Legal 'free pass' for America's war contractors
Posted: November 17, 2010
By Kate McCoy
The theme of the midterm election was that there would be a day of reckoning. But reckoning appears to be a dim prospect these days for one group operating far from Washington: private military contractors in Iraq and Afghanistan.
The Department of Justice's recent decision to drop murder charges against a Blackwater employee accused of killing the Iraqi vice president's bodyguard is just the latest episode that reveals the numerous difficulties of prosecuting armed civilians for crimes committed in the fog of war. To paraphrase Donald Rumsfeld, apparently we hire people to go to war with the legal system we have, not the legal system we would want.
Federal prosecutors' failure to make charges stick against Andrew J. Moonen and against Blackwater employees involved in the 2007 Nisour Square massacre highlights the seeming impossibility of holding contractors accountable for abuses in a war zone.
Relatively easy prosecution
These incidents should be relatively easy candidates for prosecution in the mazelike world of military contracting for at least two reasons: first, the accused are U.S. citizens, and second, their company was contracted by the U.S. government. Such situations are the exception rather than the rule in an industry staffed primarily by short-term foreign workers hired through a global web of subcontractors. Thus, the fact that prosecutors are finding it too complicated even to prosecute American employees working on direct contract to the American government holds out little hope that any abuses by contractors can be effectively resolved through the legal system.
The government is quick to point out that contractors have been found guilty of contracting fraud, of possession of child pornography and of sexual assault (most often, sexual assault against a co-worker or other government employee). Yet these are by and large "normal" crimes that happen to take place in or around a war zone rather than crimes specific to military and security operations.
Unarmed aid workers contracted for election issues could just as easily be convicted of such crimes. Thus, the presence of legal accountability in such cases underscores its absence in cases that involve the actual work of war: We still don't have a workable system for handling the contractors at Abu Ghraib prison who participated in the torture of detainees, of the armed Blackwater guards who shot at unarmed civilians or the U.S. contractors who allegedly provided the coordinates for a bombing campaign that mistakenly killed 11 adults and six children in a rural village in Colombia.
If we are asking contractors to guard enemy combatants, patrol war zones and identify military targets, we need a legal system that is up to those tasks — not one designed for your average white collar criminal or sexual assailant.
There have been halting efforts to develop such a legal system, but not the commitment of money or political will necessary to make it effective. In short, it would mean instituting precisely the kinds of government red tape that privatization is intended to cut through.
Of course, even having a well-resourced legal system designed for the realities of war doesn't guarantee perfect justice. Soldiers accused of crimes in the military justice system often appear to get off with their wrists slapped. But the fact that even a strong legal system can't guarantee justice shouldn't blind us to the obvious fact that having a weak legal system essentially guarantees the opposite of justice — impunity.
Sending contractors to war with the legal system we have is, for all intents and purposes, sending them to war with almost no legal system at all.
Posted Nov. 17, 2010
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