U.S. Contractors In Iraq Not Subject To American Or Iraqi Law

by Ron Synovitz

The Abu Ghurayb abuse scandal is highlighting the U.S. military's use of private defense contractors to interrogate detainees in both Iraq and Afghanistan.

Employees of two U.S.-based defense firms, CACI International and Titan, have been implicated in the scandal. So far, however, the U.S. Army has moved to court-martial only seven lower-ranking soldiers on charges related to the abuse of Iraqi detainees.

Pulitzer Prize-winning journalist Seymour Hersh has written two investigative articles this month about the scandal for "The New Yorker" magazine. He said he expects more attention to be focused in the coming months on the private firms that have become part of the military intelligence system by providing interrogators and translators under contracts with the U.S. Defense Department.

"We have to change the dynamics of how we're looking at this. It's not a question of six or seven [enlisted] kids doing something wrong. What you have to do is look at the policies, look at the people, the generals in charge, the people on top. And that's what the story I wrote about is about. It's about the people [involved]. We have to start taking this up the chain of command immediately," Hersh told RFE/RL.

In a U.S. Senate hearing last week, Defense Secretary Donald Rumsfeld was asked about the supervision of contract interrogators. Rumsfeld said the "military intelligence teams who hire them" have the responsibility of supervising them.

The acting secretary of the army, Les Brownlee, told the same Senate hearing that civilian contractors continue to be employed as both interrogators and translators in Iraq and Afghanistan. Brownlee also said U.S. Central Command does not allow private contractors to be supervisors or to conduct interrogations unless U.S. military officials are present.

The deputy commander of the U.S. Central Command, Lieutenant General Lance Smith, told the Senate that private contractors are used when there is a shortage of military interrogators and translators.

U.S. Brigadier General Mark Kimmitt, the top U.S. military spokesman in Iraq, said yesterday that everyone associated with prisoner interrogations at Abu Ghurayb -- including private contractors -- will be targeted by a Pentagon investigation. "I certainly know that the investigation will be widespread, will be thorough," he said. "We're going to be as comprehensive as possible. So anybody who has, quite frankly, any association or affiliation is the subject of that investigation and will be investigated."

But the New York-based group Human Rights Watch is concerned that while private contractors will be investigated, they may not be held accountable for abuses. That's because the private defense contractors are both exempt from prosecution by Iraqi courts and fall outside the U.S. military's chain of command. They also currently are not subject to prosecution by U.S. civilian courts.

James Ross, the senior legal adviser for Human Rights Watch, told RFE/RL that he was surprised to learn that private contractors had become such an integral part of the U.S. military's intelligence system. "Private contractors have been used by militaries for hundreds of years. That's not new," he said. "However, the U.S. military has in recent years greatly expanded the use of private contractors to fill jobs previously done by U.S. soldiers -- things like cooking for soldiers and driving supply trucks. What, to me, was particularly shocking or unexpected with the incidents at Abu Ghurayb and elsewhere was that private contractors were actually being used as the interrogators and not, say, merely translators."

Ross noted that most contract interrogators are former members of the U.S. military -- including Special Forces. He explained that the civilian status of these contractors isolates them from prosecution under the Uniform Code of Military Justice. And he said the U.S. military must draw up legislation before civilian interrogators working outside the United States can fall under the jurisdiction of U.S. courts.

"Normally, civilians are not covered by the Uniform Code of Military Justice. Using regular military personnel [as interrogators], they do fall under that. Hiring private contractors has traditionally not fallen under any law when they have been working outside of the United States. I can't say this is why the U.S. uses contractors to be interrogators. But certainly one concern that we have is that they may be using contractors to try to avoid issues such as military justice," Ross said.

Ross said Human Rights Watch also is concerned that the Bush administration has sent a message through its handling of Afghan detainees at its prison in Guantanamo Bay, Cuba, and by what he called "its unwillingness to abide strictly by the Geneva Conventions in Afghanistan and Iraq." The United States has classified detainees at Guantanamo as "unlawful combatants," rather than prisoners of war. That, according to Washington, means that the Geneva Conventions do not apply to those detainees.

As a result, Ross said, an environment has been created in which both soldiers and private contractors think the Geneva Conventions are not to be taken seriously -- and in which they feel they can act with virtual impunity. "The key word here is accountability," he said. "And private contractors are clearly less accountable than U.S. troops and the chain of command -- although there is clearly a problem with U.S. troops, as well, who are operating in Iraq."

Human Rights Watch Executive Director Kenneth Roth notes that under the Geneva Conventions, the United States ultimately remains responsible for the actions of those who operate its detention facilities in Iraq and Afghanistan -- whether they are regular soldiers, reservists, or private contractors.

Roth said that if the Pentagon uses private contractors in military or intelligence roles, it must ensure that they are subject to legal restraints. He concludes that allowing private contractors to operate in a legal vacuum in Iraq and Afghanistan is an invitation to abuse.