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WASHINGTON — It would apply only to crimes committed abroad that carry at least a one-year prison term. It would affect only civilians working for or connected to the Defense Department. In short, the Military Extraterritorial Jurisdiction Act is narrowly crafted and, according to lawyers familiar with it, may not cover some of the abuses — and abusers — involved in the torture of Iraqi detainees at U.S.-run prisons. Yet the law could be crucial for federal prosecutors if they pursue cases against civilian employees who participated in the abuse. Passed in 2000, the act permits the Justice Department to go into U.S. district courts to prosecute employees of Defense Department contractors and subcontractors who commit crimes on foreign soil. When it approved the law, Congress knew that it is nearly impossible to charge civilians under the Uniform Code of Military Justice, even if they work alongside active-duty service members. Experts on military law and government contracts agree that this principle rules out courts-martial for the “contract interrogators” at the center of the furor over the humiliation of Iraqis, particularly at the Abu Ghraib prison 20 miles west of Baghdad. The interrogators reportedly worked for two defense contractors, Arlington, Va.-based CACI International and San Diego-based Titan Corp. Other U.S. criminal laws — including a broad prohibition on torture that took effect in 1994 — could also play a role in prosecuting civilians. But the 2000 act seems best adapted to the situation in Iraq because it permits civilian prosecutions of persons “employed by or accompanying” U.S. armed forces. Still, many say the law is not a perfect fit. “The law was passed to fill a void,” says Michael Nardotti Jr., a partner at Patton Boggs who was the judge advocate general of the Army from 1993 to 1997. “And it does so. But it requires an offense like a serious assault. What if it’s a simple assault, which may be punishable under federal law only by six months in prison?” Nardotti, a retired major general, says the 2000 law “doesn’t provide the same range of options” as military law would for prosecuting someone in the armed services. “Suppose the behavior involves humiliating the detainee, or stripping him naked,” Nardotti says. “What crime would that constitute? You’d have to look at the whole list of federal offenses and find one that is punishable by more than one year.” Eugene Fidell, a military law expert at D.C.’s Feldesman Tucker Leifer Fidell, points out that the law applies only to employees of companies that contracted with the Department of Defense, not those that had contracts with other agencies such as the Central Intelligence Agency. U.S. authorities are looking into at least two cases in which Iraqi detainees died after being questioned by CIA contract interrogators. So some cases might turn on the technicality of what government agency signed the contract. The law’s history in some ways foreshadows the current scandal. In 2000, top legal officials at the Defense Department testified before a House Judiciary subcommittee in support of the extraterritorial act. They noted that, at the time, more than 2,000 civilian employees and contractors were deployed in combat areas and that additional sanctions were needed to punish those who committed crimes. The law also allows the government to prosecute military spouses and dependents. Today, outsourcing has grown in ways that were unexpected even four years ago, as more than 10,000 contract employees work with U.S. forces in Iraq alone and perform key functions like interrogation and security. In the 2000 testimony, the DOD lawyers said that “the inability of U.S. authorities to adequately respond to serious misconduct” by civilians “presents the strong potential for embarrassment in the international community, increases the possibility of hostility in the host nation’s local community where our forces are assigned, and threatens relationships with our allies.” The DOD noted that people charged under the act would have the benefits of grand jury indictment, trial by a civilian jury, and other protections. The defense-contractor community seems to have few difficulties with the statute. Alan Chvotkin, senior vice president and counsel of the Professional Services Council, a trade group that represents 165 defense contractors, says, “Congress filled an important gap in 2000, and it did so surgically. It would be troubling indeed to find actions that were criminal and could not be punished.” Jeffrey Elefante, executive vice president and general counsel at CACI, says the company still doesn’t know what its employees are being accused of in Iraq. “Given the nature of the allegations, any civilized person would be disturbed,” Elefante says. CACI, a publicly traded company with $840 million in revenue last year, has brought in an outside law firm to conduct what Elefante calls “a review of every aspect of our operations that relates to this.” He declines to name the firm. In circumstances where the 2000 act does not apply, however, the question of criminal liability becomes murkier. Iraqi courts probably don’t have jurisdiction. Government contractors are ordinarily protected from being prosecuted by foreign courts by what is known as a status-of-forces agreement — which defines the legal status of U.S. personnel and property in the territory of another nation, says David Hammond, a government contracts partner at D.C.’s Crowell & Moring. However, other options are available. In 1994, the United States signed an international convention against torture and outlawed torture committed by U.S. citizens outside the United States. Torture is defined in federal law as actions taken “under the color of law” that are “specifically intended to inflict severe physical or mental pain or suffering” upon another person who is within the custody or control of the torturer. Torture can be punished in U.S. courts by up to 20 years in prison, and torture resulting in death of the victim is a federal capital crime. Gay McDougall, executive director of Global Rights, a D.C.-based human rights organization, says that “the degrading and immoral behavior that we’ve seen in these pictures” from Abu Ghraib is a clear example of torture. McDougall also says U.S. courts should read the principles of international law broadly to criminalize abuses by government contractors. “This would be a precedent-setting situation [to hold contractors criminally liable],” McDougall says. “But if you look at the Nuremberg trials, there were a lot of people held responsible who were not solely in the military chain of command.” In 1998, McDougall wrote a United Nations report on sexual slavery arguing that people who are “civilians and often outside any given chain of command” should be liable to prosecution for war crimes. McDougall says the revelations of mistreatment and exploitation are nothing new to her. “We’ve gotten consistent reports of prisoner abuse in Guantanamo, Afghanistan, and Iraq in the last year and a half,” she says. “We have signed on to letters to [President George W.] Bush, [Secretary of State Colin] Powell, and [Secretary of Defense Donald] Rumsfeld, and we have been told that the reports are untrue or exaggerated, or that they are merely �stress and duress’ tactics of interrogation.” Earlier this year, the Defense Department issued a proposed regulation that specialists say might have an impact on the contractor issue. The rule would require DOD contractors to make sure their employees comply with the Uniform Code of Military Justice “where applicable.” Comments on that proposal are due May 24. Daniel Guttman, a D.C. solo practitioner and fellow at the Center for the Study of American Government at Johns Hopkins University, says he does not fully understand the proposal. “It says the Uniform Code applies where applicable,” says Guttman. “But when is that? Can you be court-martialed and put in the brig? What’s the analysis here? They seem to be making policy on the run.” Guttman adds that the problem with abuses by contract employees “was not only predictable, but was predicted at the highest levels.” He says a March 2002 memorandum from then-Army Secretary Thomas White showed that the military was not adequately tracking the work of contract employees. “The DOD has shown a stunning lack of focus on a basic question,” Guttman says. Amy Williams, the DOD staffer in charge of the rule, did not return a call seeking comment. Jonathan Groner is editor at large at Legal Times , a Recorder affiliate in Washington, D.C.

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