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.

Officials said Camp Arifjan, a leading U.S. military logistics base in the Gulf, became a hotbed for corruption during the war in Iraq. They said contractors routinely offered or were solicited for bribes by procurement officers in exchange for multi-million-dollar contracts.

Momon, a contracting officer in Camp Arifjan in 2005 and 2006, was alleged to have worked with other officers to accept cash from Defense Department contractors. The contractors, who supplied bottled water and other goods, were helped to win awards. “Momon agreed to accept approximately $5.8 million from his co-conspirators as payment for his actions, including $1.6 million in cash and luxury items,” the Justice Department said. Momon was believed to have learned the bribery system at Arifjan from his predecessor. Maj. John Cockerham was later convicted of bribery and sentenced to more than 17 years in prison and ordered to pay $9 million in restitution.

Officials said the bribery ring at Arifjan has forced the U.S. Army to make significant revisions in procurement. They said the revisions, which were not detailed, were worked out between civilian officials and military commanders. Some of the allegations were linked to Kuwaiti subcontractors. On Nov.
19, the Justice Department announced a suit against KBR on allegations of working with a Kuwaiti firm to inflate costs of the installation of trailers
for troops in Iraq. The department said First Kuwaiti Trading received nearly an additional $50 million for unsubstantiated crane, truck and driver
costs.

“The facts alleged in the complaint indicate that KBR and First Kuwaiti did not provide an honest accounting,” Jim Lewis, U.S. Attorney for the Central District of Illinois, said.