A Moving Target:
Accountability and Regulation of
the flurry of recent headlines, the lack of accountability for private military
is not the first time Blackwater
events of September 16, 2007 have shaken the U.S. Congress and the State and
Defense Departments out of their complacent slumber and into action. Policymakers at the State and Defense
Departments are now taking steps to reign in what appears to be an
unpredictable and, oft times, counter-productive player in the war in
order to explore this issue, the Blackwater shootings of September 16, 2007 are
used as a real-world hypothetical to guide the analysis. Before exploring the facts, legal
consequences, and the appropriate
clearest example of a military support firm is former-Halliburton subsidiary,
Kellogg, Brown and Root or KBR. KBR has about 50,000 employees in
Military consulting firms provide advice and training for security forces. Military Professional Resources Incorporated or MPRI, is such a firm. Foreign governments or foreign security agencies hire firms like MPRI to train their own security forces. MPRI offers extensive training and restructuring packages to countries looking to meet NATO quality standards. Firms like MPRI may be working with the Iraqi security forces to train their police or army units.
military companies provide actual military assistance to their clients, which
can include combat support and frontline support for combat situations. They hire and contract out individual security
contractors who provide two main functions.
Combat support services include tasks like loading ordinance on to
aircraft or operating air-traffic control towers. The contractors in the combat
support role may be armed, but they are rarely in a position to engage the
enemy directly because of the non-frontline, support nature of their roles. The second category of services puts the
civilian contractor in a position to engage with the enemy. Private military companies such as
Blackwater, Triple Canopy, and many others provide essentially combat services
such as defending
overarching question is why the
is not necessarily flawed policy, so long as it makes military and business
sense. Just like any other arm of the
legal analysis begins in earnest it is important to ask why this topic matters
and what it means for the American people and their armed forces. At bottom, using 130,000 paid civilians in
II. The Legal Limbo & the Classification Problem
a clearer understanding of the exploding growth of the military contracting
phenomenon, the legal questions take on heightened importance. For quite some time, WFCs operated in a legal
no-man’s land because WFCs are not yet clearly defined as civilians or
combatants. WFCs operating in
next key relationship to understand is that between civilians and
combatants. WFCs, and the private
military companies who employ them, frequently argue that WFCs are civilians,
not combatants. A close reading of the
Geneva Conventions shows that WFCs, like those operating in
WFCs are participating in the on-going hostilities in
such as members of Blackwater, operate under a loose command structure. WFCs are not directly part of the military
command structure, meaning they do not have to follow orders issued by the
military. They are, however, bound by
the terms of their contract with the State Department and operate basically as
an agent of the
the myriad of recent reports chronicling WFC abuses, WFCs have performed
hundreds of missions for the
way to determine if WFCs are lawful combatants is to ask whether they are
mercenaries under the Geneva Convention.
Mercenaries are not legitimate combatants under
A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict.
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
of the factors under the definition of mercenary from Protocol I arguably apply
to WFCs in
two elements most WFCs do not meet are (d)
and possibly (f). Most WFCs are
legal status of WFCs got murkier still when L. Paul Bremer III, the head of the
Coalition Provisional Authority (“CPA”) from May 11, 2003 to June 28, 2004,
issued CPA Order No. 17. on June 27, 2004, just a day before his departure from
classification problem is muddied further because the military contracting
industry switches its stance, characterizing itself as civilian or military,
depending on the public criticism it faces.
