Private Security Contractors in Iraq and Afghanistan: Legal Issues
Released: 2010-01-07T00:00:00

Introduction

U.S. departments and agencies engaged in combat or stability operations overseas are relying on private firms to perform a wider scope of security services than was previously the case. Rather than relying on the U.S. Armed Forces to provide protection from insurgents and other risks inherent in such an environment, the State Department, USAID, and, reportedly, the Central Intelligence Agency (CIA) have outsourced a variety of security services. The Department of Defense (DOD) also employs civilian contractors to perform certain security services. The use of private security contractors (PSCs) to provide security for personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community. Due to a spate of high-profile incidents involving contractors allegedly shooting civilians, using excessive force, committing other crimes, or otherwise behaving in a manner that may be offensive to the local population, there is concern that the reliance on contractors may be undermining U.S. counterinsurgency efforts in Iraq and Afghanistan. Some have questioned whether the legal framework is adequate to cover the activities of armed civilians performing roles that in previous conflicts were assigned to soldiers, or whether such activities could run counter to international law.

Congress has, over the past decade, enacted legislation to close jurisdictional gaps that have made prosecution of civilian employees difficult for crimes they commit overseas. As a result, there is statutory authority to subject civilian contractor personnel to prosecution in federal and sometimes military court in many cases, largely depending on the type and seriousness of the offense alleged, where the offense occurred, the nationality of the perpetrator or victim, and the nature of the contract employment and government agency (or armed force) affiliation. The bases of jurisdiction, which remain relatively untested by the courts, may not have closed all of the gaps, and in cases they do cover, may affect agency responsibility for investigating and prosecuting the crimes as well as the venue for prosecution. While some contractor personnel have been subject to prosecution in the United States for crimes they allegedly committed in Iraq and Afghanistan, it appears that many more investigations into possible criminal conduct have not resulted in charges, at least not yet.

The foreign affairs implications of these issues are illustrated by the Iraqi reaction to the 2007 incident at Nisoor Square involving Blackwater Worldwide private security guards on contract with the State Department, who reportedly opened fire in the crowded traffic circle in the belief that they were engaged in a firefight with insurgents. Outrage among the Iraqi population over the incident, which resulted in the deaths of 17 civilians, spurred the Iraqi government to revoke Blackwater's operating license (the company has since changed its name to Xe Services) and to negotiate an end to the immunity from Iraqi legal processes such contractors previously enjoyed. News of the dismissal of the criminal indictments against five contract employees in connection with the incident appears to have further strained U.S.-Iraq relations, with Iraqi officials calling the outcome "unacceptable" and vowing to seek redress. The United Nations Working Group on the use of mercenaries released a statement calling on the United States and Iraq "to cooperate to ensure that the Nissour Square incident is fully remedied and, in relation to the crimes that may have been committed, those responsible fully held accountable as appropriate."

This report discusses the legal framework that applies to contractor personnel serving in Iraq and Afghanistan, including matters peculiar to private security contractors. After presenting a general description of the types of law applicable, the report addresses some implications of international law and proposals for the adoption of international "best practices" regarding the use of PSCs and an international convention to regulate and oversee their use. There follows a description of the treaty frameworks applicable in Iraq and Afghanistan, in particular agreements that function as "status of forces" agreements. The report briefly discusses the possible implication of the roles of private security contractors with respect to inherently governmental functions. Finally, the report discusses jurisdiction over contractor personnel in U.S. courts, whether federal or military, identifying possible means of prosecuting contractor personnel who are accused of violating the law overseas in the context of U.S. military operations and providing a brief listing of known cases that have occurred or are pending.

Legal Status and Authorities

Contractors to the coalition forces in Iraq and Afghanistan operate under three levels of legal authority: (1) the international order of the laws and usages of war, resolutions of the United Nations Security Council, and relevant treaties; (2) U.S. law; and (3) the domestic law of the host countries. Under the authority of international law, contractors and other civilians working with the military are civilian non-combatants whose conduct may be attributable to the United States or may implicate the duty to promote the welfare and security of the local population. The courts of Iraq and Afghanistan have jurisdiction to prosecute them pursuant to applicable status of forces agreements. Some contractors, particularly U.S. nationals, may be prosecuted in U.S. federal courts or military courts under certain circumstances.

International Law

The international law of armed conflict (also known as humanitarian law), particularly those parts relating to belligerent occupation and non-international armed conflict, appears to be relevant to conduct in Iraq and Afghanistan, depending on when the conduct took place. The status of armed contract personnel under humanitarian law falls into a grey area. While civilians accompanying the armed forces in the field are generally entitled to treatment as prisoners of war (POW) if captured by an enemy state during an international armed conflict (a war between two or more states), they are considered civilians (non-combatants) who are not authorized to take a direct part in hostilities.

Can Contractors Be "Combatants"?

A critical question appears to be whether the duties of contractors amount to "taking an active part in hostilities." In an international armed conflict or occupation, only members of regular armed forces and paramilitary groups that come under military command and meet certain criteria (carry their weapons openly, distinguish themselves from civilians, and generally obey the laws of war) qualify as combatants for purposes of treatment in case of capture. Because contract employees fall outside the military chain of command, even those who appear to meet the criteria as combatants could be at risk of losing their right to be treated as POWs if captured by the enemy. Contractors who take a direct part in hostilities may nonetheless be considered combatants for the purposes of distinguishing such persons from civilians, who are protected from direct attack. If the conflict in question is a non-international armed conflict (i.e., an armed conflict where a party is a non-state actor) within the meaning of Common Article 3 of the Geneva Conventions (CA3), customary international law would no longer distinguish between "unlawful" and "lawful combatants" or establish a right to POW status. Contractors captured by enemy forces who had engaged in hostilities would be entitled to the minimum set of standards set forth in CA3, but their right to engage in hostilities in the first place would likely be determined in accordance with the prevailing local law.

