Academic journal article Vanderbilt Law Review

The Untouchables: Private Military Contractors' Criminal Accountability under the UCMJ

Academic journal article Vanderbilt Law Review

The Untouchables: Private Military Contractors' Criminal Accountability under the UCMJ

Article excerpt


September 16, 2007 has been called Baghdad's "Bloody Sunday."1 On that scorching afternoon in Baghdad, Iraq, a team of Blackwater Worldwide2 private military contractors slew seventeen Iraqi civilians3 and wounded twenty-seven others.4 A Blackwater spokesperson claimed that the civilian contractors reacted in response to an attack by enemy combatants and "heroically defended American lives."5 Despite such claims, U.S. soldiers who arrived at the scene within twenty-five minutes found no evidence of enemy activity and characterized the event as criminal.6 Despite such evidence and notwithstanding four potential sources of criminal law - international law, host-nation law, U.S. civilian law, and U.S. military law - these Blackwater guards escaped criminal accountability for their actions on Bloody Sunday.7 Such private citizens employed by the U.S. military in undeclared wars had fallen into a legal loophole, practically beyond the reach of criminal law. They had become "the Untouchables."8

Prior to Bloody Sunday, Congress had recognized that something must be done to bridge this gap and amended U.S. military law in 2007 to bring the Untouchables within the grasp of criminal law.9 This Note examines the legal loophole into which modern private military contractors had fallen and concludes that U.S. military law can, and should, be used to hold them criminally accountable.

Private military contractors ("PMCs" or "contractors"), like the Blackwater employees, have assumed a pivotal role in U.S. foreign relations and combat worldwide. Following a reduction in the general size of U.S. armed forces, the government has turned increasingly to PMCs to perform many functions previously carried out by military personnel.10 Although these contractors had initially provided mere auxiliary support to the military by supplying instruction, mail delivery, and food services,11 an overextended U.S. military soon utilized PMCs globally in a wide variety of vital roles,12 such as "interrogators, complex systems operators, . . . [and] security for high profile politicians and military commanders."13

P.W. Singer, a senior fellow and director of the 21st Century Defense Initiative at the Brookings Institution,14 has recently identified three classifications of firms, based on the services they provide, that supply PMCs to the U.S. military: (1) military support firms that deliver "supplementary military services . . . including logistics, intelligence, technical support, supply, and transportation"; (2) military consulting firms that supply "advisory and training services integral to the operation and restructuring of a client's armed forces"; and (3) military provider firms that focus on the tactical environment by running active combat operations.15 PMCs who come from military provider firms operate "at the forefront of the battlespace, by engaging in actual fighting . . . and/or direct command and control of field units."16 Such contractors, like those involved in Bloody Sunday, essentially act in a quasi-military capacity. These quasi-military PMCs dress like soldiers, bear arms like soldiers, and fill quintessential soldier roles.17

The U.S. military's use of PMCs in modern times - since the early 1990s - has reached an unprecedented level.18 As of late 2007, PMCs in Iraq outnumbered military personnel 180,000 to 165,000, with between 20,000 and 30,000 contractors in quasi- military roles.19 As one of the main suppliers of PMCs to the U.S. military, Blackwater provided security to U.S. officials who visited Iraq.20 In performing their roles as bodyguards, Blackwater employees frequently escorted U.S. officials through Baghdad in armed convoys.21 For Iraqi police officers, it became "a standard part of their workday in occupied Iraq to stop traffic to make room for U.S. VIPs, protected by heavily armed private soldiers, to blaze through."22

On Bloody Sunday, what began as a routine traffic stop by Blackwater contractors escorting U. …

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