The Arm Of The Law Just Got Longer

by hilzoy

Via Kevin Drum, an excellent catch by P. W. Singer at DefenseTech:

"Over the last few years, tales of private military contractors run amuck in Iraq -- from the CACI interrogators at Abu Ghraib to the Aegis company's Elvis-themed internet "trophy video" —- have continually popped up in the headlines. Unfortunately, when it came to actually doing something about these episodes of Outsourcing Gone Wild, Hollywood took more action than Washington. The TV series Law and Order punished fictional contractor crimes, while our courts ignored the actual ones. Leonardo Dicaprio acted in a movie featuring the private military industry, while our government enacted no actual policy on it. But those carefree days of military contractors romping across the hills and dales of the Iraqi countryside, without legal status or accountability, may be over. The Congress has struck back.

Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that "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'." The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).

The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn't normally matter for much. But with this change, contractors' 'get out of jail free' card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice, better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not formally declared war, civilians -- even those working for the US armed forces, carrying out military missions in a conflict zone -- fell outside their jurisdiction.(...)

With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed (as in, Corporate Warriors, meet A Few Good Men). On face value, this appears to be a step forward for realistic accountability. Military contractor conduct can now be checked by the military investigation and court system, which unlike civilian courts, is actually ready and able both to understand the peculiarities of life and work in a warzone and kick into action when things go wrong. (...)

The legal change only applies to the section in the existing law dealing with those civilians "serving with or accompanying an armed force in the field," i.e. only those contractors on operations in conflict zones like Iraq or Afghanistan. It would apply not to the broader public in the US, not to local civilians, and not even to military contractors working in places where civilian law is stood up. Indeed, it even wouldn't apply to our foes, upholding recent rulings on the scope of military law and the detainees at Gitmo.

In many ways, the new law is the 21st century business version of the rights contract: If a private individual wants to travel to a warzone and do military jobs for profit, on behalf of the US government, then that individual agrees to fall under the same codes of law and consequence that American soldiers, in the same zones, doing the same sorts of jobs, have to live and work by. If a contractor doesn't agree to these regulations, that's fine, don't contract. Unlike soldiers, they are still civilians with no obligation to serve. The new regulation also seems to pass the fairness test. That is, a lance corporal or a specialist earns less than $20,000 a year for service in Iraq, while a contractor can earn upwards of $100,000-200,000 a year (tax free) for doing the same job and can quit whenever they want. It doesn't seem that unreasonable then to expect the contractor to abide by the same laws as their military counterpart while in the combat theatre. Given that the vast majority of private military employees are upstanding men and women -- and mostly former soldiers, to boot -- living under the new system will not mean much change at all. All it does is now give military investigators a way finally to stop the bad apples from filling the headlines and getting away free."

This is wonderful, and long overdue. It's good not only for the rule of law, the general moral character of the cosmos, and our national honor; it's also good for the military. Most of the books about the war in Iraq that I've read are full of stories of contractors doing all sorts of appalling things, not necessarily because they are bad people, but because they have been hired for a specific job (like, say, keeping a given person safe), and rather understandably focus on that and not on, say, protecting American interests, or not making people absolutely hate Americans, or even fitting in in the most obvious ways with ongoing military operations. If their job is to keep a given person safe, and if that requires shooting Iraqis who get too close to them, or barreling across a crowded sidewalk in a Hummer, or whatever, then that's what they will do. At least now there will be some limits on their conduct.

This is also a very good lesson about the importance of reading bills in their entirety:

"The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land. Not only has the media not yet reported on it. Neither have military officers or even the lobbyists paid by the military industry to stay on top of these things."

I'm very glad that the Democrats are about to change the House rules in such a way that people will actually have a chance to read future Defense Authorization bills from cover to cover. But I'm also glad that this particular sentence managed to sneak through while no one was looking.

(PS: The relevant bit of the UCMJ is here -- see sec. 2, para. 10.).

Comments

[Jesurgislac]

Given what crimes US soldiers are allowed/encouraged to commit without any threat of court martial, I'm not quite as impressed by this as you are - but I agree it is a major step to have military contractors subject to some law, rather than (as at present) permitted to do anything they like with absolute impunity.

[Sebastian Holsclaw]

"The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land."

From a procedural point of view this isn't surprising at all, even if you give lots of time to review a bill. Federal law has so many interlocking definitions that major changes can happen unnoticed very easily. It is quite possible for a huge change in policy to be effectively thrown in by a single Congressman, with no other Congressman realizing its impact until long after the bill is passed. That is just what happens in a super-complex system.

[trilobite]

Don't be too sure which side won in getting that language into the bill. I am going on vague memory here, but it seems to me that there is usually some kind of statement of applicable law built into defense service contracts. In Iraq, I seem to recall hearing, there were end-runs and/or honest SNAFUs that led to mismatches between the use of some contractors and the nominally authorizing government department or subdepartment, so that the wrong law or no law at all applied. This legislation appears to patch that bug, and any similar future bugs -- but on the other hand, it may well be that the CMJ is better for many contractors than the prior norm.

[trilobite]

I also predict a great deal of litigation as to what "in the field" means. For instance, was Abu Ghraib a field-of-combat prison, or was it far enough behind the front lines or long enough after "major combat operations in Iraq are over" that it doesn't count? I would need to study the USC and military law precedent a lot more closely before I ventured to guess.

[dmbeaster]

Even with the change in law, will the DoJ prosecute? I would expect very little to actually change, even thought the potential is there for prosecution.

[Nell]

Interesting points all. Trilobite, anyone who's actually been in Iraq or followed the news closely would find it hard to argue that there is such a thing as NOT being 'in the field', since U.S. personnel anywhere in the country are subject to attack, including in the Green Zone.

[KCinDC]

Wait, I thought the whole world was a battlefield in this new kind of war. Isn't that why little old ladies in Switzerland can be enemy combatants?