Accountability and Prosecution
Existing National Laws for Accountability and Prosecution
In February 2008, the Department of Justice indicated that, out of 20 cases of detainee abuse which may implicate U.S. contractor personnel, 18 had been declined for prosecution and two remained pending. AIUSA had testified about these cases in June 2007 before the House Judiciary Committee, saying that they were languishing at the Eastern District of Virginia US Attorney's office and that they should be fully investigated, and where credible evidence of human rights abuse exists, prosecuted.
Existing U.S. law provides jurisdiction over contractor personnel for criminal offenses, like torture and killings. Below are some of the major statutes that apply to contractors.
· Military Extraterritorial Jurisdiction Act of 2000(MEJA): 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." In November 2008, the U.S. Attorney's Office in Alexandria used MEJA to charge contractor Don Michael Ayala for second degree murder of Afghan Abdul Salam while he was on walking patrol with U.S. soldiers and two fellow contractors. Ayala has not been indicted yet.
· Uniform Code of Military Justice (UCMJ): authorizes court-martial to try members of the U.S. armed forces for offenses prohibited under the UCMJ. This is now extended to cover PMSCs who are explicitly connected to the armed forces during a “declared war or a contingency operation”.
· 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.
· Alien Tort Claims Act (ATCA): Victims of human rights abuses can file a civil lawsuit in U.S. courts against individuals or companies who committed the grave violations of international human rights.
· 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.
· War Crimes Act: authorizes 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 statute can be used to prosecute U.S. contractors abroad who are also U.S. citizens but it does not apply to a good number of PMSC personnel who are third-country nationals (TCNs). TCNs consist of 65% of total contractor personnel.
