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Time is Now to Clarify U.S. Criminal Jurisdiction over Contractors

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By Melina Milazzo
Pennoyer Fellow, Law and Security Program

Recent news that Blackwater founder and bad boy, Erik Prince, is creating an American-led mercenary army in the United Arab Emirates is a bleak reminder of how Blackwater became the poster child for the unaccountable, gun-slinging American contractor of the not so distant past.

Indeed, Blackwater (now called Xe) has been implicated in a series of high-profile killings abroad including of unarmed civilians in Nisoor Square, Iraq; of a member of Iraqi Vice President's security detail; and of Afghan civilians. But Blackwater is not alone.

Contractors have been accused of a broad range of abuses across theaters and in multiple capacities, but there has been almost no accountability. Tomorrow, the Senate Judiciary Committee will be holding a hearing titled, "Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad" addressing the need to clarify criminal jurisdiction over U.S. contractors.

Currently, U.S. federal courts have criminal jurisdiction over contractors for a host of crimes committed abroad - including war crimes, torture, and certain felonies committed within U.S. maritime and diplomatic areas and military bases. They also have jurisdiction for serious crimes committed abroad by Defense contractors and contractors "supporting the mission of the Department of Defense." But former government officials say there is a jurisdictional gap because U.S. law does not reach non-DoD contractors, even in war zones.

This ambiguity must be clarified before the transition from military to civilian control occurs in Iraq at the end of this year. The State Department reports it will increase its overall contractor force to 17,000 and more than double its use of private security contractors to 7,000 by the time the military leaves Iraq. Private contractors will be performing critical security-related functions once performed by the military, including convoy security, recovering killed and wounded personnel, recovering damaged vehicles and downed aircraft, clearing travel routes, and explosive-ordnance disposal.

The independent Commission on Wartime Contracting in Iraq and Afghanistan recently called on Congress to "clarify U.S. criminal jurisdiction over civilian-agency contractors operating overseas."

Congress has made several attempts to plug the jurisdictional hole, including legislation introduced by then-Senator Barack Obama. In the last Congress, Senator Patrick Leahy and Representative David Price introduced the Civilian Extraterritorial Jurisdiction Act (CEJA) - and are expected to reintroduce it sometime after tomorrow's hearing - to clarify and expand U.S. criminal jurisdiction over civilian contractors for serious crimes committed abroad.

The United States' reliance on contractors abroad, including in war zones, is at an unprecedented level in both size and scope. In Iraq and Afghanistan, contractors equal, and at times have outnumbered, U.S. troops there. The most recent quarterly census shows approximately 155,000 Defense contractors compared to about 159,000 U.S. troops. And this does not even take into account the number of contractors working for the State Department, United States Agency for International Development (USAID) or any other U.S. agency operating overseas, because the U.S. does not effectively track the total number of contractors it fields abroad.

Given their huge numbers, it should come as no surprise that there's been a significant increase in serious incidents involving contractors. The United States has both a responsibility and a national security interest to ensure that contractors who perform military and security services in its name will be held accountable for serious abuses - just as it does for our men and women in uniform.

To be sure, the vast majority of U.S. contractors do their jobs conscientiously and courageously - often putting their lives at risk in places like Iraq and Afghanistan. Indeed, contractor deaths now exceed those of U.S. troops in Iraq and Afghanistan. Many in the private contractor industry recognize that the criminal actions of some bad contractors stain the reputation of the industry as a whole. Industry leaders who painstakingly select, vet, and train private security contractors therefore do not want to be lumped with the negligent and criminal acts of others. Moreover, U.S. contractors who are accused of crimes in weak or failed states with unreliable legal institutions may well prefer to have claims against them heard in a U.S. federal court than in many of the countries they operate. For these reasons, industry leaders, such as Triple Canopy, support fair measures to hold contractors accountable for serious crimes committed abroad like CEJA.

It's been a little over 3 ½ years since the Blackwater Nisoor Square massacre created a political firestorm. While the United States has taken some positive steps concerning private contractors, serious oversight and accountability gaps persist.

Tomorrow, the Senate Judiciary Committee will take another step towards clarifying U.S. criminal jurisdiction over U.S. contractors fielded abroad. Our U.S. troops are held to account for their actions under the Uniform Code of Military Justice. Private contractors that work in support of DoD's mission are held to account under the Military Extraterritorial Jurisdiction Act. But, there is an open question whether civilian private contractors not contracted by DoD or working in support of DoD's mission can be held to account under any jurisdictional statute. Congress and the President should work together to immediately address this by re-introducing and passing CEJA in order to protect U.S. interests and the contractors tasked with advancing them.