On Law, Wars, and Mercenaries: The Case for Courts-Martial Jurisdiction over Civilian Contractor Misconduct in Iraq

I. OPENING [N]ot one private military contractor has been prosecuted or punished for a crime in Iraq (unlike the dozens of U.S. soldiers who have), despite the fact that more than 20,000 contractors have now spent almost two years there. Either every one of them happens to be a model citizen, or there are serious shortcomings in the legal system that governs them.1 Two weeks before the collapse of Baghdad during the Iraqi campaign of the U.S.-led global war against radical Islamists,2 the Army's 173rd Airborne Brigade moved to seize oil fields in northern Iraq. The operation was a tactical effort to preserve resources crucial to a democratic Iraq's recovery and to prevent Saddam Hussein from again unleashing ecologic terrorism on a mass scale.3 The 173rd Airborne's move also served strategically to dissuade a Kurdish independence movement and to block their potential for expansion toward southern regions with a Shia majority-regions that the Sunni Muslim minority previously dominated politically. Open civil war among Iraqi religious and ethnic factions was not the desired end state of Operation Iraqi Freedom. Following the early deployment of stabilizing U.S. military forces into Iraq, privatized contractors representing the Department of Defense, individual armed services, and various U.S. government agencies arrived. These contractors initially filled service support roles, such as logistics, and provided an enhanced transportation capability. Over time, however, they came to provide operational functions in limited circumstances. Many contract employees provided their own security elements and organized armed convoy operations over main supply routes through hostile territory; similarly, heavily armed contractors often accompanied active duty soldiers during combat operations, serving as translators and interrogators.4 The existing U.S. legal regime available to address instances of criminal misconduct by such contractors on the battlefield includes the option of both federal district court prosecution and military courts-martial. This Article argues the case that military courtsmartial of civilian contractors, particularly for those accused of war crimes and similarly serious offenses, is not only constitutional but also the preferred course of judicial action. Of the myriad of problems that arise with the increased use of civilian contractors performing military functions during combat operations, some of the more salient are highlighted by the following fictional account. It is late December 2003 and civilian contractors from a Wisconsin-based company called Red River Group-USA comprise all of the translators and more than half of the interrogators at an Army-administered prison northwest of Kirkuk known as the Dokan Pit.5 After a local man with suspected ties to Sunni insurgents was detained by a 173rd Brigade patrol for his role in concealing improvised explosive devices along Route Irish, the heavily traveled supply road between Baghdad's International Airport and the Green Zone, he was promptly transferred to the Dokan Pit. A zealous contract interrogator from Red River Group assumed responsibility for the suspected insurgent. The detainee was identified as Ahmed Mire Wali. The Army patrol's combat lifesaver informed the Red River Group contractor that the detainee had suffered numerous injuries, including the likelihood of broken ribs, when he violently resisted capture by U.S. forces. The medic relayed that Wali had not yet received sufficient medical treatment for those injuries. It was late in the day, a light rain was beginning to fall, and both daylight and the temperature were dropping. After stripping the man and removing his makeshift blindfold fashioned from a sandbag long enough to intimidate him with leashed but unmuzzled attack dogs, the Red River interrogator hosed him down with cold water and struck him forcefully numerous times in his ribs with a heavy metal flashlight. …