A Moving Target:

Accountability and Regulation of America’s

War-Fighting Contractors

Robert Connealy

I. Introduction

Despite the flurry of recent headlines, the lack of accountability for private military contractors in Iraq has flown under the radar for some time. Current events have caught up to the subject largely due to a shooting involving Blackwater Security Consulting contractors in a Baghdad traffic circle, which took place on September 16, 2007. Conflicting reports exist, but as it stands, Blackwater contractors assigned to protect a State Department convoy opened fire in a traffic circle in Baghdad’s Nisour Square, killing at least 17.[1]

This is not the first time Blackwater USA’s wholly owned subsidiary, Blackwater Security Consulting (“Blackwater”) has been accused of being reckless in performing its contract for protecting State Department diplomats in Iraq. When a Blackwater contractor drunkenly killed a bodyguard of Iraqi Vice-President Adil Abdul Mahdi while inside the green zone, Blackwater quietly flew the man out of Iraq.[2] Blackwater contractors are more aggressive and have higher rates of shooting incidents than most of their competitors.[3] Blackwater is the current villain in this debate, but it is not the lone company providing war-fighting contractors in Iraq with unclean hands.[4] Security contractor convoy shootings continue to occur despite the events of September 16, 2007.[5] Despite this extended record of suspect and violent behavior, the State Department, the Defense Department, the Administration and the Congress have failed to regulate or make accountable America’s war-fighting contractors.

The 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 Iraq.[6] In the wake of the violence of September 16, 2007, Defense Secretary Robert Gates is urging that the U.S. Military be put in charge of military contractor oversight.[7] Laws already exist that cover American contractors’ misdeeds in Iraq, but they have not been tested. This paper explores what tools currently exist to hold war-fighting contractors, and their employers, responsible for their abuses, and what U.S. law-makers should consider as they try to address the issue.

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 U.S. governmental responses, more background is needed to grasp the military contractor phenomenon. Currently, approximately 130,000 civilian contractors work in Iraq as a part of the U.S. war effort,[8] which is approximately ten times the number employed in the Gulf War of 1991.[9] Not all of these contractors are of the Blackwater variety; most handle logistics and supply for the U.S. military. Civilian contractors fit roughly into one of three categories: military support firms, military consulting firms, and private military companies.[10]

The clearest example of a military support firm is former-Halliburton subsidiary, Kellogg, Brown and Root or KBR.[11] KBR has about 50,000 employees in Iraq providing a logistics and support role for the U.S. military. KBR, and other military support firms like it, serve as the supply line between America and her troops abroad. The Department of Defense (“DoD”) contracts with KBR to provide the food, housing, and fuel that it takes to run a military operation halfway around the globe.[12] Currently, the DoD splits its $15 billion logistics and support needs between three major firms, KBR, DynCorp International, and Fluor Corporation.[13] Of the estimated 130,000 civilian contractors in Iraq, the great majority are military support firm employees.

Military consulting firms provide advice and training for security forces. Military Professional Resources Incorporated or MPRI, is such a firm.[14] 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.[15] Firms like MPRI may be working with the Iraqi security forces to train their police or army units.

Private military companies provide actual military assistance to their clients, which can include combat support and frontline support for combat situations.[16] 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 U.S. military installations, and providing security for U.S. government convoys. For the purposes of this paper, armed contractors whose duties put them directly in harm’s way are called war-fighting contractors (“WFCs”). Of the approximately 130,000 civilian contractors in Iraq, [17] roughly 30,000 to 20,000 work as private military contractors employed by private military companies.[18] An unknown portion of that rough 30,000 to 20,000 are WFCs.

The overarching question is why the U.S. military needs this many contractors in Iraq. The major reason is military cutbacks made after the conclusion of the Cold War. After 1991, the U.S. government decided to thin the ranks of the U.S. military after the Soviet Union’s collapse. The resources from the “peace-dividend” could be spent on new programs or reduced taxes. The George W. Bush administration increased military contracting to a new level with the invasion of Iraq on March 20, 2003.[19] For example, during the 1991 Gulf War, 9,200 contractors accompanied a force of 540,000 U.S. military personnel.[20] By contrast, during the current U.S. conflict in Iraq, approximately 130,000 contractors have accompanied 150,000 U.S. military personnel.[21]

This is not necessarily flawed policy, so long as it makes military and business sense. Just like any other arm of the U.S. government, the DoD should only outsource military duties to a contractor if the contractor can legally do the same job just as well for less money, or better for the same money. Such analysis is beyond the scope of this paper, but the research is unclear on whether the U.S. government has done such an accounting of its contractors in Iraq. Assuming that the use of contractors makes good business sense, the DoD’s policy is not necessarily flawed because the use of contractors helps the U.S. military improve its Tooth to Tail Ratio (“T2R”). This is the ratio of the number of military personnel committed to combat duty and the number of personnel committed to supporting those combat operators.[22] Generally, civilian contractors in the current conflict have almost exclusively been part of the “tail” of the military’s operations. Only the combat support and WFCs contribute to the “tooth” side of the ratio. Proponents of privatizing military operations point out that the U.S. military should not have to use its active duty soldiers, trained and equipped for battle, to drive trucks, cook meals, or any other support task, when a civilian contractor can do the same job more cheaply and efficiently. This logic is difficult to refute. As the Blackwater shooting incidents have shown, however, the U.S. is increasingly using contractors in a war-fighting role, as part of the tooth, not just the tail. This paper will focus primarily on how to regulate the behavior of WFCs because they are a unique brand of contractor that walks a line between soldier and civilian.

