New Federal Authority To Prosecute Criminal Activity By Defense Contractors
BACKGROUND
n November 2000, President Clinton signed into law the Military Extraterritorial Jurisdiction Act (P.L. 106-523). This act was intended to establish Federal criminal jurisdiction over offenses committed outside the United States by individuals employed by or accompanying the U.S. Armed Forces.
Congressional proponents of the new law noted that while the Uniformed Code of Military Justice provides a mechanism for the prosecution of members of the U.S. Armed Forces for crimes not necessarily related to their military service, this authority did not extend to civilian dependents of military personnel or civilian employees of the Department of Defense at the time of enactment. Further, while host nations have the authority to prosecute these individuals for such crimes, they frequently opt not to do so when the victim was American or when the crime involved only property owned by Americans. As a result, a “jurisdictional gap” existed which allowed many crimes to go unpunished.
In building their case for the legislation, Congress also noted “no crime…should go unpunished when it is committed by persons employed by or accompanying our military abroad.” Such peoples’ presence in the host country was solely the result of the U.S. military’s presence there. In addition, since many of the crimes were committed against Americans, it was in the government’s interest to prosecute the offenders.
In addition to the moral justification for punishing these crimes, Congress also raised the important impact it would have on the U.S. military. In the conference report accompanying the legislation, Congress cited the hearing testimony of Robert Reed, the Pentagon’s Associate Deputy General Council before the House Judiciary Committee’s Subcommittee on Crime. In his prepared remarks, Mr. Reed stated:
The inability of the United States to appropriately pursue the interests of justice and hold its citizens criminally accountable for offenses committed overseas has undermined deterrence, lowered morale, and threatened good order and discipline in our military communities overseas. In addition, the inability of U.S. authorities to adequately respond to serious misconduct within the civilian component of the U.S. Armed Forces, presents the strong potential for embarrassment in the international community, increases the possibility of hostility in the host nation’s local community where our forces are stationed, and threatens relationships with our allies.
SCOPE OF THE EXISTING LAW
The Military Extraterritorial Jurisdiction Act brings under federal jurisdiction individuals who are employed by or otherwise accompanying the United States Armed Forces outside the United States, such as dependents of military personnel. Specifically, the act defines “employee” as an individual “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.)” It is important to note, however, that the original Act applies only to employees of the Department of Defense, and not to employees of other federal agencies.
NEW EXPANSION OF EXISTING LAW
There are no precise figures on the number of contractors and subcontractors working for the U.S. government at present in support of combat operations in Iraq, Afghanistan or in other areas of the world, although the FY’05 defense authorization act has a provision included by Sen. Jack Reed (D-RI), that requires the Department of Defense to report on the number of contractors currently deployed. Some estimates put the figure at 20,000 or more. What is evident, however, is that the U.S. government’s reliance on private firms to provide essential functions, from logistical support to armed security and paramilitary operations, is growing, and that this trend will almost certainly continue. Yet not all of these individuals are employed by the Defense Department. For instance, DynCorp is providing personal security for Afghan President Hamid Karzai under a contract with the State Department. The employees of CACI International, Inc. involved in the abuses at the Abu Ghraib prison were under a contract with the Department of Interior (“Private Affair: New Reliance on America’s Other Army,” Congressional Quarterly, Sept. 18, 2004, pg. 2194).
The intent of the original Act was to hold responsible for their actions those individuals connected to the U.S. military and located overseas. When the Uniformed Code of Military Justice proved to be insufficient to fulfill this function, Congress created a new mechanism to expand the ability of the U.S. government to punish, when necessary, its citizens accompanying deployed U.S. forces, either as dependents or employees. Yet the original Act did not extend this jurisdiction to individuals employed by federal agencies other than the Department of Defense who would otherwise fall within the reach of the law if they were Defense Department employees. This oversight continued the “jurisdictional gap” which it was intended to close.
RELEVANT PROVISIONS OF S. 2400, THE DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005
Section 1081 of S. 2400 expands the Military Extraterritorial Jurisdiction Act to include employees of the U.S. government, contractors and subcontractors, regardless of which federal agency issued the contract. Specifically, the new provisions expands the Act to cover civilian employees, contractors and subcontractors 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.”