Clarifying legal status of defense contractors requires new law, which hasn’t happened
The wars in Iraq and Afghanistan brought an explosion in the use of contractors to do things previously limited to government employees. They conducted interrogations and carried high-power weapons to guard buildings and convoys. There were cases of deaths and beatings at their hands. Barack Obama pledged that he would clarify the law to ensure that all contractors would be subject to American law.
The key change needed was to extend the Military Extraterritorial Jurisdiction Enforcement Act to contractors who work for the CIA, the State Department, or any other agency that might send people into a war zone. Today, the act applies only to Department of Defense contractors. If those contractors commit a felony, from stealing to murder, they are subject to American courts. That's not the case for contractors who work for other agencies.
There has been no progress on extending the act, however.
Charles Tiefer, a law professor at the University of Baltimore School of Law and former member of the Commission on Wartime Contracting, called such a change a "baby step” but one that is needed more today than before.
"As the military has pulled back from places like Iraq, we've turned security over to the State Department and they make huge use of private contractors,” Tiefer said. "There's more of them and yet they are not clearly under American jurisdiction.”
Fulfilling this promise is straightforward. Legislation needs to pass in the House and the Senate for Obama to sign. That has not happened, and so we rate this Promise Broken.
Interview with Charles Tiefer, Professor of Law, University of Baltimore Law School, November 6, 2012
Interview with Alan Chvotkin, Executive vice president, Professional Services Council, November 6, 2012
Interview with Scott Amey, General counsel, Project on Government Oversight, November 5, 2012
Legal status remains ambiguous
As a member of the U.S. Senate, Barack Obama sponsored a bill that would make all U.S. government contractors working abroad, including in Iraq and Afghanistan, accountable to U.S. federal courts for any crimes they allegedly commit. But as president, his campaign promise to clarify the legal status of contractors supporting the U.S. war efforts has gone unfulfilled thanks to congressional inaction on the matter.
Currently, U.S. federal courts have jurisdiction over any Defense Department contractor accused of a crime and -- thanks to tweaking by Congress in 2005 -- any contractor directly supporting a Defense Department mission.
But what"s a Defense Department mission? A contractor working, say, for the State Department in Baghdad? A CIA contractor working on the battlefield in Afghanistan? The Military Extraterritorial Jurisdiction Act, as last amended in 2005, does not explicity cover such contractors who may be working in concert with the Defense Department, said Laura Dickinson, a law professor at Arizona State University and author of the forthcoming book, Outsourcing War and Peace, which is being published by Yale Press. Since they are not covered by the Uniform Code of Military Justice either, such contractors who commit crimes overseas may not be brought to justice.
"Right now, you could make an argument that they would be covered, but it's ambiguous," Dickinson said.
The U.S. House passed the MEJA (Military Extraterritorial Jurisdiction Enforcement Act) Expansion and Enforcement Act in 2007 to clear this up, and Obama sponsored it in the Senate. The Senate version, however, foundered. While several contractor-related bills have been introduced in Congress, none passed in the first half of the 111th Congress, according to extensive searches of congressional records, committee reports and www.Thomas.gov, the Library of Congress"s bill-tracking Web site.
(For an overview of the thorny legal issues confronting Congress and the agencies regarding this matter, click here for a story in the Oct. 26, 2007, issue of the National Law Journal.)
Meanwhile, Dickinson said the State Department and the Defense Department are continuing late Bush-era efforts to better account for contractors and to coordinate policies. "They can't even accurately count the contractors," she added. But clarifying the legal status of thousands of contractors working in Iraq and Afghanistan, as Obama promised? PolitiFact finds that Stalled.
Phone interview, Dec. 19, 2009, with Laura Dickinson, expert in the legal status of government contractors at Arizona State University and author of the forthcoming book Outsourcing War and Peace, published by Yale University Press.
The MEJA Expansion and Enforcement Act (H.R. 2740), as passed by the U.S. House in the 110th Congress.