an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I appear here this afternoon in support of H.R. 369, the Transparency and Accountability in Security Contracting Act, co-sponsored by Representatives Price, Schakowsky, and 39 other Members, as well as H.R. 2740, which pulls out the provisions of H.R. 369 relevant to the Judiciary Committee. The focus of this bill is highly technical – expansion of the scope of the Military Extraterritorial Jurisdiction Act (“MEJA”). But it addresses a fundamental and pressing problem: lack of accountability of U.S. private military contractors to the “law of war” and the principles of the Geneva Conventions. By making MEJA applicable to all persons employed under a contract (or subcontract) written by any agency of the U.S. Government which is being performed outside of the United States and in connection with a contingency operation, H.R. 369 would address an serious gap in the current system. Its passage would help to ensure that private security contractors understand and adhere to the laws of war which govern U.S. military actions around the world.
The United States has had an extremely honorable record with respect to the law of war, not just with respect to American initiative and authorship, but also in providing training, oversight and accountability under the law of war for those it deploys in combat abroad. The “war on terror” has, however, been undertaken in a different way from former conflicts, and that has raised questions about whether training, oversight and accountability for law of war rules have been changed to reflect this different approach..
In the Second World War and Korean War, contractors amounted to somewhere between three and five per cent of the total force deployed. In the Vietnam conflict that number certainly exceeded five per cent, but just barely. The first Gulf War saw the ratio change fairly dramatically, to roughly ten per cent. But in the current conflict, the number appears to be climbing steadily closer to parity. Before the commencement of the surge, for instance, the total community of contractors in Iraq was around 100,000 and the number of uniformed service personnel was around 125,000.
This represents an extremely radical transformation in the force configuration. While the majority of these contractors are providing non-combat services like the provision of food and laundry services, a significant number of others are armed and involved directly in security operations. I cite these numbers not to criticize the reliance on contractors, but merely to highlight the fact that a very large part of the total force is not in uniform. Our training, oversight and accountability system has historically been geared to those in uniform. Yet despite the transformative expansion in the reliance on military contractors, that’s still the case today.
There is good reason to ask whether the accountability system works with respect to government contractors and subcontractors. Since the invasion of Iraq, there have been more than four dozen courts-martial commenced with respect to law of war issues. This number is generally consistent with American historical performance in wartime and suggests that the court-martial system, providing accountability for uniformed military personnel in war time, is functioning normally. But if we contrast this with enforcement action involving contract personnel, we get a different result. To date only one enforcement action has been brought to a conclusion – the Passaro prosecution in North Carolina. It is noteworthy that the Passaro case was brought under the Patriot Act, not under MEJA, and that case helps explain why the amendment is necessary. (The Patriot Act provision used in that case applies only to “crimes on U.S. facilities,” so it would not work for most of the cases we have examined, which are usually not on U.S. installations; conversely, the current MEJA language, limiting jurisdiction to contractors “in support of Department of Defense missions” might not work for Passaro, who was a CIA contractor.) The available data so far – which are still incomplete – suggest that contractors are certainly not less prone to infractions than uniformed soldiers are. If anything, the absence of military training and discipline would suggest that security contractors are more likely to commit violations of the laws of war when they become involved in difficult security operations.
Just a few days ago, I participated in a workshop sponsored by the Law and Public Affairs Program at Princeton University concerning the accountability of private military contractors. There were roughly three dozen bipartisan participants drawn from corporate executives from private military contractors firms, Government policy makers from the Department of Defense, intelligence community and other agencies, academics, Congressional staffers, and think-tank analysts. The sponsors asked us at one point to define the current problem. There was an almost immediate consensus on a great number of issues: that the roles of military contractors had not been well-defined and that there was a lack of clarity about limitations on the use of contractors in military operations, for instance. After that, there was general agreement that the law for prosecuting misconduct among contractors required careful review in light of the very troubling lack of follow-up in prosecutions that had been investigated in the field and referred for prosecution. Why exactly were criminal investigations not occurring? Why were there no prosecutions, even in cases in which the military had conducted criminal investigations?
H.R. 369 addresses what the conference participants identified as a major priority, namely insuring that a clear statutory basis exists for criminal justice action back in the United States. The original text of MEJA is in this context limited to persons “accompanying the Armed Forces.” It included contractors under the term “employed by the Armed Forces outside of the United States” provided they are contractors of the Department of Defense or “any other Federal agency . . . to the extent such employment relates to supporting the mission of the Department of Defense overseas.” H.R. 369 would expand this to include U.S. Government contractors or subcontractors who are outside of the United States in a region in which the United States is conducting a contingency operation, i.e, 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.
