In the past several years, as concern has grown about being able to properly exercise administrative and legal oversight of private military and security contractors, new regulations and laws have been passed.
In many respects this is to be welcomed. It was clear that many of the old laws were inadequate as they applied to people who were either entirely civilian or regular military personnel, and PMSC are neither.
But it is also true that these new laws have also been used as part of the branding campaign for the PMSC industry. Advocates can point to new laws and say, look, Congress modified the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act, so don't bother worrying about prosecuting any contractors' crimes, if and when they happen. Or as Obi-Wan said, in his best Jedi mind trick fashion, to the storm trooper in Star Wars, "Nothing to see here ... move along... move along."
But people who follow the issue of contractor accountability closely have long understood that the key to investigation and prosecution, if warranted, is political will, not the existence of a law. If the will is lacking, or even worse, if the will wants to find a loophole, it will.
For detail let's turn to an article published last summer in the New England Journal on Criminal and Civil Confinement. The article was "America's Useless Torture Statute: How the USA PATRIOT Act and Special Maritime Jurisdiction Can Be Used to Circumvent the Federal Prohibition on Torture" by Christopher B. O'Brien.
In 2003 David Passaro was working as a civilian contractor for the CIA in Afghanistan when an interrogation he performed ended in the death of an Afghan national.
The ensuing trial and appellate decisions resulted in this: Despite the horrific nature of the interrogation, the punishment would not likely exceed a five-year imprisonment.
In case you wonder what the fuss is about -- after all Passaro went to prison -- O'Brien writes:
Perhaps more troubling for those versed in international law is that the Passaro incident can be best described as torture, which if committed outside of United States territory carries an extremely harsh sentence. So why not prosecute to the fullest extent possible? The court had no difficulty establishing the grisly details of the interrogation, which fit even the narrowest of torture statute interpretations. Further, Passaro was a case of first impression with no precedent working for or against a torture prosecution.
Strap yourself into your chair as we travel back in time. But first, let's start with the fact that in August 2009, the Fourth Circuit Court of Appeals in North Carolina upheld the decision in United States v. Passaro, the first ever conviction of a civilian contractor in the War on Terror.
The facts are these. In late 2001, as part of the United States invasion of Afghanistan, the military gained control of the Asadabad Firebase located in northeast Afghanistan, then at the frontlines of the war against the Taliban. In addition to housing U.S. soldiers the base housed an undisclosed number of paramilitary civilian contractors.
Among the contractors was David Passaro. He was an ex-Green Beret medic and Army Ranger, "Passaro was on leave from a civilian Army medical job at Fort Bragg while doing the contract work for the CIA, according to the Army Special Operations Command." Passaro had a history of domestic assault allegations from both his former and current spouses, as well as a record of having been relieved from duty as a police officer after less than one year on the job. Following a conviction of "breach of peace" in 1991, Passaro was reportedly fired from the Hartford Connecticut Police Department after a fighting incident that occurred less than a year after his original assignment, violating the probationary period and resulting in his immediate dismissal.
In May of 2003, Passaro arrived at the Base, which was then under regular bombardment by rocket attacks. Intelligence sources at the Base decided to seek out Abdul Wali, a local Afghan civilian wanted for questioning related to the rocket attacks. Before any such manhunt could begin, Wali caught wind of his impending detention and voluntarily turned himself in at the Base on June 18, 2003. After initial questioning, Wali was summarily detained by U.S. forces, bound, shackled, hooded, and placed under 24-hour armed guard.
The interrogation of Wali continued almost non-stop for 48 hours. During Wali's detention, during which time he was unarmed and heavily guarded, Passaro intermittently engaged in fierce assaults of varying brutality.
In addition to repeatedly "striking him open handed" and throwing him to the ground, Passaro hit Wali's arms and legs with a heavy, metallic flashlight measuring over one foot in length. Some of the more severe assault charges are based on Passaro repeatedly kicking his prostrated detainee with his combat boots. The court described one such attack as "[Passaro] kicking Wali in the groin with enough force to lift him off the ground." The court went on to state that after two days of near-constant interrogation, Wali was delirious to the point at which he twice begged that his guards shoot him.
Shortly thereafter, Wali died -- just three days after he had turned himself in for questioning.
Subsequently, the court did not state that the interrogations were the cause of death and accepted the Government's explanation for the asserted charge of assault just as the district court had in 2006. In 2004, Passaro was indicted "on two counts of assault with a dangerous weapon with intent to do bodily harm" and "two counts of assault resulting in serious bodily injury.
In 2006, a jury in the United States District Court for the Eastern District of North Carolina "convicted Passaro of one count of felony assault resulting in serious bodily injury and three counts of the lesser-included offense of misdemeanor simple assault."
