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Contractors rarely face disciplinary action in IraqASK THIS | March 74, 2007Legal roadblocks and red tape have protected civilian contractors in abuse cases, even in Abu Ghraib. Administration critics say the contractors are sometimes encouraged by the military or the CIA to use harsh interrogation techniques, knowing they won’t be prosecuted. By Tara McKelvey There are 140,000 U.S. troops in Iraq – and 100,000 contractors. More than 269 soldiers and officers have faced disciplinary action for detainee-related incidents since October 2001. Only one contractor has. Why have troops been held accountable for crimes but contractors have not? It is possible, of course, that civilian contractors have committed virtually no crimes in Iraq. Certainly the vast majority of contractors are hard-working, honest men and women who serve as interpreters, interrogators, security personnel and in other capacities. However, chances are good that some contractors who have operated in Iraq should be investigated for criminal wrongdoing. Major General Antonio Taguba cited several contractors in his March 2004 investigation of Abu Ghraib (“Article 15-6 Investigation of the 800th Military Police Brigade,” or the Taguba Report) in his descriptions of alleged detainee-related misconduct at the prison in the fall of 2003. And at least two contractors have been identified in some of the infamous Abu Ghraib photographs. Human-rights advocates say more contractors should be facing disciplinary action. Have there been investigations of contractors accused of committing crimes in Iraq? Yes. More than 15 contractors, including at least two who were working at Abu Ghraib, have been placed under Justice Department investigations. What has happened to the investigations? Human Rights Watch researcher John Sifton, who has met with Justice Department officials and spoken with them about the contractors under investigation, tells me he doesn’t think much has been done. “Maybe they’re about to indict everybody tomorrow, but I doubt it,” he says. “My feeling is they’re just running up the clock and nothing will ever happen.” New York Times reporter David Johnston seemed to confirm Sifton’s view in a December 19, 2006, article (“U.S. Inquiry Falters on Civilians Accused of Abuse”). “Lawyers who have been briefed on the work of the Justice Department unit, initially made up of six federal prosecutors, said problems with evidence and the fragmentary nature of some of the accusations had proved so daunting that prosecutors never even reached the point of grappling with difficult legal issues involving permissive interrogation guidelines,” wrote Johnston. Who was the one contractor who was sentenced to prison? His name is David A. Passaro, a CIA contract interrogator. He was indicted for assault on detainee Abdul Wali, who died in Afghanistan in June 2003. On February 14, 2007, Passaro was sentenced to eight years and eight months in prison. Why haven’t more contractors been put on trial for detainee abuse? It is difficult to prosecute contractors for criminal misconduct, including the mistreatment of detainees. As civilians, contractors aren’t bound by military law. Contractors accused of a crime in the United States are tried in a criminal court in this country. But if the crime is committed overseas, U.S. courts no longer have jurisdiction, with rare exceptions, so contractors are tried in the country where the offenses occurred. In Iraq, however, they are not prosecuted. Guidelines set up by the 2003 Coalition Provisional Authority, a temporary governing body of Iraq, shielded contractors and troops from being tried in local courts. Contractors can, theoretically, be held liable under federal laws like the 2000 Military Extraterritorial Jurisdiction Act, according to Charles A. Allen, a deputy general counsel of international affairs in the Defense Department. This law allows prosecutors to go after Americans who have committed crimes on overseas military bases, but it can be used only in certain types of cases. So far, it has been applied just once. Why have contractors been operating in Iraq? Mainly because the army could not function without them. Moreover, the military says that relying on temporary workers rather than enlisted troops for support services allows for a more cost-effective military. There may be other reasons, too. In the fall of 2003, American casualties were mounting in Iraq. Pressure on military commanders to extract information from detainees was intense. Some legal experts think contractors may have been hired to assist with harsh interrogation techniques at Abu Ghraib, the central intelligence-gathering facility in Iraq, specifically because they were not subject to the same legal standards as military personnel. In addition, some of these experts think that the decision to use contractors goes right to the top. “It’s very, very clear that the Office of the Secretary of Defense thought it would be very advantageous to bring people into the intelligence-gathering process – a contractor – who is outside the chain of command,” says Scott Horton, who has served as chairman of the human-rights committee of the City Bar Association in New York. “One of the things they had was a back-door form of communications with the DoD.” Three soldiers who were at Abu Ghraib, says Horton, told him Defense Department officials spoke directly with interrogators through secured telephone lines – ostensibly to provide “logistical support.” In fact, says Horton, “They were involved in intelligence gathering.” What do people Iraq say about the American men and women accused of wrongdoing in their country? Iraqi Prime Minister Nuri al-Maliki has criticized the fact that troops and contractors have been shielded from prosecution in Iraqi courts by the Coalition Provisional Authority. “We believe that the immunity given to members of coalition forces encouraged them to commit such crimes in cold blood,” Maliki told reporters in July 2006. “That makes it necessary to review it.” In other words, U.S. contractors operating in Iraq may someday be held accountable in local courts.
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