Before 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 place of U.S. troops lowers the political costs of going to war. If the U.S. government could not use contractors it would have to replace them with soldiers. The U.S. Armed Forces are not large enough at current levels to fulfill that need, and policymakers would have to approve either military conscription (implement a draft), or significantly boost the size of the active military force by providing increased incentives to sign up. Both options are incredibly unpopular and costly in the political arena. Approving a military draft would be political suicide and raising taxes for the necessary expansion of the military is just a few steps below that. Without significant contractor support, unpopular conflicts lacking the requisite strong public support from the citizenry could not be sustained. Members of the U.S. Congress realize that they would lose their seats in the next election for authorizing a conflict which required either a military draft or a tax increase to fund the conflict. Use of 130,000 contractors allows the U.S. to do battle on the cheap, politically speaking. Large scale military operations lacking strong public support would be impossible to implement without substantial use of military contractors. Also, casualties are unpopular, but contractor casualties are hardly ever reported. At the time of this writing, total U.S. casualties stand officially at 3,849 killed and 28,171 wounded.[23] If total contractor casualties were added, the totals would be approximately 4,766 killed and 40,171 wounded.[24]

II. The Legal Limbo & the Classification Problem

With 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 Iraq are not subject to the Uniform Code of Military Justice (“UCMJ”) because WFCs are not specifically listed as persons subject to the UCMJ jurisdiction, and they are not members of the U.S. Armed Forces.[25] Also the United States Supreme Court, in United States v. Averette, [26] held that the UCMJ can only be extended to civilians during a time of war formally declared by the U.S. Congress. The U.S. invasion of Iraq was not preceded by a declaration of war.[27] Without a formal declaration, all contractors in the theatre of war were exempt from the UCMJ. Senator Lindsey Graham of South Carolina, however, introduced language to the John Warner National Defense Authorization Act for Fiscal Year 2007 which amends the Uniform Code of Military Justice and expands its jurisdiction to cover “contingency operations.”[28] Congress did not debate or comment on Graham’s amendment, and the spending authorization passed with the new section attached.[29] This key development and the Graham amendment’s implications for WFC accountability are discussed later.

U.S. law does not directly address the legal status of WFCs in contingency operations like the current Iraqi conflict, but other bodies of law can help shed some light on the classification problem. The Geneva Conventions broadly classify people in a combat zone as combatants or civilians,[30] and civilians are simply classified as persons who are not part of the armed forces.[31] The U.S. is not a party to Protocol I, but international standards can assist policymakers in tackling the classification dilemma. The definition of combatant is not as simplistic as it seems, and some knowledge of the Geneva Convention’s “terms of art” are necessary to understand the possible classification of WFCs. The first relationship to understand is that between participant and non-participants.[32] Non-participants include civilians in the conflict area and even members of the armed forces who have been knocked out of the conflict due to injury, disease, or capture.[33]

The 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 Iraq, should not be considered civilians, but combatants. Protocol I of the Geneva Conventions makes reference to Article 4(A) of the Third Geneva Convention to define which persons in a conflict area are not civilians.[34] The definition of non-civilian does not include Article 4(A)4 or 5 of the Third Geneva Convention.[35] Private military companies and WFCs would probably argue that WFCs should be classified as civilians under Art. 4(A)4, but they do not fit. Many contractors, like employees of KBR, who run the logistics operations that keep up the “welfare of the armed forces” may be included under this definition, but not WFCs. WFCs, such as those employed by Blackwater and Dyncorp, carry automatic weapons and go on what are essentially combat missions to protect U.S. and Iraqi VIPs. As armed actors in the conflict area aiding the State Department, which is a governmental agency of a belligerent in the conflict area, WFCs are participants in the conflict under Art. 3 of the First Geneva Convention.

Because WFCs are participating in the on-going hostilities in Iraq they most likely are combatants under the Geneva Conventions. WFCs are probably more accurately classified as members of the armed forces or members of “militia or volunteer corps” because they 1) operate under a responsible command structure; 2) wear a fixed distinctive sign; 3) carry their arms openly; and 4) comply with the laws of war.[36]

WFCs, 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 U.S. government. WFCs do not necessarily consistently wear a fixed or distinctive sign, but their appearance is unmistakable. WFCs are known for their “tattooed forearms, close-cropped hair or shaven heads,”[37] use of wrap-around sunglasses, heavy armament, and for their use of late model, up-armored SUVs.[38] Part of their distinctive sign is their policy of openly carrying heavy armament.

Despite the myriad of recent reports chronicling WFC abuses, WFCs have performed hundreds of missions for the U.S. government in Iraq, most without incident. For instance, Blackwater has conducted 1,873 convoy runs for the State Department this year alone, and Blackwater contractors have used their weapons 56 times over that period of time [39] Blackwater has the highest recorded shooting rate of security contractor companies in Iraq, but Blackwater contractors have only discharged their weapons approximately three percent of their convoys. The logical conclusion is that, on a whole, most WFCs respect the laws of war and are not using Iraqi citizens for target practice.

Another 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 Geneva; they are not entitled to prisoner of war protections nor do they have the privilege to kill, as legitimate combatants do.[40] Although not legally binding, the definition of mercenary from Protocol I can help U.S. policymakers determine what rules should apply to WFCs. Protocol I states that:

A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(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.

Most of the factors under the definition of mercenary from Protocol I arguably apply to WFCs in Iraq. As an example, consider the stereotypical contractor in Iraq. Private military companies, like Blackwater and Dyncorp, actively recruit men with military backgrounds to fight in armed conflicts in which they have a contract with one of the belligerents. Not all WFCs partake in direct combat, but many have engaged with the enemy while performing their contractual duties. Many WFCs are motivated by a pecuniary interest.[41] Many of the U.S. Armed forces’ best trained personnel are leaving the service for better pay as contractors.[42] The WFCs in theatre are, by definition and by contract, not members of the armed forces of a party to the conflict.

The two elements most WFCs do not meet are (d) and possibly (f). Most WFCs are U.S. citizens, and the U.S. is clearly a party to the conflict in Iraq. To determine whether WFCs act “on official duty as a member of its [a party to the conflict’s] armed forces” requires consideration of Article 43 of Protocol I of the Geneva Conventions, which defines armed forces.[43] The definition of Armed Forces also includes volunteer corp and militia.[44] WFCs probably fit within Geneva’s definition of armed forces because the definition of armed forces includes volunteer corps and militia. WFCs, and the private military companies that contract them, act as contractual paramilitaries, and they have been essentially incorporated into the U.S. military to complete the U.S. mission in Iraq. Because WFCs can be classified as a volunteer corps or militia under the Geneva Conventions, they have privileges and duties under the laws of armed conflict.

