War Zone Contractors Now Subject to UCMJ

Peter Singer, who write his Kennedy School dissertation on mercenaries and has since cornered the market on that niche, has an interesting piece at Defense Tech noting that Congress has closed the loophole that made war zone contractors all but unaccountable for criminal acts.

Over the last few years, tales of private military contractors run amuck in Iraq — from the CACI interrogators at Abu Ghraib to the Aegis company’s Elvis-themed internet “trophy video” —- have continually popped up in the headlines. Unfortunately, when it came to actually doing something about these episodes of Outsourcing Gone Wild, Hollywood took more action than Washington. The TV series Law and Order punished fictional contractor crimes, while our courts ignored the actual ones. Leonardo Dicaprio acted in a movie featuring the private military industry, while our government enacted no actual policy on it. But those carefree days of military contractors romping across the hills and dales of the Iraqi countryside, without legal status or accountability, may be over. The Congress has struck back.

Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon’s fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that “Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking `war’ and inserting `declared war or a contingency operation’.” The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).

The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn’t normally matter for much. But with this change, contractors’ ‘get out of jail free’ card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice, better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not formally declared war, civilians — even those working for the US armed forces, carrying out military missions in a conflict zone — fell outside their jurisdiction. The military’s relationship with the contractor was, well, merely contractual. At most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities.

Much more detail at the link. Like Kevin Drum and Hilzoy, I welcome the move. Given that 1) the military increasingly contracts out crucial roles in combat zones and 2) we no longer “declare” wars, even when Congress signs off on them, it stands to reason that DoD contractors should be subject to the same rules as soldiers.

Hilzoy believes this move is “wonderful, and long overdue.”

It’s good not only for the rule of law, the general moral character of the cosmos, and our national honor; it’s also good for the military. Most of the books about the war in Iraq that I’ve read are full of stories of contractors doing all sorts of appalling things, not necessarily because they are bad people, but because they have been hired for a specific job (like, say, keeping a given person safe), and rather understandably focus on that and not on, say, protecting American interests, or not making people absolutely hate Americans, or even fitting in in the most obvious ways with ongoing military operations. If their job is to keep a given person safe, and if that requires shooting Iraqis who get too close to them, or barreling across a crowded sidewalk in a Hummer, or whatever, then that’s what they will do. At least now there will be some limits on their conduct.

Singer notes, though, that there are plenty of potential unintended consequences:

[T]he scope of the new law could made more clear; it could be either too limited or too wide, depending on the interpretation. While it is apparent that any military contractor working directly or indirectly for the US military falls under the change, it is unclear whether those doing similar jobs for other US government agencies in the same warzone would fall under it as well (recalling that the contractors at Abu Ghraib were technically employed by the US Department of Interior, sublet out to DOD).

On the opposite side, what about civilians who have agreed to be embedded, but not contracted? The Iraq war is the first that journalists could formally embed in units, so there is not much experience with its legal side in contingency operations. The lack of any legal precedent, combined with the new law, could mean that an overly aggressive interpretation might now also include journalists who have embedded.

One wonders, too, about the Geneva Convention and other international law implications of this. Does this make contractors engaged in military roles de jure as well as de facto combatants?

While I have strong misgivings about contracting out security and interrogation operations, there is no end in sight to that trend. We need, therefore, to figure out how to deal with it.

FILED UNDER: Iraq War, Law and the Courts, Military Affairs, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor 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.

Comments

  1. JKB says:

    I suspect this is less about control by the military and more about legal peril. Right after the toppling of the Iraqi government they may have operated in a no mans land but now these contractors are operating in a sovereign nation. If they aren’t subject to US jurisdiction, they are subject to Iraqi jurisdiction. If not either, then I’m sure the International Criminal Court could assert jurisdiction. No one is allowed all outside legal jurisdiction for long. If your a contract civilian working for the DOD in Iraqi, you probably would rather know you’ll be answering to a US military court rather than the local Sharia court.

    More than anything I see this as an acknowledgment that Iraq is asserting itself as a sovereign nation.

  2. sociodems. says:

    I had a comment, but got it cancelled. So, no comment and I get pained, comment and it’s De Facto The Painer. The press conference was funny. Rice is this stupid?

  3. legion says:

    JKB,
    Correct, but there’s also more to it… normally, there’s supposed to be a SOFA (Status of Forces Agreement) that spells out the exact legal staus of US troops & other personnel in a given foreign country, and what to do with them if they’re accused of breaking a law. If there’s no SOFA (or no gov’t to make a SOFA with), it generally defaults to “locals rule” – if you get picked up by the local cops, you suffer in the local system, unless our Ambassador feels strongly enough to raise a fuss.

    Not too long ago, IIRC, a number of civ contractors in Bosnia were basically running a sex-slave ring, but the US military said it couldn’t arrest them, the local cops either couldn’t or wouldn’t (bribed?), and the regular US criminal system couldn’t do anything, since it was totally out of US police jurisdiction. Basically, those involved were sent back to the US, and maybe punished/fired by the company, but there was literally nothing else anyone could do to them – this law is a long-delayed result of that travesty.