and Defense Secretary Robert Gates might make further recommendations. She said legislation is needed to ensure contractors involved in overseas killings can be prosecuted legally.
MEJA is at the center of Congress' recent effort to address situations like the Blackwater incident in Baghdad's Nisoor Square on Sept. 16. A bill passed in the House and one pending in the Senate would again expand MEJA jurisdiction to cover all contractors working outside the United States in an armed forces "contingency operation."
The bills also begin to address another key part of the equation: enforcement. There has been only one successful contractor prosecution under MEJA, although a number of cases reportedly have been referred to the Justice Department. (The department declines to discuss possible cases, but Freedom of Information Act requests have been filed by some news organizations.)
Part of the problem is that civilian justice authorities don't have extensive experience collecting evidence overseas, said Laura Dickinson of the University of Connecticut School of Law, author of the forthcoming "Outsourcing War and Peace."
"There's also the fragmenting of authority to prosecute in local U.S. Attorney offices around the country," she added.
In a June meeting at Princeton's Woodrow Wilson School, senior military and government officials, contractors, academic experts and Washington policymakers discussed how security contractors working in zones of conflict should be trained, integrated with military forces and held accountable. One recommendation was the consolidation of MEJA investigation and prosecution authority within a dedicated unit in the Justice Department.
"The bill passed by the House doesn't set up clearly a centralized office in Justice but it goes some distance in that direction by requiring some reporting and the creation of theater investigative units of FBI agents," Dickinson said.
The "key test," according to McKenna's Carter, will be "whether Congress provides the resources and the Justice Department takes those resources and puts them in the field to conduct these investigations, and ultimately brings cases where they're warranted."
Whatever Congress does will apply prospectively and in the face of another wrinkle in this legal puzzle.
Unhappy with the enforcement record under MEJA, Congress included a provision in the 2007 Defense Authorization Act to make the UCMJ -- the military justice code -- applicable to federal civilian and private contractor employees who closely support U.S. armed forces "in time of declared war or a contingency operation."
The Defense Department is wrestling now with regulations to implement that provision, said Fried Frank's McCullough.
"They got this statute a year ago. It's not clear to me they ever wanted it," said McCullough. "Their main mission is to carry out national security initiatives and not to go around prosecuting civilian contractors. To them, it's piling on here."
Contractors, too, are concerned and view the provision as both too broad and vague, he said. For example, not all UCMJ offenses can be applied reasonably to civilians, and it's not clear how jurisdiction would operate in cases in which UCMJ offenses are subject to concurrent criminal jurisdiction under other laws.
"I think expansion of MEJA is good policy for the United States right now," said McCullough. "I don't represent any private security contractors. We know them and they generally favor the idea of having some recognized body of law applicable to them."
Dickinson agreed, adding, "My view is the military side makes sense as a backup in extreme cases if civilian system isn't working. If that option is there, it might even serve as a catalyst for the civilian system."
Besides criminal liability, there is a range of civil remedies available, although not all without problems.
There are three contractual remedies if private security contractors are found in breach of contract, for example, if the Blackwater convoy violated the State Department's rules for use of force. First, immediate termination for default. Second, damages paid to the government. And third, suspension and debarment for at least three years -- the so-called death sentence for the government contractor world. There also are audits and disallowance of costs.
"These may or may not be appropriate for criminal violations or a serious violent act, but they are available and have been applied to many contractors in Iraq," said McKenna's Carter. "The government is questioning right now $10 billion in costs incurred by contractors across the board."
And there also are tort remedies. Blackwater was sued in federal court in Washington on Oct. 11, for injuries associated with the Sept. 16 convoy shootings.
The suit, brought by the Center for Constitutional Rights and Philadelphia's Burke O'Neil, alleges that Blackwater violated the federal Alien Tort Claims Act in committing extrajudicial killing and war crimes, and that Blackwater should be liable for claims of assault and battery, wrongful death, intentional and negligent infliction of emotional distress, and negligent hiring, training and supervision.
"The alien tort act is able to bring into the U.S. cases that don't even have an American actor," said Susan Burke, name partner in Burke O'Neil who litigates alien torts and other kinds of claims. "In a case like ours, we don't even have to use it. These are American companies. You can go right in with regular tort law. We brought it in as an alternative cause of action."
Connecticut's Dickinson said that the biggest open question is whether these contractors are subject to immunity -- the government-contractor defense, which emerged in a very different context.
"While some courts have given contractors this benefit as a per se matter, others, as in the Abu Ghraib cases, say you don't get that automatically," she said. "There's also a series of cases thrown out on political question grounds. I think this is an open area where we may see a fair amount of litigation."
In the end, many following the Blackwater legal response believe Congress is moving in the right direction.
"There is definitely a sense that MEJA, with real enforcement, could work," said Princeton's Scheppele. "This is not a revolution in the way this topic is thought about. The framework is fine. We've got to plug holes and make sure it applies everywhere these contractors are, and no matter where the contract is written."