Q. I’ve heard that the civilians involved in the abuse of prisoners at the Abu Ghraib prison in Iraq will not be prosecuted. Why are they treated differently from the soldiers they worked with?

Answer:

Before the 1991 Gulf War private companies routinely provided logistic and transportation services for the military. Since the Gulf War private companies have been used periodically in covert military actions.

Today, in Afghanistan and Iraq we are seeing for the first time the use of private contractors side by side with soldiers, performing tasks central to the military mission. These tasks include providing security to the Coalition Provisional Authority(CPA) training Iraqi police, protecting oil pipelines, interrogating prisoners, operating unmanned reconnaissance planes, and operating the weapons systems on navy battleships.[1]

No one, including the U.S. government, knows how many private military contractors are working in Iraq. The Pentagon estimates there are 20,000 employees of private contractors. Others think the number is much higher.[2] Some estimate that contractors are handling as much as 30 percent of the military’s services in Iraq and Afghanistan including prisoner interrogation.[3]

It is unclear to whom private military contractors are accountable. They are not part of the military chain of command. Therefore they are not subject to orders from military field commanders. A General Accounting Office review of contracted military services found that officers charged with ensuring that private companies meet the terms of their contracts are often located in the U.S., not in the field. And field commanders may not even know what the contractors have been sent to do.[4]

Military contractors are not members of the military, therefore they are not subject to the Uniform Code of Military Justice. They are subject to the laws of the country they operate in, but in Iraq the Coalition Provisional Authority (CPA) issued an order providing immunity from Iraqi law for actions by contractors or their employees in the course of their official activities.[5] This immunity has been extended under Iraq’s new interim government.[6]

Contractors may be subject to prosecution under three U.S. laws. The federal anti-torture statute provides for prosecution for acts of torture committed outside the United States by U.S. nationals or by non-nationals who are present in the U.S. Torture is defined as acts “specifically intended to inflict severe physical or mental pain or suffering”.[7]

The U.S. War Crimes Law of 1996 allows for prosecution of war crimes committed inside or outside of the United States, by members of the U.S. Armed Forces or U.S. nationals. War crimes are defined as a grave breach of the Geneva Conventions.[8] These include “Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and, “Outrages upon personal dignity, in particular humiliating and degrading treatment.”[9]

The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) permits prosecution of U.S. citizens for any federal crime punishable by more than one year in prison. The law gives Department of Defense personnel the right to arrest and transfer accused individuals to the U.S. for prosecution by the Justice Department, but only if the country where the crime takes place waives jurisdiction.

The MEJA has been used only once since its passage. In that case a military spouse was charged in the death of her husband on a military base overseas.[10] No one has ever been prosecuted under the torture or war crimes laws.

In May 2004 Attorney General John Ashcroft maintained that American civilians could be prosecuted under MEJA, anti-torture laws and other federal statutes.[11] The CIA has referred two suspicious deaths of detainees in Iraq to the Justice Department for investigation; one in Abu Ghraib and the other a former Iraqi general who died after interrogation in Western Iraq. The Justice Department yet to decide whether it will prosecute civilian acts at Abu Ghraib.[12]

The Justice Department announced in June that a CIA contractor faces two counts of assault and two counts of assault resulting in serious bodily injury for repeatedly beating an Afghan detainee during two days of interrogation on a U.S. military base in Afghanistan. The detainee died in a cell the day after the interrogations. The contractor is being indicted under the Patriot Act of 2001, which the Justice Department now says is the only law that gives them jurisdiction over crimes committed on U.S. military installations or diplomatic missions overseas.[13]

The Geneva Conventions were revised in 1977 specifically to deny mercenaries the protections of legal combatants or prisoners of war. The definition of mercenary is highly restrictive but several experts on military law have speculated that contractors who operate unmanned drones for reconnaissance would not be protected under the 1977 revisions because they actively take part in hostilities by gathering vital infomation.

Security contractors seem most likely to meet the definition of mercenaries. This might include the four Blackwell employees who were killed and mutilated in Falluja earlier this year. They were working for a subcontractor providing security for food convoys.

Employees of private security companies like Blackwell, Global Risks and Sandline are often elite soldiers who have retired from military special-operations units. They are hired not as permanent employees of the company, but rather as freelance “consultants”. They include Americans, Englishmen, South Africans, Russians, Nepalese, and many other nationalities.[14]

These are the contractors who protect Afghanistan’s President Hamid Karzai and CPA Administrator L. Paul Bremer. They have served in Liberia, Pakistan, Rwanda and Bosnia, and have been a central part of U.S. drug interdiction in Latin America. Their increasing use has been attributed to the shrinking size of the armed forces, which is down to 1.4 million soldiers from 2.1 million in 1989. Supporters argue that contractors can do the job for less money and can engage in activities not possible by American soldiers.[15]

Recent history teaches that military contractors are rarely held accountable for their acts. None of DynCorp’s employees accused of buying women and girls as sex slaves while working in Bosnia has ever been criminally investigated or prosecuted.[16] DynCorp currently has a contract for training Iraqi security forces. AirScan, an American private military firm, coordinated an attack on a Colombian village that killed 18 unarmed civilians, seven of them children. A U.S. based petroleum company provided financial and logistics assistance to the Colombian military for the attack. Neither company was ever investigated for its role in the deaths.[17]

The four civilian contractors implicated in the Taguba report on Abu Ghraib have not been charged with any crimes or disciplined in any way that has been publicly reported.[18]