The 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 Iraq[45] and only two days before the CPA dissolved.[46] The order immunized private contractors from the “Iraqi legal process.”[47] Questions remain whether CPA Order No. 17 has legal effect. According to CPA Order No. 1, all CPA regulations and orders remain in place until “legislation issued by democratic institutions of Iraq” replace the CPA orders.[48] Regardless of the legitimacy of the legal theory behind Order No. 17, it has been effective in preventing Iraqi prosecutions of WFC abuses. The Iraqi Parliament, Iraq’s democratically elected institution, is currently attempting to repeal Order No. 17, as Order No. 1 described.[49] The motivating force behind the Iraqi government calling for Order No. 17’s repeal is the Blackwater shootings of September 16, 2007.[50]

The 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.[51] The military contractor industry should not have it both ways. The U.S. government must clarify the rules governing WFCs and provide for an efficient way to try violations of those rules when appropriate. A new policy is necessary to bring WFCs and their employers under a logical and effective rule of law that is practical, efficient and constitutional.

III. Practical Legal Frameworks

The September 16th shootings have already provoked Congressional action regarding the regulation of WFCs.[52] 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 jurisdiction over U.S. contractors are the U.S. federal courts and courts-martial under the UCMJ. An argument can be made that other judicial institutions, such as the Iraqi courts and the International Criminal Court, might be able to try contractor abuses. Due to many political factors, however, it is very unlikely that the U.S. Congress or DoD would ever allow for such an outcome.[53] Therefore, this discussion limits the potential jurisdictions for the prosecution of WFCs to the U.S. federal courts and U.S. courts-martial.

A. The Hypothetical

Before 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 Nisour Square that day. Currently, he lives in the Blackwater compound located in the Green Zone, but he is a resident of Kansas City, Missouri. Clark is a former U.S. Army Ranger who served in the demilitarized zone between South and North Korea during the 1990’s. He left the service as a sergeant in 1998 and applied to Blackwater in 2003 after the company won its $600M contract to head up State Department security in Iraq.[54] He has been on numerous similar convoys and is hardly new to the chaotic security situation in Iraq.

Before 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.[55] 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 Nisour Square. The lead vehicles of the Blackwater convoy took up positions to control traffic and prevent Iraqi civilian motorists from interfering with the VIP’s route.

When Clark got out of his vehicle he noticed a small, white automobile not obeying the orders of an Iraqi traffic officer. The small, white car continued slowly to approach the convoy. Clark decided to fire a warning shot at the car because he suspected it might be suicide bomber behind the wheel. He could have fired his warning shot at the grill to destroy the engine, or the tires to disable the car, but Clark fired at the windshield despite the high probability that he might kill or seriously wound any occupants of the vehicle. Clark fired one round from his M4 carbine, from a distance of one hundred meters, hitting the windshield of the car. Clark does not know it, but the bullet passed through the windshield and struck the driver, Ahmed Haithem Ahmed, in the head, killing him instantly.[56] In the passenger seat was Mr. Ahmed’s mother, Mohassin.[57] She screamed hysterically for the traffic officer to help her son, but the car, still in gear and with Mr. Ahmed’s foot still on the accelerator, continued to travel slowly towards the convoy.[58]

With the car not deviating from its path, Clark’s suspicions were confirmed. Believing that the driver had hostile intent towards the convoy, he engaged the target with full force. He emptied the rest of his magazine into the front of the vehicle killing Mohassin. Hearing Clark’s automatic gun fire, the other Blackwater contractors assumed the convoy is under attack. They also fired on Clark’s target and then scanned for and fired upon other suspicious vehicles in the vicinity they presumed to be a threat. Iraqi motorists in the traffic jam behind the attacked automobile abandoned their cars and scattered, trying to evade the barrage of gunfire coming from the Blackwater convoy. Clark reloaded his weapon and continued to fire on a number of the fleeing motorists as they attempted to escape, and he persisted in firing when all possible threats were eliminated. He killed at least three fleeing motorists during this rampage. He was so berserk during this chaotic scene that another one of his Blackwater squad mates, Joshua A. Redburn, screamed at him to cease firing on the motorists, and finally threatened to shoot Clark if he did not stop firing. Clark’s actions set in motion a running shooting spree that would leave 17 dead, including an Iraqi policeman, and 24 wounded.[59]

Now, what should the U.S. government do with Mr. Clark?

B. U.S. Federal Courts

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[60] (“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.

Clark is definitely covered by the WCA because he is a U.S. national who is domiciled in Kansas City, Missouri. It also appears that Clark’s actions in the traffic circle probably violate multiple sections of the WCA including §2441(c)(1) and (c)(3). Section (c)(1) states that any U.S. national who commits a grave breach of “any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party” has violated the WCA. The definition of a grave breach is provided within the Geneva Conventions themselves. The First Convention defines grave breaches at Article 50 as:

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.

Therefore, Clark violated (c)(1) because he fired firing into the crowd of fleeing motorists who are civilians protected by the Convention. His shooting was not justified by military necessity and at least three people died as a result of Clark’s actions.

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).[61] 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.

Here, Clark intentionally killed motorists who were taking no part in the hostilities, and his actions are a grave breach of Common Article 3, as defined by the WCA.

The initial killings by Clark may be justified by military necessity or self-defense. Clark took his first shot, the one that killed the driver of the car, suspecting the white car was a suicide bomber. When the car did not stop, he committed his second killing by emptying his rifle’s magazine into the automobile killing the passenger. As a participant to an armed conflict, Clark has a duty to discriminate between legitimate targets, such as insurgents that threaten him and the convoy, and illegitimate targets, such as civilians.[62] Clark also has a duty to use force proportional to the threat posed to reduce collateral damage. Clark may argue that his first warning shot was done out of military necessity because he reasonably believed that the white car, with its suspicious behavior, was a suicide bomber and a threat to his life and the convoy. But his actions probably violate the duty of proportionality. He could have fired at the tires, or the engine, but Clark fired at the windshield.

