Thursday, October 4, 2007
Is Blackwater Untouchable?
There's been a lot of wringing of hands lately with regard to military contractors in Iraq, particularly how to rein in what increasingly amounts to a private army, answerable to no one, running amok with high calibre weaponry. Sprinkled throughout news coverage of the most recent Blackwater shooting spree in Baghdad, and peppered throughout the Congressional testimony of Blackwater CEO Erik Prince, was the gathering realization that as serious a problem as these rogue contractors are, they're somehow immune from being brought to justice because of their odd hybrid status. Not quite military, because they're civilian contractors, and not quite civilians because they're military contractors, they exist in a legal limbo, able to tear off rounds of automatic weapons fire with seeming impunity.
Quite a dangerous conundrum, that. Except for the fact that it's just not true. As Marc Lindemann makes clear in an article for Parameters, the Army War College's quarterly, the US military code has a long history of extending military law to contractors, the determining factors being whether or not they were serving with or accompanying the American military in time of war. And while the judiciary has repeatedly narrowed the military's jurisdiction over civilians, Congress has consistently responded with bills designed to respond to the courts' concerns.
Indeed, as recently as the defense authorization act of 2007, Congress deliberately plugged loopholes in previous enforcement measures by adding language to expand the Code's jurisdiction over civilians to include "contingency operations" instead of only "in time of declared war". The Iraq mission is, by statutory definition, a contingency operation:
Senator Lindsey Graham, one of the change’s architects, has stated that this modification of the UCMJ would “give military commanders a more fair and efficient means of discipline on the battlefield” by placing “civilian contractors accompanying the armed forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.”
The expansion of the UCMJ’s jurisdiction now provides a means of regulating contractor behavior, whatever the contracting company’s mission is in the combat zone. In doing so, the 2007 legislation has fundamentally changed the military-civilian relationship in stability operations.
That hardly strikes me as legal limbo. And while some of the more egregious Blackwater incidents occurred before the new language was put into effect, there was already an existing measure, the Military Extraterritorial Jurisdiction Act, designed to cover civilian military contractors:
Under MEJA, DOD contractors “employed by or accompanying the Armed Forces” could be brought back to the United States and tried in federal court for any crime that would be a felony under US law. MEJA entrusted the US Department of Justice with the prosecution of these crimes. Military and civilian lawyers alike heralded the 2000 law as a means of regulating contractors’ actions in a theater of operations.
Lindemann blames the evidentiary difficulties of prosecuting a crime committed abroad to explain US Attorneys' reluctance to bring charges, even in cases of blatant criminal behavior like Abu Ghraib. In fact, it was this reluctance on the part of prosecutors that led Congress to return the enforcement of contractor discipline to the military.
In all fairness, Lindemann makes it clear that there are some wrinkles to be ironed out. Parts of the UCMJ would have to be revised to "de-criminalize" certain behavior (misconduct while in captivity, for instance) for civilian contractors. But on the big picture items, like murder and reckless use of deadly force, the laws are already there on the books. It's just a question of applying them.