New Proposals to Increase Oversight for Security Contractors
While the government use of security contractors in support of operations in Iraq and Afghanistan has been the source of simmering controversy for several years, the issue has now come to a rapid boil. Over the past year, numerous allegations have surfaced regarding excessive use of force by security contractor personnel.
These allegations have led to new efforts to permit the exercise of criminal jurisdiction and to new proposals to increase and unify oversight over such personnel. As often seems to be the case, reactionary changes during times of high profile allegations and media attention appear to lack thorough analysis and planning, and none will completely solve the issues caused by contracting for security services.
Contractor personnel misconduct has been a difficult issue for several years. However, recent allegations of security contractor misconduct are leading to much greater scrutiny and support for change.One case causing this issue to boil occurred on Christmas Eve, 2006. Andrew Moonen, an employee of Blackwater USA and a former member of the 82nd Airborne Division serving in Iraq in 2003 and 2004, allegedly shot and killed Iraqi Vice President Adil Abd-al-Mahdi’s body guard inside Baghdad’s International Zone.
Prior to the shooting, Moonen had apparently been drinking alcoholic beverages and had engaged in a verbal altercation with the same body guard. Blackwater USA fired Moonen and arranged his return to the United States. No jurisdiction has yet filed criminal charges against Moonen, and he was in Kuwait working for a Department of Defense (DOD) contractor a few weeks after this incident.
Tempers settled temporarily following the Christmas Eve shooting of the body guard. In September 2007, while providing personal security transportation under its Department of State contract, members of a Blackwater USA team (Team) allegedly shot and killed between eleven and seventeen Iraqis. The Team was traveling in Western Baghdad’s Nisoor Square; multiple investigations indicate that the Team opened fire without provocation, resulting in the deaths, multiple injuries, and property damage.
In response to the allegations, the Team maintains that hostile individuals opened fire on the Team first, and then the Team returned gunfire appropriately. This incident led to the Iraqi government’s request that the United States deliver custody of the Team members to the Iraqi government, that the United States sever all contracts with Blackwater USA, and that the United States pay $136 million dollars to the victims and families. Both governments then investigated the incident. The Department of State also reviewed all of its security contracts. Significantly, this incident accelerated Congressional and Executive proposals concerning jurisdiction over security contractors.
Uniform Code of Military Justice
Months before the above incidents, Senators Lindsay Graham and John Kerry sponsored an amendment to the Uniform Code of Military Justice (UCMJ), through the John Warner National Defense Authorization Act for Fiscal Year 2007 (2007 NDAA), extending UCMJ jurisdiction to civilians accompanying the armed forces in the field during contingency operations. This new jurisdiction is limited to contractors accompanying the armed forces, calling into question its coverage over those contractor employees working under contracts with the Department of State, the United States Agency for International Development, and any other agency outside the DOD. Moreover, jurisdiction over civilians under the UCMJ is also of questionable Constitutional validity. Apart from these limitations, the DOD has not yet implemented this new jurisdiction.
Although this jurisdictional change to the UCMJ became effective on 17 October 2006 when the President signed the NDAA 2007, the DOD has not yet promulgated regulations implementing it. Nevertheless, Deputy Secretary of Defense (DEPSECDEF) Gordon England issued a memorandum to the Department titled: “Management of DoD Contractors and Contractor Personnel Accompanying U.S. Armed Forces in Contingency Operations Outside the United States.” Among reminders of regulatory guidance and responsibilities, this memorandum states:
Commanders have UCMJ authority to disarm, apprehend, and detain DoD contractors suspected of having committed a felony offense in violation of the [Rules for the Use of Force] RUF, or outside the scope of their authorized mission, and to conduct the basic UCMJ pre-trial process and trial procedures currently applicable to the courts-martial of military service members.
Although this sentence is not highlighted in any way, several portions seem particularly important. The sentence states that commanders have UCMJ authority. No DOD regulation has implemented the UCMJ jurisdiction change, yet the memorandum directs commanders to begin processing cases as though a system currently existed for doing so. The sentence also purports to limit this authority to DOD contractors suspected of committing felony offenses. Neither the terms of the new UCMJ provision nor the Military Extraterritorial Jurisdiction Act (MEJA) limit jurisdiction to DOD contractors; rather, each apply by their specific terms to contractor employees supporting a DOD mission. Further, the MEJA applies only to felony-level offenses, but the UCMJ jurisdiction applies to misdemeanors as well. The memorandum thus appears to limit the authority commanders possess; however, the memorandum otherwise appears to state simply the applicable authorities and responsibilities rather than providing new authority or limiting existing authority.
Finally, the sentence states that commanders have authority to conduct pretrial and trial processes against contractor employees under the UCMJ. As discussed above, no procedures exist relative to civilian prosecutions by court-martial.
Proper procedures should be directed through changes to the Manual for Courts-Martial prior to any implementation of UCMJ jurisdiction in an ad hoc manner as is directed. Without implementing regulations, substantial risk exists that U.S. civilians will be incarcerated by the military in Iraq with no meaningful opportunity for review.
Military Extraterritorial Jurisdiction Act
The U.S. House of Representatives (House) passed a bill on October 4, 2007 amending the MEJA (House Bill). Currently, MEJA jurisdiction is limited to civilians supporting a DOD mission. This limitation most likely excludes jurisdiction over the Blackwater USA employees discussed above because they were working under contracts supporting a traditional DOS mission, and not under contracts supporting a DOD mission. The House Bill attempts to provide jurisdiction over all contractor employees in a contingency operation location by adding a new category of persons covered by the MEJA:
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.
While this language should be broad enough to cover the Blackwater USA personnel discussed above, it is unclear why Congress physically limits this jurisdiction to areas where the Armed Forces are conducting contingency operations. The criteria for determining “in close proximity to an area” of a contingency operation remains unclear and is left to the discretion of the Department of Defense.
Jurisdiction over contractor personnel has not been the only problem with the MEJA. The MEJA has provided jurisdiction over contractor personnel supporting DOD missions overseas for more than five years, but since that time there has been only one indictment of a contractor employee. The first problem is that while the MEJA requires the DOD to prescribe regulations, the DOD did not prescribe implementing regulations until 2005, thus greatly limiting any ability to use the MEJA. Another problem is that the MEJA provides jurisdiction in the federal district courts, and vests prosecutorial authority in the Department of Justice (DOJ) and responsible U.S. Attorneys. Procedurally, the DOJ reviews each case and determines whether to forward it to the U.S. Attorney in the district where jurisdiction would otherwise exist over the suspect. This U.S. Attorney then reviews the case and determines whether to prosecute. This burdensome and intricate system frustrates efforts to prosecute.
The House Bill attempts to resolve some of the procedural shortcomings of the MEJA. The House Bill requires the DOJ Inspector General (IG) to report to Congress case referrals, investigations, and cases pursued. The House Bill also requires the Federal Bureau of Investigations (FBI) to open a Theater Investigative Unit in a theater in which jurisdiction would lie and report to Congress. These provisions appear intended to entice the DOJ to prosecute without overt interference in prosecutorial discretion. The TIU extends the working relationship between the FBI and the U.S. attorneys, increasing the likelihood of prosecution. By requiring the FBI and the DOJ to report allegations and resultant actions to Congress, transparency increases the likelihood that meritorious allegations are investigated and prosecuted. Whether these measures, if enacted, will succeed in providing accountability for criminal action is an issue for future editions of the Year in Review.