After conducting a series of conferences with legal representatives of various nations and non-governmental institutions, the International Committee of the Red Cross (ICRC) produced a report providing "interpretive guidance" regarding the definition of "direct participation in combat." Noting that the questions of whether an individual is entitled to POW status and whether an individual is entitled to be protected from direct attack are separate, the report discusses whether contractors should be considered civilians or members of armed forces for the purposes of protection from attack. It concludes that "all armed actors [in an international armed conflict] showing a sufficient degree of military organization and belonging to a party to the conflict must be regarded as part of the armed forces of that party." Such membership would be determined based on whether an individual serves a "continuous combat function," that is, whether the person's role in the organization ordinarily involves direct participation in hostilities. Such a role would involve acts that meet the following criteria:

a threshold of harm likely to result from the act affecting the adversary's military operations or capacity, or inflicting death, injury or destruction on protected persons or objects; direct causation between the act (or the military operation of which that act constitutes an integral part) and the expected harm; and a belligerent nexus between the act and the hostilities ongoing between the parties to an armed conflict.

In the case of private contractors on the battlefield, the ICRC advises that such determinations should be made "with particular care and due consideration for the geographic and organizational closeness" of such personnel to the armed forces and the hostilities. Under the ICRC view, contractors who are not authorized to act as combatants by a party to the conflict but nevertheless participate directly in hostilities would continue to be considered civilians for the purposes of international humanitarian law, but would lose their protection against direct attack for such time as they do so. Contractors and other civilian employees who have for all practical purposes been incorporated into the armed forces of a party to the conflict by being assigned to perform a "continuous combat function" would be considered members of an organized armed force who are not entitled to protection under the principles of distinction. Under this view, private security personnel under contract with the State Department assigned to protect embassy personnel from enemy attacks would likely be considered combatants, as would private security providers assigned to protect military supply convoys from insurgents because their purpose, although defensive in nature, would affect hostilities and could require engagement with enemy forces.

The Geneva Conventions and other laws of war do not appear to forbid the use of civilian contractors in a civil police role in occupied territory, in which case contractors might be authorized to use force when absolutely necessary to defend persons or property. It may sometimes be difficult, however, to discern whether civilian security guards are performing law-enforcement duties or are engaged in combat. If their activity amounts to combat, they would become lawful targets for enemy forces during the fighting, and, if captured by an enemy government (if one should emerge), could potentially be prosecuted as criminals for their hostile acts. Contract personnel who intentionally kill or injure civilians could be liable for such conduct regardless of their combatant status.

Are They "Mercenaries"?

Mercenaries are persons who are not members of the armed forces of a party to the conflict but participate in combat primarily for personal gain. They may be authorized to fight by a party to the conflict, but their allegiance to that party is conditioned on monetary payment rather than obedience and loyalty. For this reason, mercenaries are sometimes treated as "unlawful combatants" or "unprivileged belligerents," even though their employment is not strictly prohibited by international law. As discussed above, they may not qualify for POW treatment under the Geneva Convention Relative to the Treatment of Prisoners of War (GPW), and those meeting the definition of "mercenary" under the 1977 Protocol I to the Geneva Conventions are explicitly denied combatant status. Because mercenaries are not entitled to combat immunity, they may be tried, and if found guilty, punished for their hostile actions (including by the death penalty), even if such actions would be lawful under the law of war if committed by a soldier. Soldiers with a nationality other than that of the party on whose side they fight are not automatically considered mercenaries. Article 47 of Protocol I defines a mercenary as follows:

2. A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Under this definition, it appears that contractor personnel who are not U.S. nationals, the nationals of other coalition allies or nationals of the host country, and who were hired to—and in fact do—take part in hostilities might be considered to be mercenaries, assuming the definition in Protocol I applies as customary international law in the context of the current hostilities. On the other hand, what constitutes "direct participation in an armed conflict" is not fully settled, and some of the other requirements are inherently difficult to prove, particularly the element of motivation. There is no distinction based on the offensive or defensive nature of the participation in combat.

The United Nations Commission on Human Rights (UNCHR) has taken an interest in the role of mercenaries in armed conflicts and in 1987 appointed a special rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. The mandate of the special rapporteur was later expanded to cover "the impact of the activities of private companies offering military assistance, consultancy and security services on the international market on the exercise of the right of peoples to self-determination." A UNCHR working group on the use of mercenaries, established in 2005 to take the place of the special rapporteur, concluded that some private security companies operating in zones of armed conflict are engaging in "new forms of mercenarism." The working group has expressed concern about the role of private security contractors in both Iraq and Afghanistan, and has urged the international community to adopt regulations for their use.

The working group drafted a new International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies. The draft convention emphasizes that states should have an effective monopoly on the use of force, and that states are responsible under international law for their use of force whether on their own territory or beyond, and whether conducted by national armed forces or private armed groups operating under the state's license or contract. It declares that "[n]o State Party can delegate or outsource fundamental State functions to non-State actors," and requires states parties to establish rules regarding the use of force, authorities and responsibilities of state bodies empowered to use coercive and combative measures (including "special operations") within the framework of domestic and international law.

