Criminal Liability of Civilian Contractors in Iraq and Afghanistan

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I.   INTRODUCTION  II.  THE GAPING HOLE: MILITARY CONTRACTORS IN IRAQ AND      AFGHANISTAN  III. MILITARY EXTRATERRITORIALITY JURISDICTION ACT  IV.  THE UNIFORM CODE OF MILITARY JUSTICE ARTICLE 2(A)(10)  V.   CASE STUDY: UNITED STATES V. ALI      A. Background      B. Policy Implications      C. The Constitutional Questions  VI.  LEGAL TENSIONS: MEJA AND THE UCMJ  VII. CONCLUSION 

I. INTRODUCTION

On September 16, 2007, seventeen Iraqi civilians were shot to death in Baghdad by contracted personal security detail from Blackwater trying to clear the way for a U.S. Department of State transport. (1) While Blackwater claimed that its personnel were ambushed, thus provoking a firefight, the Iraqi investigators claimed that the incident was unprovoked. (2) The shooting was only the latest of a series of high-profile incidents where private military contractors allegedly acted outside the scope of the law. In reality, the real problem rested with the fact that despite attempts by Congress to bring these contractors under some legal jurisdiction, effectively they were acting within a zone of lawlessness. With very little threat of punitive action, the problem of contractor liability remains a major issue today for which an effective solution is yet to be found.

Throughout the history of the U.S. military, a code of law has governed the behavior of soldiers, whether at home or serving abroad in the theater of war. This code, the Uniform Code of Military Justice (UCMJ), is used to prosecute military personnel for violations ranging from disobeying orders to capital murder. Effectively, soldiers are held liable for their unlawful conduct under a system of laws that parallels U.S. law.

Historically, contractors have also had a place in the military, with their role evolving from mercenaries who operated on the fringes to becoming a widely-needed and used private military company (PMC). (3) Not until the wars in Iraq and Afghanistan, however, have the military contractors played such an integral role in the execution of the conflict (4) Although these contractors often engage in the same day-to-day activities of enlisted soldiers--patrols, strategic planning, even firefights--there is a long-standing question as to what law will govern their conduct in theaters of war. (5)

The first notable attempt by Congress to create legal liability for military contractors outside of a declared war was through the Military Extraterritoriality Jurisdiction Act (MEJA), passed in 2000. (6) In practice, however, MEJA failed to reach some of the most glaring incidents of criminal activity undertaken by contractors, particularly in Iraq. (7) Thus, in a minor change to the 2007 Defense Authorization Act, Congress sought to bring contractors under the UCMJ, making them responsible under the same regime as U.S. military personnel. (8)

Despite the attempts by Congress to establish contractor liability, first through passing MEJA and then amending the UCMJ, the laws have not had a widespread impact. As discussed below, MEJA remained too ambiguous as a legal instrument, and since the UCMJ amendment, only one contractor has been prosecuted. (9) That contractor was not even a U.S. citizen, but rather an Iraqi national. (10)

After providing a brief background on the significance of civilian contractors' presence in Iraq and Afghanistan, this Note will discuss the history of MEJA and the amended UCMJ and then focus specifically on the only contractor prosecution since the 2007 change in law. The case, United States v. Ali, (11) provides an insight into both the legal challenges and the policy implications of creating UCMJ jurisdiction over contractors. Finally, the case highlights the tensions that continue to exist between the desire to create some form of accountability regime for contractors, and the actual effect of MEJA and UCMJ co-existing as mechanisms for liability. The analysis of the laws and the specific case study of Ali support the conclusion that despite two congressional attempts to create liability for contractors operating in the theater of war, the laws have proven to be more academic than a real threat of legal action against contractors who engage in misconduct. …