Georgetown Journal of Legal Ethics
24 Geo. J. Legal Ethics 695
CURRENT DEVELOPMENT 2010-2011: Federal Civilian Criminal Prosecutions of Private Military Contractors: Inherent Legal Ethics Issues
NAME: DONNAMARIE MCKINNON *
* J.D., Georgetown University Law Center (expected May 2012); A.B., Dartmouth College (2009).
… Part III discusses the incompatibility of current federal civilian criminal prosecutions of PMCs and applicable rules of legal ethics, and explains the difficulty prosecutors have in successfully prosecuting PMCs while remaining faithful to Rule 3.8. … The Department of Justice, which took on the prosecution of these guards, premised jurisdiction on the Military Extraterritorial Jurisdiction Act (“MEJA”), which provides for jurisdiction in the United States to prosecute the crimes of PMCs abroad. … The biggest obstacles in this regard are when government contractors give statements under a grant of immunity from the PMC personnel’s employer agency, and they are usually taken immediately after the criminal misconduct at issue occurs. … By expanding the reach of the SMTJ to all facilities related to the United States government abroad and foreign-owned land relevant to the work of the government, the new provision helped extend the SMTJ to crimes committed by PMC employees. … This standard would be beneficial for federal civilian criminal prosecutions of PMCs, but evidentiary concerns and immunized statements issues would still plague prosecutors. … Even though the DOJ prosecuted the Blackwater guards under MEJA in United States v. … Congress can reintroduce CEJA, add a provision banning immunized statements, and pass this legislation, which would greatly help the DOJ serve justice when it comes to PMC personnel and their criminal misconduct.
A woman was gang-raped by her fellow government contractor co-workers at KBR in Iraq in 2005. n1 Triple Canopy government contractors fired at Iraqi civilian automobiles in 2006. n2 In both of these unfortunate cases, the government contractors were never charged with crimes by the Department of Justice (“DOJ”). Since the early 1990s, the United States has been spending billions of dollars employing private military contractors (“PMCs”) to complement its military forces. n3 From 2003 to 2007, the Department of Defense has expended almost $ 76 billion in contracts for wars in the Iraqi theater. n4 Currently, the Department of Defense has 19 percent more contractor employees than it has uniformed military personnel. n5 PMCs provide a broad range of services to support the United States in warzones abroad, including construction, security, transportation, and training. n6 The Department of Defense is not the only agency of the United States that hires PMCs; for example, the Department of State also employs contractors to perform various functions, such as protecting American embassies located in warzones. n7
The sudden increase in the use of PMCs has created accountability problems regarding these contractors and their personnel. When PMC employees are involved in criminal misconduct abroad, such as the gang rape of a woman by KBR employees or the shooting of civilians by Blackwater guards, n8 it raises questions about how the U.S. government can prosecute them, and under what jurisdiction, military or civilian law. The DOJ has attempted prosecutions of these employees; however, the DOJ faces significant practical and political [*696] pressures in the decision to prosecute PMCs. First, the DOJ lacks the resources to carry out sufficient investigations half a world away. n9 Second, American lawyers are often reluctant to prosecute fellow Americans for war crimes. n10 Third, the DOJ prosecutors are faced with pressure from the American public to successfully prosecute military contractor employees who commit horrible crimes. n11 With respect to sexual assaults and contract fraud, the United States government has successfully prosecuted a number of PMCs. n12 The more problematic prosecutions arise when criminal misconduct occurs during the course of what a PMC employee deems his official duties or with respect to alleged self-defense.
A key reason for the problems encountered in bringing PMC employees to justice in American courts can be found in legal ethics, as the professional rules of conduct sometimes pose an additional obstacle for prosecutors. This Note focuses on the indictment against Blackwater security guards who were involved in a September 2007 shooting at Nisour Square in Iraq that left Iraqi civilians dead and wounded. n13 The judge cited prosecutorial misconduct as the primary reason for dismissing the case in 2009. n14 The difficulty of obtaining adequate evidence against the Blackwater guards caused the prosecutors to overreach; arguably, they ran afoul of Model Rule 3.8 of the Model Rules of Professional Conduct, which sets out general ethical guidelines prosecutors must follow. n15 The complexities of the Blackwater case illustrate the issues prosecutors confront when bringing charges against PMC employees and how difficult it is to prosecute them successfully and remain within the boundaries of legal ethics. This Note argues that the best way to address the legal ethics issues DOJ prosecutors confront when prosecuting PMCs is for Congress to pass a formerly proposed bill, n16 with slight modifications.
The Note begins with a discussion of the background of the 2007 shooting in Nisour Square and subsequent federal prosecution in Part I and will list the specific instances of alleged prosecutorial misconduct in the case. It also explains the sources of difficulty that the Department of Justice prosecutors faced, such as collecting enough evidence to build a case. Part II describes Model Rule 3.8(a) in depth and the probable-cause hurdle for prosecutors. Part III discusses the [*697] incompatibility of current federal civilian criminal prosecutions of PMCs and applicable rules of legal ethics, and explains the difficulty prosecutors have in successfully prosecuting PMCs while remaining faithful to Rule 3.8. Part IV offers federal civilian prosecution alternatives to prosecuting under the Military Extraterritorial Jurisdiction Act and analyzes whether legal ethics will still be an issue under these alternatives. Part V addresses two potential solutions: modifying Rule 3.8(a) or passing new legislation in Congress. Ultimately, this Note concludes that it is extremely difficult to successfully prosecute PMC employees in federal civilian criminal courts without violating the standards for legal ethics, particularly Rule 3.8. The system currently in place is ineffective and will most likely allow those PMC employees who are guilty to run free. Passing new legislation is critical to ensure that PMCs are made accountable to their victims and to the United States.
