Human rights group: End 'culture of impunity' for security contractors

A human rights organization is calling for the expansion and implementation of laws to hold private security contractors accountable in war zones. Human Rights First issued a report this week making recommendations on how to end what it called a "culture of impunity."

In the report, the group called on Congress and federal agencies to close jurisdictional gaps to ensure that contractors are held accountable for crimes committed overseas. The report said, however, that the lack of accountability was caused more by "gaps of political will and resources" than by jurisdictional gray areas.

Human Rights First endorses the expansion of the 2000 Military Extraterritorial Jurisdiction Act to cover contractors operating in a Defense Department-designated "contingency area," regardless of the agency that hired them. The law is designed to hold civilians accompanying the military to war zones accountable for criminal actions, but some say it is unclear whether the law applies to contractors hired by agencies other than Defense. In October, the House passed legislation introduced by Rep. David Price, D-N.C., which would do just that. A nearly identical bill has been introduced in the Senate by presidential candidate Sen. Barack Obama, D-Ill.

Price, who spoke at a Human Rights First news conference Wednesday, said the report was a "clarion call for immediate action to address a problem that has plagued the U.S. missions in Iraq and Afghanistan from the start." He called on the Senate to act soon on expanding the Military Extraterritorial Jurisdiction Act.

The Price bill has been widely praised, even by the International Peace Operations Association, a trade group which represents private security contractors. Doug Brooks, president of the association, said his members were extremely quick to endorse the legislation.

"People in the industry generally assume they're covered [by the law], though after the Blackwater incident the State Department raised some questions as to whether their own contractors were covered," Brooks said.

While pushing for greater resources for oversight and investigations of security contractors, the report also made the more controversial recommendation of implementing a statute expanding the Uniform Code of Military Justice to cover individuals "serving with or accompanying an armed force in the field" during a "declared war or contingency operation."

The report acknowledged that "there are serious constitutional and human rights implications of the potential courts-martial of civilians serving as private security contractors" and said the court-martialing of private security contractors should only be used in "extraordinary circumstances." Human Rights First listed contractors performing detention or intelligence-gathering functions or those directly involved in hostilities as those who could fall under the uniform code if they commit a crime.

"To the extent that there is emerging agreement that military coordination of private security contractor activities in conflict zones is a useful and necessary step, the effectiveness of that coordination is likely to be only enhanced by the existence of UCMJ jurisdiction and the possibility of court-martial, even if UCMJ jurisdiction is never exercised," the report stated.

Public contract law expert Michael Love said there are a number of instances in which contractors could be court-martialed for violations that would not be covered under Military Extraterritorial Jurisdiction Act. The law covers only felonies, and the Uniform Code of Military Justice can be used in misdemeanor cases as well as in instances where the violation would not be considered a crime under civilian law. While certain statutes of UCMJ explicitly apply only to members of the armed forces, a number of them can apply to contractors but would cause some logistical, as well as constitutional, concerns.

Under UCMJ, contractors could be court-martialed for "provocative speech," "cowardly conduct," drunkenness and sodomy. Other violations, such as disobeying a superior officer, raise questions of who is directly responsible for contractors. It is unclear who a private security contractor's superior officer is and whether or not the person could be prosecuted for failing to obey that individual.

The UCMJ expansion was authorized in 2006, but no contractors have been court-martialed, and several sources said the Defense Department is loath to implement every letter of the statute. "UCMJ is part of the law right now but we don't support it and don't think it will work," Brooks said. "There are numerous problems that need to be sorted out, and the Pentagon is spending a lot of effort trying to figure it out. Most analysts and [judge advocates general] on this issue believe MEJA should be the first line of prosecution."