When military commanders want greater accountability and control over
the WFCs working in their sector, the private military companies argue that
military commanders cannot give orders to their employees because they are
civilians outside the military command structure. When private military
companies are sued for wrongful death or contract breach by the surviving
family members of contractors killed in Iraq, the private military companies argue
that they are military – an integral part of the U.S. Armed Forces total force
package and are, like the U.S. military, immune from civil suits. The military contractor industry should not have
it both ways. The
III. Practical Legal Frameworks
September 16th shootings have already provoked Congressional action regarding
the regulation of WFCs. Before Congress goes too far afield creating
new schemes for contractor accountability that may prove impractical or
inefficient, it should look at the existing laws that may apply to WFCs. The two institutions that can establish
A. The Hypothetical
legal analysis can begin, the facts of a hypothetical contractor violation must
be established. The recent Blackwater
shootings of September 16, 2007 serve as the framework of the facts for the
hypothetical contractor, and defendant in the case, William Fredrick
Clark. On September 16th, Bill Clark was
a part of the four vehicle Blackwater team tasked to provide for security for a
State Department convoy that would travel through
heading out on their protection detail that day, the Blackwater contractors
learned that a improvised explosive device (“IED”) had gone off about a mile
from their proposed convoy route. Due to the recent hostile action in the area,
Clark and his fellow contractors were at a heightened state of alert. The convoy was going relatively smoothly
until it reached the crowded traffic circle of
the car not deviating from its path,
Now, what should the
There are two possible criminal statutes that federal prosecutors can use to bring charges against Mr. Clark, the War Crimes Act, and the Military Extraterritorial Jurisdiction Act; Clark and Blackwater can also be sued civilly under the Alien Torts Claims Act.
1. The War Crimes Act
The War Crimes Act (“WCA”) provides that members of the U.S. Armed Forces or U.S. nationals are prohibited from war crimes which are defined generally as: 1) committing a “grave breach” of the Geneva Conventions; 2) violating certain articles from the Hague Convention IV, respecting the Laws and Customs of War on Land; 3) violating Common Article III of the Geneva Conventions or any other part of the Conventions to which the U.S. is a signatory; and 4) violating Geneva Protocol II regarding use of mines, booby-traps, and other devices that kill or injure civilians. Additionally, section (d) of the WCA defines violations of Common Article 3 breaches which will trigger the applicability of this statute.
is definitely covered by the WCA because he is a
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Clark violated section (c)(3) of the WCA because his actions fit the definition of a Common Article 3 murder found within the WCA itself at section (d)(1)(D). This section of the act defines murder as:
The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
initial killings by
second action, firing at the car to kill all inside, might be defensible in
2. The Military Extra-Territorial Jurisdiction Act of 2000
the State Department’s contract and
government must still prove three remaining elements under the MEJA. First, the government must show that Clark
was “present or residing outside the
provides an additional substantive basis to charge Clark because his actions, if
perpetrated in the
the fact that the elements of MEJA and the War Crimes Act can be established,
someone will have to investigate and charge Mr. Clark with these offenses. It is not clear how charges are initiated
under MEJA. The statute states that the Secretary
of Defense can authorize the arrest by military police, where probable cause is
shown, of anyone that is in violation of MEJA. Once arrested,
custody of civilian law enforcement
authorities of the
does not task the investigation of the crime committed on foreign soil to any
particular agency. United States v. Arnt
is one of the only examples of MEJA’s
use. In Arnt, the United States
District Court for the Central District of California first convicted the
defendant of voluntary manslaughter under MEJA for killing her husband, a serviceman
criminal investigation on a
burdens faced by
3. Alien Tort Claims Act
and Blackwater Security Consulting could face civil liability under the Alien
Tort Claims Act (“ATCA”). This act allows non-U.S. nationals to bring
tort actions, such as wrongful death actions, in U.S. federal courts so long as
the plaintiffs have sought and exhausted the remedies available to them in the
place “where the conduct giving rise to the claim occurred.” This statute applies when it is shown that
the defendant subjects an individual to torture or to extrajudicial
killing. An extrajudicial killing is
defined as a “deliberate killing not authorized by a previous judgment
pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.” In this case, the plaintiffs would be the
representatives of the deceased Iraqis killed by
the statutes language to the contrary, the Ninth Circuit in Sarei v. Rio Tinto, PLC, allowed prospective
alien plaintiffs to file their ATCA suit before exhausting the available
