Above Law, Above
Decency
Private military contractors may escape punishment in the Iraqi prisoner abuse
scandal.
Commentary By P.W. Singer Los Angeles Times May 2, 2004
The recent reports of U.S. soldiers abusing Iraqi prisoners during interrogations
are both horrifying and depressing. Fortunately, there is a clear and proper legal
response. Those accused will be court-martialed and, if found guilty, they will
be punished.
But the story, sadly, does not end there. It now appears that this deeply disturbing
episode — in which Iraqi prisoners were beaten, sexually assaulted and forced
to perform simulated sexual acts, among other things — may have involved
not only soldiers but also private contractors hired as interrogators.
That private contractors are interrogators in U.S. prison camps in Iraq should
be stunning enough. This is incredibly sensitive work and takes our experiment
with the boundaries of military outsourcing to levels never anticipated. But even
more outrageous is the fact that gaps in the law may have given them a free pass
so that it could be impossible to prosecute them for alleged criminal behavior.
Most people by now know that in an attempt to fill the gap between the demand
for professional forces and the limited number deployed by the Pentagon, an array
of traditional military and intelligence roles have been outsourced in Iraq, all
without public discussion or debate. There are 15,000 to 20,000 private military
contractors operating in Iraq, outsourcing critical military roles from logistics
and local army training to guarding installations and convoys. This outsourcing
of critical roles to private companies represents a sea change in the way we fight
a war.
However, until the last few days, not many Americans were aware that private
firms were also providing interrogators and translators in the prisons. According
to recent reports, the Army's investigation on the abuses committed at Abu Ghraib
prison near Baghdad in November and December named Virginia-based CACI International
Inc. and San Diego-based Titan Corp. Titan, however, denies having contracts
that involve working with prisoners.
The Army investigation discovered such depraved behavior as making prisoners
perform simulated sex acts and form naked human pyramids and putting "glow
sticks" in bodily orifices. The perpetrators even took more than 60 photographs,
including one showing an Iraqi prisoner standing on a box with his head covered
and wires attached to his hands and genitals. He was told that if he fell off
the box he would be electrocuted. One civilian contractor was even accused of
raping a male juvenile prisoner.
The Army has responded swiftly and correctly, at least with regard to its soldiers.
Seventeen soldiers were relieved of duty and six face court-martial. As Army
spokesman Brig. Gen. Mark Kimmit said: "We're appalled … they wear
the same uniform as us, and they let their fellow soldiers down…. These
acts that you see in these pictures may reflect the actions of individuals,
but, by God, it doesn't reflect my Army."
But although the military has established structures to investigate, prosecute
and punish soldiers who commit crimes, the legal status of contractors in war
zones is murky. Soldiers are accountable to the military code of justice wherever
they are, but contractors are civilians — not formally part of the military
and not part of the chain of command. They cannot be court-martialed.
Normally, an individual's crimes would then fall under the local nation's laws.
But, of course, there are few established Iraqi legal institutions — that
is why we are running prisons in Iraq in the first place — and, besides,
coalition regulations explicitly state that contractors don't fall under their
scope.
In turn, because the acts were committed abroad, and also reportedly involve
some contractors who are not U.S. citizens, the application of U.S. domestic
law in an extraterritorial setting is unclear and has never been tested. This
appears to leave an incredible vacuum. Indeed, as Phillip Carter, a former Army
officer now at UCLA Law School, says, "Legally speaking, [military contractors
in Iraq] actually fall into the same gray area as the unlawful combatants detained
at Guantanamo Bay."
So far, none of the contractors involved have been criminally prosecuted. As
for the contractor accused of raping a prisoner in his mid-teens, Central Command
spokesperson Col. Jill Morgenthaler told the British newspaper the Guardian:
"We had no jurisdiction over him. It was left up to the contractor on how
to deal with him." It is clear that our policies on military contractors
must be updated.
If found to be involved by investigators, the contractors should not escape
prosecution. Yet that's exactly what happened in the Balkans when several DynCorp
employees, working as military contractors, were implicated in the trafficking
of women and other sex crimes. Felony crimes merit harsher punishment than simply
the end of a good paycheck.
This may require breaking new legal ground, such as testing the extraterritorial
standards for civilian prosecution, requiring detention of the suspects until
the Iraqi legal system gathers strength or even transferring jurisdiction to
the international court.
To not only pay contractors more than our soldiers but also give them a legal
free pass is unconscionable.
More broadly, the U.S. must reexamine which military and intelligence roles
are appropriate for outsourcing and which are not. For the roles that we do
choose to outsource, we must close the gaps in the law. The overwhelming number
of contractors are probably just as sickened and embarrassed by this behavior
as the American military and the public.
That is why we have laws in the first place: to govern for the worst of human
behavior, not hope for the best. The private military field should be no different.
------------------------------------------------------------------------
P.W. Singer, a fellow at the Brookings Institution, is the author of "Corporate
Warriors: Rise of the Privatized Military Industry" (Cornell University
Press, 2004).
------------------------------------
Copyright 2004 Los Angeles Times
Top
Contractors Fall Through Legal Cracks
The Pentagon is said to be searching for a means to prosecute civilians in the
abuse of Iraqis.
