With thousands of civilian contractors remaining in Iraq and Afghanistan, Justice Department officials want Congress to resolve a legal issue they say obstructs efforts to prosecute any such workers who rape, kill or commit other serious crimes abroad.
Scofflaw Pentagon employees and contractors supporting the American war mission overseas are subject to federal prosecution in the U.S., but a nonmilitary contractor who breaks the law may fall outside the Justice Department's jurisdiction. Lawmakers who have pushed in the past to extend the reach of U.S. criminal law plan to renew their efforts this session with bills to make civilian contractors and employees liable to federal prosecution for acts including murder, arson and bribery.
Federal prosecutors believe clearer and more uniform rules are needed to resolve a jurisdictional question made murkier by the end of the Iraq war and the ongoing reduction of troops in Afghanistan. The issue caused problems for authorities during the first prosecution of Blackwater contractors accused in 2007 shootings in Baghdad and could again be a stumbling block as prosecutors seek a new indictment in the case.
"There still is this great vulnerability if these contractors get into some kind of scrape, some kind of problem, and there's no clear legal path to deal with it. That can be a serious problem," said Rep. David Price, a North Carolina Democrat who plans to reintroduce legislation called the Civilian Extraterritorial Jurisdiction Act. "We just need to give this the priority it deserves."
Previous attempts to close the gap have stalled amid debate over who should be shielded from prosecution and under what circumstances. The House bill didn't get out of committee last session, though similar legislation passed the chamber several years ago. The Senate bill cleared the Judiciary Committee but never reached the floor, tied up in part by uncertainty over how to protect certain contractors and employees, including intelligence agents and law enforcement officials, whose job responsibilities might require them to skirt the law.
"We should not require agents to pay for defense attorneys and risk jail time at the political whim of the Justice Department," Sen. Charles Grassley of Iowa, the committee's top Republican, said at a 2011 hearing.
Prosecutors have had some success using an existing law, the Military Extraterritorial Jurisdiction Act, to target soldiers and military contractors who commit crimes. Defendants successfully prosecuted include Steven D. Green, a U.S. soldier convicted in the deaths of an Iraqi family, and Jorge Thornton, a contractor accused of abusive sexual contact at an Iraq military base. The law also covers contractors and employees for agencies other than the Defense Department provided their roles related to the overseas war effort.
But Justice officials say that statute, passed by Congress in 2000 in response to a child sex abuse case at an Army base in Germany, is too narrow because it doesn't extend to non-Pentagon contractors whose roles aren't in support of the American war mission overseas. That means contractors with no attachment to the military would be exempt from prosecution. It's easier to establish in active war zones that a contractor's role supports the war effort, but the waning U.S. military presence in those nations will make that case even harder to prove for American prosecutors.
The last U.S. troops left Iraq in 2011, and President Barack Obama has said the American combat role in Afghanistan will end in 2014, though thousands of contractors remain to work jobs ranging from construction to diplomatic security. The State Department alone says it has 10,000 contractors in both countries.
"Cases that would otherwise be straightforward can turn into complex investigations focusing not just on the underlying criminal conduct, but also on the scope of the defendant's employment, his or her specific work duties, and other jurisdiction-related facts," Assistant Attorney General Lanny Breuer told the Senate Judiciary Committee at the 2011 hearing.
"These inquiries about the scope of a particular defendant's employment can be extremely challenging and resource-intensive, given that they often need to be conducted in war zones or under other difficult circumstances," he added.
The issue has come up in several prominent investigations, including after the Abu Ghraib prison scandal in Iraq, when some prison officials avoided prosecution because they were Interior Department contractors.
It also resurfaced after diplomatic security contractors working for Blackwater Worldwide were charged with opening fire in Baghdad's Nisoor Square and killing 17 Iraqis. The Justice Department brought charges under the Military Extraterritorial Jurisdiction Act, but defense lawyers accused them of stretching the statute because the contractors worked under a State Department contract, reported to State officials and provided diplomatic — not military — services.
A judge dismissed the case on grounds that prosecutors mishandled evidence but didn't rule on the jurisdictional question. The Justice Department says it's seeking a new indictment after an appeals court overturned the dismissal. The judge's decision leaves unresolved the debate over contractor accountability, enabling defense lawyers to challenge any new charges on the same grounds.
"If Congress wants to be sure, it shouldn't be relying on the willingness of the federal courts to give a generous reading to past legislation. It ought to be explicit rather than leaving things to chance because if there's a loophole any court of appeals in the country may pounce on it," said Eugene Fidell, who teaches military justice at Yale Law School.
The legislation has the support of the contracting industry, which says weeding out rogue members from its ranks creates a culture of accountability, as well as the intelligence community and Sen. Patrick Leahy, the Judiciary Committee chairman. Leahy agreed in the last session to exempt from prosecution intelligence agents who break the law in the course of their jobs, but he balked at extending the same protection to law enforcement officials.
Geoffrey Corn, a law professor at the South Texas College of Law and former Army lieutenant colonel, said questions of jurisdiction may have been less pressing in past decades when Americans maintained a large military and contractor presence in countries whose legal systems were seen as more credible and comparable to the U.S. judiciary. Now, though, federal prosecutors would rather pursue justice in American courts than leave it the host nation, where prosecution may be ineffective — or even non-existent.
In Iraq, for instance, foreign contractors were protected from prosecution until a security pact that took effect in January 2009 lifted immunity.
"When we started peacekeeping missions, war on terror, there's a huge dilemma that's created, and that is, we're conducting these operations in environments where there is not a mature host nation legal system," Corn said.