On September 16, 2007, gunfire broke out in Nisour Square in Baghdad, an area heavy with car and pedestrian traffic, after a bomb had exploded nearby. n17 Shots fired by Blackwater security guards, hired by the United States Department of State, ultimately left seventeen Iraqi civilians dead and twenty-four wounded. n18 Blackwater, now known as Xe Services, is a PMC that performs a variety of services for federal clients, including security, logistics, and training. n19 The guards argued that they “were responding proportionately to an attack on the streets around the square.” n20 Five of the security guards were indicted, with a sixth guard pleading guilty to manslaughter in exchange for offering testimony that was damning to the other Blackwater guards. n21 His testimony explained that the incident in Nisour Square began when the security guards began shooting at a car that did not pose any danger to the guards. n22 The investigation of this incident revealed that these shootings were “without provocation or justification.” n23 Mere hours after this incident occurred, the Department of State’s Diplomatic Security Service ordered all members of the Blackwater convoy involved in this incident to give interviews at the State Department offices in Baghdad. n24 These security guards submitted written statements describing the details of the shooting, in [*698] exchange for immunity, which prevents the use of these written statements in a subsequent prosecution. n25
The Department of Justice, which took on the prosecution of these guards, premised jurisdiction on the Military Extraterritorial Jurisdiction Act (“MEJA”), which provides for jurisdiction in the United States to prosecute the crimes of PMCs abroad. n26 MEJA states that
[w]hoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States–while employed by or accompanying the Armed Forces outside the United States . . . shall be punished as provided for that offense. n27
Congress drafted MEJA to address the fact that there were no means by which to prosecute United States civilians for crimes committed while accompanying the United States military abroad. n28 In 2004, MEJA was amended to include jurisdiction over any PMC 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.” n29 The Blackwater indictment is the first indictment under MEJA against a PMC not hired by the Department of Defense. n30
The case, United States v. Slough, was tried in the United States District Court for the District of Columbia. On December 31, 2009, Judge Ricardo Urbina granted Blackwater’s motion to dismiss on the indictment that charged the defendants with voluntary manslaughter and firearms violations as a result of the September 16, 2007, incident. n31 The motion was granted based on the prosecution’s multiple violations of the principle established under Kastigar v. United States by improperly using compelled statements (under Garrity v. New Jersey) n32 made by the defendants to State Department investigators. n33 Kastigar provides that if a defendant shows that his testimony containing matters relevant to a federal prosecution was given under “a state grant of immunity,” the federal [*699] government must affirmatively prove that its case was not “tainted” by the immunized testimony. n34 The government must demonstrate that the information in question was obtained from evidence altogether independent of the disputed immunized testimony. n35 The District Court determined that the United States “has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt.” n36
Furthermore, Garrity asserts that compelled statements, based on the threat of job loss, cannot be used against defendants in a subsequent criminal prosecution because it would violate the Fifth Amendment privilege against self-incrimination. n37 Therefore, the DOJ prosecutors violated the defendants’ Fifth Amendment rights against self-incrimination because they used these compelled statements in developing their case against the Blackwater security guards. n38 The prosecutors sought out the guards’ written statements and ignored the advice of senior DOJ prosecutors assigned to the case to advise on Garrity and Kastigar immunity issues. n39 This advice included avoiding compelled statements because a judge may find that they are protected. n40 The United States, however, used the immunized statements “to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case.” n41 Its witnesses were exposed to the written statements, and there is evidence that these statements influenced the witnesses’ testimony at the grand jury hearing. n42
The District Court was not convinced by the government’s explanations that it did not use the immunized statements in developing its case; the court found the government’s arguments were “too often contradictory, unbelievable and lacking in credibility.” n43 The Department of Justice is currently appealing the case. n44 Although Judge Urbina’s December 31, 2009, dismissal demonstrated his disgust with the prosecution’s misconduct during the trial, he formally declined to impose judicial sanctions on them. n45
[*700] II. MODEL RULE 3.8(A): THE PROSECUTOR AND PROBABLE CAUSE
When discussing prosecutorial misconduct, such as that in the Blackwater case, n46 Model Rule 3.8, Special Responsibilities of a Prosecutor, provides guidance. Rule 3.8 deals indirectly with prosecutorial misconduct and helps identify what exactly constitutes such misconduct. Rule 3.8 specifies general guidelines criminal prosecutors must follow regarding their behavior, obligations, and discretion during the course of litigation. n47 In the Blackwater case, the DOJ prosecution relied on immunized, inadmissible statements in order to charge the security guards involved with the shooting. This Note focuses only on the following language of Model Rule 3.8: “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause . . . .” n48
The original incarnation of Model Rule 3.8 was Disciplinary Rule 7-103 of the 1970 Model Penal Code, which stated that the initiation of criminal charges must be supported by probable cause. n49 In 1983, the ABA adopted Rule 3.8. n50 This rule is driven by the principle that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” n51 Prosecutors are expected to protect the procedural and substantive rights of criminal defendants. n52 The prosecutor must always be cognizant that his role is to seek the truth, not just to win in any way possible. n53 In addition, the Comment on Model Rule 3.8 further explains, “[t]his responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.” n54
Rule 3.8(a) confers broad discretion on the prosecutor as to whether to bring criminal charges. The charges the prosecutor brings against the defendant only have to be supported by probable cause. For this reason, Rule 3.8(a) is considered a “minimal” rule. n55 Prosecutors cannot knowingly bring charges unsupported by probable cause against a defendant; this is considered fundamentally unfair. n56 Rule 3.8(a) has been criticized for being deficient and imprecise because there is [*701] no clear, defined probable cause standard. n57 One attempted elucidation of the standard is that probable cause is “generally understood to mean a relatively limited and informal requirement of evidentiary proof, well below the proof required to support conviction at trial.” n58 The DOJ’s interpretation, on the other hand, is that a prosecutor should not bring charges against a defendant unless “there is legally sufficient evidence for a jury to convict the accused of the crimes charged.” n59 The probable cause standard usually requires that the prosecutor can support the charges brought against the defendant with a valid criminal statute outlawing the defendant’s alleged actions and “with facts available in the form of apparently admissible evidence.” n60 Because the probable cause standard in Model Rule 3.8(a) is so vague, it can invite prosecutorial misconduct. n61
The Blackwater case exemplifies the problems with the probable cause standard. Prosecutors must support the charge they are bringing against a defendant with evidence that will be admissible in court. With the Blackwater case, however, the compelled statements that were inadmissible in court were the primary basis of the charges brought against the Blackwater guards. The lead DOJ prosecutor, Kenneth Kohl, was informed that these statements were to be avoided because they were potentially inadmissible. Without these statements, however, the DOJ did not have a case. Kohl decided to proceed anyway.