By T. Christian Miller Los Angeles Times Staff Writer May 4,
2004
WASHINGTON — Three civilian employees who allegedly participated in the abuse
of Iraqi prisoners have yet to face any disciplinary action, their employers said
Monday, raising within the Pentagon the issue of accountability for thousands
of private contractors in Iraq.
A senior U.S. official involved in detention issues said the Defense Department
was struggling to determine a legal basis upon which to pursue prosecution of
the civilians, who were working as interrogators and translators at Abu Ghraib
prison near Baghdad when Iraqis were sexually and physically abused by Americans
there.
"One of the issues that people are dealing with is who can investigate them,"
the official said. "In the military chain, it's fairly clear. It's not clear
in the legal framework that we have how to deal with this."
Government contracting experts said the delay in prosecuting the interrogators
and translators is causing further damage to the image of the U.S., already sullied
by photos of American troops grinning as they pose near naked, hooded Iraqis.
"You have to deal with this immediately. You have to show that when crimes
happen, we punish them to the full extent of the law," said Peter W. Singer,
a fellow at the Brookings Institution who has written a book on private military
contractors. "So far, that doesn't appear to be the case. We've let the contractors
fall through a gap in the law."
The controversy surrounding the abuse, which include reports of prisoners being
beaten, sodomized with a chemical light and forced to pose nude in simulated sexual
acts, continued to grow Monday.
A United Nations human rights expert called for an investigation into violations
at Abu Ghraib. The U.N.'s special rapporteur against torture, Theo van Boven,
said in Geneva that he was "seriously concerned" about reports of degrading
treatment of detainees by American and British forces. Van Boven is an independent
expert appointed by the U.N. Commission on Human Rights.
President Bush telephoned Defense Secretary Donald H. Rumsfeld to urge action
against those guilty of "these shameful and appalling acts," White House
Press Secretary Scott McClellan said Monday. But according to Pentagon spokesman
Lawrence DiRita, Rumsfeld had not read the March report on Abu Ghraib by Army
Maj. Gen. Antonio M. Taguba. Reports on small numbers of troops "isn't necessarily
something" Rumsfeld or other top officials "would get involved with,"
he said.
Seven soldiers have been reprimanded in connection with events at the prison,
officials said Monday. Six have been charged and face court-martial. An Army report
on abuses at the prison listed 12 officers who had been disciplined.
But the question of what actions to take against the civilian contractors at the
prison remains unsettled. An internal military report on the incidents, which
occurred last fall, identified a civilian translator from San Diego-based Titan
Corp., Adel L. Nakhla, as a "suspect." His alleged crime was unclear.
Steven Stephanowicz, a contractor working for Arlington, Va.-based CACI International
as an interrogator, and John Israel, another Titan translator, were alleged to
have been "directly or indirectly responsible" for abuses at the prison.
The report recommended that Stephanowicz be fired and that Israel be reprimanded.
It made no specific recommendations about Nakhla.
Military officials were scrambling Monday to determine the legal status of the
three contractors.
CACI officials said they had not yet received a copy of the military's internal
investigation or even been formally notified by the Army that any of its employees
had been involved.
"In the event there is wrongdoing on the part of any CACI employee, we will
take swift action to correct it immediately, but at this time we have no information
from the U.S. government of any violations or wrongful behavior," said CACI's
chief executive, J.P. "Jack" London.
Wil Williams, a Titan spokesman, told Associated Press that he was not aware of
any wrongdoing by the company's employees in Iraq and that none had been disciplined.
Legal experts said that the allegations of abuse at Abu Ghraib raise anew some
of the thorniest questions in the military's drive to contract out jobs usually
shouldered by U.S. soldiers.
At the prison, according to sources and the military report, CACI employees interrogated
detainees with the help of translators from Titan, which provides translation
services to the U.S. military throughout Iraq.
Soldiers have said that military intelligence officers at the prison, along with
civilian interrogators, instructed them to "loosen up" the captives.
Stephanowicz, according to Taguba's report, "clearly knew his instructions
equated to physical abuse."
However, it remained unclear Monday whether the civilians could be charged with
any crimes under existing statutes.
Under military law, a person working for the military is not subject to court-martial
jurisdiction unless Congress has declared war, which it did not do against Iraq.
However, after civilian contractors with El Segundo-based DynCorp escaped prosecution
on accusations in 2000 of running a prostitution ring in Bosnia, Congress passed
a law allowing criminal proceedings against Defense Department contractors working
abroad.
Chuck Blanchard, former general counsel for the Army, said the law does not necessarily
apply to companies employing contractors who do not work directly for the government.
Still, many legal experts interviewed pointed to a decree that L. Paul Bremer
III, the U.S. civilian administrator in Iraq, issued last summer requiring non-Iraqis
to face criminal charges in their country of origin.
That blanket order should allow prosecutors to charge U.S. citizens in a federal
court.
"Whether the accused are military or civilian, there are clear laws that
address these allegations, and the incident must be fully investigated and the
perpetrators should face justice," said Doug Brooks, president of the International
Peace Operations Assn., a trade group for private security contractors.
------------------------------------------------------------------------
Times staff writers Esther Schrader and John Hendren in Washington
and Maggie Farley at the United Nations contributed to this report.
------------------------------------------
Copyright 2004 Los Angeles Times