His second action, firing at the car to kill all inside, might be defensible in that Clark believed the car was a suicide attacker and was acting in self-defense and military necessity. His last action, firing indiscriminately into the crowd of fleeing motorists, is largely indefensible. After engaging and eliminating what he perceived to be the threat posed by the white car, Clark reloaded his weapon and fired into the crowd of fleeing motorists that posed no threat to him or the convoy, killing an additional three motorists. This is a blatant violation of the Clark’s duty to discriminate between legitimate and illegitimate targets. This last action surely counts as both a general grave breach under the First Convention Art. 50 or a Common Art. 3 violation, which prohibits at all times “violence to life and person, in particular murder of all kinds.”[63] Therefore, Clark could be charged under 18 U.S.C. §2441 (c)(1) of the War Crimes Act because he is a U.S. national whose actions resulted in a grave breach of the First Geneva Convention’s Art. 50 and Common Article 3.

2. The Military Extra-Territorial Jurisdiction Act of 2000

The U.S. attorneys can charge Clark under the Military Extra-Territorial Jurisdiction Act of 2000 (“MEJA”).[64] Unlike the War Crimes Act, MEJA is not a substantive criminal offense itself. It is used to extend the jurisdiction of the federal courts to a class of citizens who commit what would be classified as felonies had the crime been committed “within the special maritime and territorial jurisdiction of the United States.”[65] MEJA can only reach individuals who committed offenses while “employed by or accompanying the Armed Forces outside the United States,” or while a member of the armed forces.[66] Congress passed this act “in response to a jurisdictional gap created by host nation’s reluctance to prosecute crimes committed by American civilians accompanying the Armed Forces outside the United States.”[67] But the government still has to show that Congress intended MEJA to cover the actions of a WFC like Clark, and contractors like him. Section 3267(1)(A)(iii)(II) of MEJA defines the term “employed by the Armed Forces outside the United States” as “an employee of a contractor, or subcontractor at any tier of any other Federal agency, or any provisional authority to the extent such employment relates to supporting the mission of the DoD overseas.”[68] Clark is definitely a contractor or subcontractor employed by a Federal agency, in this case the State Department.

Does the State Department’s contract and Clark’s employment relate to supporting the mission of the Department of Defense overseas? Most likely, the answer is yes. But for the invasion of Iraq, spearheaded by the DoD, the State Department would not be so deeply involved in negotiating with the local Iraqis. The State Department’s role in Iraq is largely to be the liaison between the U.S. government and the Iraqi government and help facilitate security initiatives and reconstruction projects. This is all in support of the greater Defense Department goal of bringing a stable government to Iraq that can sustain and defend itself. Clark would probably have little success arguing that the State Department was the lead agency guiding the U.S.’s policy in Iraq.

The government must still prove three remaining elements under the MEJA. First, the government must show that Clark was “present or residing outside the United States in connection with such employment.” Secondly, that he is not a national or ordinary resident of the host nation, Iraq.[69] These elements are easily proven because, at the time of the shooting, Clark was present in Iraq, living inside the Green Zone, and he is a national of the U.S., not an Iraqi. Finally, U.S. federal jurisdiction can reach Clark so long as the government shows that his conduct “would constitute and offense punishable by imprisonment for more than one year if the conduct had been engaged in” while in the U.S.[70] Although Clark’s first two actions may be permissible as self-defense, his third act of reloading and firing into the crowd of fleeing motorists would definitely subject him to a felony charge had it occurred in the United States.

MEJA provides an additional substantive basis to charge Clark because his actions, if perpetrated in the U.S. or within its special maritime and territorial jurisdiction, would likely subject him to charges ranging from first degree murder,[71] second degree murder,[72] involuntary manslaughter,[73] or attempt to commit murder or manslaughter.[74] Under these facts, Clark would definitely face multiple counts of involuntary manslaughter because the killings he committed were unlawful and “without due caution and circumspection.”[75] Manslaughter charges are punishable by fine or imprisonment for no more than a six year term, and attempted manslaughter is punishable by a prison sentence of up to seven years. Therefore, these crimes are felonies and the MEJA can be used by federal prosecutors to charge Mr. Clark.

Despite 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.[76] Once arrested, Clark would then be delivered as soon as “practicable to the

custody of civilian law enforcement authorities of the United States for removal to the United States for judicial proceedings.”[77]

MEJA does not task the investigation of the crime committed on foreign soil to any particular agency. United States v. Arnt[78] 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 stationed in Turkey. The defendant, a domiciliary of Riverside, California, was tried in the Central District of California, in which Riverside, California sits.[79] The prosecution was led by Jerry A. Behnke, the Assistant United States Attorney for Riverside, California. This is one of the only cases where prosecutors have used MEJA, but, if this case is an indication of how these prosecutions will proceed in the future, it appears that violators of MEJA are tried in their home districts and prosecuted by the local U.S. Attorney or an Assistant U.S. Attorney. The investigative process and resources used by Assistant U.S. Attorney Behnke to build his case is not explained. Of course, some form of investigation must have taken place inside of Turkey at the airbase on which this crime occurred.

