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Private Security Contactors: Diplomatic Security in Iraq

Private Security Contactors: Diplomatic Security in Iraq. Law, National Security & Public Policy George Mason University Spring 2008 Professor Malawer. Phil Baxter Chris Pelkey James Turner. Introduction. Issue Overview Legal Uncertainty in Accountability

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Private Security Contactors: Diplomatic Security in Iraq

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  1. Private Security Contactors: Diplomatic Security in Iraq Law, National Security & Public Policy George Mason University Spring 2008 Professor Malawer Phil Baxter Chris Pelkey James Turner

  2. Introduction • Issue Overview • Legal Uncertainty in Accountability • Military Extraterritorial Jurisdiction Act • Proposal and Analysis • Stakeholders • Conclusion and Questions

  3. Issue Overview • Primary Focus: Private Security Contractors in Iraq • What is the issue? • Why are PSCs used/needed? • What is their combatant status?

  4. “One military analyst noted, ‘Legally speaking, [military contractors] fall into the same grey area as the unlawful combatants detained at Guantánamo Bay’” Peter W. Singer, Brookings Institution Mercenaries in Congo 1967 Legal Uncertainty Photo from MSN Encarta

  5. Fallujah -- 3/31/04 Deaths of Blackwater Contractors Abu Ghraib prison – April 04 media reports Memorandum 17 -- 6/27/04 Coalition Provision Authority “Status of Forces Agreement” Nisoor Square – 9/16/07 “hole in the law” Blackwater contractors Najaf - 2004 Reference Points in Iraq Photo Associate Press, via Washington Post

  6. Specific Issue -- Response In what forum should contractors providing security to the U.S. State Department be held to account for alleged criminal violations? U.S. Civilian Federal Courts

  7. Accountability • Iraqi Courts • Immunity - Memorandum No 17 of CPA • U.S. Courts • Courts Martial (UCMJ) • HistoricallyStatute narrow – Constitution • BUT see PL109-364 • Extraterritorial Jurisdiction, Federal Courts • Special Maritime and Territorial Jurisdiction (SMTJ) • Limited by ‘real property’ definition • War Crimes Act and special statutes with E.T. reach • Military Extraterritorial Jurisdiction Act(MEJA) • International Law

  8. Military Extraterritorial Jurisdiction Act of 2000 (MEJA) § 3261. Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States • ‘‘(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States— • ‘‘(1) while employed by or accompanying the Armed Forces outside the United States; or • ‘‘(2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice)…

  9. Military Extraterritorial Jurisdiction Act of 2000 (MEJA) -- Continued § 3267. Definitions ‘‘(1) The term ‘employed by the Armed Forces outside the United States’ means— ‘‘(A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department), as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a subcontractor at any tier); ‘‘(B) present or residing outside the United States in connection with such employment; and ‘‘(C) not a national of or ordinarily resident in the host nation.

  10. 2004 Amendment to MEJA § 3267. Definitions (1) The term “employed by the Armed Forces outside the United States” means— (A) employed as— (i) a civilian employee of … (ii) a contractor (including a subcontractor at any tier) of— (I) the Department of Defense … or (II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas; or (iii) an employee of a contractor (or subcontractor at any tier) of— … [as above]

  11. HR 2740 MEJA Expansion and Enforcement Act of 2007 (Price), passed by House of Representatives § 3261 (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States— (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), or `(3) while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States, where the work under such contract is carried out in an area, or in close proximity to an area (as designated by the Department of Defense), where the Armed Forces is conducting a contingency operation,'.

  12. HR 2740 – Price, continued 10 USC 101 (a) (13) The term ``contingency operation'' means a military operation that— (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

  13. Uniform Code of Military Justice - Distinguished from Civilian Courts 10 U.S.C. § 802. Persons subject to this chapter (a) (1) Members of a regular component of the armed forces, including those awaiting discharge… (2) Cadets, aviation cadets, and midshipmen (3) Members of a reserve component while on inactive- duty training … (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other … (10) In time of declared war or a contingency operation, persons serving with or accompanyingan armed force in the field.

  14. Uniform Code of Military Justice - Distinguished from Civilian Courts 2 • “Article I” Courts versus “Article III” Courts • Specific exception from Grand Jury Indictment • Not allowed for Civilian in • Reid v. Covert, 354 U.S. 1 (1957) [military wife charged with murdering husband. Peace time, capital case] • “War” U.S. v. Averett, 19 C.M.A. 363 (1970) military appeals ct. legislatively overruled by PL 109.364 -- 2006 “contingency operation” • Arguably Applicable to Contractors accompanying troops – factual “stretch” for State Dept security.

