Book Discussion “Outsourcing War and Peace”: Too Much Jurisdiction? – Contractor Liability After Brehm and Ali

[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.]

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.”

But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.

The issue in Brehm is fairly easy to describe: Sean Brehm is a South African national who, while employed by DynCorp (a U.S. military contractor) as a travel supervisor at Kandahar Airfield in Afghanistan (a NATO-run installation), assaulted a British national with a knife. Other than his employment contract with DynCorp, Brehm has absolutely zero contacts with the United States. Nevertheless, the government prosecuted Brehm under the Military Extraterritorial Jurisdiction Act (MEJA), which, as Brehm conceded (and as the district court held), clearly encompasses Brehm’s offense. The issue before the Fourth Circuit is whether MEJA might be unconstitutional as applied to Brehm’s offense, since (1) the defendant is a non-citizen; (2) the victim is a non-citizen; (3) neither the defendant nor the victim have contacts with the United States other than the defendant’s employment by a U.S. contractor; and (4) the offense has no measurable impact on U.S. interests or foreign policy (which might otherwise justify the assertion of jurisdiction notwithstanding (1), (2), and (3)). Brehm’s constitutional challenge proceeds on two fronts: That Congress lacks the enumerated power to codify his offense; and that, even if it doesn’t, the Due Process Clause of the Fifth Amendment requires minimum contacts (analogous to settled civil procedure law) before federal courts may assert criminal jurisdiction over a defendant. The district court disagreed in denying Brehm’s motion to dismiss, and Brehm thereafter entered a conditional plea (preserving his right to appeal on the constitutional question). In the meantime, he was sentenced to 42 months’ imprisonment, and three years of supervised release.

To be frank, I have no idea how the Fourth Circuit panel (Judges Traxler, King, and Duncan) is likely to rule—although I’ll confess to finding the due process argument far more compelling than the enumerated powers claim. But leaving aside the constitutional questions, I have two more practical, policy oriented queries: (1) Why is the U.S. government prosecuting such cases; and (2) should the U.S. government be prosecuting such cases?

With regard to the why, I suspect the government has always understood Brehm as a helpful test case for establishing MEJA’s scope. After all, the stakes are fairly low—a serious crime, to be sure, but one with virtually no foreign relations baggage. And if MEJA may constitutionally be applied to offenses like that at issue in Brehm (non-citizen perpetrator vs. non-citizen victim; no other connection to the United States besides contractor employment), it is difficult to imagine any prosecution under the current version of MEJA that wouldn’t be constitutional. This may seem thin as an explanation for why the government would bring such a small-time case, but I’m at a loss for other arguments as to why the Justice Department would expend the resources this case has consumed if there weren’t bigger (hypothetical future) fish to fry.

The harder question, and the one that I think Professor Dickinson’s writing raises, but doesn’t necessarily answer, is whether we should be bringing such cases. Even if it was constitutional to subject individuals like Brehm to the criminal jurisdiction of U.S. civilian courts, why should the government care about offenses committed by non-citizens against other non-citizens outside the territorial United States—especially when the crime in no way affects U.S. foreign policy concerns? To similar effect, might cases like Brehm set a dangerous precedent wherein U.S.-based employees of foreign corporations might be hauled into a foreign court for offenses committed within the territorial United States? Is there something unique about military contractors that would allow for splitting the difference?

I don’t mean to belabor this discussion, especially because I suspect Professor Dickinson concurs. But insofar as the Ali case raises the question whether we should tolerate an exception to the otherwise bright-line rule against military jurisdiction over civilians for military contractors, Brehm raises a variation on the same theme: whether we should allow the government to bring a case in which the United States has an entirely negligible sovereign interest for no other reason than because it can. Thus, both Brehm and Ali raise the dark side of expansive calls for contractor liability—that, in the quest for accountability, we might tolerate departures from existing legal and prudential constraints on federal jurisdiction, and thereby blur lines that only serve their purpose when they are clear. To be sure, Brehm and Ali are outliers compared to the far more notorious cases that Professor Dickinson surveys (and over which the case for civil and/or criminal liability in U.S. courts is far stronger), but that’s exactly the point.