remedies where the conduct giving rise to the suit transpired. That means prospective Iraqi plaintiffs can
file an ATCA suit against Clark and Blackwater. This is beneficial to the
prospective Iraqi plaintiffs because they can get their suit underway without
having to wait for an adequate remedy from the Iraqi courts. Clark would most likely leave
Iraqi plaintiffs face many of the same barriers to a successful civil suit as
three federal laws appear to place WFC actions under
the U.S. Supreme Court’s rulings restrict applying the UCMJ to civilians. The Supreme Court held in Reid v. Covert, that civilians
accompanying the armed forces outside the
Court strongly disagreed with both of the government’s contentions. First, the Court held that the accused in
these cases were still entitled to the protections of the Fifth and Sixth
Amendments, despite their status of being dependents of military servicemen,
outside the borders of the
the Court’s strongly worded rejection of the government’s proposition, not all
of the content from Reid is hostile
to the idea of civilians being subjected to the UCMJ. In fact it appears that the Court could not
accept that the government sought to expand the jurisdiction of the to UCMJ cover
list of factors that did not apply to the spouses of servicemen in Reid does apply to WFCs. The Court of Military Appeals, in United States v. Wilson,
noted that the critical inquiry as to whether the UCMJ can be applied to a
civilian is the nature of the that civilian’s contacts with the military. WFCs are under contractual military service
for the DoD or the State Department.
They perform military duties such as convoy security and guarding
the Supreme Court has not, the U.S. Court of Military Appeal confronted the
application of the UCMJ to contractors in U.S
v. Averette. U.S. v. Averette holds that civilian contractors can only be
subject to the UCMJ in times of war, formally declared by Congress. Averette, the defendant in the case, was a
civilian employee of a firm under contract to the
least that was the understanding before Senator Lindsey Graham of
Section 552, in whole, reads as follows:
SEC. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR.
(10) of section 802(a) of title 10,
Uniform Code of Military Justice), is amended by striking ``war'' and inserting
``declared war or a contingency operation''.
Section 552 of the John Warner National Defense Authorization Act opens the possibility that WFCs may be subject to courts-martial. The Graham amendment seeks to apply the UCMJ to civilians in the war zone during both formally declared wars and “contingency operations.” Graham did this by amending paragraph (a)10 of Article 2 of the UCMJ, regarding the UCMJ’s jurisdiction. The key paragraph extending jurisdiction of the UCMJ over civilians now reads: "In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field” are subject to the UCMJ. A contingency operation is defined as:
(A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.
Under this definition, contractors
currently operating in
Senator Graham’s intention to “bring uniformity to the commander's ability to
control the behavior of people representing our country,” it remains to be seen
whether the Supreme Court will allow what is essentially the legislature’s
overturning of Averette. Major constitutional concerns may prohibit
the application of the UCMJ to civilians.
Unlike civilian courts, courts-martial applying the UCMJ prohibit the
constitutional guarantees to grand jury indictments and trial by a jury of
one’s peers. These prohibitions implicate both the Fifth
and Sixth amendment rights of
IV. What Should
This overhaul of how the DoD does business with WFCs and the firms that employ them needs to take the form of a federal statute. Congress, through the Graham amendment, has played its role in changing the rules to allow the military to exert greater control over its civilian contractors. With Congressional approval and operating within its constitutional powers under Article I, § 8, Clause 14 and 18, the Congress can authorize the DoD to create a system of contractor accountability using the UCMJ that can stand up to judicial scrutiny. The proposed statute would be titled the Military Contractor Regulation Act or “MCRA”. The MCRA would authorize court-martial of civilian contractors in war and contingency operation zones. United States ex rel. Harmash v. Laird holds that the “military has no jurisdiction to try a person in a military court unless such person has been properly inducted into the armed forces, unless otherwise provided by law.” MCRA is the new law that would provide for such jurisdiction.
consists of two programs that would empower the
Second, MCRA would authorize the DoD to create the Office of Contractor Oversight (“OCO”), which would combine elements of the Judge Advocate General and the respective military criminal investigative units. The MCRA would authorize the expansion of the JAG Corp and the criminal investigative divisions of the armed forces to fill the ranks of the newly created OCO in order to provide meaningful oversight and investigation of the ballooning number of civilian military contractors. Approximately, 130,000 civilian contractors are operating in the Iraqi war zone, and the number of civilian contractors is nearly equal to the number of uniformed servicemen in theater. In light of these numbers, it is imperative that the JAG Corp and the military’s criminal investigation units expand to police the substantial civilian side of the Total Force mix.
