Michael Hurst · August 2008
76 GEO. WASH. L. REV. 1308 (2008)
Seemingly unprovoked, a Blackwater guard manning a mounted machine gun directed fire at an approaching car with two occupants, instantly killing the driver, an Iraqi medical student. As Iraqi traffic policemen ran towards the scene to assist the other passenger, Blackwater guards, apparently reacting to the vehicle’s continued forward motion, unleashed a hail of bullets. The shots were effective at incapacitating their target, leaving nothing but a disabled vehicle and two charred corpses. In the chaos that followed, seventeen Iraqis were killed and twenty-seven were wounded as Blackwater operatives continued to fire on Nisour Square from vehicles and helicopters. Only after a U.S. military unit defused an armed standoff between Blackwater and Iraqi police did the Blackwater formation return to the Green Zone.
In the days following the incident, amid calls from the Iraqi government for Blackwater’s removal from Iraq, the State Department decided to assess its relationship with private security companies. Among the questions posed by Patrick Kennedy, the State Department official leading the inquiry, was: “What is the ultimate method of discipline for P.S.C. individuals?” In the weeks following the Nisour Square shootings, this question was a topic of considerable debate. Although several writers assert that private military contractors (“PMC”) are unaccountable to the rule of law, the current legal regime governing contractors is comprised of elements of American civilian extraterritorial jurisdiction and military law, host-nation law, and international law.
Over the last decade, the growth of private security companies has been dramatic. Although the use of private security companies in contingency operations is analogous to uses of private forces throughout history, America’s reliance on private contractors during the conflicts in Iraq and Afghanistan is unprecedented in modern times. Today in Iraq, over 180,000 contractors—20,000 to 30,000 of them armed—operate alongside approximately 165,000 military personnel. Blackwater’s own rise to prominence is emblematic: with a total of $204,000 in government contracts in 2000, Blackwater has since been awarded over $1 billion to provide services to the U.S. government.
As public duties shift to private companies, what legal regime is best suited to retain administrative control? None of the options seems to be completely satisfactory. Although the rules of the U.S. military justice system are well-defined in the Uniform Code of Military Justice (“UCMJ”), there are complications with trying civilians under the UCMJ. Host-nation judicial systems may not be functional, at least in the early stages of contingency operations. Moreover, trials in the United States present significant investigatory and evidentiary complications. In response to these challenges, Congress has taken action. In 2006, Congress modified the UCMJ’s jurisdictional statute to include persons accompanying U.S. forces in time of “declared war or a contingency operation.” More recently, Congress has entertained a proposal to extend the scope of jurisdiction under the Military Extraterritorial Jurisdiction Act of 2000 (“MEJA”) to include all government contractors, regardless of agency affiliation, who work in or close to an area where the military is conducting a contingency operation.
This Essay argues that recent actions by Congress can form the foundation for a tiered legal regime that would employ elements of host-nation law, military law, and extraterritorial jurisdiction to provide administrative control of PMCs during contingency operations. To effectively support U.S. goals of transferring sovereignty and granting legitimacy to host-nation governments, however, Congress must place greater emphasis on prosecuting PMCs under host-nation law. Because of the critical importance of host-nation civilian support during contingency operations, this Essay advocates justice imposed by host-nation authorities rather than by American authorities acting either through military or extraterritorial jurisdiction. However, recognizing the need for effective command and control during the early stages of contingency operations, as well as the likelihood of an incapacitated judiciary during the initial stages of such operations, this Essay advocates relying on the UCMJ until sovereignty can be transferred to a functioning host-nation government. Because of the evidentiary problems, increased expense, and difficulty of obtaining witnesses for a trial held far away from the scene of the alleged crime, this Essay argues that MEJA is the least preferred of the available options, and should serve only as a last resort when the host nation and military authorities are unwilling to prosecute.
