Accountability Time for Contractors?

When a federal judge recently tossed out the Justice Department’s case against five Blackwater contractors accused of massacring Iraqi civilians in Baghdad’s Nisour Square, the episode raised troubling questions of accountability—or lack thereof. These questions are by no means new. Jurisdictional uncertainty over crimes committed by contractors overseas has persisted for years, even as the federal government has dramatically ramped up its reliance on military contractors and security firms in Iraq and Afghanistan. But if a trio of Democratic lawmakers have their way, the legal grey area could become black and white.

On Tuesday, Senators Patrick Leahy (D-Vt.) and Ted Kaufman (D-Del.), along with Rep. David Price (D-N.C.), introduced bills intended to clarify the legal authority over contractors, who are currently subject to a patchwork of statutes. The legislation expands on the Military Extraterritorial Jurisdiction Act (MEJA), which provides criminal jurisdiction over personnel “employed by or accompanying the armed forces” and primarily applies to DOD employees and contractors. The Blackwater contractors were being prosecuted under MEJA, though their lawyers had argued that the law didn’t apply to them since they were on the payroll of the State Department, not the Pentagon. (The case was dismissed not on these grounds, but because the judge concluded that government lawyers had built their prosecutions on statements the contractors were compelled to make when they were debriefed by State Department officials following the shooting. The Justice Department is expected to appeal the decision.) 

The new legislation, dubbed the Civilian Extraterritorial Jurisdiction Act, would eliminate any doubt over whether personnel working for other agencies, including the State Department and the US Agency for International Development—both of which rely heavily on contractors in Iraq and Afghanistan—can be held criminally accountable in US courts. “The overseas contractor loophole has compromised the rule of law and imperiled our nation’s moral authority. We simply must close it,” Price said in a statement. Leahy said: “No one should be above the law, certainly not American employees and contractors representing this great nation throughout the world.”

Efforts to clarify the legal jurisdiction over non-DoD contractors have stalled in the past, including those by then Senator Barack Obama, who on the campaign trail declared, “we cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors.” For Leahy and his colleagues, the immediate question is whether they can win enough hearts and minds to successfully navigate this bill through Congress.