  15. Proposal • Recommend that MEJA amendment passed • Recommend establishment of Task Force • Purpose of Task Force • Goals of Task Force • Membership of Task Force

  16. Proposal Analysis • Primary Issue: Lack of accountability for PSCs • Primary Forum: U.S. Civilian Federal Courts • Political Considerations • Pros/Cons

  17. Stakeholders • U.S. Government • Taxpayers • Private Security Firms • International Community • Iraqi/Afghan Civilians

  18. Conclusion • Projecting a U.S. presence abroad – global “War on Terrorism” • Accountability must accompany us • Taking the U.S. legal system with us • Regulating an Expanding Industry • Establishing Defined Accountability

  19. Annotated Bibliography • Avent, Deborah. "Think Again: Mercenaries." Foreign Policy July August (2004) http://www.foreignpolicy.com/story/cms.php?story_id=2577 • [Registration required, no charge]; Basic FAQ about modern private military firms by GW political science professor. • Berkowitz, Bill. "U S-Iraq: Blackwater Blues for Dead Contractors' Families." Inter Press Service News Agency, June 29, 2007 • http://www.ipsnews.net/news.asp?idnews=38379 • The lawsuit alleges that Blackwater sent the men on a job with inadequate equipment and protection concerning the killings in Fallujah. • Blackwater USA, Center for Media and Democracy, 2008 [cited April 10, 2008]. Available from http://www.sourcewatch.org/index.php?title=Blackwater_USA#_note-2 • Information about the corporation largely taken from Wikipedia. • Broder, John M. "Rice Says 'Hole' in U.S. Law Shields Contractors in Iraq." New York Times, October 25 2007,A 06 • Sec. Rice testimony concerning Blackwater and also pervasive corruption in Iraq before House Committee on Oversight and Government Reform. • DeYoung, Karen. "Blackwater's Employment Investigated." Washington Post, March 11, 2008,A16 • http://www.washingtonpost.com/wp-dyn/content/article/2008/03/10/AR2008031001223.html • Committee Chairman Waxman is investigating the Blackwater treatment of its workers as "independent contractors" rather than employees. Also mentions the FBI has been investigating Blackwater incident in Iraq. • ———. "Immunity Jeopardizes Iraq Probe; Guards' Statements Cannot Be Used in Blackwater Case." Washington Post, October 30 2007,A 1 • Interviews of Blackwater guards concerning the deaths of 17 Iraqi civilians by members of State Department Bureau of Diplomatic Security may have been with immunity, and make future investigation more difficult. • ———. "On Hill, Rice Talks About Blackwater; Secretary Notes Regret but Defends Efforts." Washington Post, October 26, 2007,A 08 • Discussion of MEJA and House Amendment. Pending in Senate. Secretary questioned about corruption in Iraq at House Committee on Oversight and Government Reform. • H.R. 2740: MEJA Expansion and Enforcement Act of 2007 GovTrack.us, 2007. Available from http://www.govtrack.us/congress/bill.xpd?bill=h110-2740 • Tracking bill in 110th Congress.

  20. Annotated Bibliography (continued) • Hedgpeth, Dana. "State Department to Renew Deal with Blackwater for Iraq Security." Washington Post April 5, 2008,D 02 • http://www.washingtonpost.com/wp-dyn/content/article/2008/04/04/AR2008040403449.html • State Dept official says there is more stringent oversight and knowledge of the "rules of engagement". • International Peace Operations Association [Web Site]. 2008 [cited April 11. Available from http://ipoaonline.org/php/ • Web site of trade association for private security companies. (Blackwater no longer a member). Links to resources including December 2007 D O D and D O S Memorandum of Agreement on PSCs in Iraq. • Iraq: Pass New Law Ending Immunity for Contractors, Human Rights Watch, January 8, 2008. Available from http://hrw.org/english/docs/2008/01/09/iraq17703.htm • Human Rights Watch editorially recommends that Iraq’s parliament approve legislation to end immunity for foreign private security contractors. The legislation would effectively rescind Order 17 of the now-defunct, US-led Coalition Provisional Authority (CPA). • Isenberg, David. "Ghost of Outsourcing yet to Come." Middle East Times, December 27, 2007 • http://www.cato.org/pub_display.php?pub_id=8870 • A book to be published in May 2008 will describe extensive use of contractors by the intelligence agencies. Represents a further blurring of the roles of government and private sectors. Accessed via Cao Institute web site. • ———. "No Gravy Train for P M C Grunts." In United Press International. Washington, DC, 2008 • http://www.cato.org/pub_display.php?pub_id=9304 • The higher pay to military contractors is not nearly so much larger than active duty military personnel when you consider the benefits that military service personnel are eligible to recieve. Story accessed via Cato Institute website. • Merle, Renae. "Verdict against Iraq Contractor Overturned; Occupation Authority's Murky Status Cited." Washington Post, August 19, 2006,D 01 • In U.S. Dist. Ct. , Alexandria, judge overturns $10 million verdict in corruption case on the grounds that the Coalition Provision Authority is not part of the U.S. government. • O'Harrow, Jr., Robert. Blackwater & Company [Government, Inc.,Weblog]. Washingtonpost.com, 2/27/08, 2008. Available from http://blog.washingtonpost.com/government-inc/2008/02/blackwater_and_company.html • Reporting on Senate Homeland Security and Governmental Affairs Committee meeting of February 26, 2008 concerning private security contractors (PSC's).