A criminal investigation on a U.S. airbase in an allied country would be a cakewalk compared to investigating a multiple victim shooting in Baghdad, Iraq. This Herculean task is not one that many U.S. Attorneys or Assistant U.S. Attorneys, who probably consider their resources thinly stretched, would likely choose to take on. The U.S. Attorney would also have to secure Iraqi witnesses and transport them to the U.S. for the trial. Given the expensive and complex logistics of prosecuting a civilian contractor for criminal offenses committed in Iraq, it is not surprising that not one contractor of the 130,000 in Iraq have been prosecuted under MEJA or any other statute.[80]

The burdens faced by U.S. prosecutors are great. The evidence is in Iraq, and many or most of the witnesses are in Iraq. There is little chance of prosecutors being able to perform an investigation of the crime scene to collect the evidence necessary to mount an effective prosecution. Federal prosecutors would need to be able to dispatch the FBI or another law enforcement investigative agency to secure and investigate the crime scene. Given the current security situation in Iraq, this would be extremely expensive and dangerous. Criminal investigations in Iraq would tie up both military resources, to secure the environs of the crime scene in which the law enforcement officers would work, and Justice Department resources, in funding and deploying the criminal investigation team used in Iraq, not counting any casualties inflicted by anti-coalition forces that may arise during these investigations. Thirdly, U.S. prosecutors, busy in their metropolitan U.S. offices, are not in the best position to know when and where a suspected criminal incident has occurred in Iraq. Usually, only the most egregious offenses that occur in Iraq, such as multiple shootings and rapes, make America’s headlines. Even if U.S. Attorneys had instant knowledge of a crime committed in Iraq, it would still be very difficult to rapidly dispatch an investigatory team to secure the evidence necessary for a successful prosecution. In evidence collection, time is of the essence. Crime scenes would probably be spoiled by the time U.S. law enforcement agents could arrive to investigate.

3. Alien Tort Claims Act

Clark and Blackwater Security Consulting could face civil liability under the Alien Tort Claims Act (“ATCA”).^[81] 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.”[82] 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 Clark’s actions. They would have to show that Clark’s actions fall under the “extrajudicial killing” definition of the statute.

Despite 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.[83] 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 Iraq, and no Iraqi judgment could be enforced against him,[84] and Blackwater would most likely ignore any judgment made against it unless the U.S. government intervened. If Blackwater ignores a judgment, it could be executed against its assets in Iraq or possibly domesticated under the Foreign Money Judgment Recognition Act, or the judgment may be enforced against Blackwater’s U.S. assets by way of the Foreign Judgment Enforcement Act. Theoretically, the Iraqi plaintiffs can now sue in U.S. federal court for the wrongful deaths caused by Clark’s actions - theoretically, because the Iraqi plaintiffs would face many difficulties in mounting a successful civil action.[85]

Prospective Iraqi plaintiffs face many of the same barriers to a successful civil suit as U.S. prosecutors face when pursuing a criminal investigation. First, evidence would be very difficult to collect. The plaintiffs would somehow have to gain access to the physical evidence collected by Iraqi or U.S. authorities during their criminal investigations. If collected, how are Iraqi plaintiffs supposed to preserve and transport the evidence to the U.S. for trial. Second, going to court in the U.S. would be extremely expensive because the Iraqi plaintiffs would have to transport and provide translators for their witnesses. The civil system, however, does allow for reasonable discovery which could significantly aid Iraqi plaintiffs so long as their complaint is sufficient to open discovery. Still, the odds are against Iraqi plaintiffs mounting a successful civil suit without significant outside assistance.

Finally, the U.S. could create a U.S. District Court for Iraq, as it did in the early twentieth century in China.[86] The U.S. has created consular courts which applied U.S. law to U.S. citizens living and working in foreign lands.[87] These courts, however, were based largely on the belief that “the local law was barbaric, unpredictable, and strange.”[88] Establishing such a consular court in Iraq would deeply undercut the perception the U.S. government seeks to promote - that Iraq is becoming a stable, sovereign, and functioning state.

C. U.S. Courts-Martial & the UCMJ

Although three federal laws appear to place WFC actions under U.S. federal jurisdiction, the difficulties and costs involved in bringing a successful prosecution weigh against federal prosecutors bringing charges involving any crime committed in Iraq. Enforcement against WFCs through the federal courts is tantamount to the blank check WFCs already enjoy, given the immense logistical obstacles to mounting a successful prosecution. In reality, another U.S. court system offers a more viable venue where WFCs can be brought to justice for their crimes, U.S. Courts-Martial. Use of courts-martial is controversial because it requires applying the UCMJ to non-members of the armed forces, which raises many constitutional issues. If implemented correctly, the policy of subjecting WFCs to courts-martial can address the constitutional issues to the Supreme Court’s satisfaction.

Historically, 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 U.S. were still protected by the Bill of Rights and could not be tried under the UCMJ for capital offenses during times of peace.[89] Reid involved two separate cases where the wives of U.S. servicemen were court-martialed for the killing their husbands[90]on U.S. military bases outside the U.S.[91] The government argued that the NATO status of forces agreement, in effect by executive agreement between the U.S., Great Britain, and Japan at the time, and which gave military courts exclusive jurisdiction over crimes committed by U.S. personnel or their dependents, made the wives’ court-martials legitimate.[92] The government asserted that “article 2(11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States’ obligations under the international agreement with those countries.”[93] The government further reasoned that “the Necessary and Proper clause (18) when taken in conjunction with Clause 14 allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law.”[94]

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 U.S. The Court warned that “[w]hen the Government reaches out to punish a citizen who is abroad, the shield of the Bill of Rights … should not be stripped away.”[95] Secondly, the Court rejected the government’s assertion that a treaty between the U.S. and foreign governments, the NATO status of forces agreement, some how makes constitutional what would otherwise be an unconstitutional practice. The Court emphasized that the government’s theory of Congress’s treaty power was overbroad and unconstitutional. The Congress cannot approve a treaty that does not comply with the U.S. Constitution because when a treaty conflicts with the constitution it is a nullity.[96]

Despite 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 spouses of U.S. servicemen abroad. The court pointedly observed that the defendants in Reid were “under no contract for military service, render[ed] no military service, perform[ed] no military duty, receive[d] no military pay, but are and remain civilians in every sense and for every capacity.”[97] Furthermore, the Court recognized that “there might be circumstances where a person could be ‘in’ the armed services … though he had not formally been inducted into the military or did not wear a uniform.”[98] Perhaps, WFCs are the “persons” that the Ried Court hypothesized could exist.