The convention does not attempt to establish a binding regulatory framework itself, but would require states parties to adopt their own contracting and licensing procedures for the use, import, or export of private military and security services, in furtherance of the goals set forth in the convention. States parties would undertake also to prohibit, at least partially, the transfer of the right to use force or to carry out special operations to private actors, and to prohibit private military and security companies from directly participating in armed conflicts, military actions or terrorist acts, especially for the purpose of overthrowing a government, changing international boundaries by force, violating the territorial sovereignty of another state, displacing residents of any territory or controlling its natural resources. Further obligations would include measures to prevent private companies from using or trafficking in weapons of mass destruction or illicit weaponry and components, establish jurisdiction and criminalize violations set forth under the convention and provide redress for victims. Private military and security companies would be prohibited under the convention from arbitrarily or abusively using force, and would be permitted to use force only as a measure of last resort.

The convention would also create a UN Committee on the Regulation, Oversight and Monitoring of Private Military and Security Companies, to be composed of up to fourteen experts nominated by states parties. States would submit periodic reports on the legislative, judicial, administrative or other measures they have taken to implement the Convention, to which the Committee would add its observations or request additional information. The Committee would provide interpretive guidance on international law applicable to the provision of private military and security services and make confidential inquiries into incidents if warranted. States parties would be able to refer complaints about the compliance of other states parties to the Committee for review. In such a case, the Committee would appoint a five-person ad hoc Conciliation Commission to help the parties reach an amicable resolution. Parties could also authorize private victims or victims' groups to bring petitions to the Committee. The Committee would have no authority to enforce sanctions or take any action other than review in case of a breach.

International Best Practices: The Montreux Document

In an effort to clarify the international legal responsibilities with respect to private military and security companies (PMSCs), the United States and sixteen other countries signed the Montreux Document, which sets forth the understanding of participating governments regarding the legal obligations that arise whenever such companies operate during situations of armed conflict, and develops a set of "best practices" to guide their use. According to the document, states that contract with private military and security companies ("contracting states") retain their obligations under international humanitarian and human rights law, and may not outsource certain functions assigned by treaty to states parties, such as the duties of "responsible officer" over prisoner of war camps in accordance with the Geneva Conventions. Further, contracting states are obligated to

ensure that contractors are aware of their obligations and trained accordingly; take appropriate measures to prevent any violations of international humanitarian law by private military and security company personnel; adopt appropriate military regulations, administrative orders or other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate; prevent, investigate and provide effective remedies for relevant misconduct of private military and security companies and their personnel; and enact any legislation necessary to provide effective penal sanctions for grave breaches of the Geneva Conventions and other crimes in violation of international law, and to pursue prosecutions in case of such a breach or permit the host country or an international tribunal to do so.

If the conduct of private military and security company personnel is attributable to the contracting state, according to the Montreux Document, that state is responsible for providing reparations in accordance with customary international law. Private actions are attributable to the contracting state, according to the Document, if the company's personnel are

a) incorporated by the State into its regular armed forces in accordance with its domestic legislation;

b) members of organised armed forces, groups or units under a command responsible to the State;

c) empowered to exercise elements of governmental authority if they are acting in that capacity (i.e. are formally authorised by law or regulation to carry out functions normally conducted by organs of the State); or

d) in fact acting on the instructions of the State (i.e. the State has specifically instructed the private actor's conduct) or under its direction or control (i.e. actual exercise of effective control by the State over a private actor's conduct).

The Document also sets forth responsibilities of the state on whose territory the activity takes place ("territorial state") and the state of nationality of the private military and security company ("home state," e.g. state of incorporation). It also lists responsibilities of the private military and security company itself, which include compliance with relevant international humanitarian and human rights law as well as all applicable laws of the territorial and home states. The Document does not take a position on whether such companies and their personnel are "armed forces" or "combatants," but states that such status determinations are made under humanitarian law on the basis of "the nature and circumstances of the functions in which they are involved." It also posits that the superiors of private security personnel, whether military or contractor, may be liable for crimes under international law committed by personnel under their effective authority and control, but that such superior responsibility "is not engaged solely by virtue of a contract."

Part II of the Montreux Document provides detailed lists of "good practices" recommended for adoption by contracting states, territorial states, and home states, as well as by the companies themselves. Contracting states are urged to evaluate whether their legislation and procurement regulations are adequate to ensure accountability, particularly if the companies are to be employed in an area where law enforcement or regulatory capacities are compromised. In particular, contracting states are advised to provide for criminal and civil jurisdiction over the activities of private military and security companies and their personnel abroad, and to cooperate with the territorial state in conducting any investigation that may become necessary.

In a nutshell, contracting states should:

Determine which services may or may not be contracted out to private military and security companies (PMSC), taking into account factors such as the likelihood of PMSC personnel becoming involved in direct participation in hostilities. Assess the capacity of the particular PMSC to carry out its activities in conformity with relevant law, perhaps by considering the company's work history, employer references, ownership structure, and results of employees' background checks. Provide adequate resources and expertise for selecting and overseeing PMSCs. Consider terms of contracts necessary to ensure compliance with legal responsibilities and accountability. Ensure transparency and supervision in the selection and contracting of PMSCs through legislative oversight and public disclosure of PMSC contracting regulations and practices, information about specific contracts, and incident reports or complaints involving such contractors, including measures taken to address any proven misconduct.

Territorial states are likewise advised to evaluate their domestic legal framework applicable to the conduct of PMSCs. The authors acknowledge that territorial states in armed conflict face particular challenges and consider it may be appropriate for them to rely on information provided by the contracting state concerning a particular PMSC. Nevertheless, the territorial state is advised to enact licensing requirements to be enforced by an adequately resourced central authority. The territorial state is counseled to establish requirements regarding the carrying and use of weapons and reporting of incidents, among other regulations.

