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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Prosecuting Military Contractors: More a Problem of Law in Action Than Law on the Books
First of all, thanks to Jack for offering me the opportunity to write a series of posts concerning the increasing use of military contractors both by the United States and by other countries and international organizations. My discussion will mostly track arguments I make in my forthcoming book, Outsourcing War and Peace.
In this first foray, I want to address both Sandy’s earlier post concerning privatization as evasion of accountability and David’s post outlining the limitations of the various criminal liability provisions, and I want to suggest that there is in fact a workable legal framework potentially available. David has admirably detailed some of that framework in his post, but I think it's important to stress that, while there are still some loopholes (which Congress is working hard to close) in SMTJ/MEJA, the problem is actually less with the formal legal framework than with its enforcement. (And by the way, I think there's a strong argument that CPA Order 17 shouldn’t be read to immunize contractors for abuses of force. First, Clause 4.3 contains the proviso “pursuant to the terms and conditions of a contract,” and I don’t think the contracts should be read to authorize criminal acts. Second, under international law a grant of immunity of this sort can’t immunize actors (state or non-state) against war crimes. To me that follows from the Nuremberg principle. And though there is arguably an idea of diplomatic immunity from prosecution before national (as opposed to international) tribunals, contractors would likely be ineligible for such immunity. Now, this is not to say that the Blackwater employees in this case committed war crimes, only to say that we shouldn’t assume that Order 17 completely disables criminal liability. And while I wouldn't necessarily advocate prosecution in Iraq, given the current state of the Iraqi legal system, that again is more a problem of enforcement than legal infrastructure.) Thus, I think we need to pay greater attention to encouraging enforcement of the law that does exist, rather than focusing (as the public discourse currently tends to do) only on the possible shortcomings of that legal framework.
Lack of enforcement is, of course, partly a question of political will, which is difficult to overcome. Nevertheless, it is possible to create organizational structures that will increase transparency and enable more effective congressional oversight and public pressure, and I think that is where we should be training our efforts. For example, right now the responsibility for prosecuting contractors engaged in abuses is diffused among individual US Attorneys’ offices, which results in a fragmented enforcement system and little oversight. Instead, I think we ought to centralize prosecutorial authority within a specialized office in the DOJ, and we ought to mandate that that DOJ office provide regular reports to Congress. Likewise, there should be a high-level inter-agency working group at the National Security Council responsible for harmonizing contracting rules and standards among the agencies and reporting to Congress. The State Department reports annually on the number of human rights violations committed in countries around the world; we should have at least as good a reporting system with regard to our own contractors. And while an administration bent on hiding potential abuses could undoubtedly try to “cook the books” to avoid oversight, just the process of reporting and its accompanying publicity and potential public pressure might have some impact (certainly more than the current system whereby no one outside of DOJ oversees the individual prosecutorial decisions of US Attorneys’ offices).
Some of the pending bills go a good distance to address at least some of these points. For example, H.R 369, in addition to extending MEJA to all contractors in contingency operations, requires DOJ Inspector General reports to Congress on investigations of alleged contractor abuse, establishes “FBI theater investigative units,” and obligates all agencies to report to Congress on the number of contracts awarded, the number of contracting officers overseeing the contracts, and a catalog of activities. (It also sets standards for the hiring and training of security contractors, an important point I will return to in my next post, which will address how to reform terms contained in the military contracts themselves.)
DOJ is apparently resisting H.R. 369 and would rather bring contractor abuses within the anti-trafficking framework. Aside from being nonsensical and linking contractor abuse to a completely unrelated set of concerns, such a move would further fragment DOJ investigative and prosecutorial authority. Thus, I do not believe Congress should defer to DOJ wishes on this matter.
Another important way of catalyzing enforcement is to make sure that there are more civilian investigators, whether members of DOJ prosecutorial staff or FBI officers. For example, there might be dedicated units within both organizations focused on investigating alleged contractor abuse, much the same way that an office to hunt down former Nazis was established within the DOJ. In addition, DOJ and the FBI must give individuals better incentives to actually go to Iraq to perform investigations; right now civilians are loath to go, for obvious reasons.
Turning to the possibility of military prosecution under the UCMJ, David has already laid out some of the key issues, but I wanted to add two points. First, if the military were to implement UCMJ prosecutorial authority over extreme cases of abuse of force by contractors, just the potential for military prosecutions might act as a catalyst for DOJ action, much the same way that potential International Criminal Court prosecutions are intended to catalyze domestic war crimes prosecutions. Thus, even if no actual UCMJ prosecutions took place, just the threat of them might spur civilian criminal enforcement activities.