The guidance provided to prosecutors regarding probable cause is not very specific, and what constitutes probable cause is essentially left up to the interpretation of the prosecutor. A violation of Rule 3.8(a), therefore, only occurs when a prosecutor brings forth charges while knowing that probable cause does not exist. n62 Because it is difficult to assert that a prosecutor knew the charges were not supported by probable cause, violations can only be determined when it is clear from the situation that the prosecutor must have known probable cause did not exist. n63 Violations of Rule 3.8(a) have very rarely resulted in disciplinary action being taken against prosecutors; even when a judge declares in a court ruling that a prosecutor has engaged in misconduct, judicial sanctions do not normally follow. n64 Although court rulings, such as Judge Urbina’s ruling where he found prosecutorial misconduct, are fairly common, discipline is not. n65 Judge [*702] Urbina, keeping in line with this trend, declined to bring judicial sanctions against the DOJ prosecution. n66
III. THE INCOMPATIBILITY OF FEDERAL CIVILIAN CRIMINAL PROSECUTIONS AND LEGAL ETHICS
Criminal prosecutions of PMC employees in United States federal courts are inherently problematic. The first problem is the lack of evidence that plagues prosecutors when trying to bring a case against PMCs. It is very difficult for the Department of Justice to collect physical and forensic evidence in war zones, especially halfway around the world. n67 As Professor Charles Rose of Stetson University College of Law stated, “The battlefield is not a place that lends itself to the preservation of evidence.” n68 There are also issues of evidence availability and witness availability. n69 For example, because of a lack of evidence, the DOJ declined to charge Andrew J. Moonen, a Blackwater employee who allegedly killed a bodyguard of the Iraqi vice president in 2006. n70 Federal prosecutors and Federal Bureau of Investigation (“FBI”) agents traveled to Baghdad several times to interview witnesses and collect evidence, but the DOJ could not build a sufficient case against Moonen. n71
The second problem regarding federal civilian criminal prosecutions of PMC employees is that prosecutors do not have the means to undertake a thorough investigation. The biggest obstacles in this regard are when government contractors give statements under a grant of immunity from the PMC personnel’s employer agency, and they are usually taken immediately after the criminal misconduct at issue occurs. The State Department investigators offered this immunity to Blackwater employees in the Andrew Moonen case and also to the five Blackwater guards involved in the shooting at Nisour Square. n72 These immunized statements generally create obstacles for prosecutors. Prosecutors cannot rely on any evidence contained in these statements as part of the case they are building against PMC defendants. In addition, these immunized statements given by PMC personnel make it difficult for attorneys to establish that the evidence obtained and used by the DOJ when [*703] bringing these cases did not come from these statements. n73 It is important to note that the statements themselves are immunized, but the acts described within the statements are not. The problems of proof arise when there is no evidence that the acts in question occurred outside of these immunized statements.
A third problem arises when PMC employees assert self-defense in response to the charges of criminal misconduct. In a theater of war, a self-defense claim is convincing because many people, both civilian and military, are regularly armed. n74
The fourth and most significant problem regarding criminal prosecutions of PMC employees is that there is no clear, defined jurisdiction to prosecute PMCs; it is unclear whether they should be prosecuted under civilian or military law. n75 Regarding military law and the Uniform Code of Military Justice that governs it, while PMC employees are undoubtedly not members of the military, there are some tightly written loopholes in the Code that would allow for PMC employees to be court-martialed. n76 It is still difficult, however, to court-martial a civilian. n77 Because this Note discusses civilian prosecutions, this topic will be left for another day. If a prosecutor does elect to try PMCs under civilian law, there is a question of whether the federal laws of the United States allow for the criminal prosecution of PMC personnel. MEJA is a fairly new statute, and the question of who exactly can be prosecuted under the statute is still unresolved. n78 For example, before the indictment was issued against the five Blackwater security guards, no federal civilian criminal prosecution of PMC employees contracted by an agency besides the Department of Defense had ever occurred. n79 In addition, prior to the Blackwater prosecution, many had expressed doubt as to whether there was any jurisdiction under MEJA to prosecute State Department contractors because they were hired to protect American diplomats in Baghdad, not to support the Department of Defense mission in Iraq. n80 MEJA prosecutions do not have a great track record for prosecutions of Defense Department contractors: only a few civilian contractor employees were successfully prosecuted under MEJA, including a prosecution for child pornography in 2007. n81 Therefore, a [*704] huge jurisdictional gap in the law and the lack of substantial precedent prove to be significant obstacles for DOJ prosecutors when prosecuting PMC personnel.