Home states, in evaluating their domestic legal frameworks, are advised to consider licensing or regulatory regimes to control and monitor exports of security services that do not unnecessarily duplicate the regimes of contracting or territorial states, and to focus instead on areas of specific concern for them. The Document recognizes the PMSCs as are not per se bound to respect international law, which is binding only on parties to a conflict and individuals, not corporate entities. Statement 22 explains that the bodies of law applicable to armed conflict are integrated into national law and made applicable to companies, and that PMSCs are nonetheless obliged to uphold them.

Iraqi Law and Status of U.S. Forces

Contractors to U.S. agencies or any of the multinational forces or diplomatic entities in Iraq operate under the law of the government of Iraq. During the time covered by the UN Security Council mandate, such law included orders issued by the Coalition Provisional Authority (CPA) prior to the hand-over of sovereignty to the Iraqi Interim Government that had not been rescinded or superseded. CPA Order Number 17 exempted contractors from Iraqi laws for acts related to their contracts. As of January 1, 2009, however, jurisdiction over U.S. defense contractors is governed by the Withdrawal Agreement negotiated between the United States and Iraq as part of the legal framework meant to take the place of the UN mandate upon its expiry on December 31, 2008. The Withdrawal Agreement provides that Iraq has "primary jurisdiction" over U.S. Defense contractors and their employees who are not citizens of Iraq or who habitually reside there. Presumably, Iraq has exclusive jurisdiction over State Department and other non-Defense Department contractors, who do not appear to be covered by the Withdrawal Agreement, as well as contractors who are citizens of or habitually reside in Iraq. The United States could continue to exercise jurisdiction over U.S. contractors in cases over which U.S. courts have jurisdiction, but Iraq is under no obligation under the Withdrawal Agreement to negotiate with the United States according to its provisions for determining how cases involving U.S. servicemembers and DOD civilians will be handled, nor even to inform U.S. officials that a contract employee has been arrested. The Agreement does not authorize the United States to arrest or detain contractor personnel without a warrant issued by an Iraqi court, unless perhaps such persons are caught in the act of committing a serious crime or if the arrest takes place on base. However, such arrests must be reported and the detainee turned over to Iraqi authorities within 24 hours.

Afghan Law and Status of U.S. Forces

The United States is participating in two military operations in Afghanistan, with separate mandates and status of forces arrangements. Operation Enduring Freedom (OEF) refers to the U.S.-led coalition that initiated military action in Afghanistan in 2001. OEF personnel are covered by an exchange of notes between the United States and the Afghan government. The International Security Assistance Force (ISAF) is a NATO-led coalition deployed to Afghanistan under UN mandate after the fall of the Taliban government. ISAF personnel are covered by a Military Technical Agreement concluded between ISAF and Afghanistan.

The UN mandate for ISAF is related to "peace enforcement," for the purpose of assisting the Afghan government in extending its authority throughout its territory and creating a secure environment for reconstruction and humanitarian efforts. ISAF negotiated a "Military Technical Agreement" with the Afghan Interim Authority, which gives ISAF the authority to use military force to accomplish its mission. This Agreement also contains arrangements regarding the status of ISAF forces, which provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their own governments. ISAF personnel are immune from arrest or detention by Afghan authorities, and may not be turned over to any international tribunal or any other entity or State without the express consent of the contributing nation.

Operation Enduring Freedom is the U.S.-led coalition formed to combat terrorism after 9/11. The United States and the transitional government of Afghanistan concluded an agreement in 2002 regarding the status of U.S. military and DOD civilian personnel in Afghanistan. Such personnel are to be accorded "a status equivalent to that accorded to the administrative and technical staff" of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961. Accordingly, covered U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. In the agreement, the Islamic Transitional Government of Afghanistan (ITGA) explicitly authorized the U.S. government to exercise criminal jurisdiction over such U.S. personnel, and the Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another state, international tribunal, or any other entity without consent of the U.S. government. Although the agreement was signed by the ITGA, the subsequently elected Government of the Islamic Republic of Afghanistan assumed responsibility for ITGA's legal obligations and the agreement remains in force. The agreement, however, does not appear to provide immunity for contractor personnel.

U.S. Law

The following sections describe U.S. law applicable to determining the types of functions related to contingency operations that may be outsourced by the Department of Defense to contractors and the possible avenues for prosecuting any contractor personnel who commit offenses in connection with such operations.

"Inherently Governmental Functions" and Other Restrictions on Government Contracts

There has been debate about the extent to which private security functions are "inherently governmental" in nature and therefore ought to be performed by public officials. Congress defined "inherently governmental function" in the Federal Activities Inventory Reform (FAIR) Act of 1998 to mean a function that is "so intimately related to the public interest as to require performance by Federal Government employees." Under the FAIR Act, the term "includes activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government...." It involves functions that can "determine, protect, and advance United States economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal justice proceedings," contract management, and functions that can "significantly affect the life, liberty, or property of private persons...." Infrequently, Congress has provided by statute that a function is "inherently governmental." Congress may also directly forbid or limit the use of contractors for certain functions or forbid the contracting of certain kinds of employees, where the functions or employment may be considered inherently unsuitable for association with the government. In the case of defense contractors in areas of combat operations, Congress expressed its sense in the FY2009 NDAA that private security contractors should not perform certain functions, such as security protection of resources, in high-threat operational environments, and that DOD regulations "should ensure that private security contractors are not authorized to perform inherently governmental functions in an area of combat operations."

The Federal Acquisition Regulations (FAR) list examples of inherently governmental functions. The Office of Management and Budget sets forth in Circular A-76 the guidelines and procedures that executive agencies should take into account when determining whether an activity should be performed by government personnel or can be performed by the private sector. Executive agencies may also take into account legislation when making such a determination.

