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Close the Blackwater Loophole—A Commentary by Aaron Zelinsky ’10

The following commentary was posted on The Huffington Post on February 20, 2009.

Close the Blackwater Loophole
By Aaron Zelinsky ’10

There are currently more civilian contractors in Iraq than members of the United States Army. The most infamous is the private security force, Xe (The-Firm-Formerly-Known-as-Blackwater). Xe has approximately 1000 military contractors in Iraq who guard U.S. government installations and personnel.

Because of a legislative loophole, Xe and many of its fellow contractors currently operate outside of both U.S. and Iraqi law. While contractors employed by the Department of Defense are answerable to the domestic laws of the United States, contractors employed by civilian departments are not necessarily accountable under U.S. law. Congress and President Obama should act immediately to rectify this problem.

In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA), codified at 18 U.S.C. 3261-3267. 18 U.S.C. 3261 (a)(1) provides:

"Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States . . . while employed by or accompanying the Armed Forces outside the United States . . . shall be punished as provided for that offense."

18 U.S.C. 3267(1)(a)(iii), added in 2004, defines "Armed Forces" to include:

"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 Department of Defense overseas."

As currently written, only forces "supporting the mission of the Department of Defense" fall under the jurisdiction of the U.S. courts. Xe and many other security agencies are under contract to civilian agencies, such as the Department of State. Their contracts with civilian departments thus potentially place these private entities beyond the reach of U.S. criminal jurisdiction. Moreover, the recent Status of Forces Agreement between the U.S. and Iraq leaves unclear the status of these forces under Iraqi law.

In short, Xe and other private firms contracting with civilian agencies of the U.S. government currently operate outside any law or legal system. Rogue contractors hurt the U.S. agencies that employ them, the United States military, and America's image. Government agencies that employ contractors are tarred by extension. It is difficult for the State Department to convince other countries to disband private militias, when the United States itself employs private forces which are beyond any effective legal system. Moreover, the American military is hurt by the confusion caused by these essentially independent combat forces operating in Iraq with the imprimatur of the U.S. government. America's image abroad is tarnished by association with these potentially lawless quasi-military forces.

The solution is clear: Congress should amend the MEJA to cover any contractor working abroad supporting the mission of any department of the United States.

The scope of the MEJA is currently being litigated. On Wednesday, February 18th, Judge Urbina of the District Court of D.C. allowed criminal charges to proceed in United States v. Slough. In that case, the Department of Justice filed criminal charges against four Blackwater guards involved in the 2007 Al-Nisoor Square shooting. In that incident, 14 Iraqi civilians were killed and 20 were wounded under troubling circumstances. Judge Urbina declined to dismiss the charges against the four guards, but stated that their legal arguments "are rather strong."

While Congress cannot amend the MEJA retroactively to cover those involved in the Al-Nisoor incident, Congress can bring legal accountability to future operations of contractors abroad. Such an amendment, besides implementing our belief in the rule of law, will help rehabilitate America's image abroad.

Congress and the President should close the Blackwater loophole by subjecting to U.S. law and legal procedures any contractor working abroad for the U.S. government.