By Griff Witte
Washington Post Staff Writer
Monday, January 15, 2007
Private contractors and other civilians serving with U.S. troops in Iraq and Afghanistan could be subject for the first time to military courts-martial under a new federal provision that legal scholars say is almost certain to spark constitutional challenges.
The provision, which was slipped into a spending bill at the end of the last Congress, is intended to close a long-standing loophole that critics say puts contractors in war zones above the law.
But the provision also could affect others accompanying U.S. forces in the field, including civilian government employees and embedded journalists.
The Pentagon has estimated that there are 100,000 government contractors operating in Iraq, doing such jobs as serving meals, guarding convoys and interrogating prisoners.
Critics have long complained that, unlike soldiers, contractors are rarely prosecuted for their actions, even after evidence surfaced that contractors mistreated prisoners or fired on U.S. troops.
"Right now, you have two different standards for people doing the same job," said Sen. Lindsey O. Graham (R-S.C.), who pushed the provision. "This will bring uniformity to the commander's ability to control the behavior of people representing our country."
Graham, an Air Force Reserve lawyer, said the change will help morale in the field. "If the troops see someone getting away with something that hurts the overall mission, that is a morale buster," he said.
Under military law, known as the Uniform Code of Military Justice, commanders have wide latitude in deciding who should be prosecuted. Crimes include many that have parallels in civilian courts -- murder and rape, for instance -- as well as many that don't, such as disobeying an order, fraternization and adultery.
Legal experts say that latitude is one reason why attempting to hold civilians to the same standards as U.S. troops could be a messy process. It is also likely to raise constitutional challenges: Civilians prosecuted in military court don't receive a grand jury hearing and are ultimately tried by members of the military, rather than by a jury of their peers. The Supreme Court has struck down civilian convictions under military law, and no conviction of a civilian under the UCMJ has been upheld in more than half a century.
"The Supreme Court has been quite hostile to trying civilians in a court-martial," said Eugene R. Fidell, president of the National Institute of Military Justice. "On the other hand, the military justice system is more robust and has more protections in it than it did back in the 1950s. . . . This is going to be a law professor's dream."
One additional complication lies in determining who the new provision applies to. Graham said the change was aimed solely at holding contractors accountable. But legal observers say it could be interpreted broadly to also include employees with other government agencies, as well as reporters.
"One could imagine a situation in which a commander is unhappy with what a reporter is writing and could use the UCMJ to pressure the reporter," said Phillip E. Carter, a contracting lawyer with McKenna Long & Aldridge.
Christopher Anders, legislative counsel for the American Civil Liberties Union, said he understands the desire to hold contractors accountable but feels the legislation was crafted so broadly that it could have negative consequences.
"Soldiers subject themselves to a different system of criminal justice. That's a decision that's made by everyone who enlists," Anders said. "There may be some logic in applying military standards to civilian military contractors who are taking up arms. But it's a whole different thing when others are swept up."
The Pentagon is still developing guidance on how the new provision will be used. "We're going to have to go through and assess the situation as the facts and circumstances develop," spokeswoman Cynthia Smith said.
Contractors have voiced strong opposition to the change. They say that while they support accountability, the use of military law makes the legal framework for private contractors in the field even more muddled. They also have decried the way the change occurred.
"This looks good on the surface, but it creates far more problems than it solves," said Stan Soloway, president of the Professional Services Council, a trade group that represents contractors. "This is a provision that has dramatic impact and deserved far more discussion than it got."
In fact, the provision sparked virtually no debate last year when Graham had it written into the defense spending bill for 2007. The change was easy to miss: It involved adding just five words to a massive bill. The bill was signed into law by President Bush.
Previously, civilians could be tried under the UCMJ only during a declared war. Since military operations in Iraq and Afghanistan never involved a declaration of war, civilians have been exempt. But the new provision also allows the UCMJ to be applied to certain civilians during a "contingency operation." Operations in Afghanistan and Iraq both fit that definition.
The change remained largely unnoticed until earlier this month, when Peter W. Singer, a Brookings Institution senior fellow who has long advocated greater accountability for contractors, wrote a piece on it for the Web site DefenseTech.org.
At least theoretically, contractors in Iraq and Afghanistan have been subject to criminal law in the United States through the Military Extraterritorial Jurisdiction Act, known as MEJA. That law, passed in 2000, is supposed to expand federal prosecutors' authority to foreign battlefields. But MEJA has yet to be used to prosecute contractors.
Allegations of contractor involvement in detainee abuse at Abu Ghraib were referred to federal prosecutors in 2004, but there have been no indictments. Late last year, two former employees of a private security firm in Iraq filed suit, alleging that a superior had shot at civilians without provocation. There, too, no charges have been filed. There have also been several unconfirmed reports of contractors firing at U.S. forces.
"Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished," Singer wrote. "Given the raw number of contractors, let alone the incidents we know about, it boggles the mind."
To try to solve the problem, Rep. David E. Price (D-N.C.) introduced legislation last week that he said would strengthen MEJA, an option he considers superior to using military law. "Military law is not appropriate for civilians," Price said. "The constitutional questions just confuse the issue."
Staff researcher Julie Tate contributed to this report.