Because of these problems, the Department of Justice prosecutors in United States v. Slough overreached in order to sustain a case against the Blackwater guards. The grant of immunity that the State Department gave to the guards in exchange for their written statements about the shooting posed perhaps the primary obstacle for the DOJ prosecutors. n82 The State Department assured the guards that their statements would not be used in court; furthermore, if the guards did not cooperate in giving the statements, they could be discharged from their jobs. n83 The challenge for the DOJ prosecutors was not to rely on these statements in building their case against the guards. What made this especially difficult was that ten days after the shootings, the State Department handed over copies of their preliminary reports to the DOJ and the FBI, which contained information from the immunized statements of the guards. n84
The DOJ prosecution team, led by Kenneth Kohl, ultimately decided to use the initial oral interviews of the Blackwater guards, believing them to be outside the scope of immunity. n85 The assigned “taint” attorney at the DOJ, who reviews potentially controversial material and provides legal advice, advised Kohl to avoid these oral statements, but these warnings went unheeded. n86 Kohl defended himself by asserting that he never received this advice, even though there is evidence that he responded to an e-mail sent by the assigned taint attorney that contained advice against using the compelled statements. n87 The prosecution obtained the reports of the oral statements, and in turn, used these statements to support search warrants in order to obtain drafts of the written statements. n88 At the hearing on the motion to dismiss in United States v. Slough, the DOJ argued that these oral statements were not immunized and any prejudice resulting from the drafts of the written statements was harmless. n89 The defense team countered that these statements were immunized, and the case could not go on as a result. n90 Judge Urbina ultimately ruled against the DOJ, finding that the immunized statements tainted the entire case the DOJ built against the Blackwater guards. n91
Another obstacle for DOJ prosecutors in the Blackwater case was the strength of the self-defense argument. The Blackwater guards maintained that they shot in [*705] self-defense because they believed they were under attack by Iraqi civilians. n92 This defense asserted by the guards created a hurdle for the DOJ prosecutors because it is difficult to obtain evidence to rebut this defense in a warzone. Without the testimony from the immunized statements, it was inconclusive whether the Blackwater guards shot unprovoked or whether the Iraqi civilians posed a threat first. n93 The difficulty posed by this fact prompted the DOJ prosecutors to overreach in order to meet the self-defense claim. Therefore, the inherent problems plaguing attorneys when trying federal civilian criminal prosecutions of PMCs are exemplified by the Blackwater case.
IV. ALTERNATIVES TO MEJA IN FEDERAL CIVILIAN CRIMINAL PROSECUTIONS OF PRIVATE MILITARY CONTRACTORS
There are other jurisdictional grounds for prosecutors to bring claims against PMCs in United States courts besides the Military Extraterritorial Jurisdiction Act, but they do not solve the legal ethics problem inherent in federal criminal prosecutions of PMCs. One jurisdictional ground is the Special Maritime and Territorial Jurisdiction (“SMTJ”) statute, 18 U.S.C. § 7. This jurisdiction includes crimes committed on United States bases and facilities abroad, “with respect to offenses committed by or against a national of the United States.” n94 The 2001 USA PATRIOT Act modified this provision to extend jurisdiction to diplomatic, consular, military, or other United States government sites, including lands and buildings used for the government’s missions that are not necessarily owned by the United States. n95 By expanding the reach of the SMTJ to all facilities related to the United States government abroad and foreign-owned land relevant to the work of the government, the new provision helped extend the SMTJ to crimes committed by PMC employees. Only one prosecution of a PMC under the SMTJ statute has occurred, however. n96 David Passaro, a former Central Intelligence Agency (“CIA”) contractor hired as an interrogator, was prosecuted under the SMTJ statute for striking a detainee at a military base in Afghanistan with a flashlight and kicking him in the groin. n97 This detainee perished within forty-eight hours of this beating. n98 Passaro was convicted in August 2006 of one [*706] felony count of assault causing serious injury and three misdemeanor counts of simple assault. n99
The federal code indicates which criminal statutes, including assault and murder, apply to Americans under the SMTJ statute. The SMTJ poses two obstacles with respect to the Blackwater case: the crime must occur on a United States facility or on land necessary to conduct the mission of the government, and the crime must be committed by or against United States citizens. n100 Because the shootings in Nisour Square did not occur on a United States base or on land that is important for the U.S. government to carry out its mission, the SMTJ would not be a proper jurisdiction with which to prosecute the Blackwater security guards. The jurisdictional requirements are too specific, and many PMC prosecutions would fall through the cracks.