A. Contractor Identification and Waiver Program
The proposed Contractor Identification and Waiver Program (“CIWP”) has three major objectives. The first goal is to address the constitutional issues regarding the application of the UCMJ to civilian contractors in the theatre of operations. The second is to provide an accurate accounting of the number of civilian contractors operating in theatre. Third, the CIWP creates a mechanism to fine the employer’s of private contractors when their employees are not in compliance with the CIWP. A threshold requirement of the CIWP is that before any private military companies can win a contract for operating in a theatre of war or contingency operation, the company must acknowledge and agree to comply with the guidelines of the CIWP, otherwise the private military company will not be eligible to bid on the job.
CIWP further requires that all contractors, operating under contract or any
layer of subcontract with the DoD, State Department, or any other government
agency acting in support of a DoD operation, be issued one of either two types
of identification card. This issuance of
the ID card is analogous the induction process that citizens undergo when they
are conscripted into the
Before the ID card is issued, however, the WFC seeking work in the war or contingency operation zone must waive his or her rights to grand jury indictment and trial by jury. Therefore, ID cards will not issue to WFC until he or she signs and returns papers of acknowledgement that the WFC, by accepting employment in a war or contingency operation zone, has voluntarily, knowingly, and intelligently waived his rights to grand jury indictment and right to jury trial, and accepted UCMJ jurisdiction for crimes committed in the theatre of operations. WFCs are required to waive their constitutional rights and submit to UCMJ jurisdiction because of the combat related nature of their contracts. Since they are more like soldiers than civilians they are subjected go greater regulation (Logistical contractors will not have to waive these rights, but they must still register for ID cards for regulation of their employer explained below). Before the ID card will issue, the contractor must affirm that he is aware of his Fifth and Sixth Amendment rights and that he voluntarily, knowingly, and intelligently waives them and will be subject to the UCMJ while under employment in the theatre of war or contingency operation.
civilian waiver of constitutional rights before any crime has been committed is
clearly the most constitutionally controversial proposal contained in the MCRA.
Despite the timing issue, the Supreme
Court does allow waiver of the right to a jury trial in a criminal case. In Adams
Yet, the WFC is not an “accused,” and, under the MCRA, the WFC must waive his or her constitutional protections before facing any charges. Additionally, the WFCs are not waiving their rights to a jury trial to receive a bench trial before an Article III judge, they are waiving their jury rights to receive a trial by court-martial – an Article I court. Both the timing issue and the jury trial right exchanged for court-martial are problematic issues, but they are not insurmountable. The formality and information presented before the issuance of the ID card satisfies the major constitutional concerns regarding intelligent waivers. Also, the issuance of the ID card is analogous to the ceremonial step forward taken by inductees to the military. Inductees are largely unwilling conscripts who must give up certain rights when the country calls on them to enter the military. WFCs are willing employees of private military companies who will face similar dangers to those faced by inductees to the military, but WFCs also stand to earn a good sum of money for their services. In order to reap the benefit of a lucrative government contract, the individual WFC must make the choice to waive certain constitutional protections before he or she knows whether the protections will be needed. This is not too much to ask. Many WFCs are ex-military and are comfortable and understanding of the idea of being placed under military law. MCRA’s requirement of a pre-accused waiver of two constitutional protections does not seem too high a cost to prevent WFCs from seeking the vast pecuniary gains that go along with military contracting.