This change would update the law to better reflect the current situation in Iraq and Afghanistan in which a large number of contractors are present, with contracts written by a variety of different government agencies, including the Departments of Interior and State. It is unclear whether the majority of contractors operating in these places are doing so puruant to a contract with the Department of Defense, or even whether their contract “supports the mission of the Department of Defense overseas.” In some cases personnel are working with the Department of Defense, for instance, in connection with contracts written by the Department of the Interior. And indeed, a large part of the security contractors – the specific subgroup that presents the most cause for concern – have contracts and subcontracts written by the Department of State under the rubric of “diplomatic security.” Clearly, the specific contracting agency should be irrelevant for the purpose of ensuring that all contractors adhere to the laws of war. What counts is that the United States Government funds them, directly or indirectly, and brought them into the theater of combat. The United States assertion of criminal law jurisdiction over such personnel should not be viewed as something hostile. To the contrary, it is an essentially protective position. H.R. 369 makes this essential change.
The fact pattern of violations by contractors in the cases I have studied so far is consistent. An incident occurs, frequently involving homicide or assault. The contractor generally conducts a preliminary investigation, prepares a report and, if the initial concerns are borne out, employment of the personnel in question is terminated and they are put on a plane to America within a couple of days. However, in some cases, contractors have failed to conduct an investigation but have transferred the personnel involved out of the theater of operations, sometimes resulting in a redeployment from Iraq to Afghanistan, Kuwait or Jordan, for instance. But that’s been the end of the story. If we were talking about a uniformed service person, the Criminal Investigative Division would come in, a criminal investigation would ensue, and if sufficient evidence were present, there would be a court-martial or a nonjudicial punishment for a lesser offense. With contractors, however, no hand off to investigators and prosecutors appears to occur. This is a severe problem.
We are in the process of independently investigating a number of incidents which reflect criminal activity involving contractors. I draw your attention to these reports not in order to comment on the guilt or innocence of persons named in them. Rather I note that each presents a case that should, in the ordinary course, have been the subject of a criminal investigation and potential law enforcement action. Yet no action appears to have occurred in any of these cases.
If these alleged offenses were to occur inside the United States, of course, it would be up to the FBI and federal prosecutors or state and local law enforcement officials depending on the circumstances of the offense to investigate and prosecute them. But in Iraq, contractors are beyond the reach of the local Iraqi law enforcement agencies. Without U.S. government oversight, investigation and prosecutorial authority, contractors have criminal law immunity.
This immunity was granted under Order No. 17 issued by Lewis Paul Bremer III as head of the Coalition Provisional Authority for Iraq. It was issued on June 27, 2004, the day Mr. Bremer left Iraq, when authority was transferred from the CPA to the Government of Iraq. The Government of Iraq was required to accept and maintain Order No. 17 as a condition of the transfer of authority to it. However, since the interim government transferred authority to the new government, the Minister of Justice and other officials have consistently challenged the legality and validity of Order No. 17.
The theory underlying Order No. 17 parallels various Status of Forces Agreements (“SoFA”) negotiated by the United States around the world – such as those in effect with Germany, Japan and Korea. But there is one significant difference. Most SoFAs do not provide immunity; rather they grant a first right to prosecute American personnel to American authorities. In the event of a failure to exercise this right, the host nation would have the power to bring charges if it chooses to do so. For a number of reasons, including the difficulty of dealing in a foreign language with persons operating in a foreign culture and environment, host nations would generally prefer not to take the lead on such prosecutions. Rather, they would prefer that the United States do so. The United States likewise would generally prefer to exercise this criminal law authority for a simple reason: in a conflict or military environment, the exercise of law enforcement enhances or bolsters the position of the command authority. The introduction of a foreign law enforcement authority confuses or has the potential of undermining that authority. However, when the United States has failed to act, as it has in recent incidents in Okinawa and Korea, this has had a chilling effect on relations with the host country. The Okinawa and Korea incidents – as well as a recent homicide case at Ganci Air Force Base in the Kyrgyz Republic – provide good examples of how U.S. failure to investigate or prosecute can severely damage relations with the host nation. The far better U.S. track record in Germany provides a good example of how criminal investigation and prosecution can help maintain excellent host nation relations.
However, the notion of immunity introduced in Order No. 17 is far more sweeping than the prior SoFA practice. It contains a blanket bar to criminal justice action in Iraq. This is particularly strange because there is no alternative arrangement made for a prosecution by U.S. authorities on Iraqi soil (such as exists, for instance, in the U.S.-Korea SoFA). It creates a situation in which removal to the United States and prosecution in the United States is the sole alternative. Yet no such prosecution has yet occurred with respect to contractor crimes in Iraq. This is certain to be cited by the Iraqi authorities as an argument in support of stripping contractor immunity in their country.
