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Contractors and the Law

Prison Abuse Cases Renew Debate

By Ellen McCarthy and Renae Merle
Washington Post Staff Writers
Friday, August 27, 2004; Page E01

Details of the role civilian contractors played in the abuses at Abu Ghraib prison in Iraq sparked fresh debate yesterday about the effectiveness of laws and rules meant to govern workers hired to support the military.

Coming under particular scrutiny was the Military Extraterritorial Jurisdiction Act passed in November 2000 that allows for the prosecution of criminal acts committed by defense contractors accompanying the military to foreign lands.

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Three generals investigating abuses at Abu Ghraib referred the cases of six contractors employed by Arlington-based CACI International Inc. and Titan Corp. of San Diego to the Justice Department, recommending that they be prosecuted for participating in or failing to report prisoner abuse. But the report itself raised questions about the potential success of such an effort, saying contract employees "under non-DOD contractors may not be subject" to the act. CACI's contract to provide interrogators at Abu Ghraib was managed by the Interior Department.

Some legal experts said it's unclear whether CACI is covered. "I guess the question is, who is a Department of Defense contactor?" said Steven L. Schooner, a professor of government contracting at George Washington University Law School. He said he would argue that because CACI is receiving Defense Department money and performing work for the department, it should be included. But he said that the Military Extraterritorial Jurisdiction Act, as written, may not technically cover CACI's interrogators.

An amendment broadening the act to cover contractors employed by other federal agencies is part of the defense authorization bill approved by the Senate in July. But the House version of the bill does not include the amendment.

Legal experts also point to another provision of the law, which says that individuals who commit assault overseas in areas administered by the United States are subject to criminal prosecution here.

Attorney General John D. Ashcroft said yesterday that the Justice Department has received a letter with a copy of the Army report and is reviewing the material on the civilian contract employees. Federal officials declined to comment on the CACI case.

CACI also declined to comment. The lawyer for Steven A. Stefanowicz, a CACI interrogator accused in an earlier Army report of being one of four people either directly or indirectly responsible for abuses at the prison, said in a statement that Stefanowicz's actions were "appropriate, authorized, done with the knowledge of military superiors."

Stefanowicz, who is not identified in the report released this week, views the possible referral of his case to the Justice Department as "a face-saving punt by the Army," the attorney said.

The investigation also concludes that the military was ill-equipped to manage contractors. There were not enough government officials overseeing contractors at the prison and military officers did not check to make sure CACI employees were properly trained to conduct interrogations, according to the report.

Experts said that means the government was not supervising the sensitive work of private firms. "It's the military contracting officer's responsibility to make sure that they are trained properly," said Paul C. Forage, a national security expert at Florida Atlantic University. "When these guys showed up to do their interrogating and to do their translating, the person they were reporting to was another contractor."

While contract interrogators may be necessary in emergencies, retaining the work within the military is preferable because it simplifies the command structure, the report said. In some cases CACI employees supervised soldiers, investigators found.

"It's pretty unusual. In the normal course of a contract, you don't have a reporting chain where a contractor is above a government employee, usually the government directs the contractors, that's the point," said Angela B. Styles, former federal procurement policy administrator at the Office of Management and Budget.

The report's finding that a CACI employee helped write the statement of work determining the parameters of the contract is also potentially troublesome, some contracting experts said. Schooner, of George Washington Law School, said it is a conflict of interest.

But Stan Z. Soloway, president of the Professional Services Council, an association of government contractors, said that such arrangements are not always a problem. "I think that's an area that you have to be very careful with. It may raise some questions or it could be more innocent than it appears."

Meanwhile, the treasurer of California yesterday called on the boards of the state's largest public retirement funds, the California Public Employees' Retirement System and the California State Teachers' Retirement System, which own a total of 286,982 shares of CACI, to consider asking for the resignation of CACI's chairman, J.P. "Jack" London. CACI declined to comment yesterday.

Staff writers Jerry Markon and Dan Eggen contributed to this report.


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