The CIWP also creates a mechanism of enforcement against the private military companies who employ WFCs or logistical contractors. When a WFC or any other civilian contractor in the war or contingency zone is found without his ID card, his employer may be fined $250,000.00 for each incident. The individual WFC or logistical contractor will also be disciplined. First, the contractor in violation will have three days to produce his or her ID card, or the DoD will transport the contractor out of the theatre of operations at the contractor’s expense. If the contractor in violation flees or does not successfully produce the ID card in the requisite number of 3 days, the employer of the contractor who is in violation of the CIWP will be liable for a fine of up to $250,000.00 per violation.
B. Creation of the Office of Contractor Oversight
DoD, with funding and authorization from Congress, will create the Office of
Contractor Oversight as a sub-department of the Inspector General of the
Department of Defense. The OCO will have
three primary responsibilities: 1) creation, issuance, and accounting of the ID
cards issued to civilian contractors within the theatre of war or contingency
operation, 2) collection of fines levied against the private military companies
employing civilian contractors, and 3) investigation and prosecution of civilian
contractors accused of criminal conduct committed in the zone of conflict
during a declared war or a contingency operation. The DoD can secure new funding for the
necessary expansion of the JAG Corp and the necessary bureaucratic expenses in
the next DoD appropriations bill. This
expense is a logical outgrowth of the military’s decision to employ vast
numbers of civilians in what were formerly jobs performed by
WFC situation is an outgrowth of the contradictions inherent in the American
state of affairs, which endangers the viability of the American mission in
is a step to do just that – apply the brakes.
The money made available by the
as a people, need to decide how or if we want to use highly paid, heavily
armed, civilians to operate as an element of our military. The policy of mass privatization of the
war-making function of a state has the effect of allowing unpopular conflicts
to persist once undertaken. This is an
inherently unstable and undemocratic proposition for a nation that holds itself
up as the democratic model which the world should strive to emulate. The fact
that the American populace can be sidelined in the republic’s decision to
commit to an armed conflict blatantly contradicts the foundational principles
 James Glanz & Alissa J. Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths, N.Y. Times, October 2, 2007, at A1.
Schmitt, Report Details Shooting by
 John M.
Broder & James Risen, Blackwater Tops
All Firms in
 James Glanz, Security Guard Fires From Convoy, Killing Iraqi Driver, N.Y. Times, November 12, 2007, at A1
 John M.
Broder & David
 Eric Schmitt & Thom Shanker, Pentagon Sees One Authority Over Contractors, N.Y. Times, October 17, 2007, at A1.
Merle, Census Counts 100,000 Contractors in
W. Singer, The Private Military Industry
 Late Edition, Pentagon Splits War-Support Contract 3 Ways, N.Y. Times, June 28, 2007, at A8.
W. Singer, Corporate Warriors: The Rise
of the Privatized Military Industry, 119, (
 See FN 10 supra.
 See FN 7 supra.
 John F. Burns, The Deadly Game of Private Security, N.Y. Times, September 23, 2007, Late Edition at Section 4 p. 1.
Wikipedia.org, 2003 Invasion of
 John M.
Broder & James Risen, Contractor
 John H. Carter, Jr. (LTC), The Tooth To Tail Ratio: Considerations for Future Army Force Structure, Strategy Research Project (April 7, 19997) (last visited on Nov. 6) http://stinet.dtic.mil/cgibin/GetTRDoc?AD=ADA 326318&Location=U2&doc=GetTRDoc.pdf
 See FN 7 supra.
 See 10 U.S.C.A. § 802(a) (West 2007).
 H.J. Res. 114, 107th Cong. (2002) (enacted).
The current Iraq War authorized under public law 107-243 on October 16, 2002, titled the Authorization For Use of Military Force Against Iraq Resolution of 2002.
 H.R. 5122 , 109th Cong. § 552 (2006). See also William Matthews, Some UCMJ rules now cover U.S. contractors, Marine Corp News, posted Jan. 10, 2007, at http://www.marinecorpstimes.com/news/2007/01/dfn.ucmjcontractors070105/ (last visited Nov. 4, 2007).