General Petraeus and others in the chain of command have noted that the future U.S. role with respect to Iraq is likely to proceed on the “Korean model,” which is to say a scenario in which a substantial military contingent is deployed in Iraq for a very lengthy period. Considering the current deployment model, then, we should anticipate a long-term presence of substantial numbers of U.S. government contractors and subcontractors in Iraq for the next generation. If the United States wishes to retain the power to address criminal justice issues for these contractors and avoid having them dealt with by the Iraqi criminal justice authority, it must provide a clear basis for criminal justice accountability in the United States with respect to wrongdoing in the Iraqi theater of operations. H.R. 369 will help achieve that goal.
It’s not enough simply to provide a clear jurisdictional footing. Resources also need to be allocated for enforcement. H.R. 369 starts the process by providing for an FBI investigative unit and providing for an Inspector General’s report on the quantum of cases.
As this Committee considers legislative solutions to the pressing problem of contractor accountability, I want to suggest one final point. Some have argued that Congress should either expand and develop MEJA as an accountability mechanism to be administered by the Department of Justice, or leave the issue in the hands of the Department of Defense drawing on long-standing but recently clarified provisions of the Uniform Code of Military Justice (“UCMJ”) that would allow military justice to apply to military contractors overseas during contingency operations. I reject this perspective. As Senator Lindsey Graham has argued, I believe it is essential that command authority in a war zone and in times of war retain the ability to wield military justice as a disciplinary tool with respect to contractors. I believe that this tool would and should be sparingly used, reserved for cases where there has been a direct conflict with command authority involving security contractors. But in most cases, the preference of command authority has and will continue to be to immediately evacuate the offender to U.S. territory, and in this circumstance that would mean to the authority of the Department of Justice.
Both mechanisms are important. As I see it, the approach taken by H.R. 369, and the recently enacted amendment of the UCMJ sponsored by Senator Graham are mutually supportive and not in conflict.
When we talk about the “Geneva Conventions” and the “law of war,” we frequently lose sight of the fact that this entire body of international law is a distinctively American contribution. The core of this law was laid down by Abraham Lincoln on April 23, 1863, when he promulgated the Lieber Code, and over the next seventy years international humanitarian law developed on the basis of American advocacy – ensuring, as Theodore Roosevelt’s Secretary of State, Elihu Root, stated, that the vision of America’s greatest president would emerge as the law not only of the United States, but of the entire world community. The Hague Conventions on Land Warfare and several successive versions of the Geneva Conventions emerged during this process, and over time international law did in fact come progressively closer and closer to Lincoln’s vision.
These efforts were primarily the work of the Republican Party, which pursued them as a memorial to their greatest president. It was and is a fitting memorial.
President Lincoln’s law of war advisor, Francis Lieber, wrote in 1862 that by zealously enforcing the rules of war, we maintain the good discipline and morale of America’s armed forces and uphold our nation’s reputation. Once we stop enforcing the rules, the system will break down and it will be very difficult to restore it. He wrote, “And such a state of things results speedily, too; for all growth, progress, and rearing, moral or material, are slow; all destruction, relapse, and degeneracy fearfully rapid. It requires the power of the Almighty and a whole century to grow an oak tree; but only a pair of arms, an ax, and an hour or two to cut it down.” Lincoln’s doctrine of war has grown into a mighty oak which surely has not fallen, but it is badly in need of care and attention from this Congress. H.R. 369 provides some essential maintenance.
“Here . . . comes . . . that famous General Taguba—of the Taguba report!” Rumsfeld declared, in a mocking voice. The meeting was attended by Paul Wolfowitz, Rumsfeld’s deputy; Stephen Cambone, the Under-Secretary of Defense for Intelligence; General Richard Myers, chairman of the Joint Chiefs of Staff (J.C.S.); and General Peter Schoomaker, the Army chief of staff, along with Craddock and other officials. Taguba, describing the moment nearly three years later, said, sadly, “I thought they wanted to know. I assumed they wanted to know. I was ignorant of the setting.”
In the meeting, the officials professed ignorance about Abu Ghraib. “Could you tell us what happened?” Wolfowitz asked. Someone else asked, “Is it abuse or torture?” At that point, Taguba recalled, “I described a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum, and said, ‘That’s not abuse. That’s torture.’ There was quiet.”