The 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,[99] 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.[100] WFCs are under contractual military service for the DoD or the State Department. They perform military duties such as convoy security and guarding U.S. installations. The private military companies who employ the WFC, are paid by the U.S. government for their contractual work with the DoD and State Department. The private military companies then use the proceeds from their contracts with the U.S. government to pay the WFCs. In a very real sense, WFCs do receive military or government pay and perform military services. Therefore, under the factors laid out in Reid, WFCs are not civilians “in every sense and for every capacity.” WFCs are entirely dissimilar to the spouses of military servicemen residing on a U.S. base in a foreign state. If the case of United States v. Clark, the hypothetical recounted above, came before the U.S. Supreme Court, it would largely be a case of first impression.

Though 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.[101] Averette, the defendant in the case, was a civilian employee of a firm under contract to the U.S.; Averette acted as a supervisor of a motor pool warehouse located in Saigon.[102] The U.S. charged and court-martialed Averette, under article 2(10) of the UCMJ, for larceny stemming from a scheme to steal large quantities of batteries owned by the U.S. government.[103] The Court of Military Appeals reversed the decision of the Court of Military Review and held that Averette could not be subject to court-martial because Congress never formally declared war against North Vietnam. The Court of Military Appeals did add, however, that “[a] broader construction of Article 2(10) would open the possibility of civilian prosecutions by military courts whenever military action on a varying scale of intensity occurs.”[104] With this sentence, the Court of Military Appeals essentially stated that the U.S. Congress could expand UCMJ jurisdiction to include civilian contactors during non-declared wars, but, as the statute stood at the time, it was not so sufficiently expanded. Therefore, Averette was not subject to Article 2(10) of the UCMJ because Congress never formally declared war during the conflict in Vietnam . Similar to the Vietnam conflict, the U.S. Congress did not declare war on Iraq before the invasion.[105] As currently understood, the law does not permit court-martial of contractors within Iraq because the conflict in Iraq is not a declared war.

At least that was the understanding before Senator Lindsey Graham of South Carolina provided that “broader construction” about which the Court of Military Appeals had alluded to in Averette. [106] Senator Graham sponsored § 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007, which is an amendment to the UCMJ[107]

Section 552, in whole, reads as follows:

SEC. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR.

Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the

Uniform Code of Military Justice), is amended by striking ``war'' and inserting

``declared war or a contingency operation''.[108]

Section 552 of the John Warner National Defense Authorization Act opens the possibility that WFCs may be subject to courts-martial.[109] 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.[110] 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.[111] 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.[112]

Under this definition, contractors currently operating in Iraq are subject to the UCMJ.

Despite 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.[113] These prohibitions implicate both the Fifth and Sixth amendment rights of U.S. citizens. Averette and Reid show that the Supreme Court jealously guards the constitutional rights of civilians even while operating in a war zone. Therefore, it is likely that Congress will have to do more than simply change the language of Article 2 of the UCMJ for the Supreme Court to find its application to civilians constitutional.

IV. What Should U.S. Policymakers Do?

Many policy-makers in the U.S. government have an interest in how U.S. laws are applied to WFCs. The Congress’ constitutional role, through Art. I § 8 clauses 14 and 18, the necessary and proper clause,[114] implicitly enables them to make the rules by which the armed forces and, presumably, their contractors are bound. The Judiciary has a significant interest in ensuring that U.S. citizens’ rights are protected, even while employed in a war zone. Despite the other branches’ important interests, the civilian contractor dilemma affects the Defense Department of the executive branch most deeply. It is the President and the Defense Department that decided for the Total Force mix to be so heavily reliant on private contractors.[115] It is the Army, Marine,[116] Naval, and Air Forces who are the most involved and directly affected when WFCs’ missions go wrong.[117] Therefore, it is chiefly the DoD’s responsibility to regulate the system it created through its policies.

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,[118] 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[119] 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.

MCRA consists of two programs that would empower the U.S. government potentially to court-martial WFCs and regulate the military contracting industry more aggressively. First, the DoD would implement a Contractor Identification and Waiver Program (“CIWP”), which would address the constitutional concerns of the Supreme Court.[120] Two collateral benefits of the CIWP is that it would provide a way to determine how many contractors are operating in the war zone, and it would act as a tool to regulate the contractors’ employers, the private military companies.

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.[121] 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.[122] 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.[123] 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.

The 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 U.S. armed forces. All civilian contactors, whether they be WFCs or logistical contractors will need to receive ID cards, but only WFCs will have to cede certain constitutional protections. MCRA requires that WFCs cede their rights to jury trial and grand jury indictment before they are permitted to work in a war or contingency zone because of the combat related nature of their duties. Therefore, they are similar to inductees to the armed forces who must cede the same rights by induction. United States ex rel. Harmash v. Laird describes the formalities involved in the induction process such as taking the step forward[124] to signify that the individual has given up his civilian status and entered the ranks of the military. The issuance of the ID card to the WFC fulfills the same purpose.

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.

The 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.[125] In Adams v. U.S. ex rel. McCann, the Court stressed that the decision to waive a jury trial for a bench trial must be a “free and intelligent choice.”[126]The reading and signing of the papers of acknowledgement before the ID card issues demonstrates that the WFC’s decision is voluntary, free, and intelligent. The law is thoroughly established that an intelligent accused may waive any constitutional right that is in the nature of a privilege to him, or that is for his personal protection or benefit,” including a right to indictment by grand jury.[127]

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

The 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 U.S. servicemen. Although new JAG officers will be required, many can be shifted from their existing positions to cover the newly created OCO.

V. Conclusions

The WFC situation is an outgrowth of the contradictions inherent in the American undertaking in Iraq. The U.S. government seeks to rebuild the Iraqi government and civil society as one guided by the rule of law rather than the rule of a dictator’s iron fist. Yet the United States tolerates lawlessness within its own operations. Irresponsible war-fighting contractors have done an inordinate amount of damage to the image and effectiveness of the American mission in Iraq. For every innocent Iraqi killed by military contractors, the insurgency gains members or sympathizers in that victim’s friends and family. For every intersection shot up as a contractor escorted convoy thunders through, the insurgency gains a city block, a neighborhood, or town, in which to operate more freely. The stakes in Iraq are too high to have unaccountable actors creating new enemies at every turn.

