House Bill Would Allow Prosecution of Contractors
Thursday, October 4, 2007
Printable FormatNew York Times by DAVID M. HERSZENHORN
WASHINGTON, Oct. 4 — With the armed security force Blackwater USA and other private contractors in Iraq facing tighter scrutiny, the House overwhelmingly approved a bill today that would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.
The bill was approved by a 389-to-30 vote, despite strong opposition from the White House. It came as lawmakers and human rights groups are using a Sept. 16 shooting by Blackwater personnel in Baghdad to highlight the seemingly lawless circumstances in which many contractors have operated, apparently unaccountable to American military or civilian laws and outside the reach of the Iraqi judicial system.
The State Department, which had been leading the investigation into the Sept. 16 shooting, said today that a team of F.B.I. agents sent to Baghdad in recent days had taken over the inquiry. No charges have been filed in the case, and Justice Department officials have said it was unclear whether American law would apply. Even if enacted, the House bill would have no retroactive authority over past conduct by Blackwater or other contractors.
Federal law-enforcement officials said that the team of about 10 F.B.I. special agents had been dispatched to Baghdad at the request of the State Department to oversee the Blackwater investigation, which one official described as a fact-finding mission intended to determine whether any of the Blackwater employees had engaged in activity that might raise concerns about possible violations of American laws.
Iraqi officials have said they would like to prosecute the Blackwater case in their courts, but it is extremely unlikely that American authorities would allow them to assert jurisdiction.
The House bill, sponsored by Representative David Price, Democrat of North Carolina, expands a law that in 2000 brought military contractors working with American troops overseas under jurisdiction of United States criminal law. That law has rarely been used and might not apply to companies like Blackwater, which was hired by the State Department to guard diplomats and could argue that its work is not tied directly to war operations.
But Republican critics, who said they supported the overall goal of increasing accountability for contractors, said there were weaknesses in the legislation that would only make a murky situation only murkier, including unclear definitions about the locations where the law would apply. They also said the F.B.I. was not equipped to conduct numerous investigations overseas and that the effort would prove costly.
The F.B.I. already maintains a sizable office in Iraq, staffed by dozens of special agents and other investigators, many of them specialists in counter-terrorism. But law-enforcement officials, speaking on condition of anonymity because they were not authorized to comment on the investigation, said that the Blackwater inquiry would be left to the visiting agents.
The officials said the F.B.I. had received no specific allegations of criminality from the State Department in opening the Blackwater investigation, which is expected to focus on Blackwater operatives who were reportedly involved in the deaths of Iraqi civilians or other violent acts. But even if the agents determine that crimes took place, it could prove extremely difficult to prosecute them under American civilian or military laws.
In a policy statement about the new legislation, the White House said it was willing to work with Congress to achieve greater accountability for contractors but had “grave concerns” about the bill, which it said would overburden the F.B.I. and the Defense Department and interfere with crucial “national security activities and operations.”
Because the Justice Department had been reluctant to prosecute crimes under the 2000 law, Congress last year approved a measure that also brought Defense Department contractors in the war zone under the Uniform Code of Military Justice, potentially subjecting them to court martial. But no prosecutions have been brought under that provision, according to watchdog groups who also said it could be unconstitutional.
Mr. Price, the North Carolina Democrat, has been working on the contractor issue for about three years and first introduced his bill in January. A similar measure was submitted in the Senate by Senator Barack Obama, Democrat of Illinois. And Mr. Obama, a Democratic candidate for president, introduced an updated version today, setting the stage for vigorous debate in the Senate where Iraq-related legislation does not pass easily.
Mr. Obama’s measure, like the one approved by the House, would require the F.B.I. to establish “theater investigative units” — field offices in the war zone — to investigate criminal allegations against any of the roughly 180,000 contractor personnel working in Iraq. And it would require the Justice Department, to report to Congress on the number of complaints, investigations and criminal cases brought against contractors.
But legal experts said that even if the legislation was adopted, it could prove extremely difficult to prosecute cases as it has been under existing laws. Under the law adopted in 2000, only two criminal cases have originated in Iraq, the experts said, one involving a contractor accused of possessing child pornography and another accused of attempted rape. In the attempted rape case, both the reported victim and the accused were Americans.
Under the law, responsibility for the cases falls to prosecutors in the defendant’s home jurisdiction, meaning that law enforcement officials must conduct difficult and expensive investigations overseas, under dangerous conditions, then transport evidence and witnesses back to the United States.
“At the end of the day, the execution of this depends not on Congress but the executive branch,” said Peter W. Singer, a senior fellow at Brookings Institute, who has followed the contractor issue closely. He said that by some accounts as many as 20 potential criminal cases involving contractors have been referred to the Justice Department, but that none were pursued. “They have disappeared into a black hole,” he said.
But Mr. Singer said prosecutors in American criminal courts would face enormous obstacles in any case where there was no civilian equivalent for the alleged crime — a questionable shooting, say, as opposed to an attempted rape — because a jury might be swayed to view conduct as justifiable given the war setting.
Scott Horton, a human rights lawyer who has been heavily involved in efforts to develop legislation that would hold contractors accountable, said in an interview that the House bill had closed an important loophole that might have allowed Blackwater employees to argue that their work was unrelated to the war effort because the company has a contract to protect State Department diplomats not just in Iraq but around the world.
But he expressed frustration that officials had not been more proactive in prosecuting crimes in Iraq that the legal situation remains gray. “When we have got a contractor city say of 180,000 people and there hasn’t been a completed prosecution of anybody coming out of Iraq, not one,” he said. “What sort of city in America would be like that, where no one is prosecuted for anything for three years? It’s unthinkable.”
Philip Shenon and John M. Broder contributed reporting.