Rumsfeld was particularly concerned about how the classified report had become public. “General,” he asked, “who do you think leaked the report?” Taguba responded that perhaps a senior military leader who knew about the investigation had done so. “It was just my speculation,” he recalled. “Rumsfeld didn’t say anything.” (I did not meet Taguba until mid-2006 and obtained his report elsewhere.) Rumsfeld also complained about not being given the information he needed. “Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.” As Rumsfeld spoke, Taguba said, “He’s looking at me. It was a statement.”
Taguba said, “Rumsfeld was in denial.” Taguba had submitted more than a dozen copies of his report through several channels at the Pentagon and to the Central Command headquarters, in Tampa, Florida, which ran the war in Iraq. By the time he walked into Rumsfeld’s conference room, he had spent weeks briefing senior military leaders on the report, but he received no indication that any of them, with the exception of General Schoomaker, had actually read it. (Schoomaker later sent Taguba a note praising his honesty and leadership.) When Taguba urged one lieutenant general to look at the photographs, he rebuffed him, saying, “I don’t want to get involved by looking, because what do you do with that information, once you know what they show?”
The team spent much of February, 2004, in Iraq. Taguba was overwhelmed by the scale of the wrongdoing. “These were people who were taken off the streets and put in jail—teen-agers and old men and women,” he said. “I kept on asking these questions of the officers I interviewed: ‘You knew what was going on. Why didn’t you do something to stop it?’ ”
Taguba’s assignment was limited to investigating the 800th M.P.s, but he quickly found signs of the involvement of military intelligence—both the 205th Military Intelligence Brigade, commanded by Colonel Thomas Pappas, which worked closely with the M.P.s, and what were called “other government agencies,” or O.G.A.s, a euphemism for the C.I.A. and special-operations units operating undercover in Iraq. Some of the earliest evidence involved Lieutenant Colonel Steven L. Jordan, whose name was mentioned in interviews with several M.P.s. For the first three weeks of the investigation, Jordan was nowhere to be found, despite repeated requests. When the investigators finally located him, he asked whether he needed to shave his beard before being interviewed—Taguba suspected that he had been dressing as a civilian. “When I asked him about his assignment, he says, ‘I’m a liaison officer for intelligence from Army headquarters in Iraq.’ ” But in the course of three or four interviews with Jordan, Taguba said, he began to suspect that the lieutenant colonel had been more intimately involved in the interrogation process—some of it brutal—for “high value” detainees.
“Jordan denied everything, and yet he had the authority to enter the prison’s ‘hard site’ ”—where the most important detainees were held—“carrying a carbine and an M9 pistol, which is against regulations,” Taguba said. Jordan had also led a squad of military policemen in a shoot-out inside the hard site with a detainee from Syria who had managed to obtain a gun. (A lawyer for Jordan disputed these allegations; in the shoot-out, he said, Jordan was “just another gun on the extraction team” and not the leader. He noted that Jordan was not a trained interrogator.)
Taguba said that Jordan’s “record reflected an extensive intelligence background.” He also had reason to believe that Jordan was not reporting through the chain of command. But Taguba’s narrowly focussed mission constrained the questions he could ask. “I suspected that somebody was giving them guidance, but I could not print that,” Taguba said.
After all Jordan’s evasiveness and misleading responses, his rights were read to him,” Taguba went on. Jordan subsequently became the only officer facing trial on criminal charges in connection with Abu Ghraib and is scheduled to be court-martialled in late August. (Seven M.P.s were convicted of charges that included dereliction of duty, maltreatment, and assault; one defendant, Specialist Charles Graner, was sentenced to ten years in prison.) Last month, a military judge ruled that Jordan, who is still assigned to the Army’s Intelligence and Security Command, had not been appropriately advised of his rights during his interviews with Taguba, undermining the Army’s allegation that he lied during the Taguba inquiry. Six other charges remain, including failure to obey an order or regulation; cruelty and maltreatment; and false swearing and obstruction of justice. (His lawyer said, “The evidence clearly shows that he is innocent.”)
Taguba came to believe that Lieutenant General Sanchez, the Army commander in Iraq, and some of the generals assigned to the military headquarters in Baghdad had extensive knowledge of the abuse of prisoners in Abu Ghraib even before Joseph Darby came forward with the CD. Taguba was aware that in the fall of 2003—when much of the abuse took place—Sanchez routinely visited the prison, and witnessed at least one interrogation. According to Taguba, “Sanchez knew exactly what was going on.”
How well is it working, having a parallel fighting force, ostensible on the same side but so different in just logistical terms? How does it affect the moral of the troops would be another question in my mind as well. I'd suspect that contractors get paid much better, and possibly get better medical benefits as well.