Liability of Iraq Military Contractors Debated

BY REBECCA AGULE

The Iraq War provided the all the necessary context for the Friday, April 18, event entitled “Blackwater and Beyond: Panel on Military Contractor Liability in Iraq.” Sponsored by the American Constitution Society, the panel convened three distinct voices in the on-going discussion regarding the legal regime necessary to properly manage the ever-increasing presence of U.S. contractors overseas.

Assistant Clinical Professor Alex Whiting moderated the conversation, directing questions to Eugene Fidell HLS ’68, Gary Bass, and Stanley Soloway. Fidell serves as president of the National Institute of Military Justice and is a partner in the Washington, D.C., based firm Feldesman Tucker Leifer Fidell. Fidell served in the United States Coast Guard as a member of the Judge Advocate General’s (JAG) Corps and has written extensively on military law.

Bass, an associate professor of politics at Princeton, is currently on loan to HLS as the John Harvey Gregory Lecturer on World Organization. A former correspondent for the Economist, Bass received his PhD from Harvard and wrote “Stay the Hand of Vengeance: The Politics of War Crimes Tribunals”, an examination of international justice.

Joining Bass and Fidell was Soloway, who has served since January 2001 as the President of the Professional Service Council, which has since merged with the Contracts Services Association of America. As such, Soloway is a primary representative of the services industry, speaking for 325 companies that provide support and services to the U.S. government, including Blackwater.

Before asking his first question, Whiting outlined the current role of U.S. contractors abroad, especially in Iraq. Following the overall acceleration of globalization and the increasing privatization of government roles, the Military Extraterritorial Jurisdiction Act (MEJA) was passed in 2000, with the aim of bringing crimes committed by Department of Defense contractors and civilian employees within the reach of federal law.

Then, according to Whiting, “Blackwater burst onto the stage and into the media, because of a convoy traveling through Baghdad, when Blackwater guards engaged in a firefight that left 17 Iraqis dead.”

Whiting was referring to the September 16, 2007, incident in which 17 Iraqi civilians were shot and killed by Blackwater security guards in a main square in Baghdad. While at first there remained questions about whether the guards – who were performing under a Department of State contract – were provoked, the subsequent military investigation deemed the deaths unjustified.

The fallout of that clash exposed the shortcomings of current legal structures which only apply to DoD contractors and civilians, tossing the more than ten thousand contractors employed by other entities into a legal “black hole,” according to Whiting.

After describing the background of contractor issues, Whiting asked his guests quite simply, “Why isn’t this just an easy fix? Why don’t we just extend MEJA to cover these remaining employees?”

Before fielding the question, Fidell distributed an image of Sir John Hawkwood, an English mercenary who worked in 14th century Italy. In doing so, Fidell meant to suggest simply that “the subject has a long history,” hinting at the complexity of the subject.

“Accountability – that word is a pet peeve of mine,” Fidell continued. “I think it’s overused. I think accountability is French for punishment. I think old fashioned words like punishment have fallen into disuse…I believe that punishment is a better term.”

Fidell reviewed some of the case history that has determined the modern state of contractor law, dating back to the 1950 passage of the Uniform Code of Military Justice (UCMJ). “It’s a real quandary,” he said. “It’s a very messy picture at the moment. There are Constitutional issues surrounding the use of military jurisdiction on these instances.”

Bass responded by noting that “the imagination of the prosecution is a step or two behind the reality of things going wrong on the ground.”

“What I think is so weird about the use of all these private military contractors in Iraq,” he said, “is that we are trying to build a central state by using a disaggregate U.S. state.” Unlike members of the armed forces, Bass continued, contractors are not trained in human rights norms, they do not have provisions on transparency, and the system lacks a clear chain of command. Bass went on to discuss the need for annual reports to Congress, thereby forcing Congress to play an oversight role, even if it does not want to fill that position.

Standing much more explicitly on the contractor side of the issue, Soloway hoped to reframe the discussion, repeatedly emphasizing the multiple communities of contractors and warning that one “cannot peanut butter spread them.” He recognized that his comments may stem from a different perspective than those of his fellow panelists.

“I am not going to defend Blackwater,” he said. “I just want to set the stage for what we are actually talking about in Iraq.” Soloway made the case that rather than privatizing war itself, the military is privatizing support functions. Two main factors have driven this shift in strategy, first, the lack of a modern day draft, and second, the enormous cost of the training soldiers, and the desire to avoid incurring such costs for those who perform purely support functions.

During much of the rest of the discussion, the panelists focused upon the methods and resources necessary to properly investigate and prosecute MEJA cases.

Whiting asked, “Are you really going to send a team of FBI agents and prosecutors over there? That raises questions on cost and procedure.”

Soloway responded, noting, “But you don’t have another option.” He continued, “We are going to have potentially thousands of individuals on the ground under grants and contracts to do development. . .You have to have investigative resources on the ground. You have to have the will to do it.”

“Ordinarily you would have some government with a rule of law over some sort of defined territory,” Fidell said. “But this is not an occupation any longer. If that were the case, we could use occupation courts. At the same time, there is no sovereign in place.”

Following a brief question-and-answer session, the panel and audience adjourned for a small reception, during which the participants made themselves available for further discussion.

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