Contractors in Iraq Seeking Immunity Beyond 2012
The Obama administration is continuing to pursue an agreement with the Iraqi government that would give U.S. defense contractors remaining there beyond 2012 immunity from Iraqi law.
While the approximately 17,000 diplomats and service members working for the State Department are shielded by diplomatic immunity from prosecution under Iraqi law, the thousands of private contractors and mercenaries no longer have such protections, pursuant to the 2008 Status of Forces Agreement.
Providing immunity from Iraqi law to any lingering security forces is highly unpopular in Iraq, especially after the 2007 Nisour Square massacre in which U.S. mercenary soldier from Blackwater Inc. murdered 17 Iraqi civilians. The effort to get legal protections for defense contractors is an example of the Obama administration’s refusal to put an end to the occupation and domination of Iraq. And it may be successful. “Neither side has closed the door at this point,” said OSC-I spokesman Lt. Col. Tom Hanson.
In The Past
The United States’ military actions in Iraq and Afghanistan have been heavily dependent on civilian contractors. The reliance on personnel not under the direct control and management of the United States military and the presence of contractors in foreign battle zones raise significant questions about how military contractors can be held responsible for their actions abroad. Abuses perpetrated by military contractors abroad are exemplified by several contractors’ participation—or complicity—in the torture and abuse of Iraqi detainees at the Abu Ghraib prison and other locations in Iraq.
In September of 2011, a panel of the United States Court of Appeals for the Fourth Circuit decided two related cases addressing the ability of federal courts to review U.S. government contractors’ misbehavior in war zones. Al-Quraishi v. L-3 Services, Inc. and Al Shimari v. CACI International, Inc. directly addressed the ability of foreign citizens to sue government contractors for their actions abroad. The panel reached two conclusions in these cases.
First, the court held that it had appellate jurisdiction under the collateral order doctrine. Second, it held that state tort actions against military contractors are preempted by important federal interests. Rehearing the cases en banc, the Fourth Circuit dismissed both appeals, holding that the collateral order doctrine did not confer appellate jurisdiction. This Note will argue that the Fourth Circuit panel decisions missed an opportunity to clarify the precise nature of the defense available to military contractors and failed to determine whether contractors can be held liable at all for their actions overseas. The en banc decision correctly clarified that contractor defenses do not rise to the level of immunity from suit, but it did not further define the nature of contractor defenses.