Above Law, Above Decency

May 12th, 2004 - by admin

Commentary by P.W. Singer / Los Angeles Times – 2004-05-12 11:43:34


(May 2, 2004) — The recent reports of US soldiers abusing Iraqi prisoners during interrogations are both horrifying and depressing. Fortunately, there is a clear and proper legal response. Those accused will be court-martialed and, if found guilty, they will be punished.

But the story, sadly, does not end there. It now appears that this deeply disturbing episode — in which Iraqi prisoners were beaten, sexually assaulted and forced to perform simulated sexual acts, among other things — may have involved not only soldiers but also private contractors hired as interrogators.

Private Contractors Not Accountable for Abuse
That private contractors are interrogators in US prison camps in Iraq should be stunning enough. This is incredibly sensitive work and takes our experiment with the boundaries of military outsourcing to levels never anticipated. But even more outrageous is the fact that gaps in the law may have given them a free pass so that it could be impossible to prosecute them for alleged criminal behavior.

Most people by now know that in an attempt to fill the gap between the demand for professional forces and the limited number deployed by the Pentagon, an array of traditional military and intelligence roles have been outsourced in Iraq, all without public discussion or debate.

There are 15,000 to 20,000 private military contractors operating in Iraq, outsourcing critical military roles from logistics and local army training to guarding installations and convoys. This outsourcing of critical roles to private companies represents a sea change in the way we fight a war.

However, until the last few days, not many Americans were aware that private firms were also providing interrogators and translators in the prisons. According to recent reports, the Army’s investigation on the abuses committed at Abu Ghraib prison near Baghdad in November and December named Virginia-based CACI International Inc. and San Diego-based Titan Corp. Titan, however, denies having contracts that involve working with prisoners.

The Army investigation discovered such depraved behavior as making prisoners perform simulated sex acts and form naked human pyramids and putting “glow sticks” in bodily orifices. The perpetrators even took more than 60 photographs, including one showing an Iraqi prisoner standing on a box with his head covered and wires attached to his hands and genitals. He was told that if he fell off the box he would be electrocuted. One civilian contractor was even accused of raping a male juvenile prisoner.

The Army has responded swiftly and correctly, at least with regard to its soldiers. Seventeen soldiers were relieved of duty and six face court-martial. As Army spokesman Brig. Gen. Mark Kimmit said: “We’re appalled … they wear the same uniform as us, and they let their fellow soldiers down…. These acts that you see in these pictures may reflect the actions of individuals, but, by God, it doesn’t reflect my Army.”

But although the military has established structures to investigate, prosecute and punish soldiers who commit crimes, the legal status of contractors in war zones is murky. Soldiers are accountable to the military code of justice wherever they are, but contractors are civilians — not formally part of the military and not part of the chain of command. They cannot be court-martialed.

Normally, an individual’s crimes would then fall under the local nation’s laws. But, of course, there are few established Iraqi legal institutions — that is why we are running prisons in Iraq in the first place — and, besides, coalition regulations explicitly state that contractors don’t fall under their scope.

In turn, because the acts were committed abroad, and also reportedly involve some contractors who are not U.S. citizens, the application of U.S. domestic law in an extraterritorial setting is unclear and has never been tested. This appears to leave an incredible vacuum. Indeed, as Phillip Carter, a former Army officer now at UCLA Law School, says, “Legally speaking, [military contractors in Iraq] actually fall into the same gray area as the unlawful combatants detained at Guantanamo Bay.”

‘We Have No Jurisdiction’
So far, none of the contractors involved have been criminally prosecuted. As for the contractor accused of raping a prisoner in his mid-teens, Central Command spokesperson Col. Jill Morgenthaler told the British newspaper the Guardian: “We had no jurisdiction over him. It was left up to the contractor on how to deal with him.” It is clear that our policies on military contractors must be updated.

If found to be involved by investigators, the contractors should not escape prosecution. Yet that’s exactly what happened in the Balkans when several DynCorp employees, working as military contractors, were implicated in the trafficking of women and other sex crimes. Felony crimes merit harsher punishment than simply the end of a good paycheck.

This may require breaking new legal ground, such as testing the extraterritorial standards for civilian prosecution, requiring detention of the suspects until the Iraqi legal system gathers strength or even transferring jurisdiction to the international court.

To not only pay contractors more than our soldiers but also give them a legal free pass is unconscionable.

More broadly, the U.S. must reexamine which military and intelligence roles are appropriate for outsourcing and which are not. For the roles that we do choose to outsource, we must close the gaps in the law. The overwhelming number of contractors are probably just as sickened and embarrassed by this behavior as the American military and the public.

That is why we have laws in the first place: to govern for the worst of human behavior, not hope for the best. The private military field should be no different.

P.W. Singer, a fellow at the Brookings Institution, is the author of Corporate Warriors: Rise of the Privatized Military Industry (Cornell University Press, 2004).

Copyright 2004 Los Angeles Times

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Contractors Fall Through Legal Cracks
T. Christian Miller / Los Angeles Times

The Pentagon is said to be searching for a means to prosecute civilians in the abuse of Iraqis.