Witte, New Law Could Subject Civilians to Military Trial,
 Mark D. Maxwell & Sean M. Watts, ‘Unlawful Enemy Combatant’: Status, Theory of Culpability, or Neither?, 5 Journal of International Criminal Justice 19, 20 (2007); Geneva Convention IV
Protocol Additional to the
Convention I for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field.
 See FN 31 supra.
 Convention (III) relative to the Treatment of
Prisoners of War.
By leaving out subsection 4 and 5 or Art. 4(A), Protocol I states that it is possible for actors, like those defied below, to be considered civilians:
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian
members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
 See FN 31 supra
 See FN 18 supra.
 Frontline: Private Warriors (PBS television broadcast, June 21, 2005) available on-line at http://www.pbs.org/wgbh/pages/frontline/shows/warriors/view/
 James Risen, State Dept. Tallies 56 Shootings Involving Blackwater on Diplomatic Guard Duty, N.Y. Times, September 28, 2007, at A12
 See FN
31 supra. Note that the
 See FN
18 supra. Some military contractors make
up to $1000 a day, which is more than a
 See FN 31 supra. Protocol I, Art 43 defines “armed forces” as:
The armed forces of a Party to a conflict consist of all organized armed
forces, groups and units which are under
a command responsible to that Party for the conduct or its subordinates, even
if that Party is represented
by a government or an authority not recognized by an adverse Party. Such armed
forces shall be subject to an
internal disciplinary system which, inter alia, shall enforce compliance with
the rules of international law
applicable in armed conflict.
2) Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.
3) Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.
 The definition and requirements of militia and volunteer corps were stated earlier at FN 36.
 Wikipedia.org, L. Paul Bremer, at http://en.wikipedia.org/wiki/L._Paul_Bremer_III (last visited Nov. 4, 2007).
 Coalition Provisional Authority, Order No. 17 (June 28, 2004)
at http://www.cpa-iraq.org/regulations/20040627_CPAORD _17_Status_of_Coalition__Rev__with_Annex_A.pdf (last visited Nov. 6, 2007).
Coalition Provisional Authority, Regulation No. 1( May 16, 2003) at
http://www.cpa-iraq.org/regulations/20030516_CPAREG_1_The_Coalition_Provisional_Authority_.pdf (last visited Nov. 6, 2007).
 Alissa J. Rubin, Iraqi Cabinet Votes to End Security Firms’ Immunity, N.Y. Times, October 31, 2007, at A10.
 BBC News Online,
 See Nordan v. Blackwater, 460 F.3d 576 (4th Cir., 2006)
 David M. Herszenhorn with Philip Shenon & John M. Broder contributing, House’s Iraq Bill Applies U.S. Laws to Contractors, N.Y. Times, October 5, 2007, at http://www.nytimes.com/2007/10/05/washington/05cong.html?ref= middleeast (last visited on Nov. 4, 2007).
John P. Cerone, Dynamic Equilibrium: The
 John M. Broder & James Risen, Chief of Blackwater Defends His Employees, N.Y. Times, October 3, 2007, at A8.
 Joe Burgess, Ahmad Fadam, Kareem Hilmi, James Glanz, Sabrina Tavernise, & Archie Tse, The Iraqi Account of the Killings, N.Y. Times Multimedia, September 21, 2007 at http://www.nytimes.com/imagepages/2007/09/21/ washington/20070921_BLACKWATER_GRAPHIC.html (last visited Nov. 4, 2007).
 See FN 1 supra.
 18 U.S.C § 2441 (1996)
 Henry H. Perritt, Jr., Making International Criminal Law Realistic, ___ London L. Rev. 1450-52 (forthcoming unknown ) (manuscript at 1450-52, on file with author).
 See FN 32 supra; Common Article 3(1)(a)
 See 18 U.S.C § 3261-67 (2000)
 See 18
U.S.C. § 7; this section defines “special maritime and territorial
jurisdiction.” It appears to be a
catchall phrase which defines all the possible places in the world where
the federal courts may claim
jurisdiction outside the actual borders of the
 18 U.S.C. § 3267 (2000)
 Id at § 3267(1)(B) & (C) (2000).