The second jurisdictional ground that prosecutors can use to bring claims against PMCs in United States courts is under the federal war crimes statute, 18 U.S.C. § 2441. This statute is not restricted to military personnel; it applies to all American citizens, n101 but it has never been used in federal civilian criminal prosecutions of PMCs. n102 Passaro, the former CIA contractor discussed above, could have been prosecuted for war crimes. n103 Passaro ultimately was only convicted of two misdemeanors and one felony assault charge. n104 Prosecuting PMC employees under the war crimes statute would be impracticable. Deeming an American civilian’s actions a “war crime” could be politically controversial. n105 The term “war crime” evokes the most heinous, repugnant crimes a human being can commit, and it would be a huge political statement if the DOJ brought a non-military individual to court under the war crimes statute. n106
Furthermore, it is in the U.S. government’s interest to avoid war crimes prosecutions against Americans. n107 Prosecuting U.S. citizens for war crimes may set a dangerous precedent that could restrict future actions by the President, the military, or PMCs. n108 More specifically, if the DOJ prosecuted an American participating in some capacity in the global war on terrorism with a war crime, then the executive branch would be implying that the Geneva Conventions, which impose international standards for humane treatment of civilians during [*707] war, apply to American conduct in this conflict. n109 This is problematic because the United States government has previously denied that the Geneva Conventions apply to the war on terror. n110 This would open up the United States to international scrutiny over its conduct during this conflict. n111 Moreover, it is in the United States government’s interest to prevent the establishment of a precedent for prosecuting its agents for war crimes. n112 For these reasons, prosecuting PMCs in United States courts under the federal war crimes statute is unrealistic in the current political climate. n113
Most important, the same legal ethics problems under Rule 3.8 that are inherent in MEJA prosecutions, listed in Part IV, will still be present in federal criminal prosecutions under the SMTJ statute and under the federal war crimes statute. There will still be problems with gathering sufficient evidence half a world away in a theater of war. Under the SMTJ statute, if a crime occurs on a United States base, there may be a better chance of preserving the evidence, but it is not guaranteed. In addition, the problem with immunized statements would still exist if a case were brought under the SMTJ statute or the federal war crimes statute. Prosecutors would still be unable to use the content of these statements in a criminal trial against PMC employees who were granted this immunity in interviews occurring immediately after the criminal incident in question. Therefore, prosecutors will still have just as much difficulty meeting the probable cause standard provided in Rule 3.8 in these prosecutions as they do using MEJA. As a result, these alternatives do not present a solution to the legal ethics problems confronting prosecutors of PMCs.
V. POTENTIAL SOLUTIONS
Currently, the process of prosecuting PMC employees in federal civilian criminal trials is not working, especially when the prosecutor knows that current law and available evidence most likely will not support a conviction in most cases. There are two potential actions to take regarding this broken system: (1) Model Rule 3.8 can be modified to create an exception for extraterritorial prosecutions; or (2) Congress can strengthen the laws regarding extraterritorial prosecutions so Rule 3.8 will not be a hindrance on the prosecutions. Because modifying Rule 3.8 is not very realistic, congressional action is the best way to ameliorate the problems DOJ prosecutors face when trying PMC employees in federal civilian criminal prosecutions.
[*708] A. MODIFYING MODEL RULE 3.8
The first potential action would be to fine-tune Model Rule 3.8 in order to create an exception for extraterritorial prosecutions of PMCs. One possible modification to Rule 3.8(a) would be lowering the probable cause standard when prosecuting criminal charges. Rule 3.8(a), however, has been criticized for not setting the prosecution standard higher; many commentators find probable cause to be too low a bar to initiate a criminal prosecution. n114 Probable cause to bring a charge is a significantly lower standard than the standard required to convict (beyond a reasonable doubt), and it follows that evidence required to support probable cause is substantially weaker than evidence required to support a conviction. n115 Critics contend that the probable cause standard “allows a prosecutor considerable room for error in bringing a charge.” n116 Thus, many states have started reform efforts regarding “the degree of evidence that should ethically be required to file and pursue criminal charges.” n117 But these reform efforts have been unsuccessful so far. n118
One argument in favor of reducing the probable cause standard articulated in Rule 3.8(a) is that higher standards have been continuously rejected. n119 One example of a rejected standard is that prosecutors should not bring charges unless they are personally convinced of the defendant’s guilt beyond a reasonable doubt. n120 The drafters of Model Rule 3.8(a) declined to adopt this standard for policy reasons; if it were proven that a prosecutor did not hold a belief that the defendant was guilty beyond a reasonable doubt, then it could result in a directed acquittal, and the prosecutor could face disciplinary action. n121 As a result, prosecutors may hesitate to bring cases that ultimately do have merit for fear of being sanctioned. n122 As the lead DOJ prosecutor in United States v. Slough commented, “We don’t want federal prosecutors to flinch at taking on tough cases involving complex legal issues.” n123 Because of the overwhelming concern that the probable cause standard is too low, a further lowering of the probable cause standard is most likely unrealistic.
Another approach to reforming Rule 3.8(a) would be to retain the probable cause standard but frame it in terms of the prosecutor having a reasonable belief that probable cause exists, instead of “knowledge of its absence.” n124 Under this [*709] approach, a prosecutor would only be accused of misconduct if he could not demonstrate in good faith that he had reasonable belief that the case he initiated has probable cause to go forward. n125 This standard would be beneficial for federal civilian criminal prosecutions of PMCs, but evidentiary concerns and immunized statements issues would still plague prosecutors. Prosecutors would still be unable to rely on immunized statements to support their notion of probable cause, and therefore will not have the evidence to maintain a showing of probable cause. As a result, this approach will not solve the legal ethics problem in civilian criminal prosecutions of PMCs.
A reform of Model Rule 3.8(a) and a reduction of the probable cause standard would most likely be unrealistic. The American Bar Association (“ABA”) has demonstrated a reluctance to reform Model Rule 3.8. In 2000, the ABA initiated the “Ethics 2000″ Commission, which modified and refined a number of model rules. n126 The Ethics 2000 Commission declined to modify Model Rule 3.8(a). n127 Specifically, the ABA “failed to set any ethical limits other than probable cause on the exercise of the prosecutor’s broad discretion to charge crimes.” n128 The Commission decided modifying Rule 3.8(a) would be a waste of time, money, and energy because it would be too controversial and unlikely to be accepted by prosecutors and defense lawyers; it would also detract from other tasks the Commission was trying to accomplish. n129 Additionally, criticisms of the ABA’s reluctance to modify Model Rule 3.8(a) are generally due to probable cause being perceived as too low a standard. Even if the probable cause standard were lowered, the evidentiary problems inherent in federal civilian criminal prosecutions of PMCs would not be alleviated. As a result, decreasing the probable cause standard reflected in Model Rule 3.8(a) for federal civilian criminal prosecutions of PMCs almost certainly would not be well received.
