Private Security Contactors: Diplomatic Security in Iraq. Law, National Security & Public Policy George Mason University Spring 2008 Professor Malawer. Phil Baxter Chris Pelkey James Turner. Introduction. Issue Overview Legal Uncertainty in Accountability
Diplomatic Security in Iraq
Law, National Security & Public Policy
George Mason University
‘Legally speaking, [military contractors] fall into the same grey area as the unlawful combatants detained at Guantánamo Bay’”
Peter W. Singer, Brookings Institution
Mercenaries in Congo 1967Legal Uncertainty
Photo from MSN Encarta
Deaths of Blackwater Contractors
Abu Ghraib prison – April 04 media reports
Memorandum 17 -- 6/27/04
Coalition Provision Authority
“Status of Forces Agreement”
Nisoor Square – 9/16/07
“hole in the law”
Najaf - 2004Reference Points in Iraq
Photo Associate Press, via Washington Post
In what forum should contractors providing security to the U.S. State Department be held to account for alleged criminal violations?
U.S. Civilian Federal Courts
§ 3261. Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States
§ 3267. Definitions
‘‘(1) The term ‘employed by the Armed Forces outside the United States’ means—
‘‘(A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department), as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a subcontractor at any tier);
‘‘(B) present or residing outside the United States in connection with such employment; and
‘‘(C) not a national of or ordinarily resident in the host nation.
§ 3267. Definitions
(1) The term “employed by the Armed Forces outside the United States” means—
(A) employed as—
(i) a civilian employee of …
(ii) a contractor (including a subcontractor at any tier) of—
(I) the Department of Defense … or
(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas; or
(iii) an employee of a contractor (or subcontractor at any tier) of— … [as above]
(a) 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—
(1) while employed by or accompanying the Armed Forces outside the United States; or
(2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), or
`(3) while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States, where the work under such contract is carried out in an area, or in close proximity to an area (as designated by the Department of Defense), where the Armed Forces is conducting a contingency operation,'.
10 USC 101 (a)
(13) The term ``contingency operation'' means a military
(A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.
10 U.S.C. § 802. Persons subject to this chapter
(a) (1) Members of a regular component of the armed forces, including those awaiting discharge…
(2) Cadets, aviation cadets, and midshipmen
(3) Members of a reserve component while on inactive- duty training …
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other …
(10) In time of declared war or a contingency operation, persons serving with or accompanyingan armed force in the field.
U.S. v. Averett, 19 C.M.A. 363 (1970) military appeals ct.
legislatively overruled by PL 109.364 -- 2006