Above Law, Above Decency

Peter Singer [otbblog/jamesotb] has an excellent op-ed in today’s LA Times on the subject of civilian contractors and the prison abuse scandal. Peter, who is a casual acquaintance of mine, is arguably the foremost expert on this subject, having written his doctoral dissertation at Harvard on the topic and publishing it as a book.

That private contractors are interrogators in U.S. prison camps in Iraq should be stunning enough. This is incredibly sensitive work and takes our experiment with the boundaries of military outsourcing to levels never anticipated. But even more outrageous is the fact that gaps in the law may have given them a free pass so that it could be impossible to prosecute them for alleged criminal behavior.


The Army has responded swiftly and correctly, at least with regard to its soldiers. Seventeen soldiers were relieved of duty and six face court-martial. As Army spokesman Brig. Gen. Mark Kimmit said: “We’re appalled … they wear the same uniform as us, and they let their fellow soldiers down…. These acts that you see in these pictures may reflect the actions of individuals, but, by God, it doesn’t reflect my Army.”

But although the military has established structures to investigate, prosecute and punish soldiers who commit crimes, the legal status of contractors in war zones is murky. Soldiers are accountable to the military code of justice wherever they are, but contractors are civilians — not formally part of the military and not part of the chain of command. They cannot be court-martialed.

Normally, an individual’s crimes would then fall under the local nation’s laws. But, of course, there are few established Iraqi legal institutions — that is why we are running prisons in Iraq in the first place — and, besides, coalition regulations explicitly state that contractors don’t fall under their scope.

In turn, because the acts were committed abroad, and also reportedly involve some contractors who are not U.S. citizens, the application of U.S. domestic law in an extraterritorial setting is unclear and has never been tested. This appears to leave an incredible vacuum. Indeed, as Phillip Carter, a former Army officer now at UCLA Law School, says, “Legally speaking, [military contractors in Iraq] actually fall into the same gray area as the unlawful combatants detained at Guantanamo Bay.”

So far, none of the contractors involved have been criminally prosecuted. As for the contractor accused of raping a prisoner in his mid-teens, Central Command spokesperson Col. Jill Morgenthaler told the British newspaper the Guardian: “We had no jurisdiction over him. It was left up to the contractor on how to deal with him.” It is clear that our policies on military contractors must be updated.

If found to be involved by investigators, the contractors should not escape prosecution. Yet that’s exactly what happened in the Balkans when several DynCorp employees, working as military contractors, were implicated in the trafficking of women and other sex crimes. Felony crimes merit harsher punishment than simply the end of a good paycheck.

This may require breaking new legal ground, such as testing the extraterritorial standards for civilian prosecution, requiring detention of the suspects until the Iraqi legal system gathers strength or even transferring jurisdiction to the international court.

To not only pay contractors more than our soldiers but also give them a legal free pass is unconscionable.


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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Neal says:

    Isn’t Iraq under martial law? If so Iraqi as well as foreign criminals would be subject to that authority. If Iraq is not under martial law, then who is trying Iraqi criminals and why wouldn’t foreign nationals be subject to that authority?

    Regarding contractors doing interrogations. If the military needs help in a field of expertise and civilian experts are available, why wouldn’t they contract out?