B. CONGRESSIONAL ACTION: REINTRODUCING AND PASSING CEJA
The second potential action would be for Congress to strengthen the laws regarding extra-territorial prosecutions so Rule 3.8(a)’s probable cause standard would not be a hindrance on the prosecutions. In 2010, a bill, the Civilian Extraterritorial Jurisdiction Act (“CEJA”) of 2010, was referred to the Senate Judiciary Committee. n130 CEJA would provide for the federal criminal jurisdiction of criminal conduct committed by anyone “employed by or accompanying any department or agency of the United States other than the Armed Forces.” n131 [*710] In addition, the bill establishes the creation of Investigative Units for Contractor and Employee Oversight. n132 The CEJA provisions would come after MEJA in the U.S. Code. n133 This bill, however, did not come up for vote in the House of Representatives and the Senate and therefore did not become law. n134 This bill was introduced in a previous session of Congress, n135 and due to Congressional protocol that clears proposed bills that have not become law, at the time of publication this bill is currently not up for consideration. This bill, however, could and should be reintroduced in another session of Congress with one addition. n136
CEJA, by expanding jurisdiction to PMCs employed by any department or agency of the United States government, eliminates the unclear jurisdictional problem that plagued the DOJ. Even though the DOJ prosecuted the Blackwater guards under MEJA in United States v. Slough, it is still unclear whether MEJA provides the appropriate jurisdiction for Department of State contractors. CEJA also establishes the creation of Investigative Units for Contractor and Employee Oversight, under the direction of the Attorney General, to investigate any alleged criminal misconduct committed by PMC employees abroad. n137 The bill gives designated law enforcement personnel the power to arrest PMC employees abroad. n138 The establishment of these units would help eliminate the question of who has jurisdiction to investigate these criminal allegations and would also allow for their immediate investigation. In addition, CEJA provides for oversight and requires the Attorney General to submit reports to Congress specifying the number of offenses that were alleged, investigated, and referred to prosecution, the number of prosecutions that resulted from these referrals, and the number of times the Investigate Units were deployed. n139
This bill is not free from criticism, however. The creation and use of the Investigative Units would be expensive, and ensuring there are enough investigators to investigate these crimes would require a lot of resources. n140 If the FBI is used to staff these Investigative Units, this may pose an arduous, costly burden on the FBI. n141 While money is a serious concern, one cannot ignore that supplementing the United States government with PMCs is the new direction warfare and affairs abroad are taking. With the increasing numbers of PMCs, the United [*711] States must have a way of holding them accountable for any crimes PMC employees commit while employed by the government. Because there is an extreme need for the United States to undertake these investigations, this would be a good investment for the United States, especially if it continues its frequent hiring of PMCs in a security capacity.
Another criticism of CEJA is the constitutional questions involving whether Congress even has the authority to regulate civilian military contractors. n142 Congress has the power to regulate the military, n143 but when proposing legislation such as CEJA, Congress is technically regulating civilians supporting the United States government, not armed forces personnel. n144 In addition, regarding Congress’s power under the Commerce Clause, it would be difficult to make the argument that the criminal conduct of PMC personnel abroad substantially affects interstate commerce. n145 An argument can be made, however, that the conduct of PMC personnel during warfare can substantially affect interstate commerce because United States industry may be affected by an international incident such as the Nisour Square shooting. It is not the most compelling argument, but Congress’s Commerce Clause power is very strong. n146
Despite this criticism, reintroducing this bill in Congress is probably the most viable way to tackle the legal ethics conundrums inherent in federal civilian criminal prosecutions of PMCs. It addresses and resolves the jurisdictional loophole prosecutions of PMCs currently experience and also provides some remedy for the evidentiary concerns that plague these prosecutions. Requiring Investigative Units to investigate these cases on-site guarantees that evidence can be collected immediately after the incident occurs, and interviews can be conducted without immunity so DOJ prosecutors can have access to the statements. There will also be undeniable jurisdiction over any government contractor, not just those who support the military. CEJA will go a long way in resolving the probable cause issues DOJ prosecutors face under Rule 3.8, due to lack of evidence, when they bring criminal charges against PMCs.
One potential concern is whether this bill can pass Congress and become law. In 2007, the MEJA Expansion and Enforcement Act of 2007, a bill that strengthened MEJA, was proposed. n147 This bill was similar to CEJA, and put PMCs within the jurisdiction of U.S. courts and within the purview of FBI. n148 It overwhelmingly passed the House on October 4, 2007, with 389 voting aye, 30 votes against, and 13 who abstained. n149 The MEJA Expansion and Enforcement [*712] Act of 2007, however, never came to a vote in the Senate. n150 Although Congress currently does not have the Democratic majority it did in 2007, the fact that the MEJA Expansion and Enforcement Act received overwhelming bipartisan support from the House indicates there is promise that Congress would support CEJA with a Republican majority as well.
One addition to CEJA that would add to its effectiveness would be a provision eliminating the use of Garrity statements and disallowing the grant of immunity given to PMC personnel by their employer agency. If those cases dealing with criminal matters are brought immediately within the jurisdiction of the Investigative Units, as opposed to the employer agency, the DOJ prosecutors will not have to deal with the evidentiary hurdle of immunized statements when trying to comply with Model Rule 3.8(a)’s probable cause standard.