Second, building on David’s point that use of the UCMJ might pass constitutional muster despite the strong language in Reid v. Covert, some Vietnam-era cases might be relevant. Indeed, the military did, in fact, attempt to prosecute a handful of civilian contractors under the UCMJ during the war. For example, in Latney v. Ignatius, 416 F2d 821 (DC Cir., 1969), the DC Circuit did not foreclose the possibility that military prosecutions of civilian contractors could proceed in a time of war (and sidestepped the question of whether Vietnam, as an undeclared war, sufficed to create such a context). The court ultimately dismissed the case, on the ground that the particular contractor at issue was not sufficiently bound up with the military, but the distinction based on the wartime context might again become relevant with regard to contractors in Iraq, particularly given that the Graham amendment specifically extends UCMJ operations to contingency operations and not just war. (In another case, US v. Averette, 19 USCMA 363 (1970), the US Court of Military Appeals likewise indicated that the Supreme Court precedents did not address the possibility of military prosecution during wartime, but shut down prosecution of a contractor on the ground that the contractor’s unlawful conduct did not take place during a declared war. Nevertheless, this conclusion was based on the fact that the UCMJ statute at the time only subjected civilians to military justice “in time of war.” As noted above, the Graham amendment solves that statutory objection.)
Readers may be interested in the report from an event I co-organized (with Balkinization blogger Kim Lane Scheppele as well as Deborah Pearlstein; another Balkinization blogger, Scott Horton, played an important role) at Princeton University this past summer under the auspices of the Program in Law & Public Affairs. It was an off-the-record workshop of senior military officials, contractors, congressional staffers, DOD and intelligence community officials, NGO representatives, and academics. We've just produced a report that gives a sense of the meeting (and which everyone has agreed to make public). It's about to appear on the Law and Public Affairs website, but I am happy to provide a copy to anyone interested if they send an e-mail to me at email@example.com. What's interesting is the surprising degree of consensus in the group on the need to close gaps in MEJA/SMTJ, the value of UCMJ prosecutions as a back-up in extreme cases, the need for centralized prosecution authority with DOJ, the need for high-level inter-agency coordination of contractor activities, and the need for a much more vigorous public debate about which functions to privatize in the first place.
Finally, as I discuss in my book, (which by the way addresses the privatization not only of military activities but also foreign aid functions), it is important not to limit our view only to criminal and tort accountability options. For example, I believe that accountability mechanisms might effectively be introduced into the terms of the government contracts themselves. I also think we need to explore further alternative accountability mechanisms through forms of public participation and third-party accreditation efforts. Certainly all possible avenues should be on the table, given the great expansion of the privatized foreign affairs state, and in the coming days I will try to outline on this site how some of these alternative accountability mechanisms might work. Posted
by Laura Dickinson [link]
I would suggest that the UCMJ would be preferable to civilian agencies for the prosecution of criminal allegations which took place on a foreign battlefield.
To start, beyond the dangers inherent in attempting an investigation on an active foreign battlefield, the FBI and Justice are very unlikely to know the language and customs of the foreign witnesses to conduct an effective investigation. They are also unlikely to be able to distinguish an innocent witness from an enemy attempting to game them for propaganda purposes.
In contrast, the JAGC enforcing the UCMJ has lengthy institutional experience prosecuting alleged crimes committed by soldiers on the battlefield and has the immediate in country experience to conduct a more effective, if not perfect, investigation.
I his recent book "Terror Presidency," Jack Goldsmith spends some time discussing the fact that enemy asymmetrical attacks on our armed forces now include abuses of our judicial system by making false war crime allegations against our soldiers. Such weapons are similarly being used against security contractors.
It has been difficult enough for the military on the scene to distinguish between the false allegations of war crimes made by the enemy for propaganda purposes and the real McCoy. This task is complicated by political pressures to prosecute high profile media cases like the alleged Haditha massacre even if they fall apart for lack of evidence in the initial stages of military court review. I would suggest that civilian prosecutors, ignorant of enemy tactics and more immediately subject to political pressure from DC, would have an even harder time navigating these prosecutorial shoals.
As I suggested in the last post on this subject, I believe you can cure the constitutional problems in applying UCMJ against civilian contractors by enacting a statute which places all armed civilian contractors providing security services for the government in a foreign war zone under command of the armed forces in that country and expressly make them subject to UCMJ. In this way, the civilian contractors become members of the armed forces subject to congressional regulation and government under Article I.