Circular A-76, as revised in 2003, states that using contractors to provide certain types of protective services—guard services, convoy protection services, plant protection services, pass and identification services, and the operation of prison or detention facilities, all whether performed by unarmed or armed personnel—is not prohibited. Nevertheless, Circular A-76 also stipulates that executive agencies should take into account whether circumstances exist where

the provider's authority to take action ... will significantly and directly affect the life, liberty, or property of individual members of the public, including the likelihood of the provider's need to resort to force in support of a police or judicial activity; whether the provider is more likely to use force, especially deadly force, and the degree to which force may have to be exercised in public or relatively uncontrolled areas.

DOD implementation of the FAR, known as the Defense Federal Acquisition Regulation Supplement (DFARS), does not prohibit the use of contract personnel for security, but it limits the extent to which contract personnel may be hired to guard military installations and provides mandatory contractual provisions for contractors who are accompanying U.S. Armed Forces deployed overseas. Such contractors are considered civilians accompanying the U.S. Armed Forces during contingency operations and are not authorized to use deadly force against enemy armed forces other than in self-defense. However, in June, 2006, DOD published a rule amending the DFARS to create an exception for private security contractors, who are authorized to use deadly force "only when necessary to execute their security mission to protect assets/persons, consistent with the mission statement contained in their contract." The rule explained that

it is the responsibility of the combatant commander to ensure that the private security contract mission statements do not authorize the performance of any inherently Governmental military functions, such as preemptive attacks, or any other types of attacks. Otherwise, civilians who accompany the U.S. Armed Forces lose their law of war protections from direct attack if and for such time as they take a direct part in hostilities.

While DOD considers combat functions to be inherently governmental in nature, security functions may sometimes be commercial. The distinction between governmental and commercial security functions appears to turn on the level of discretion required to be exercised and the likelihood of engagement with enemy fighters. The Combatant Commander has the authority to decide whether to classify security functions as commercial.

Further, the DFARS-mandated clause for contractors accompanying the armed forces limits the provision of military security for other DOD contractors providing services in the theater of operations to cases where, as determined by the Combatant Commander, the contractor cannot obtain effective security services at a reasonable cost or "threat conditions necessitate security through military means." In the event a contractor hires a subcontractor to provide security services for its workers and property, that contract must incorporate the substance of the required clause.

A decision by the Comptroller General may shed additional light on the current thinking regarding the nature of private security services. A contractor protested the terms of a pair of solicitations for contracts involving cargo transportation in Iraq on the basis that they included requirements for armed security escorts. The prospective bidder challenged the security requirements as running afoul of the Anti-Pinkerton Act as well as relevant DOD instructions regarding contractors accompanying the U.S. Armed Forces overseas. Specifically, the protestor contended that the statements of work (SOW) required performance of security services that would constitute the provision of "quasi-military armed forces for hire" and require civilian contractors to engage in combat. The Comptroller General denied the protest, relying on an earlier interpretation that "a company which provides guard or protective services does not thereby become a 'quasi-military armed force,' even if the individual guards are armed...." With respect to the charge that the work involved the "uniquely governmental" function of engaging in combat, the decision noted DOD regulations and DFARS provisions that would permit the contracting of armed security services but prohibit such contractors from engaging in direct combat or offensive operations. It appears that neither the Department of Defense nor the Government Accountability Office (GAO) regards the government use of armed security escorts in Iraq as violating any restrictions on government contracting. However, the Anti-Pinkerton Act might be construed to bar the hiring of any particular contractor who is found to operate as a "quasi-military armed force."

Neither the State Department acquisition regulations nor the U.S. Agency for International Development regulations specifically addresses contractors overseas during war or contingency operations. However, a 2008 amendment to the FAR imposes new requirements for government contracts that entail contractor personnel working in designated operation areas or at certain diplomatic or consular missions outside the United States for agencies other than the Department of Defense.

Prosecution of Contractor Personnel in U.S. Federal or Military Courts

Apart from the functions contractor personnel may be assigned to perform overseas is the issue of their accountability for conduct, whether duty-related or not, that could cause harm or otherwise undermine mission objectives. In addition to contract oversight and enforcement measures, criminal prosecution may sometimes be warranted for individual misconduct. U.S. contractor personnel and other U.S. civilian employees in Iraq and Afghanistan are subject to prosecution in U.S. courts under a number of circumstances.. Jurisdiction of certain federal statutes extends to U.S. nationals at U.S. facilities overseas that qualify as part of the special maritime and territorial jurisdiction of the United States. Additionally, persons who are "employed by or accompanying the armed forces" overseas may be prosecuted for certain crimes under the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) or, in some cases, the Uniform Code of Military Justice (UCMJ). However, some contractor personnel who commit crimes might not fall within the statutory definitions described below, and thus might fall outside the jurisdiction of U.S. criminal law, even though the United States is responsible for their conduct as a matter of state responsibility under international law. There may also be institutional disincentives or procedural complications at play that might result in a failure to prosecute offenders even where jurisdiction exists. There may also be uncertainty with respect to the courts' interpretation of the statutes and willingness to apply them to particular facts, which may effectively discourage prosecution.

