Scott Horton, from Columbia Law School, testified on Tuesday in front of the House Judiciary Committee in support of H.R. 369, the Transparency and Accountability in Security Contracting Act. The link to the bill’s text and other bill info at Thomas is HERE. Professor Horton’s full testimony is up over at Balkinization.
Bottom line, although recent changes to the UCMJ provide court-martial jurisdiction over military contractors, the language of both the UCMJ and MEJA exclude some contractors who are present in Iraq and Afghanistan from their jurisdiction. MEJA’s language, found at 18 U.S.C. § 3267, limits jurisdiction of civilian federal criminal courts to contractors in support of Department of Defense missions. Contractors who aren’t contracted to DoD or who can argue they’re not present in the war zones in support of DoD missions, by this limiting language found in 18 U.S.C., have a very strong argument that they’re simply outside of MEJA’s jurisdiction and so escape prosecution for “war crimes.”
There’s similarly a hole in court-martial jurisdiction, even under the recently amended UCMJ Article 2, over those contractors who cannot be described as “serving with or accompanying an armed force in the field.” UCMJ, Article 2(a)(10). Such contractors not currently covered by court-martial jurisdiction could easily include, as with the current MEJA statute, CIA, State, and other non-DoD contractors.
At a time when the number of contractor personnel in Iraq (well over 100,000, when including subcontractors) nearly equals the total number of armed forces personnel in Iraq, accountability for contractor misdeeds is of great importance to the national interest. Professor Horton testifies that many of these contractors are not contracted with DoD, but are contracted with Department of the Interior, State, and other agencies. To date, though there have been almost 50 courts-martial commenced for offenses relating to law of war violations, only one enforcement action has been brought with regard to a contractor–the Passaro prosecution, brought in North Carolina, and even that, only under the Patriot Act (which applies only to “crimes on U.S. facilities,” and so also is of limited scope). Professor Horton suggests that “the preference of command authority has and will continue to be to immediately evacuate the offender to U.S. territory, and in this circumstance that would mean to the authority of the Department of Justice.”
The new proposed amendment would expand MEJA’s language to any U.S. Government contractors or subcontractors who are located outside the U.S. and in a region where the U.S. is conducting a contingency operation. The bill, in pursuit of its “Accountability” moniker, also wouldprovide for an “FBI Investigative Unit for Contingency Operations” and require a Department of Justice Inspector General Report within 30 days of enactment of the Act detailing the number of complaints received, number of investigations opened by DoJ, and number and result of criminal cases opened and closed by DoJ pursuant to the Act.
Keep an eye on this bill. Passage would be quite a significant expansion of MEJA for several U.S.G. contractors deployed overseas.