08/15/2010 03:00 pm ET Updated May 25, 2011

Riding Herd on Cowboys in the Middle East

In the perpetual debate over legal accountability of, and prosecution if necessary, of private military and security contractors one often sees the arguments reduced to two simplistic arguments.

PMSC opponents argue the contractors argue in a legal vacuum and with utter impunity. This is, of course, as anyone who has even done the most cursory reading on the subject knows, is utter nonsense.

On the other hand, PMSC supporters argue that contractors are covered by a host of regulations and laws, both national and international, and any more are simply unnecessary. Of course, the fact that even PMSC trade associations in the past have supported, with varying degrees of enthusiasm, changes to the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ) weakens their argument a bit. Still, it is true that there are a large number of rules, regulations, policy directives, and laws on the books with which contractors are supposed to comply. So their argument, when you follow it to its inevitable conclusion echoes that of the National Rifle Association, i.e., we don't need more laws, but better enforcement of existing laws.

Well then, in that case let's take a look at a journal article published this past spring. In an article "Cowboys in the Middle East: Private Security Companies and the Imperfect Reach of the United States Criminal Justice System" in the quarterly journal Connections Christopher M. Kovach, who serves as a Captain in the United States Air Force Judge Advocate General's Corps, notes the limitations of the revised MEJA.

He writes:

The premise of MEJA is simple. It explicitly creates a separate federal criminal offense for any act committed outside the U.S. if the act would constitute a felony within the jurisdiction of the United States. Those covered by MEJA include: those persons subject to the Uniform Code of Military Justice (UCMJ), or military law; anyone employed by or accompanying the armed forces outside the United States; and contractor employees of any federal agency or provisional authority whose employment supports the mission of the U.S. Department of Defense overseas.

However, MEJA is imperfect. By its definition, it does not apply to nationals of the country in which the U.S. forces are stationed, although it may apply to third-country nationals. In fact, DoD now requires that third-country nationals (which, as noted above, make up a substantial part of the PSC contractor force in Iraq) be advised of potential criminal jurisdiction under MEJA "before accepting employment and immediately upon arriving at their work locations overseas." Nor does it apply to crimes less than felonies. There are also difficulties in its implementation: it contains high-level procedural requirements as prerequisites--for example, "military criminal investigators ... are required to forward their reports to the legal office of the responsible combatant command." This may prove to be an onerous burden.

But the most glaring obstacle is that MEJA is simply not responsive. According to
one commentator, "MEJA is poorly suited to serve as an effective tool to shape contractor employee behavior and deter criminal acts ... because its design makes it nonresponsive to the deterrence needs of military commanders...." MEJA requires coordination between the military and the Department of Justice (DoJ), as U.S. Attorneys ultimately make the final call about whether to prosecute; in so doing, they must "consider resources available to conduct the prosecution," as a trial would come from their budget, and "should be expected to consider the seriousness of the crime; the difficulty of gathering evidence; difficulties of securing testimony from witnesses located in, and perhaps nationals of, an area of military hostilities; and competing caseloads and priorities in the U.S. Attorneys' own districts." In sum, MEJA prosecutions are (and given these constraints, probably should be) rare.

As for the UCMJ he notes:

UCMJ jurisdiction has notable pros and cons: it is "portable and responsive to the needs of military officials responsible for the safety and welfare of deployed personnel," but it is arguably constitutionally deficient when applied to contractors. The military justice system is "designed to deploy," and within deployed environments, commanders would have ready access to evidence and witnesses--as well as prosecutors and defense counsel, who also deploy. But whether or not one can predict how the Supreme Court might ultimately address the question, commanders will be wary of using the process. The one test case that exists was not subject to higher review. And those deployed prosecutors will surely advise commanders against initiating court-martial proceedings in serious cases.

But Kovach does think that even with its limitations MEJA can be improved.

MEJA will never be a universal panacea; it should not be used to prosecute war crime s like those arguably committed by Blackwater personnel in Baghdad. But it should be more widely used, and it should cover companies like Blackwater. As drafted, only forces "supporting the mission" of the Department of Defense fall under U.S. jurisdiction. Many PSCs, however, are under contract to the Department of State. Ultimately, U.S. foreign policy and the U.S. military itself are "hurt by the confusion caused by these essentially independent combat forces ... with the imprimatur of the U.S. government." Without the swift application of justice, discipline suffers.

Therefore, Congress should make two changes to increase the scope of MEJA.
First, it must ensure MEJA applies to any contractor accompanying the armed forces, not simply those employed by the Department of Defense. Second, it must lower the threshold for prosecution and give DoJ the option--however rarely it might be used--to bring charges against contractors for crimes not rising to the felony level.

Additionally, Congress must grease the wheels of the criminal justice system as well. As it stands, commanders are charged with conducting initial investigations. Investigations then go to the Domestic Security Section of DoJ's criminal division. From there, they make their way to the appropriate U.S. Attorney's office, which makes a decision to prosecute; and such decision is back-channeled all the way back to the commander in the field. This takes time. While DoJ should ultimately make the final call on whether to prosecute, designated district courts should assume ownership over MEJA cases in deployed environments.

For example, one district court could "own" Iraq. Pumping dollars and manpower
into the corresponding U.S. Attorney's office, including establishing personnel specializing in MEJA, would streamline the process. Commanders would benefit from a direct link to the office responsible for prosecuting offenses they investigate; U.S. Attorneys would equally benefit from building a working relationship with senior military officials, investigators, and prosecutors.

To effectively create that kind of relationship, DoD and DoJ should accomplish more formal liaising. Provisions already exist to appoint military prosecutors as special Assistant U.S. Attorneys. They are routinely used to "prosecute crimes committed on federal military installations by persons not subject to the UCMJ." Usually, this means the not-so-glamorous world of traffic violations. But appointing a military prosecutor from the nearest military installation--someone able to share data (and often experiences) with the prosecutor and commander in the field--would afford the U.S. Attorney's office ready access to a resource more commonly versed in battlefield conditions and investigations. DoD could bridge the gap from the deployed environment to a base legal office on a military installation. Subsequently, DoJ could dispatch the local military prosecutor to act as a special Assistant U.S. Attorney. This would greatly lighten the workload for the U.S. Attorney's office; it would also allow the corps of military prosecutors commissioned into the various branches of the armed forces to make better use of their training and experiences. This process would ultimately energize the use of MEJA, permitting it to act as a deterrent, and ensure that PSC guardsmen accompanying the armed forces no longer escape the reach of United States law.