The general rule is that contractors protect and mercenaries fight. Usually, contractors are not trained by their companies. Most have military backgrounds. They must meet a contract requirement before the United States can train them. Contractors working with the U.S. military are designated as noncombatants who have no combat immunity under international law if they engage in hostilities and whose conduct may be attributable to the United States. In the last decade, contractors have been hired not just for protective services, but have been used more frequently during ongoing or imminent combat operations.
Contractors may support military operations as civilians accompanying the force, so long as such personnel have been designated as such by the force they accompany and are provided with an appropriate identification card under the provisions of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. If captured during an international armed conflict, contractor personnel accompanying the force are entitled to prisoner of war status. Contractors captured during a non-international armed conflict within the meaning of Common Article III of the Geneva Conventions would be entitled to the minimum set of standards set forth in Common Article III.
A number of high-profile incidents involving contractors have exposed a troubling jurisdiction gap with respect to contractors. Despite these loopholes in the law, we continue using contractors because our military is stretched very thin in various overseas deployments. Historically, unless limited by some international resolution or host nation support agreement (i.e. U.N. Security Council Resolution or status of forces agreement), contract employees are normally subject to host nation law and subject to prosecution for crimes if caught. They could not be held under the Uniform Code of Military Justice (UCMJ) until it was amended in 2006 to cover persons employed by the military overseas.
While civilians may not generally be tried in military courts for violating U.S. laws, at least three federal laws attempt to provide a means for prosecuting non-military personnel, including CIA officials and civilian contractors, for criminal activity: the Military Extraterritorial Jurisdiction Act (MEJA) of 2000; the War Crimes Act of 1996; and the Torture Act of 2000. MEJA provides for federal jurisdiction over crimes committed abroad by civilians who are “accompanying or employed by” the U.S. military. The statute covers all civilian employees of the military, as well as civilian contractors and subcontractors, employees of contractors, and dependents residing with these workers. In addition, an on-site commander is authorized to revoke the security clearance of any suspected criminal civilian contractor; however, this does not result in prosecution.
Despite these federal laws, we continue to encounter substantial problems trying to bring contractors suspected of crimes overseas back to the U.S., whether as suspects or witnesses and even more problems trying to convict them of crimes. Federal jurisdiction for civilian contractors remains ambiguous and in cases where jurisdiction is clear, most contractors are not held accountable. These shortcomings have been reflected in a number of high-profile incidents. In 2007, employees of the private security firm Blackwater (now called XE) were accused of killing over a dozen unarmed civilians in an unprovoked incident in Baghdad. In 2011, a CIA contractor was accused of murdering two men on a crowded street in Pakistan. In both cases, the contractors were either set free, had charges dropped, or had their cases settled after contentious court hearings in which attorneys clashed over jurisdiction over witnesses and applicable law.
Amidst the confusion, one encouraging sign came in June 2011 when the Senate Judiciary Committee reported a bill out of committee called the Civilian Extraterritorial Jurisdiction Act (CEJA). This act would substantially clarify criminal jurisdiction over civilian contractors. Acting in concert with MEJA, CEJA would provide the Attorney General with new powers to investigate and prosecute a number of federal crimes including corruption and trafficking that were previously outside the scope of federal jurisdiction. Unfortunately, this legislation remains stalled in the Congress. In order to bolster our international credibility and more effectively hold contractors accountable for overseas crimes, the United States Congress should pass this legislation and send it to President Obama’s desk for passage into law.