In addition to amendments expanding special maritime and territorial jurisdiction, MEJA, and the UCMJ to provide broader jurisdictional coverage over contractor personnel, Congress included a provision in the National Defense Authorization Acts for FY2008 and FY2009 instruction for certain agencies with responsibilities for contracts in Afghanistan and Iraq. In section 861 of the 2008 NDAA, P.L. 110-181 ,Congress required the Secretaries of Defense and State and the Administrator of the United States Agency for International Development to enter into a memorandum of understanding regarding matters relating to contracts in Iraq or Afghanistan, including delineating responsibility for investigating and referring possible violations of the UCMJ or MEJA. Section 854 of the FY2009 NDAA, P.L. 110-417 , expands the MOU requirements to include reporting requirements for contractors of allegations of offenses in violation of the UCMJ or MEJA committed by or against contractor personnel, a delineation of responsibility for victim and witness protection and other assistance to contractor personnel in connection with such crimes, and provisions for ensuring contractor personnel are aware of their responsibility to report such crimes and where to turn to for assistance. These provisions do not apply to CIA contracts, although CIA contractor personnel may be covered by MEJA, as described below. The MOU requirements do not cover responsibilities for crimes under the special maritime and territorial jurisdiction of the United States or crimes with general extraterritorial jurisdiction.

Special Maritime and Territorial Jurisdiction Act

For crimes involving a U.S. national as a perpetrator or a victim, the special maritime and territorial jurisdiction includes

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

Persons who are covered by MEJA or the UCMJ, however, are not within the special maritime and territorial jurisdiction at these places if they commit an offense there, at least if the offense is a felony.

Criminal statutes that apply within the special maritime and territorial jurisdiction include maiming, assault, kidnapping, sexual abuse, assault or contact, murder, and manslaughter. The Department of Justice (DOJ) is responsible for prosecuting crimes in this category, although criminal investigations and arrests may in some cases be conducted by other federal agencies.

A CIA contractor was convicted under this provision in 2007 for the assault of a detainee in Afghanistan. He appealed his conviction based in part on the argument that a temporary base used by U.S. military forces during operations in Afghanistan as a firebase did not constitute the "premises" of a "military mission" within the meaning of 18 U.S.C. § 7(9). The appellate court disagreed and upheld the conviction. The court did not adopt the interpretation used by the district court and urged by the government, which would have included any land or building where a military mission takes place (interpreting "mission" to mean "a team of military specialists"). Instead, the court found that a "mission" in 18 U.S.C. § 7(9) refers to a place possessing sufficient qualities of a permanent base, and suggested some relevant factors, including

the size of a given military mission's premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation's consent (whether formal or informal) to the presence of the United States.

Applying these factors, the court concluded the firebase qualified as a military installation and that Congress had intended to extend federal criminal jurisdiction to assaults committed there.

Extraterritorial Jurisdiction

In addition to crimes punishable if they occur only in certain places overseas, many federal statutes prescribe criminal sanctions for offenses committed by or against U.S. nationals wherever they are committed, which may expressly or implicitly cover crimes that occur abroad. The War Crimes Act of 1996 covers conduct "whether inside or outside the United States," so long as the victim or perpetrator is a U.S. national or member of the Armed Forces. The federal prohibition on torture applies to acts outside the United States regardless of the nationality of the perpetrator (non-U.S. nationals need only be "found" in the United States to be prosecuted).

The War Crimes Act, as amended by the Military Commissions Act of 2006, prohibits "grave breaches" of Common Article 3, which are defined to include torture, cruel or inhuman treatment, performing biological experiments, murder of an individual not taking part in hostilities, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages. Although federal jurisdiction is established for these crimes when they are committed by or against U.S. nationals or U.S. servicemembers, the statute does not appear to cover foreign nationals who commit war crimes in connection with U.S. contingency operations overseas, even if they are employed by the U.S. government or U.S. government contractors.

Other criminal proscriptions with extraterritorial reach include assaulting, killing or kidnapping an internationally protected person, or threatening to do so. Jurisdiction exists over these offenses if the victim or offender is a U.S. national, or if the offender is afterwards found in the United States. The federal prohibition on torture applies to acts outside the United States regardless of the nationality of the perpetrator (non-U.S. nationals need only be "found" in the United States to be prosecuted). There is extraterritorial jurisdiction over murder where both the perpetrator and victim are U.S. nationals, but prosecution requires that the Attorney General or his designee give approval, which requires that the foreign country where the murder took place has not prosecuted the suspect for the same conduct and that the suspect is no longer present in that country and the country lacks the ability to lawfully secure the person's return.

Extraterritorial jurisdiction may be found to be implied in statute, especially where the statute's main purpose is to protect federal officers, employees and property, or to prevent the obstruction or corruption of the overseas activities of federal departments and agencies. Some statutes apply to conduct where foreign commerce is affected, although that jurisdictional basis alone may be insufficient to demonstrate that Congress meant to reach conduct overseas. Crimes involving only foreign nationals as perpetrators or victims, even where one or more are employed by the U.S. government or a government contractor, may fall outside the jurisdiction of U.S. courts.

Military Extraterritorial Jurisdiction Act (MEJA)

Persons who are "employed by or accompanying the armed forces" overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 for any offense that would be punishable by imprisonment for more than one year (a felony offense) if committed within the special maritime and territorial jurisdiction of the United States. The definition of persons "[e]mployed by the armed forces" includes civilian employees of the Department of Defense (DOD) as well as DOD contractors and their employees (including subcontractors at any tier), and, after October 8, 2004, civilian contractors and employees from other federal agencies and "any provisional authority," to the extent that their employment is related to the support of the DOD mission overseas. Depending on how broadly DOD's mission is construed, MEJA does not appear to cover civilian and contract employees of agencies engaged in their own operations overseas. It also does not cover nationals of or persons ordinarily residing in the host nation. While it appears to cover other foreign nationals working under covered contracts, it does not appear to extend federal jurisdiction over crimes not expressly defined as covering conduct occurring within the special maritime and territorial jurisdiction. For example, it might not be available as a jurisdictional basis to prosecute non-U.S. national contractors for war crimes under 18 U.S.C. § 2441. However, under DOD's interpretation of the statute, MEJA is available to prosecute federal crimes that are prohibited everywhere within the United States, including areas that are not part of the special maritime and territorial jurisdiction.

