Judging Contractors

If a contractor working for the U.S. government in Iraq commits a crime, which country's laws apply and who would prosecute?

Even as the United States handed sovereignty back to Iraq on June 28, there were no easy answers to these questions. The hazy legal situation was brought into particularly harsh light this spring during the military investigation of the Abu Ghraib prison scandal, which exposed the apparent immunity of civilian contractors. The Army's investigation and subsequent media reports identified several contractors as possible players in the abuse of Iraqi prisoners. Although military proceedings have begun for uniformed personnel held in connection with the scandal, contractors identified by investigators have not been charged.

Legal experts and security observers are attempting to determine which laws-if any-apply to contractors working for an occupying force and to those now working for the United States in a sovereign Iraq. Peter Singer, a National Security Fellow at The Brookings Institution, says the legal framework is filled with loopholes and that U.S. occupation authorities have shown little interest in pursuing legal action. "The laws are insufficient, we don't have the will, or we've somehow stumbled upon the perfect village filled with angels," Singer says of the lack of prosecutions.

David Passaro, a CIA contractor who worked in Afghanistan, was charged with assault in the beating death of an Afghan man. The Justice Department charged Passaro under a provision of the 2001 USA Patriot Act. During a June 17 press conference announcing the indictment, Attorney General John Ashcroft said the Patriot Act "expanded U.S. law enforcement jurisdiction over crimes committed by or against U.S. nationals on land or facilities designated for use by the U.S. government."

Passaro, 38, who allegedly bludgeoned the victim with a flashlight, became the first U.S. contractor charged with crimes committed in Afghanistan or Iraq. He is scheduled to be tried in federal court in North Carolina. After announcing Passaro's indictment, Ashcroft suggested that other U.S. contractors-perhaps including those implicated in the Abu Ghraib prison scandal-will be tried in the United States.

"Regarding other prisoner abuse allegations, I can report that the Justice Department has received one referral from the Department of Defense and additional referrals from the CIA," Ashcroft said. "I have assigned all of our other ongoing prisoner abuse cases to a prosecution team at the United States Attorney's Office in the Eastern District of Virginia, and any new referrals will also be assigned to that office."

Before Ashcroft's announcement, experts and Pentagon officials had said the most appropriate legal authority to apply to contractors in an occupied country is the 2000 Military Extraterritorial Jurisdiction Act. It only applies, however, to contractors who are working directly for the Defense Department. Subcontractors, CIA contractors and those working for other U.S. agencies would fall outside the scope of the law.

In such instances, experts expect the burden of prosecution would fall on Iraq, but it is unclear whether the Iraqi judicial system is prepared to prosecute a foreign contractor. Based on the Passaro case, the Justice Department might simply bring suspects back to the United States for trial.

As U.S. officials transferred legal control of Iraq to an interim government at the end of June, the legal status of contractors remained uncertain. Departing head of the Coalition Provisional Authority, L. Paul Bremer, extended an immunity order covering the actions of contractors while performing their jobs. Bush administration officials promised that someone is looking into the issue of judicial oversight for civilian contractors, but no firm details are available. "I need to stay in touch with the lawyers on this subject," President Bush said June 15. "They are the ones who are raising the issue, will continue to work the issue."

Dan Senor, a spokesman for the now-defunct Coalition Provisional Authority, also said the issue was being dealt with. "Going forward, post-June 30, obviously, this is a matter that will continue to have to be fleshed out between the prime minister and his government and the embassy here and the U.S. government," he said during a June 15 press conference in Iraq.

Singer says the Passaro indictment showed there is high-level interest in punishing law-breaking contractors, but he questioned why no contractors have been charged in relation to Abu Ghraib. "On one hand, it's a step forward [in that] we are seeing someone held accountable somewhere. But it's not Iraq," he says. "Can you attempt the same thing in Iraq? It's totally unclear.

"To show you are serious about the people in Iraq, you have to do something about [contractors] in Iraq," Singer adds. He has urged the U.S. government to conduct a frank accounting of contractor activities in Iraq and provide a clear description of the process that will follow criminal allegations against contractors. Private workers are employed in war zones at an unprecedented rate, he says. "Our laws and regulations haven't caught up."