This state of affairs, which endangers the viability of the American mission in Iraq and other missions America will doubtlessly take on in the future, cannot remain in place. Brakes need to be applied to regain control over the runaway train of private military contracting. Secretary Condoleeza Rice delicately described the lack of law covering the actions of contractors as “a lacuna.”[128] Regardless of the fanciful language, this is a gap through which many a bullet has passed, claiming an uncounted number of innocent Iraqis. The gap needs to be filled either by sanctions on the war-fighting contractors individually, the private military companies who employ them, or both.

MCRA is a step to do just that – apply the brakes. The money made available by the U.S. government to private military companies ensures that an industry will grow up to exploit the financial upside. Of course, the individual contractors face many risks to life and limb as they operate inside the war zone that is American liberated Iraq, but the businesses that employ them, the private military companies, face few risks at all. MCRA will supply a means to regulate both the war-fighting contactor individually and the companies that employ them.

Americans, 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 of America. Despite the underlying friction with democratic principles, no government body has undertaken a strict accounting of the financial benefits or pitfalls created by massively privatizing the state’s war fighting function. Most assume that privatizing the “tail” or support side of the military must save an untold amount of money. Some proof of that assumption is in order. In the end, America needs to take a moment and decide whether mass military privatization is truly in the nation’s best interests.

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[1] 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.

[2] Eric Schmitt, Report Details Shooting by Drunken Blackwater Worker, N.Y. Times, October 1, 2007, at A10.

[3] John M. Broder & James Risen, Blackwater Tops All Firms in Iraq in Shooting Rate, September 27, 2007, at A1.

[4] Sean Rayment, New Iraq 'TrophyVideos' Raise Fears on Civilian Deaths, Telegraph Group Ltd., December 4, 2005, p. 10.

[5] James Glanz, Security Guard Fires From Convoy, Killing Iraqi Driver, N.Y. Times, November 12, 2007, at A1

[6] John M. Broder & David Johnston, U.S. Military to Supervise Iraq Security Convoys, N.Y. Times, October 31, 2007, at A1.

[7] Eric Schmitt & Thom Shanker, Pentagon Sees One Authority Over Contractors, N.Y. Times, October 17, 2007, at A1.

[8] Id.

[9] Renae Merle, Census Counts 100,000 Contractors in Iraq, Washington Post, December 5, 2005, at D1

[10] Peter W. Singer, The Private Military Industry and Iraq: What We Have Learned and Where to Next?, Geneva Centre for the Democratic Control of Armed Forces Policy Paper, November 2004, p. 2-3 at http://www.dcaf.ch/_docs/pp04_private-military.pdf

[11] Id.

[12] Late Edition, Pentagon Splits War-Support Contract 3 Ways, N.Y. Times, June 28, 2007, at A8.

[13] Id.

[14] Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, 119, (Cornell University Press, 2003)

[15] Id. at 122

[16] See FN 10 supra.

[17] See FN 7 supra.

[18] John F. Burns, The Deadly Game of Private Security, N.Y. Times, September 23, 2007, Late Edition at Section 4 p. 1.

[19] Wikipedia.org, 2003 Invasion of Iraq, at http://en.wikipedia.org/wiki/Invasion_of_Iraq (last visited Nov. 4, 2007).

[20] John M. Broder & James Risen, Contractor Deaths in Iraq Soar to Record, N.Y. Times, May 19, 2007, at A3.

[21] Id.

[22] 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

[23] Iraq Coalition Casualty Count, Casualties, at http://icasualties.org/oif/ (last visited Nov. 4, 2007).

[24] See FN 7 supra.

[25] See 10 U.S.C.A. § 802(a) (West 2007).

[26] United States v. Averette, 19 C.M.A. 363, 365 (U.S. C.A.A.F. 1970).

[27] 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.

[28] 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).

[29] Griff Witte, New Law Could Subject Civilians to Military Trial, Washington Post, January 15, 2007, A1

[30] 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

[31] Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, Art. 50 [hereinafter Protocol I]. To define civilians, Art. 50 incorporates by negative reference Arts 4(A) 1, 2, 3 and 6 of the 1949 Third Geneva Convention Relative to the Treatment of Prisoners of War. Note that Protocol I of Geneva was signed but never ratified by the United States; it does not have force of law.

[32] Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, Art. 3, 6 U.S.T. 3114, 75 U.N.T.S. 31 The language of Article 3 of the first Geneva Convention notes a difference of the rights of those “taking no part active part in the hostilities” from those that are taking part.

[33] Id.

[34] See FN 31 supra.

[35] Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Art 4., 6 U.S.T.3316, 75 U.N.T.S. 135.

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.

[36] See FN 31 supra

[37] See FN 18 supra.

[38] Frontline: Private Warriors (PBS television broadcast, June 21, 2005) available on-line at http://www.pbs.org/wgbh/pages/frontline/shows/warriors/view/

[39] James Risen, State Dept. Tallies 56 Shootings Involving Blackwater on Diplomatic Guard Duty, N.Y. Times, September 28, 2007, at A12

[40] See FN 31 supra. Note that the U.S. is not a state party to Protocol I, but the definition of mercenary is helpful in attempting to classify WFCs.

[41] See FN 18 supra. Some military contractors make up to $1000 a day, which is more than a U.S. four-star general earns.

[42] Elite U.S. soldiers leave for better-paying jobs, Associated Press, posted July 20, 2004 at http://www.msnbc.msn.com/id/5470127/ (last visited Nov. 4, 2007).

[43] See FN 31 supra. Protocol I, Art 43 defines “armed forces” as:

1) 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.

[44] The definition and requirements of militia and volunteer corps were stated earlier at FN 36.

[45] Wikipedia.org, L. Paul Bremer, at http://en.wikipedia.org/wiki/L._Paul_Bremer_III (last visited Nov. 4, 2007).

[46] CNN.com, U.S. returns sovereignty to Iraq, at http://www.cnn.com/2004/WORLD/meast/ 06/28/iraq.handover/ index.html (last visited Nov. 4, 2007).