DOD issued regulations for implementing MEJA in 2005. DOD Instruction 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members , March 3, 2005, implements policies and procedures pursuant to MEJA. Under the Instruction, the DOD Inspector General (IG) has the responsibility to inform the Attorney General whenever he or she has reasonable suspicion that a federal crime has been committed. The DOD IG is also responsible for "implementing investigative policies" to carry MEJA into effect. The Instruction notes that the Domestic Security Section of the DOJ Criminal Division has agreed to "provide preliminary liaison" with DOD and other federal entities and to designate the appropriate U.S. Attorney's Office to handle a case.

The Department of Justice reported in April 2008 that 12 persons had been charged under MEJA since its passage in 2000, with several investigations underway. Since that time, three contractors employed by Special Operations Consulting Security Management Group, Inc., were indicted for allegedly kidnapping a foreign national at gunpoint while working at Camp Al-Asad Air Base, Iraq. In December, 2008, in the first case implementing the MEJA amendment to permit prosecution of non-DOD contractors, five Blackwater Worldwide employees under contract with the State Department were charged with manslaughter in connection with the 2007 incident at Nisoor Square in Baghdad, while a sixth pleaded guilty. The defendants sought a dismissal of charges, arguing that MEJA doesn't apply to them as contractors working for the State Department in support of its mission. The judge declined to dismiss the prosecution on that basis, but indicated that he would consider evidence at trial related to how the contractors' employment supported the Department of Defense's mission overseas. Before the case reached trial stage, however, the judge dismissed all of the indictments because the prosecution had built its case on compelled statements that are entitled to immunity under the Fifth Amendment.

A few successful prosecutions involving DOD contractors in Iraq and Afghanistan under MEJA have been reported. A contractor working in Baghdad pleaded guilty to possession of child pornography in February 2007. Another contractor pleaded guilty to the same crime in 2009 for downloading images at an Army base in Afghanistan. Another contractor employee was prosecuted for abusive sexual contact involving a female soldier that occurred at Talil Air Force Base, Iraq, in 2004. A contractor employee was indicted for assaulting another contractor with a knife in 2007. A contractor employee pleaded guilty to manslaughter for the shooting of an Afghan civilian detainee who had set fire to another U.S. employee. In addition, a former U.S. soldier was prosecuted under MEJA for the rape and murder of an Iraqi girl and the murder of her family while the defendant served on active duty in Iraq.

The applicability of MEJA may be an issue in prosecutions brought by other means. In a prosecution brought for violation of a statute within the special maritime and extraterritorial jurisdiction of the United States, a contract for training Afghan police forces was held to be "in support of [DOD's] mission overseas," despite the fact that it was administered by the State Department, and the contractor employee was covered by MEJA. Since the relevant definition of special maritime and territorial jurisdiction excludes persons covered by MEJA, the judge dismissed one count of child pornography possession for conduct occurring at an Afghan police training facility because the facility was outside the special maritime and territorial jurisdiction of the United States as to that contractor.

Uniform Code of Military Justice (UCMJ)

Contractor personnel may be subject to military prosecution under the Uniform Code of Military Justice (UCMJ) for conduct that takes place during hostilities in some circumstances, although any trial of a civilian contractor by court-martial is likely to be challenged on constitutional grounds. Article 2(a)(10), UCMJ, as amended by § 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 ( P.L. 109-364 ) ("FY07 NDAA"), extends military jurisdiction in "time of declared war or a contingency operation," to "persons serving with or accompanying an armed force in the field." There is one reported use of the amendment; an interpreter with dual Canadian-Iraqi citizenship pleaded guilty in connection with the stabbing of another contractor, although several civilian contractors have been detained for possible UCMJ charges that were never referred for trial. Additionally, if offenses by contractor personnel can be characterized as violations of the law of war, the UCMJ may extend jurisdiction to try suspects by court-martial or by military commission.

Prior to the FY2007 NDAA, the UCMJ covered civilians serving with the Armed Forces in the field only in "time of war." As a reflection of the constitutional issues that arise whenever civilians are tried in military tribunals, as reaffirmed by a series of Supreme Court cases beginning in 1957 with Reid v. Covert , courts interpreted the phrase "in time of war" to mean only wars declared by Congress. In Covert , a plurality of the Supreme Court rejected the proposition that Congress's power to regulate the land and naval forces justifies the trial of civilians without according the full panoply of due process standards guaranteed by the Bill of Rights. The Supreme Court has also found that former servicemembers who have severed all ties to the military cannot be tried by court-martial for crimes they committed while on active duty.

The trial of any civilian contractor by court-martial would likely be subject to challenge on constitutional grounds. Congress's authority to "make Rules for the Government and Regulation of the land and naval Forces" empowers it to prescribe rules for courts-martial that vary from civilian trials and are not restricted by all of the constitutional requirements applicable to Article III courts. In addition to the express exception in the Fifth Amendment regarding the right to presentment and indictment in "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger," the Supreme Court has found implicit exceptions to other fundamental rights as they pertain to servicemembers. Statutes relating to courts-martial have withstood objections based on due process. While the UCMJ offers soldiers procedural protections similar to and sometimes arguably superior to those in civilian courts, courts have been reluctant to extend military jurisdiction to civilians.

On the other hand, the Covert Court distinguished the peacetime courts-martial of civilian spouses at issue from Madsen v. Kinsella , in which a military spouse was tried by military commission in occupied Europe, on the basis that

[that case] concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with Army or not.