 18 U.S.C §3261(a)(1) (2000).
 18 U.S.C. §1111(2000)
 18 U.S.C. §1111 (2000)
 18 U.S.C. §1112 (2000)
 18 U.S.C. §1113 (2000)
 See FN 73 supra.
 18 U.S.C. § 3262(a) (2000).
 18 U.S.C. § 3262(b) (2000).
 Deborah Hastings, Iraq Contractors Avoid Legal Restraints, USA Today, available at http://www.usatoday.com/news/world/iraq/2007-08-11-contractors_n.htm (last visited Dec. 1, 2007).
 See 28 U.S.C. § 1350
 Sarei v.
 John M.
Broder, Ex-Paratrooper Is Suspect in a
 Perhaps it is not so theoretical. It seems that there are real Iraqi plaintiffs, represented by Susan Burke, have filed a civil suit seeking compensatory damages stemming from the actual shooting in Nisoor Square on Sept. 16, 2007. MSNBC News Services & Associated Press, Lawsuit Accuses Blackwater Guards of Drug Abuse, MSNBC.com, at http://www.msnbc.msn.com/id/21997769/ (Nov. 27, 2007) (last visited Dec. 1, 2007).
 Kal Raustiala, Note, The Geography of Justice, 73 Fordham L. Rev. 2501, 2511. n. 50. (2005).
 Reid v. Covert, 354
 See FN 26 supra.
 U.S. v. Averette, 40 C.M.R. 891, 892 (ACMR 1969) reversed.
 See FN 26 supra at 365.
On October 16, 2002, the U.S. Congress, instead of declaring war against
 See FN 104
 H.R. 5122, 109th Cong. § 552 (2006)
Katherine Jackson, Not Quite a Civilian,
Not Quite a Soldier: How Five Words Could Subject Civilian Contractors in
 Rod Powers, Civilian Contractors Now Subject to the UCMJ, About.com, January 8, 2007 at http://usmilitary.about.com/od/justicelawlegislation/a/civucmj.htm (last visited Nov. 6, 2007).
 See FN 109 at 257-58.
 Department of Defense Instruction, Number 3020.37, Continuation of Essential DoD Contractor Services During Crises, November 6, 1990 at http://www-nehc.med.navy.mil/downloads/prevmed/DODContr.pdf (last visited Nov. 6, 2007).
 FN 38 Frontline interview with Marine Col. John Toolin, Toolin, the commanding officer responsible for the area containing Fallujah at the time the WFCs were killed, explains that after the ambush and desecration of the WFCs, he was forced to abandon his less violent pacification plan for the city of Fallujah, instead invading the city with the full weight of the U.S. Marines.
 Wikipedia.org., First Battle of Fallujah, at http://en.wikipedia.org/wiki/First_Battle_of_Fallujah (last visited on Nov. 4, 2007).
On March 31, 2004, four Blackwater WFCs, part of a two
car security detail for a shipment of kitchen supplies, were ambushed and
murdered by driving through the restive city of Fallujah. After the WFCs were killed, and angry mob
materialized and mutilated the WFCs bodies; these images were delivered across
the world by cable news television.
These images prompted the first Battle of Fallujah, which resulted in
the deaths of 27
 See FN 109 at p. 288. Ms. Jackson briefly discusses the idea of WFCs voluntarily waiving their constitutional rights as a part of the contracts under which they work.
 The investigative units would include the U.S. Army’s Criminal Investigative Division, the U.S. Navy’s Criminal Investigative Service, and the Air Force Office of Special Investigations.
 Alexander G. Higgins, UN: Private Military Recruiting Booming, Associated Press, October 16, 2007 at http://ap.google.com/article/ALeqM5izdgbHNcVa7cp57TN8QERErNXZYAD8SAK2V80 (last visited Nov. 4, 2007).
David S. Cloud, Number of Soldiers to Be Left
 Barkman v.
Editorial, Legal Loopholes in