Annual Report

Provisions Permitting the U.S. Department of Justice to Prosecute Civilians Contracted by the United States Government

The U.S. Justice Department can prosecute civilian contractors for certain war crimes and torture committed outside the United States under several U.S. laws, including:

The War Crimes Act. This law, 18 U.S.C. § 2441, criminalizes certain war crimes committed inside or outside the United States by anyone who is a member of the armed forces or is a U.S. national. Under the Act, a war crime includes conduct defined as a grave breach of the Geneva Conventions, or constituting a violation of common Article 3 of the Conventions. The latter prohibits, inter alia, cruel treatment, torture, and outrages upon personal dignity, in particular humiliating and degrading treatment.

The Torture Statute. This law, 18 U.S.C. § 2340, makes it a criminal offense for any U.S. national acting in an official capacity "outside the United States" to commit or attempt to commit torture. The law was enacted in 1994. Anyone who conspires to commit the acts prohibited under the statute can be subject to the same penalties as the actual perpetrator. This law, however, defines torture in an arguably narrower way than the U.N. Convention against Torture.

The Military Extraterritorial Jurisdiction Act (MEJA) of 2000. This law, 18 U.S.C. § 3261, criminalizes conduct committed by "members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States" that would be punishable by more than one year’s imprisonment if engaged in within the United States. The text of MEJA (18 U.S.C. § 3267(1)(A)) was amended in 2005 to define the term "employed by the Armed Forces outside the United States" to include civilian employees, contractors, or employees of contractors, not only of the Department of Defense, but also of "any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas."

The USA PATRIOT Act. Section 804 of this law, 18 U.S.C. § 7 (9), extends the jurisdiction of U.S. federal courts over military personnel, including civilian contractors, for violations of federal criminal law committed at U.S. facilities abroad. The U.S. Department of Justice has used this provision to bring criminal charges against a CIA contractor who allegedly beat a detainee who later died in custody in Afghanistan. The contractor has been indicted by a North Carolina grand jury for assault with a dangerous weapon and assault resulting in serious bodily injury.