As then-Senator Barack Obama emphasized, “[W]e cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors.” n151 Accountability through the United States criminal justice system, however, has been difficult to obtain. Successful federal civilian criminal prosecutions of private military contractor personnel have proven very challenging for the prosecutors at the DOJ. First, there is no clear jurisdiction to prosecute PMCs, especially if they are not contracted by the Defense Department. Second, there are various issues with gathering evidence for these prosecutions because the DOJ currently does not have investigators on scene right after the incident in question occurs. A major cause of this prosecution problem can be found in legal ethics, as the professional rules of conduct sometimes pose an extra obstacle for prosecutors in bringing justice. These difficulties sometimes cause DOJ prosecutors to run afoul of Rule 3.8(a) because they are unable to meet the vague probable cause standard required by the Model Rules. The current system is untenable because it is exceedingly difficult to successfully prosecute PMC employees in federal civilian criminal courts without violating the standards for legal ethics.
There is a solution, however. Congress can reintroduce CEJA, add a provision banning immunized statements, and pass this legislation, which would greatly help the DOJ serve justice when it comes to PMC personnel and their criminal misconduct. By establishing clear jurisdiction to prosecute all government contractors and also assisting the DOJ by establishing Investigative Units to gather evidence as soon as the alleged crime occurs, CEJA would provide DOJ prosecutors with a better chance of meeting the probable cause standard and obtaining more successful prosecutions of PMC employees. This solution would be fair, not only to the DOJ and the United States government, but to the American public overall.
For related research and practice materials, see the following legal topics:
Criminal Law & ProcedureGrand JuriesSelf-Incrimination PrivilegeImmunityCompelled TestimonyCriminal Law & ProcedureGuilty PleasGeneral OverviewLegal EthicsProsecutorial Conduct
n1 HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS AT WAR: ENDING THE CULTURE OF IMPUNITY 1 (2008), available at http://www.humanrightsfirst.org/wp-content/uploads/pdf/08115-usls-psc-final.pdf.
n2 Id. at 2.
n3 P.W. Singer, Outsourcing War, FOREIGN AFFAIRS, Mar.-Apr. 2005, at 119, 120; MOSHE SCHWARTZ, CONG. RESEARCH SERV., R.L. 40764, DEPARTMENT OF DEFENSE CONTRACTORS IN IRAQ AND AFGHANISTAN: BACKGROUND AND ANALYSIS 2 (2010), available at http://www.fas.org/sgp/crs/natsec/R40764.pdf.
n4 SCHWARTZ, supra note 3, at 2.
n5 Id. at 3.
n6 Id. at 4.
n7 See James Glanz & Andrew W. Lehren, Private Gunmen Fed Turmoil: With No Uniforms and Lax Oversight, Contractors Menaced All Sides in War, N.Y. TIMES, Oct. 23, 2010, at A1.
n8 HUMAN RIGHTS FIRST, supra note 1, at 1.
n9 E-mail from David J. Luban, University Professor, Georgetown Univ. Law Ctr., to DonnaMarie McKinnon (Oct. 20, 2010, 10:21 EST) (on file with author).
n11 Mary Jacoby, Judge Cites Prosecutorial Misconduct in Blackwater Dismissal, MAIN JUSTICE (Jan. 1, 2010, 3:12 PM), http://www.mainjustice.com/2010/01/01/judge-cites-prosecutorial-misconduct-in-blackwater-dismissal; see Ginger Thompson & James Risen, Plea by Blackwater Guard Helps Indict 5 Others, N.Y. TIMES, Dec. 8, 2008, at A12.
n12 James Risen, Efforts to Prosecute Blackwater are Collapsing, N.Y. TIMES, Oct. 21, 2010, at A1.
n13 See Charlie Savage, Charges Voided for Contractors in Iraq Killings, N.Y. TIMES, Jan. 1, 2010, at A1. See generally United States v. Slough, No. 08-MJ-350, 2008 U.S. Dist. LEXIS 99041 (D. Utah Dec. 8, 2008).
n15 MODEL RULES OF PROF’L CONDUCT R. 3.8 (2010) [hereinafter MODEL RULES].
n16 Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010, S. 2979, 111th Cong. (2010).
n17 Ginger Thompson & Katherine Zoepf, Lawyers Say U.S. Reckless in Charges for 5 Guards, N.Y. TIMES, Dec. 7, 2008, at A28; James Glanz & Alissa J. Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths, N.Y. TIMES, Oct. 3, 2007, at A1.
n18 Thompson & Risen, supra note 11; Glanz & Rubin, supra note 16.
n19 See Xe Services LLC, TOP SECRET AMERICA, WASH. POST, http://projects.washingtonpost.com/top-secret-americalcompanies/xe-services-llc (last visited Mar. 27, 2011).
n20 Glanz & Rubin, supra note 16.
n21 Thompson & Risen, supra note 11.
n26 Thompson & Risen, supra note 11; Ian W. Baldwin, Note, Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 IOWA L. REV. 287, 317 (2008).
n30 John R. Crook (ed.), Contemporary Practice of the United States Relating to International Law: Use of Force and Arms Control: Blackwater Guards Indicted for 2007 Baghdad Civilian Killings, 103 AM. J. INT’L. L. 360, 361 (2009).
n33 Id. at 115.
n39 Id.; Del Quentin Wilber, Plagued by Missteps, Blackwater Case Imploded, WASH. POST, Feb. 11, 2010, at A04.
n40 Wilber, supra note 39.
n44 See Risen, supra note 12.
n45 United States v. Slough, 679 F. Supp. 2d 55, 60-62 (D.D.C. 2010); No Misconduct Found in Blackwater Case, N.Y. TIMES, Jan. 20, 2010, at A14.
