Legal pros urge action against security contractors who commit crimes abroad

There is sufficient legal jurisdiction to prosecute private security contractors who commit crimes in contingency zones such as Iraq, legal consultants said, but the Bush administration is reluctant to do so.

A panel of legal professionals, who briefed congressional staffers on Friday, said there may be room for improvement to legislation covering non-Defense Department contractors in war zones, but the statutory authority to prosecute them already exists. The 2000 Military Extraterritorial Jurisdiction Act was expanded to cover contract workers operating in a Defense-designated "contingency area," regardless of the agency that hired them, they said. But agencies including the State and Justice departments argued that jurisdiction over these private employees remains ambiguous.

Two of the panelists, Kevin Lanigan, director of the law and security program at Human Rights First, an advocacy group based in New York, and Scott Horton, adjunct professor of law at Columbia University, wrote the recent Human Rights First report, "Private Security Contractors at War: Ending the Culture of Impunity." The report called on Congress and federal agencies to close jurisdictional gaps to ensure that contractors are held responsible for crimes committed overseas. They noted a lack of accountability caused more by "gaps of political will and resources" than by jurisdictional gray areas.

Several panelists said it is clear that the administration has not made prosecuting private security contractors a priority. Lanigan said he thinks it goes beyond mere hesitation. "I assume there is some notion that it is important to national security to not turn this rock over," he said.

Avoiding prosecution of contractors who commit crimes is more likely to undermine the U.S. mission in Iraq and Afghanistan, said panelist James Cullen, a retired brigadier general in the Army Reserves and former chief judge of the U.S. Army Court of Criminal Appeals. "The failure to hold contractor personnel responsible for their criminal acts serves as a recruiting tool for extremists and undermines all the good work our troops do in these areas of operations," Cullen said.

He also expressed concern that perceived lawlessness among armed contractors could "have a corrosive effect on military discipline" by taking control away from commanders.

Panelists conceded that the legal jurisdiction of the Justice Department or other agencies over non-Defense contractors is not set in stone. The Military Extraterritorial Jurisdiction Act was amended in 2004 to include not only Defense contractors but those with other agencies "to the extent that their employment is supporting the mission of the DoD abroad." The Joint Campaign Plan outlines not only Defense Department goals and strategies in Iraq but also the role of other agencies. Lanigan said any good prosecutor would argue that contractors working for agencies operating under the plan are by definition then supporting the mission of Defense and would then fall under the law.

"Is that crystal clear? We're lawyers, we can argue anything," Lanigan said. "There is a defense argument to be made but the Department of Justice should act like a prosecutor, let defense counsel act like the defense counsel and let a judge decide."

While members of Congress, agency representatives and lawyers argue over legal jurisdiction, Doug Brooks, president of the International Peace Operations Association, a Washington-based trade group that represents private security employees, said contractors certainly do not assume impunity.

"The contractors working for Department of State assume they are under MEJA," Brooks said at the briefing. "It was Department of State that really made the case that they weren't."