WASHINGTON (May 4, 2004) — Three civilian employees who allegedly participated in the abuse of Iraqi prisoners have yet to face any disciplinary action, their employers said Monday, raising within the Pentagon the issue of accountability for thousands of private contractors in Iraq.

A senior US official involved in detention issues said the Defense Department was struggling to determine a legal basis upon which to pursue prosecution of the civilians, who were working as interrogators and translators at Abu Ghraib prison near Baghdad when Iraqis were sexually and physically abused by Americans there.

“One of the issues that people are dealing with is who can investigate them,” the official said. “In the military chain, it’s fairly clear. It’s not clear in the legal framework that we have how to deal with this.”

Government contracting experts said the delay in prosecuting the interrogators and translators is causing further damage to the image of the US, already sullied by photos of American troops grinning as they pose near naked, hooded Iraqis.

“You have to deal with this immediately. You have to show that when crimes happen, we punish them to the full extent of the law,” said Peter W. Singer, a fellow at the Brookings Institution who has written a book on private military contractors. “So far, that doesn’t appear to be the case. We’ve let the contractors fall through a gap in the law.”

The controversy surrounding the abuse, which include reports of prisoners being beaten, sodomized with a chemical light and forced to pose nude in simulated sexual acts, continued to grow Monday.

UN Demands Investigation
A United Nations human rights expert called for an investigation into violations at Abu Ghraib. The UN’s special rapporteur against torture, Theo van Boven, said in Geneva that he was “seriously concerned” about reports of degrading treatment of detainees by American and British forces. Van Boven is an independent expert appointed by the UN Commission on Human Rights.

President Bush telephoned Defense Secretary Donald H. Rumsfeld to urge action against those guilty of “these shameful and appalling acts,” White House Press Secretary Scott McClellan said Monday. But according to Pentagon spokesman Lawrence DiRita, Rumsfeld had not read the March report on Abu Ghraib by Army Maj. Gen. Antonio M. Taguba. Reports on small numbers of troops “isn’t necessarily something” Rumsfeld or other top officials “would get involved with,” he said.

Seven soldiers have been reprimanded in connection with events at the prison, officials said Monday. Six have been charged and face court-martial. An Army report on abuses at the prison listed 12 officers who had been disciplined.

But the question of what actions to take against the civilian contractors at the prison remains unsettled. An internal military report on the incidents, which occurred last fall, identified a civilian translator from San Diego-based Titan Corp., Adel L. Nakhla, as a “suspect.” His alleged crime was unclear.

US Contractor Called ‘Responsible’ for Abuses
Steven Stephanowicz, a contractor working for Arlington, Va.-based CACI International as an interrogator, and John Israel, another Titan translator, were alleged to have been “directly or indirectly responsible” for abuses at the prison.

The report recommended that Stephanowicz be fired and that Israel be reprimanded. It made no specific recommendations about Nakhla.

Military officials were scrambling Monday to determine the legal status of the three contractors.

CACI officials said they had not yet received a copy of the military’s internal investigation or even been formally notified by the Army that any of its employees had been involved.

“In the event there is wrongdoing on the part of any CACI employee, we will take swift action to correct it immediately, but at this time we have no information from the U. government of any violations or wrongful behavior,” said CACI’s chief executive, J.P. “Jack” London.

Wil Williams, a Titan spokesman, told Associated Press that he was not aware of any wrongdoing by the company’s employees in Iraq and that none had been disciplined.

The Thorny Question of Outsourcing Military Chores
Legal experts said that the allegations of abuse at Abu Ghraib raise anew some of the thorniest questions in the military’s drive to contract out jobs usually shouldered by US soldiers.

At the prison, according to sources and the military report, CACI employees interrogated detainees with the help of translators from Titan, which provides translation services to the US military throughout Iraq.

Soldiers have said that military intelligence officers at the prison, along with civilian interrogators, instructed them to “loosen up” the captives. Stephanowicz, according to Taguba’s report, “clearly knew his instructions equated to physical abuse.”

However, it remained unclear Monday whether the civilians could be charged with any crimes under existing statutes.

Under military law, a person working for the military is not subject to court-martial jurisdiction unless Congress has declared war, which it did not do against Iraq.

DynCorp Employees Ran Bosnian Sex Ring but Escaped Prosecution
However, after civilian contractors with El Segundo-based DynCorp escaped prosecution on accusations in 2000 of running a prostitution ring in Bosnia, Congress passed a law allowing criminal proceedings against Defense Department contractors working abroad.

Chuck Blanchard, former general counsel for the Army, said the law does not necessarily apply to companies employing contractors who do not work directly for the government.

Still, many legal experts interviewed pointed to a decree that L. Paul Bremer III, the U.S. civilian administrator in Iraq, issued last summer requiring non-Iraqis to face criminal charges in their country of origin.

That blanket order should allow prosecutors to charge US citizens in a federal court.

“Whether the accused are military or civilian, there are clear laws that address these allegations, and the incident must be fully investigated and the perpetrators should face justice,” said Doug Brooks, president of the International Peace Operations Assn., a trade group for private security contractors.

Times staff writers Esther Schrader and John Hendren in Washington
and Maggie Farley at the United Nations contributed to this report.

Copyright 2004 Los Angeles Times.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)