The question that O'Brien asks is why Passaro was not charged with murder.
The answer seems simple: Wali's family denied autopsy requests, and the Government could not properly establish cause of death in order to meet the evidentiary threshold required in a U.S. court. This circumstance begs the question: why would U.S. courts be allowed to try a U.S. civilian in the United States for crimes that were committed against a foreign national in said national's own country? Interestingly, one major argument forwarded by Passaro in his defense was that U.S. courts did not have jurisdictional authority to try him, and that he should have been tried in an Afghani court.
Keep in mind that the section of the U.S. Code, 18 U.S.C. § 2340, which implements the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment) is not mentioned in the Passaro case, or in any of the related documents.
What O'Brien does in his article is to establish why torture is the crime most applicable to Passaro; compared to the charges leveled and the manner in which they were asserted, one main reason the government did not charge torture was the infamous "torture memo," signed by Assistant Attorney General Jay Bybee (Bybee Memo), issued privately by the Office of Legal Counsel on Aug. 1, 2002.
This opinion, for practical purposes, legalized torture in the War on Terror, by claiming 18 U.S.C. § 2340 was an unconstitutional infringement on the presidential war-power. The memo went on to state that due to the Office of Legal Counsel's new understanding, prosecution for torture could be unconstitutional as well. After the Abu Ghraib scandal, the Bybee Memo and other similar legal opinions were leaked to the press. The new head of the Office of Legal Counsel, Jack Goldsmith, had been in office for less than a year when this occurred.
After evaluating whether to stand by the opinions of his predecessor or to withdraw them on behalf of the Office of Legal Counsel, Goldsmith withdrew the Bybee Memo in a conversation with then-Attorney General John Ashcroft. Ashcroft agreed, and in the words of Goldsmith, "[Ashcroft] did support [him], and so it became the Department of Justice's position." The following day, on June 17, 2004, Jack Goldsmith resigned from his post as head of the Office of Legal Counsel. That same day, Passaro was indicted. He was charged with assault for his involvement in the death of Wali, though his trial would not begin until Aug. 7, 2006.
Yet, ironically, the facts found by the court in Passaro still exceeded the restrictive interpretations of the Bybee Memo, which states:
We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
The facts of Passaro fit this definition, making the Bybee Memo's attempts to whittle away the protections of 18 U.S.C. § 2340 irrelevant.
Furthermore, in 2001, as part of the USA PATRIOT Act, the Statute received a short amendment, which stated in relevant part:
(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act -- (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership
The court that tried Passaro in 2006 allowed the government to establish federal jurisdiction using the Amendment and thereby charged Passaro with assault as "assaults within maritime and territorial jurisdiction."
But due to wrangling in the appellate court over whether, by dictionary definition, the words "premises" and "mission" should be limited to permanent locations and facilities the court decided that the lower court stretched the sentencing guidelines beyond their reasonable limits, and vacated the 100-month sentence and remanded the case for re-sentencing.
The implication of the above legalese is that it is dangerous to try and extend U.S. jurisdiction into new and untested parts of other nations. Not only does this shaky ground offend every possible conception of national sovereignty, but it seriously damages the proper pursuit of justice.
If the Afghani courts had the chance to try Passaro for the death of Wali, they may have had less difficulty ascertaining cause of death. There is a very real possibility that Passaro would have received excessively harsh punishment for his crimes; nonetheless, as a civilian in a foreign country he should certainly be subject to the laws of the land. ...This addresses the exact problem created by the Amendment as used in Passaro - that it is unreasonable to exercise jurisdiction in a situation where Afghanistan has an inviolable interest in protecting its people from being detained and beaten to death by American civilians on Afghani soil. How could the government of Afghanistan purport to maintain order when it cannot prosecute people like Passaro?
Yet if U.S. governmental policy were to shift more towards allowing other governments to prosecute on their own soil against their own people the PMSC industry might find it much more difficult to sing up contractors for work.
O'Brien concluded that:
The Passaro case brought more to light than the gruesome facts of the crime itself; it neglected to utilize the most applicable criminal statute in favor of using an otherwise untouched piece of the USA PATRIOT Act legislation to extend territorial jurisdiction to Afghanistan. Further, Passaro exemplified, whether purposefully or not, the United States executive branch's attitude toward the torture of detainees in the War on Terror. Not only was torture essentially authorized by the top legal minds in the government, but prosecution for the crime of torture as codified by Congress was no longer permitted. Passaro saw special maritime jurisdiction exploited in an effort to assert jurisdiction for simple assault charges in an incident for which jurisdiction would have been expressly conferred had the prosecution brought the correct charge. Instead, a man will serve fewer than five years for the violent death of a prisoner over whom he exercised complete control, which sets a dangerous precedent.
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