Contracting Justice

Private contractors accused of abusing Iraqi prisoners are not in court, much less prison.

None of the civilian contractors named in the leaked Army report by General Antonio M. Taguba as being "either directly or indirectly responsible for the abuses" of Iraqi inmates at Abu Ghraib prison has been charged with any crime by the Justice Department. By contrast, military courts have sentenced two Marines and one Army reservist to prison time, with six more service members facing court-martial for their involvement in the abuses. Legal ambiguities combined with a Justice Department that can't be bothered to prosecute the very people President Bush assured the world would be punished, have shielded contractors from facing trial -- anywhere.

On Wednesday, frustrated with the Justice Department's unwillingness to follow the military's lead, the Center for Constitutional Rights, filed a federal lawsuit on racketeering charges against CACI and Titan -- two of the private companies named in the Taguba report -- on behalf of former inmates at Abu Ghraib. The lawsuit alleges that there was a "scheme to torture, rape, and in some instances summarily execute plaintiffs" as companies extracted intelligence which would meet the obligations of their contracts and guarantee their renewal.

When the Abu Ghraib story broke last month, many, including on Capitol Hill, expressed outrage that the military outsourced one of its most sensitive functions -- the interrogation of prisoners -- to private contractors. The fallout from Abu Ghraib exposed the legal Bermuda Triangle that has so far protected civilian contractors from being tried on charges of abuse, rape, and even murder in U.S. courts -- a situation that the U.S. government has long refused to remedy.

As Peter W. Singer, an expert on private military contractors and the author of the book "Corporate Warriors," told National Public Radio in May:

"…We have a situation where we've dropped somewhere between 15 to 20,000 private contractors on the ground in Iraq, and not one has been charged with any single crime. And we all know that if we took 15 or 20,000 people from anywhere in the world and dropped then in a place over the course of the year some crime would happen, let alone the specifics we know about Abu Ghraib. But we're led to believe that, really, nothing has happened, and I think that's pretty fantastic. And it questions, really, the lack of oversight here because, remember also, the CPA [Coalition Provision Authority] isn't even tracking how many people are working, let alone the potential crimes that are happening."

As Slate's military correspondent Phillip Carter asked back in May, what happens "when private military contractors break the law, what can be done to discipline them?" Carter answers his own question thusly:

"Quite a bit, as it turns out. Misbehaving firms can have their government contracts terminated; they can be barred from competing for future contracts; and they may also be subject to civil and criminal liability. However, nearly all of these penalties are at the discretion of the agency that issued the original contract. Procurement officials, political leaders, prosecutors, and judges get to decide whether to sanction contractors for allegedly breaking the law in Iraq."

Unfortunately, the U.S. government has done none of the above. In fact, while the names of the contractors mentioned in the Taguba report were splattered in every major newspaper over the country, CACI and Titan pointed out -- and continue to do so -- that neither the Pentagon, nor the Justice Department has informed them of any wrong-doings by their employees. The absence of any lawsuits -- criminal or civil -- by the government against those named in the Taguba report seem to confirm the companies' claims, although Titan did fire the employee cited in the report. The Defense Department has for now suspended orders for new interrogators from CACI and is investigating whether the $19.9 million contract for "interrogator support” and a $21.8 million contract for "human intelligence support"under which the interrogators were supplied should have been issued at all. In defiance of the findings of its own Taguba report, however, the Defense Department stated that it was "satisfied with the services” of CACI interrogators. Only recently has the Justice Department opened an investigation of an unidentified civilian contractor.

As civilians, contractors can't be tried in military courts. Last year, the Coalition Provision Authority declared that foreign civilians in Iraq can not tried in Iraqi courts. When asked during last month's Senate hearings if the June 30th transfer of sovereignty to the Iraqis would alter the status of contractors, Deputy Secretary of State Richard Armitage replied, "I don't know."

There is also no precedent for extraditing civilian contractors to face criminal and civil charges in U.S. courts. The civilians implicated in the Abu Ghraib abuses may be extradited under the 2000 Military Extraterritorial Jurisdiction Act [MEJA]. MEJA was supposed to prevent the repeat of what happened in Bosnia, where employees of Virginia-based DynCorp -- incidentally, the company in charge of training the Iraqi police -- avoided trial on rape charges because of jurisdiction conflicts in the case. Unfortunately, not only is MEJA untested, it is also limited in scope. For example, it only covers civilians under contract by the Defense Department and is applicable only to U.S. citizens. It does not apply either contractors employed by the CIA or citizens of "third countries" -- as is the case with some of those named in the Taguba report.

Should the contractors be tried in U.S. court, they may still go free, if they can prove that they carried out government instruction as specified -- what is known as "government contractor defense” -- and thus are not liable for the consequences. The Supreme Court has upheld the "government contractor defense"in a product liability case, but it remains to be seen if it would apply beyond that.

Domestic and international law -- including the Geneva Conventions, to which U.S. is a signatory -- prohibit the use of torture. This is one big reason why the U.S. government has been insisting that what went Abu Ghraib did not amount to torture, though the allegations of rape, beatings, and possible homicide that occurred in that prison suggest otherwise. Bertrand Ramcharan, the United Nation's acting high commissioner for human rights told the New York Times that "willful killing, torture and inhuman treatment" violated international law and "might be designated as war crimes by a competent tribunal." However, the trial of U.S. citizens employed by the military, let alone that of military personnel, in third countries or international courts is something that the White House and Congress -- regardless of party loyalties of it members -- would refuse to comply with. Further, recently leaked Pentagon and Justice Department documents have argued that the U.S. was not bound by domestic and international law prohibiting the use of torture and claimed that the weight of a presidential order acts as a shield against possible criminal persecution.

Reasonable people can agree to disagree about whether the increasing privatization of the military is a good or bad thing. But the U.S. government has been all too willing to leave the responsibility for the screening of private contractors, including interrogators, to the companies themselves. This lack of oversight has resulted in the hiring of unqualified individuals, some with criminal pasts. There is also a strong case to be made that private contractors -- who are not part of the military chain of command and thus not subject to military law -- should not be allowed to perform such sensitive tasks as the interrogation of prisoners. However, even the most ardent proponents of outsourcing should be troubled by the loopholes in U.S. law that allow private civilians hired by the government to escape punishment for criminal acts committed overseas.

President Bush promised that the United States will not condone the abuse that went on at Abu Ghraib and that the "wrongdoers will be brought to justice." Government sources have mentioned at least two cases -- one in Iraq, one in Afghanistan -- in which contractors hired by the CIA may have committed murder. Last month, Representative Marty Meehan (D-MA) introduced the Contractor Accountability Act of 2004 that closes some of the loopholes that have allowed civilian contractors to avoid facing criminal and civil charges in U.S. courts -- legislation that Congress should pass and President Bush sign into law. The status quo whereby civilian contractors are getting away with -- not to say cashing in on -- criminal behavior must be put to an end.