Contractors Working Overseas Subject to U.S. Law

Members of the House of Representatives passed legislation making U.S. contractors operating overseas accountable under U.S. law.

The bill, passed 389-30 on Thursday, comes after the recent shooting deaths of Iraqi citizens by Blackwater USA, the private security firm hired to protect U.S. State Department officials in Baghdad.

Senate Democratic leaders said they planned to follow suit with similar legislation and send a bill to President Bush as soon as possible.

"There is simply no excuse for the de facto legal immunity for tens of thousands of individuals working in countries" on behalf of the United States, said Rep. Sheila Jackson-Lee, D-Texas.

The FBI has dispatched a team to Iraq to investigate a September shootout involving Moyock, North Carolina-based Blackwater contractors whereby some 11 Iraqis were killed.

The Iraqi government wants action.

Iraq's National Security Advisor, Mouwafak al-Rubaie was in Washington this week and was asked about controversial security contractor Blackwater and the problem of holding security contractors accountable for what they do in his country.

He bemoaned the fact that the Coalition Provisional Authority, to which he had been an advisor, adopted something that is known as Order 17. That order gave civilian contractors in Iraq immunity from prosecution in local Iraqi courts. That decision, he said, was at the root of Iraq's accountability problem.

"Who are they accountable" to, he told an audience at the Nixon Center. "If they are Americans, then fine, they will be tried in America or if they are South Africans working for Blackwater or South Koreans, which law are they under?"

The company that has come to personify that accountability problem is Blackwater. And by extension, the one man who has come to represent what is wrong with the security contracting system in Iraq is a young former Army paratrooper named Andrew Moonen.

He was working for Blackwater USA when he allegedly shot and killed a bodyguard of one of the Iraqi vice presidents last Christmas. Under normal conditions, he could be tried in a local court. But Order 17 prevents that from happening.

"It may be he falls nowhere, it may be he falls between the stools," said Eugene Fidell a military law expert. "We seem to have an understanding with the Iraqis — at least so far — that our personnel would not be subject to Iraqi criminal law."

Since the Christmas shooting episode came to light, American officials have been exploring other legal avenues to hold Moonen accountable. The problem has been none of the alternatives available quite fits his case. U.S. attorneys and judge advocates generally have said that a legal argument could be made that military jurisdiction applies.

By the same token, Moonen's lawyer could argue that his client isn't subject to military law because he was working for the State Department at the time of the alleged crime. What is more, experts also worry about trying a civilian in a military court. The track record of making those kinds of cases stick hasn't been stellar.

"In the 1950s there were a number of instances in which civilians of one kind or another were prosecuted in courts-martial and the Supreme Court had a lot of trouble with that," said Fidell.

The concern in the Moonen case is that prosecutors would go through a military trial only to have the conviction overturned for the same reason.

"We're just starting to see a lot of these problems of jurisdiction. Who has jurisdiction to prosecute, especially if the Iraqis have lost control of their sovereignty?" said former Army Judge Advocate Jordan Paust.

With all these complications in mind, experts said the likeliest scenario is that Moonen will end up in a U.S. federal court.

His case has been referred to the U.S. attorney in Seattle, where Moonen now lives. Legal experts say the U.S. Attorney is likely to try to get an indictment under the Military Extraterritorial Jurisdiction Act.

Congress passed that law in 2000 so the U.S. could prosecute defense department employees for crimes committed abroad. Legal expert Fidell said even that is a risk because "none of the options seem to be foursquare, head on, covering him."

U.S. Embassy Security Practices in Iraq Overhauled

Secretary of State Condoleezza Rice ordered an overhaul Friday of U.S. Embassy security practices in Iraq, tightening government oversight of diplomatic convoys escorted by private security contractors.

The action Friday follows a shooting incident by private security contractor Blackwater USA that killed 13 Iraqis in Baghdad.

An internal review board made the recommendations – accepted by Rice on a preliminary basis.

Recommendations call for Diplomatic Security agents to accompany every convoy, Rice the installation of video cameras in security vehicles, audio recordings of radio traffic between the embassy and such convoys and improved coordination and communication between convoys and the U.S. military.

Previously, diplomatic security agents only accompanied U.S. convoys on an "ad hoc" basis. Further, while radio traffic had been monitored it had not been recorded by the embassy.

The Secretary's orders call for convoys to have direct contact with tactical U.S. military teams in their vicinity.

"In case there is an incident, we will have an improved capability to ensure that we have all the possible information we can collect to determine exactly what happened," said Sean McCormack, a spokesman at the State Department. "And, we want to make sure that we have full connectivity, up and down the chain, with the military operating in the area."

He did not say that previous Blackwater and U.S. practices were lacking in proper safeguards for accountability, but instead noted that under the new orders State will have better control of the operations of private contractors, including Blackwater.

The Moyock, North Carolina-based company is the largest of three private security firms that guard U.S. diplomats in Iraq.

Security procedures came under review after a Sept. 16th incident in which Blackwater guards are accused of opening fire on Iraqi civilians while driving through a main square in Baghdad.

Blackwater contends its employees came under fire first, but the Iraqi government and witnesses have disputed that, saying the guards opened fire for no reason.

The United States has not made conclusive findings about the incident, although there are multiple investigations under way to determine exactly what happened.

The FBI on Thursday took control of what had been a State Department probe, in part to prepare for the possibility that the case may be referred to the Justice Department for prosecutions.

Also in response to the Blackwater ordeal, members of the House of Representatives passed legislation, 389-30, late Thursday making U.S. contractors operating overseas accountable under U.S. law. Senate Democratic leaders said they planned to follow suit with similar legislation and send a bill to President Bush as soon as possible.

"There is simply no excuse for the de facto legal immunity for tens of thousands of individuals working in countries" on behalf of the United States, said Rep. Sheila Jackson-Lee, D-Texas.

The State Department has counted 56 shooting incidents involving Blackwater guards in Iraq this year. All were being reviewed as part of the comprehensive inquiry that Rice ordered.

The State Department orders issued on Friday were recommended by a separate commission, created by Rice and led by Patrick Kennedy, one of the most senior management experts in the U.S. Foreign Service.

Outside experts include retired Gen. George Joulwan, a former NATO commander in Europe, Stapleton Roy, a retired veteran diplomat, and Eric Boswell, a former State Department and intelligence official.

From NPR reports and The Associated Press

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