Commentary

Contractors and the Civilian Extraterritorial Jurisdiction Act

By David Isenberg
This article appeared in the Huffington Post on February 2, 2010.

Senator Patrick Leahy (D-VT) and Congressman David Price (D-NC) have just announced a new bill to ensure accountability under U.S. law for American contractors and employees working abroad.

One might think, given the rush in recent years by various members of Congress to grandstand on this issue, that this is just more of the same. Industry trade groups have long claimed that private contractors operate under a myriad of international and national laws, rules, directives and regulations. That is true. But one has only to look at the most recent Congressional Research Service report on legal issues affecting private military contractors in Iraq and Afghanistan to see that there is still much ambiguity that needs to be clarified.

The bill’s co-sponsors alone mean that the bill will be worth examination. Rep. Price has long been one of the leading members of the House on this issue. He is known for a careful, dispassionate, non-polemical approach.

Sen. Leahy is better known for his long and admirable work on banning antipersonnel landmines, as well as his work on judicial issues, as Chairman of the Senate Judiciary Committee. But he too is known for his painstaking, and non-sensationalistic approach.

The proposed legislation allows the government to prosecute government contractors and employees for certain serious crimes. The legislation expands on the Military Extraterritorial Jurisdiction Act (MEJA), which provides similar criminal jurisdiction over Department of Defense employees and contractors but does not clearly apply to U.S. contractors working overseas for other federal agencies, such as the Department of State.

The Civilian Extraterritorial Jurisdiction Act will:

  • Direct the Justice Department to create new investigative units to investigate, arrest and prosecute contractors and employees who commit serious crimes.
  • Allow the Attorney General to authorize federal agents to arrest alleged offenders outside of the United States, if there is probable cause that an employee or contractor has committed a crime.
  • Require the Attorney General to report annually to Congress the number of offenses received, investigated and prosecuted under the statute; the number, location, and deployments of the newly created investigative units; and any changes needed in the law to make it more effective.

Currently, the Domestic Security Section of the Department of Justice Criminal Division provides preliminary liaison with the Defense Department and other federal entities and to designate the appropriate U.S. Attorney’s Office to handle a case.

But given the December 2009 opinion by Judge Urbina throwing our charges against five Blackwater contractors because of the way the Justice department handled the case it seems clear the Justice Department needs help.

It is also worth noting that currently the jurisdiction of MEJA for contractors working for a department other than Defense is uncertain. The decision by Judge Urbina meant that the defendants’ argument that MEJA didn’t apply to them as contractors working for the State Department in support of its mission never reached trial.

One irony is that back in October 2007 the House approved a bill introduced by Congressman Price which would ensure that the U.S. government has the legal authority to prosecute crimes committed by U.S. contractor personnel working in war zones. Defense Department contractors were already covered under U.S. law, but contractors who worked for the State Department and other agencies, were not liable for criminal activity under current law. Price’s bill extended the jurisdiction of MEJA to cover all contractors working for the government in a war zone.

Price’s bill also was supposed to ensure that the Administration has the tools it needs to investigate and prosecute allegations of abuse. The fact that two years later he is co-sponsoring another bill that, in part, has the same requirements as his previous bill shows how difficult it is to achieve meaningful governmental action in this area.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.