If Madsen remains valid, if and for so long as the United States is considered an "occupying power" in non-U.S. territory overseas, it may be acceptable under the Constitution to subject DOD contractors there to military jurisdiction.

Further, the Covert plurality held open the possibility that civilians who were part of the armed services could be tried by court-martial during wartime. While the Court has suggested in dicta that courts-martial are never proper for the trial of civilians, it has never expressly stated that the Constitution forbids military jurisdiction over civilians who might properly be said to be "in" the Armed Forces during war. Lower courts addressed the issue during World War II, and upheld courts-martial of civilian employees of the U.S. Army in Eritrea. Merchant seamen were sometimes tried by court-martial by the Navy. One such conviction was overturned by a federal court on habeas corpus review because the offense charged, striking a superior officer, was essentially a military charge. However, another court upheld the conviction of a merchant seaman for the military charge of desertion.

Assuming the Constitution permits the trial of civilians accompanying the Armed Forces in wartime, a particular case will also have to satisfy the statutory requirements of the UCMJ. To determine whether a civilian contractor who is suspected of having committed an offense is subject to prosecution under the UCMJ, it will be necessary to determine whether he is "serving with or accompanying an armed force" that is operating "in the field." The phrase "serving with or accompanying" the forces was historically construed to require that the civilian's "presence [must be] not merely incidental to, but directly connected with or dependent upon, the activities of the armed forces or their personnel." Courts have found that military jurisdiction over a civilian "cannot be claimed merely on the basis of convenience, necessity, or the non-availability of civil courts."

The phrase "in the field" means serving "in an area of actual fighting" at or near the "battlefront" where "actual hostilities are under way." Whether an armed force is "in the field" is "determined by the activity in which it may be engaged at any particular time, not the locality where it is found." Therefore, it appears that contractors will not be subject to military jurisdiction merely because of their employment in Iraq or Afghanistan. They might, however, be subject to jurisdiction even if the conduct occurs outside of those countries, so long as it occurs away from a permanent garrison and there is sufficient connection to military operations ongoing in Iraq, Afghanistan or elsewhere.

Other likely issues include whether civilian contractors may be prosecuted for military crimes, such as disrespect of an officer or failure to obey a lawful command, or whether non-judicial punishment will be available to discipline contract employees. Some of the standard punishments courts-martials ordinarily adjudge would not be available in the case of civilians, such as a dishonorable discharge or reduction in rank, and possibly forfeiture of pay. Appellate review over civilian cases may be effectively restricted by these sentencing considerations. For example, the government may appeal an adverse ruling (not amounting to a finding of not guilty) on an interlocutory basis only in cases in which a punitive discharge may be adjudged, and defendants are entitled to appeal only if the sentence "extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more." Appeal to the Court of Appeals of the Armed Forces is limited, which in turn limits access to the Supreme Court. On the other hand, there does not appear to be a means of compelling continued employment in order for a civilian to undergo court-martial proceedings; if misconduct by a contract employee results in his or her immediate dismissal by the contractor, military jurisdiction may also cease.

DOD issued guidance in March 2008 for implementing the law. Secretary Gates, citing "a particular need for clarity regarding the legal framework that should govern a command response to any illegal activities by Department of Defense civilian employees and DOD contractor personnel overseas with our Armed Forces," instructed the Secretaries of the Military Departments, the Chairman of the Joint Chiefs of Staff, and the commanders of the regional combatant commands that the exercise of jurisdiction over civilians must be based on military necessity and supported by circumstances that meet the interests of justice. Such circumstances include those where U.S. federal criminal jurisdiction does not otherwise apply or is not being pursued, or where the conduct in question is adverse to a significant military interest of the United States. For conduct that occurs within the United States, or in cases where the offender was not at all pertinent times outside the United States, the Secretary of Defense is the sole authority for convening a court-martial or initiating non-judicial punishment.

For covered civilians outside the United States, commanders of geographic combatant commands may initiate disciplinary proceedings or delegate such authority to subordinate commanders who possess general court-martial convening authority. These convening authorities are required, prior to initiating court-martial or non-judicial proceedings, to follow the notification procedures outlined in DOD Instruction 5525.11 (MEJA implementation) to give the Department of Justice the opportunity to take action. The memorandum gives the Justice Department fourteen calendar days (or longer, if DOJ determines that extraordinary circumstances warrant more time to complete its determination) to advise DOD as to whether it intends to exercise jurisdiction. If the period of review passes without an indication that DOJ intends to exercise jurisdiction, DOD may notify DOJ that it intends to authorize the appropriate commander to initiate disciplinary action at his or her command discretion. If DOJ elects to exercise jurisdiction, the commanders are not authorized to initiate disciplinary action, unless U.S. federal criminal jurisdiction of the case is later terminated. Military commanders are authorized to investigate and exercise other law enforcement authorities with respect to violations by civilians while DOJ makes its determination in order to be prepared to take appropriate action if DOJ declines jurisdiction.

Conclusion

According to many analysts and policymakers, private security contractors, by providing security for reconstruction and stabilization efforts, contribute an essential service to U.S. and international efforts to bring peace to Iraq and Afghanistan. Nonetheless, the use of armed contractors has raised concerns related to whether the role they play is suitable for outsourcing and whether the legal framework is adequate to hold contractors accountable under U.S. law for any abuses or other transgressions they may commit. Despite the amendment to the UCMJ to subject military contractors supporting the Armed Forces during contingency operations to court-martial jurisdiction, and despite the extension of MEJA to cover certain non-DOD contractors working with the military overseas, some private security contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq or Afghanistan. As the courts begin to interpret and apply these statutes, and as the effects of the new contractual requirements are implemented, Congress may be called on to review and amend the existing statutory framework.