Criminal liability of civilian contractors in Iraq and Afghanistan.

• Author: Price, Ingrid L.

1. 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.

2. THE GAPING HOLE: MILITARY CONTRACTORS IN IRAQ AND AFGHANISTAN

   Although the use of military contractors is nothing new to the U.S. armed forces, the "War on Terror" took the use of contractors to a level unseen in any previous U.S. conflict. (12) Whereas during the First Gulf War the number of contractors totaled approximately 9,200, at the height of the Iraq War alone, approximately 100,000 civilian contractors were on the ground serving alongside the military. (13)

   By 2013, the number of contractors actually outnumbered the number of military personnel in Afghanistan, with approximately 110,000 Department of Defense (DOD) contractors and 66,000 U.S. military personnel on the ground. (14) In absolute terms, the use of civilian contractors has become so critical to the conflicts that their continued relevance and presence is undeniable. The dramatic shift in contractors' roles in the latest conflicts is underscored by the fact that in 2012, the number of U.S. civilian contractor deaths actually outnumbered the number of U.S. military deaths. (15)

   The increase in the use of contractors has been closely followed by a number of incidents of misconduct. In 2007, the use of contractors came to the public's attention in part because the Blackwater shooting in Iraq involved only contractors. But it was not the first or only instance in which private contractors allegedly engaged in illegal conduct. One of the first notable violations came to light in early 2004, when reports leaked of torture being used against detainees at Abu Ghraib prison in Iraq. (16) Low-ranking members of the U.S. military were prosecuted under the UCMJ for their criminal conduct. At the same time, private contractors with Titan and CACI International stationed at the prison also engaged in the same activities, including training military personnel in abusive interrogation methods. (17) Those individuals were not criminally prosecuted.

   The Department of Interior, not DOD, managed the contract with CACI. This meant that at the time, MEJA could not be used to prosecute those contractors. (18) The UCMJ also did not reach to civilian contractors and furthermore, the Administrator of the Coalition Provisional Authority of Iraq, L. Paul Bremmer, granted all contractors immunity from host nation prosecution in Iraq. (19) His decision was considered a move to incentivize contracts in Iraq. As a result, the private civilian contractors who engaged in torture at Abu Ghraib were not prosecuted for their behavior, despite acting similar to, or even worse than, those military personnel who were prosecuted. (20) The incident highlighted the gaping hole in contractor liability that continues to plague lawmakers despite various actions to amend the law.

3. MILITARY EXTRATERRITORIALITY JURISDICTION ACT

   Historically, civilians serving alongside the armed forces in times of war could be court-martialed just like their military counterparts. (21) Following a string of Supreme Court cases starting in the 1950s, however, it became effectively impossible to prosecute a civilian in a military court. (22) In Reid v. Covert, the Court said, "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." (23) The U.S. Court of Military Appeals later in Averette clarified that "peace" effectively meant times that were not "a war formally declared by Congress." (24) Thus, not until the passage of MEJA in 2000 could civilian contractors working overseas be prosecuted through any manner other than by the host nation. (25)

   In 2000, Representatives Saxby Chambliss and Bill McCollum attempted to address the gaping hole in contractor liability by sponsoring MEJA. (26) Introducing the bill, then-Representative Chambliss noted that the legislation, "will close a legal loophole that currently allows civilians accompanying the military outside the United States to avoid prosecution for crimes." (27) Rather than seeking liability under military law, the Act simply sought to extend federal jurisdiction to particular individuals serving overseas with the armed forces. MEJA thus...