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.

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
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

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
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

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.