Book Discussion “Outsourcing War and Peace”: Too Many Gaps – The Need for a Better Accountability Framework for Private Military and Security Contractors

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the second 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.

In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values.  The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses.

With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects.  To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people.  It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now languishing in Congress despite support from the administration and industry.

But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.

At the same time, we need better evidence-gathering in the field. It took two weeks for FBI investigators to get to Nisour Square to collect information, and ultimately it was largely the evidentiary problems that appear to have caused this case to fall apart. Thus, I also support CEJA’s provisions requiring theater-investigative units to gather evidence in cases of abuse.  Finally, I will discuss in a future post, we might consider bringing contractors under the military justice system and subjecting them to the Uniform Code of Military Justice.  But even apart from potential constitutional concerns posed by military trials of civilians, the likely ongoing use of security and other contractors in conflict zones such as Iraq after troops have come home and there is no longer a significant Defense presence, will make CEJA important regardless.

Civil tort suits brought by victims or their families could also create greater accountability, though here too there are obstacles posed by our current legal framework.  A number of cases are percolating their way through the courts, including cases brought by troops injured by contractors, contractors injured by contractors, and third-parties injured by contractors.  These cases face various hurdles, such as the political question doctrine, state secrets, and preemption of state law tort claims through extending the Federal Tort Claims Act (FTCA) governmental immunities to contractors.  Courts have taken varying approaches to all of these doctrines, but in my view there should be a narrow path forward for claims in which the underlying conduct would constitute a serious violation of international law (such as torture) and the contractor retains discretion and does not effectively stand in the shoes of the government.

For example, in the recent Saleh case brought by Abu Ghraib torture victims against CACI International, I think the D.C. Circuit took an overly broad approach to immunity and preemption. Judge Silberman authored an opinion that concluded that the contractor had immunity because it was “integrated into combat activities” even though military commanders had no jurisdiction over it. It is true that by enacting the FTCA, Congress gave some government actors immunity from tort claims so that federal court litigation would not get in the way of important military and security decisions. But that does not mean this immunity should automatically also apply to all contractors.

I think the district court decision that Silberman overruled actually had the better approach. Essentially, that opinion concluded that where government actors closely supervise contractors, the contractors are effectively operating as an arm of government and are following orders of governmental officials, and so should get the benefit of immunity. But when contractors lack such supervision and oversight, and are therefore operating largely on their own, the immunity should not automatically apply. Thus, the district court judge determined that the contract translators at the prison were entitled to immunity, but the contract interrogators were not.

This sort of nuanced distinction seems to me to be an entirely reasonable and workable approach to immunity issues. I think there is a good parallel in the domestic context, where the U.S. Supreme Court (in Richardson v. McKnight) has allowed tort litigation to proceed against private prison guards based on their discretionary activities.

Moreover, this approach is particularly justified when the underlying conduct that serves as the basis for the claim is torture or another egregious violation of international law.  An Obama administration brief recently made this point in Al-Shimari, a Fourth Circuit case similar to Saleh, in which an en banc panel dismissed appeals from a pair of district court decisions that denied contractors’ motions to dismiss two suits arising from the Abu Ghraib prison abuse.