  21. Annotated Bibliography (continued) • "Overseas Jurisdiction Advisory Committee (Section 1151, Public Law 104-106) Report to the Secretary of Defense, the Attorney General, the Congress of the United States." April 18, 1997 • http://www.fas.org/irp/doddir/dod/ojac.pdf • Report mandated by Public Law 104-106 responding to request for review of the issue of jurisdiction over civilians accompanying the armed forces. Recommending the elimination of perceived jurisdictional "gaps". Only passing reference to the State Department. • Parsons, Claudia. "Blackwater V P: Too Soon to Judge Baghdad Shootings." Reuters, April 3, 2008 • http://www.reuters.com/article/topNews/idUSN0347929020080403 • The company, which has 800 to 900 private security guards operating in Iraq, came under fire over the incident at a New York University School of Law conference called "Privatizing Defense: Blackwater, Contractors and American Security." Scott Horton, a lecturer at Colombia Law School, faulted the Justice Department for going "AWOL" and not taking any interest in enforcing the law. He said in five years of war with an estimated 180,000 contractors working in Iraq, there had been only two or three prosecutions for any offenses. • Peters, William C. "On Law, Wars, and Mercenaries: The Case for Courts-Martial Jurisdiction over Civilian Contractor Misconduct in Iraq." 2006 B.Y.U.L. Rev. 367 2006, no. 2 (2006): 367 • http://lawreview.byu.edu/archives/2006/2/2PETERS.FIN.pdf • A West Point law professor makes a case for using Courts Martial for civilians who are closely allied with military operations in Iraq even though concurrent jurisdiction may rest with civilian courts. (The article [footnote 2] collects some evidence of a link between Iraq and the September 11th attacks.) • Private Warriors P B S, Frontline [Smith, Martin, producer], air date June 21, 2005 [cited April 10, 2008. Available from http://www.pbs.org/wgbh/pages/frontline/shows/warriors/ • Web site accompanying PBS documentary on private security companies. Complete show may be downloaded. [Caution, extreme violence]. • Q&A: Private Military Contractors and the Law States Have an Obligation to Prosecute Perpetrators of War Crimes in Their Courts, [Web site]. Human Rights Watch, 2008 [cited April 11,2008. Available from http://hrw.org/english/docs/2004/05/05/iraq8547.htm • Discussion of options for exercising jurisdiction including recent MEJA revisions and pending legislation. • Rubin, Alissa J. and Paul von Zielbauer. "Blackwater Case Highlights Legal Uncertainties." New York Times, October 11, 2007 • http://www.nytimes.com/2007/10/11/world/middleeast/11legal.html?_r=2&oref=slogin&oref=slogin • Reporting that Blackwater guards under contract to the State Department opened fire on unarmed civilians and killed 17 Iraqis, according to the Iraqi government. The most likely way to prosecute would be through the Military Extraterritorial Jurisdiction Act, which allows the extension of federal law to civilians supporting military operations.

  22. Annotated Bibliography (continued) • Schmitt, Glen R. "Amending the Military Extraterritorial Jurisdiction Act of 2000: Rushing to Close an Unforeseen Loophole." Army Lawyer, June, 2005 • http://findarticles.com/p/articles/mi_m6052/is_2005_June/ai_n14935862/print • Discussing efforts to close loop holes and whether more legislation is needed. • Serafino, Elsea. Jennifer K and Nina M. Private Security Contractors in Iraq: Background, Legal Status, and Other Issues C R S Report for Congress [Order Code 32419], updated July 11, 2007. Available from • http://www.fas.org/sgp/crs/natsec/RL32419.pdf • A thoughtful survey of the area. Discussion of pending bills. • Singer, Peter W. Outsourcing War Brookings Institution, March/April, 2005. Available from http://www.brookings.edu/articles/2005/0301usdepartmentofdefense_singer.aspx • From an article in Foreign Affairs, policy discussion of issues of the much more extensive use of contractors who can use lethal force. Regulation has not kept pace. Issues of accountability not clear in law. • Singer, Peter W. The Law Catches up to Private Militaries, Embeds Defensetech.org, January 5, 2007, 2007 [cited 4/13/08. Available from http://www.defensetech.org/archives/003123.html • Singer discusses the relatively unnoticed addition to the 2007 Pentagon Authorization PL109-364of the words " `declared war or a contingency operation'." which could make contractors (and embedded journalists) accountable under the UCMJ. • "Timeline of Significant Events for Blackwater." Virginia Pilot, Sept 18, 2007 • http://hamptonroads.com/node/329091 • Covering period from incorporation in 1996 through Sept 16, 2007. • "U.S. Military Charges Civilian Contractor in Iraq." Reuters, April 5 2008 • http://www.reuters.com/article/newsOne/idUSL0540710920080405 • Alaa Mohammad Ali is accused of stabbing another contractor, the military said. The statement said he was the first contractor charged under an amendment passed by Congress in 2006, which governs military trials for contractors accompanying U.S. troops. • White, Josh. "Judge Allows Abu Ghraib Lawsuit against Contractor." Washington Post, November 7 2007,A 13 • U.S. District Judge (DC) James Robertson rejects contractor CACI's claims of immunity.

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