Private Contractors Who Torture

By JOANNE MARINER
Monday, May. 10, 2004

The soldiers responsible for the disgraceful physical and sexual abuse of Iraqi prisoners may face court-martial proceedings, at least if the military justice system functions as it should. One soldier has already been charged, and six others are likely to be brought to court soon. Although no military officers have yet been prosecuted - and Secretary of Defense Donald Rumsfeld has not resigned - at least six officers have received career-ending reprimands.

But what of the civilian contractors who worked hand in glove with the military at Iraq's Abu Ghraib prison? Will the atrocities they committed be, at most, bad for their careers - a source of negative letters in their employment files? Or will the civilians who shared responsibility for the criminal abuse meted out to detainees at Abu Ghraib be tried, convicted, and sent to prison?

The most likely option, under the rules crafted by the U.S. occupation authority, is prosecution in U.S. civilian courts. Although the victims of abuse were Iraqi, the civilian contractors will probably not be punished in Iraq. Under an order issued last year, civilian contractors enjoy protection from local criminal prosecution, even for crimes such as murder, torture, and rape.

Last Thursday, Attorney General John Ashcroft announced that the Justice Department had jurisdiction to prosecute civilians implicated in crimes in Iraq. But whether these prosecutions will actually take place is far from clear.

"Sadistic, Blatant and Wanton Criminal Abuses"

The Army probe at Abu Ghraib prison found "numerous incidents of sadistic, blatant and wanton criminal abuses" inflicted on detainees there. It also found that civilian contractors were working at the prison as interrogators and interpreters, and shared responsibility for abuses.

One civilian interrogator, for example, was accused of allowing or instructing military police to take unauthorized measures to "facilitate interrogations." The interrogator, the report stated, "clearly knew his instructions equated to physical abuse." And the report found, in general, that civilian contractors were not properly supervised, enjoying unmonitored free access to detainees.

Besides torture and ill-treatment, civilian contractors are also accused of involvement in wrongful deaths. Last week, the Justice Department announced that was examining the responsibility of CIA officials and contract employees in three suspicious detainee deaths, two in Iraq and one in Afghanistan.

Prosecutorial Options in Iraq

To facilitate its outsourcing of the business of war, the Pentagon has extended generous legal protection to civilian contractors in Iraq. Under a June 2003 order of the Coalition Provisional Authority, civilian contractors are protected from prosecution in Iraq for crimes committed as part of their official duties. (The exact, though convoluted, language is: "acts performed by them within their official activities pursuant to the terms and conditions of a contract between a contractor and Coalition Forces or the CPA.")

Since torture is presumably not foreseen in the contract, it is theoretically possible, if unlikely, that the abuses at Abu Ghraib could be deemed to have been committed outside of the contractors' official activities. But the possibility is not all that important, since the June 2003 order also provides that crimes committed during the contractors' free time can only be prosecuted by local officials if coalition administrator Paul Bremer gives his written consent.

The U.S. could, in any case, consent to local trials. Section 5 of the June 2003 order notes that the contractors' immunity from prosecution "may be waived by the Parent State." For contractors in the employ of the United States, the order specifies, it is the U.S. government that could authorize the waiver.

Prosecutorial Options in the United States

Although the Iraqi victims and their families would no doubt prefer local trials, such an option is unlikely. Nor, under U.S. constitutional rules, are military trials of civilian contractors allowed.

The most likely option for American civilian contractors implicated in Iraqi abuses is prosecution in the U.S. federal courts. There are two federal laws that could be used, depending on the offense at issue.

The most serious crimes could be prosecuted under the War Crimes Act of 1996. War crimes, as defined in the law, include grave breaches of the 1949 Geneva Conventions (such as torture or inhuman treatment) and violations of the Conventions' common article 3 (such as "outrages upon personal dignity" and "humiliating and degrading treatment").

Possible penalties for conviction under the law include imprisonment for life, for a term of years, or, if the victim of the crime dies, the death penalty.

Other crimes could be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA). MEJA, which was enacted primarily to protect American soldiers and their dependents living abroad, covers federal crimes punishable by more than one year's imprisonment. Passed in 2000, the law is still untested.

Obstacles to Prosecution

Although Ashcroft recently announced the Justice Department had jurisdiction over the crimes of civilian contractors in Iraq, he has not indicated that he actually plans to bring such cases. And, indeed, the odds of successful prosecutions are not very promising.

Rather than sending FBI agents to Iraq to investigate the crimes, Ashcroft has said that federal prosecutors would await the result of the Pentagon's investigation. But while military investigators may be expert in gathering evidence for court-martial proceedings, it is the FBI's job to respond to civilian crimes. In 1998, for example, after the bombing of two U.S. embassies in Africa, more than 900 FBI agents were sent on-site to investigate.

The government's lack of enthusiasm for a vigorous investigation is a worrying sign. To successfully prosecute crimes committed in Iraq would require a serious commitment of resources. Who would, for example, bring the victims to the United States to testify? And would an American jury really convict an American contractor responsible for harming a foreign - or even an enemy - detainee?

Preventing Abuses in the Future

The International Committee of the Red Cross - the official guardian of the Geneva Conventions - has said that those responsible for abuses against Iraqi prisoners should be prosecuted. Such prosecutions would, in the organization's view, "prevent abuses in the future by making it clear that they won't be tolerated."

The Red Cross's position is absolutely right. It is appalling that civilian contractors were given the power to interrogate detainees. It is still more appalling that they were responsible for violent and shameful abuses. But it would be worst of all if they were allowed to have committed these abuses without facing punishment.


Joanne Mariner is a FindLaw columnist and human rights attorney.

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