n46 See supra Part II.
n48 MODEL RULES R. 3.8(a).
n49 Bruce A. Green, Symposium: Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual?: Prosecutorial Ethics as Usual, 2003 U. ILL. L. REV. 1573, 1579, 1579 n.23 (2003).
n51 MODEL RULES R. 3.8 cmt 1.
n52 McFaden, supra note 47, at 1228.
n53 See id.
n54 MODEL RULES R. 3.8 cmt 1.
n55 GEOFFREY C. HAZARD & W. WILLIAM HODES, THE LAW OF LAWYERING 34-7 (3d ed. Supp. 2011).
n56 See id.
n59 Green, supra note 49, at 1589.
n60 CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 763 (1986).
n61 See HAZARD & HODES, supra note 55, at 34-38.
n63 Id. See also MODEL RULES R. 1.0(f), which states, “‘[k]nowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.”
n64 WOLFRAM, supra note 60, at 763 n.62; GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 712 (5th ed. 2010).
n65 See HAZARD, JR. ET AL., supra note 64, at 712.
n66 The DOJ, however, is creating a new unit called the Professional Misconduct Review Unit, which will be committed to swiftly disciplining DOJ prosecutors if they engaged in intentional misconduct. Brad Heath & Kevin McCoy, Justice Dept. Unit to Punish Lapses; Discipline Was Slow Against Prosecutors, USA TODAY, Jan. 19, 2011, at 1A.
n67 Risen, supra note 12.
n71 Id.; Mike Carter, Ex-Blackwater Agent Andrew Moonen Won’t Face Federal Indictment, SEATTLE TIMES, Oct. 18, 2010, http://seattletimes.nwsource.com/html/localnews/2013196099_moonen19m.html.
n72 Risen, supra note 12.
n73 James Risen & David Johnston, Justice Department Briefed Congress on Legal Obstacles in Blackwater Case, N.Y. TIMES, Jan. 16, 2008, at A12.
n74 Risen, supra note 12.
n75 David Luban, Prosecuting Blackwater–A Brief Tour of the Law, BALKNIZATION (Sept. 29, 2007, 1:07 PM), http://balkin.blogspot.com/2007/09/blackwater-security-guards-killings-of.html.
n77 See id.
n78 See id.
n79 Crook, supra note 30, at 361.
n80 See Risen & Johnston, supra note 73.
n81 Luban, supra note 75. Additionally, on March 11, 2011, two former Defense Department contractors employed by Blackwater were convicted of involuntary manslaughter in the shooting death of an Afghan civilian on May 5, 2009. The DOJ premised jurisdiction under MEJA. Press Release, Department of Justice, Two Contractors Convicted of Involuntary Manslaughter for Death of Afghan National in Kabul, Afghanistan (Mar. 11, 2011), available at http://www.justice.gov/opa/pr/2011/March/11-crm-320.html.
n82 See Risen, supra note 12.
n83 Wilber, supra note 39.
n91 United States v. Slough, 677 F. Supp. 2d 112, 114-15 (D.D.C 2009); Wilber, supra note 39.
n92 Risen, supra note 12.
n94 Luban, supra note 75.
n95 Special Maritime and Territorial Jurisdiction, 18 U.S.C.A. § 7(9) (West 2011); Adam Ebrahim, Going to War with the Army You Can Afford: The United States, International Law, and the Private Military Industry, 28 B.U. INT’L L.J. 181, 192 (2010).
n96 Ebrahim, supra note 95, at 192.
n97 Id. at 192-93; Luban, supra note 75; U.S. Court Upholds Prisoner Abuse Conviction, USA TODAY, Aug. 10, 2009, http://www.usatoday.com/news/nation/2009-08-10-prisonerabuse-conviction-N.htm?loc=interstitialskip.
n98 Ebrahim, supra note 95, at 192-93.
n99 Gene Cherry, Ex-CIA Contractor Gets 8 Years for Prisoner Abuse, REUTERS, Feb. 13, 2007, available at http://uk.reuters.com/article/idUKN1322250620070213.
n101 Luban, supra note 75.
n106 See id.
n108 See id.
n110 See id.
n111 See id.
n113 Luban, supra note 75.
n114 See Kuckes, supra note 57, at 454.
n117 Kuckes, supra note 57, at 454.
n118 Id. at 454-55.
n119 See HAZARD & HODES, supra note 55, at 34-8.
n120 Id. at 34-7, 34-8.
n121 Id. at 34-8.
n123 Wilber, supra note 39.
n124 HAZARD & HODES, supra note 55, at 34-8.
n126 Kuckes, supra note 57, at 429.
n127 Id. at 429-30.
n128 Id. at 430.
n129 Green, supra note 47, at 1575.
n130 Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010, S. 2979, 111th Cong. (2010).
n136 See id.
n140 Cf. Gable F. Hackman, Slipping Through the Cracks: Can We Hold Private Security Contractors Accountable for their Actions Abroad?, 9 LOY. J. PUB. INT. L. 251, 256-57 (2008). Although Hackman’s article specifically contains criticisms of a former bill, the MEJA Expansion and Enforcement Act of 2007, which did not become law, the similarities between the two bills make his arguments applicable to the CEJA bill as well.
n141 See id.
n143 U.S. CONST. art. I § 8, cl. 14.
n144 Cf. Hackman, supra note 140, at 257.
n147 MEJA Enforcement and Expansion Act of 2007, H.R. 2740, 110th Cong. (2007).
n148 Hackman, supra note 140, at 256.
n149 H.R. 2740.
n151 SCHWARTZ, supra note 3, at 17.