Panel: Give military power to prosecute all U.S. warzone contractors
5/30/13 1:33 PM EDT
A Pentagon legal advisory panel is poised to recommend that U.S. military commanders be given the authority to use military courts martial to prosecute all U.S. government contractors working in war zones abroad.
At the moment, only contractors hired by the Defense Department can be tried in courts martial. That jurisdiction was added in 2006 via legislation sponsored by Sen. Lindsey Graham (R-S.C.)
A subcommittee of the Defense Legal Policy Board is recommending the change, which appeared to have wide—but not unanimous—support at a meeting of the broader committee at an Arlington, Va. hotel Thursday.
One skeptic was former State Department legal adviser John Bellinger, who dealt with fallout from the alleged massacre of civilians by Blackwater contractors in Baghdad’s Al-Nisur square in 2007. He said the expansion of military jurisdiction over civilians might be unconstitutional and indictaed such a move was likely to encounter substantial resistance from some contractors, particularly those working for the Central Intelligence Agency.
“I can think of a number of contractors who would be exteremly unhappy about that….That’s a big recommendation,” Bellinger said. He said gaps in legal jurisdiction were unacceptable and need to be closed, but he suggested that perhaps the board should just say that without prescribing a particular solution.
That suggestion drew a sharply negative response from Army. Gen Peter Chiarelli (ret.) who said State Department contractors and others who protect individuals are “much more willing to use lethal force” than regular military combat forces.
“This is a huge cultural issue,” Chiarelli said, chiming in via a speakerphone. “That’s the gap you have to close…It’s really a critical piece.”
An impassioned Chiarelli rejected the notion that the board avoid prescribing a particular legal solution. “We’ve had 12 years to look at this issue,” the reitred general said, alluding to the beginning of U.S. military operations in Afghanistan in 2001. “In 12 to 13 years, we have not solved this problem. So, there needs to be a forcing function here to get this in a place where it doesn’t have the impact on the ground that it does today.”
Former CIA General Counsel Jeffrey Smith backed the expansion of military court martial jurisdiction to include all warzone U.S. contractors.
“I want to associate myself with Gen. Chiarelli’s remarks,” said Smith. “I am very much in favor of this recommendation. It may be out there a bit but I’m for it.”
Under a federal law known as the Military Extraterritorial Jurisdiction Act, civilian courts can prosecute contractors supporting military missions abroad. However, Air Force Deputy General Counsel Kip At Lee Jr. said that possibility doesn’t impose discipline on contractors the way a potential court martial could.
“As a practical repsonse to misconduct violating the local commander’s authority, it’s probably not perceived as much of a threat,” At Lee said. “Without that kind of authority in the battlespace commander’s pocket, his requirements may be paid little heed.”
The panel also appears likely to recommend new authority to try members of several military services together when they were serving together under a joint command.
“There is a clear cultural default that goes to the services [prosecuting separately] and we think that that needs to be turned on its head. Lets not go into it that it should be the services in the first instance,” said Coast Guard Deputy Judge Advocate General Cal Lederer.
Panel member James Comey, who has emerged as President Barack Obama’s pick to lead the FBI, was absent from Wednesday’s meeting—at least from the first couple of hours attended by POLITICO.
Former Defense Secretary Leon Panetta set up the legal policy board in April of last year. In July, he asked that a subpanel delve into issues about how the military investigates and prosecutes alleged violence against civilians in combat areas.