[47] 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).

[48]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).

[49] Alissa J. Rubin, Iraqi Cabinet Votes to End Security Firms’ Immunity, N.Y. Times, October 31, 2007, at A10.

[50] BBC News Online, Iraq to end contractor 'immunity', at http://news.bbc.co.uk/2/hi/middle_east/7012853.stm (last visited Nov. 4, 2007).

[51] See Nordan v. Blackwater, 460 F.3d 576 (4th Cir., 2006)

[52] 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).

[53] See John P. Cerone, Dynamic Equilibrium: The Evolution of U.S. Attitudes Towards International Criminal Courts and Tribunals, 18 Eur. J. Int'l L. 277, 296 (2007). Historically, the U.S. has been very hostile to granting international tribunals jurisdiction over any of its citizens.

[54] John M. Broder & James Risen, Chief of Blackwater Defends His Employees, N.Y. Times, October 3, 2007, at A8.

[55] 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).

[56] See FN 1 supra.

[57] Id.

[58] Id.

[59] Id.

[60] 18 U.S.C § 2441 (1996)

[61] Id. at (d)(1)(D).

[62] Henry H. Perritt, Jr., Making International Criminal Law Realistic, ___ London L. Rev. 1450-52 (forthcoming unknown ) (manuscript at 1450-52, on file with author).

[63] See FN 32 supra; Common Article 3(1)(a)

[64] See 18 U.S.C § 3261-67 (2000)

[65] 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 United States.

[66] Id.

[67] United States v. Arnt, 474 F.3d 1159, 1161 (9th Cir. 2007)

[68] 18 U.S.C. § 3267 (2000)

[69] Id at § 3267(1)(B) & (C) (2000).

[70] 18 U.S.C §3261(a)(1) (2000).

[71] 18 U.S.C. §1111(2000)

[72] 18 U.S.C. §1111 (2000)

[73] 18 U.S.C. §1112 (2000)

[74] 18 U.S.C. §1113 (2000)

[75] See FN 73 supra.

[76] 18 U.S.C. § 3262(a) (2000).

[77] 18 U.S.C. § 3262(b) (2000).

[78] See U.S. v. Arnt, at 1160 supra.

[79] Id. at 1162

[80] 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).

[81] See 28 U.S.C. § 1350

[82] Id.

[83] Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1213-1214 (9th Cir. 2007),

[84] John M. Broder, Ex-Paratrooper Is Suspect in a Blackwater Killing, N.Y. Times, October 4, 2007, at A10. Blackwater has a history of sneaking out contractors who have violated the law and settling the claims with State Department assistance.

[85] 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).

[86] Kal Raustiala, Note, The Geography of Justice, 73 Fordham L. Rev. 2501, 2511. n. 50. (2005).

[87] Id.

[88] Id.

[89] Reid v. Covert, 354 U.S. 1 (U.S. 1957). Note that this is a plurality opinion, and the concurrences have affected the true holding.

[90] Id. at 3, 4. Mrs. Clarice Covert killed her husband on an airbase in England and the military asserted court-martial jurisdiction over her under Article 2(11) of the UCMJ, and Mrs. Dorothy Smith killer her husband at a post in Japan and was tried for murder by a court-martial.

[91] Id. at 3-4.

[92] Id. at 15.

[93] Id. at 15.

[94] Id. at 15.

[95] Id. at 6

[96] Id. at 18.

[97] Id. at 20.

[98] Id. at 23.

[99] United States v. Wilson, 9 USCMA 60 (CMA 1958).

[100] Id. at 62.

[101] See FN 26 supra.

[102] U.S. v. Averette, 40 C.M.R. 891, 892 (ACMR 1969) reversed.

[103] Id. at 891

[104] See FN 26 supra at 365.

[105] On October 16, 2002, the U.S. Congress, instead of declaring war against Iraq, passed public law 107-243, also known as the Authorization for Use of Military Force Against Iraq (“AUMF”). The AUMF states that Iraq’s support for international terrorism and pursuit of weapons of mass destruction require the U.S. to use force against it to “prosecute the war on terrorism.” The AUMF gave the President authorization “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to – (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Counsel resolutions regarding Iraq.”

[106] See FN 104

[107] H.R. 5122, 109th Cong. § 552 (2006)

[108] Id.

[109] Katherine Jackson, Not Quite a Civilian, Not Quite a Soldier: How Five Words Could Subject Civilian Contractors in Iraq and Afghanistan to Military Jurisdiction, 27 J. Nat’l Ass’n Admin. L. Judiciary 255, 256 (Spring 2007).

[110] 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).

[111] Id.

[112] Id.

[113] See FN 109 at 257-58.

[114] U.S. Const. Art. I § 8 cl. 13, 15 & 17 (Note: Art. I §8 cl. 9, would also apply when contractor behavior breaches international law.

[115] 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).

[116] 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.

[117] 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 U.S. personnel killed, 90 plus wounded, and the killing of approximately 184 Iraqi insurgents and 616 Iraqi civilians.

[118] U.S. Const. Art. I, § 8 cl. 18 gives Congress the powers to make rules for the land and naval forces in conjunction with the necessary and proper clause.

[119] United States ex rel. Harmash v. Laird, 356 F.Supp. 970, 973(D.C. Kan., 1973).

[120] 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.

[121] 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.

[122] 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).

[123] David S. Cloud, Number of Soldiers to Be Left in Iraq Remains Unclear, N.Y. Times, September 14, 2007, at A10. Approximately, 169,000 U.S. troops are in Iraq as a result of the surge, while troop levels were at approximately 133,000 troops pre-surge.

[124] U.S. ex rel. Harmash v. Laird, at 973.

[125] See Adams v. U.S. ex rel. McCann, 317 U.S. 269, 276 (1942).

[126] Id.

[127] Barkman v. Sanford, 162 F.2d 592, 594 (5th Cir. 1947).

[128] Editorial, Legal Loopholes in Iraq, N.Y. Times, November 5, 2007 at A24.