Four Years After Blackwater Massacre in Iraq Gaps in Contractor Liability Remain

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This week marks the four year anniversary of the Nisour Square massacre, where on September 16, 2007, 17 Iraqi civilians were allegedly shot and killed and dozens more injured by Blackwater (now known as Xe) security contractors employed by the Department of State.

Five eyewitnesses insisted that the company guards fired without provocation, forcing civilians and Iraqi Police to run for cover.

The incident gained worldwide attention and highlighted the consequences of the U.S. government’s increased privatization of military and security functions. Today it is a reminder that after four years, Congress has still failed to clarify and strengthen jurisdiction of U.S. courts over its security contractors operating overseas by passing the Civilian Extraterritorial Jurisdiction Act.

The U.S. government obtained indictments of the contractors involved in the shooting and brought suit in U.S. court—the outcome of the case is yet to be determined. Initially, the case was dismissed because it was not clear whether the indictments were based on immunized statements or other evidence. On appeal, the DC Circuit court remanded the case directing the government to show that it obtained sufficient evidence implicating the contractors prior to obtaining the immunized statements.

An Iraqi woman whose husband was killed sits with her children listening during a meeting with US Federal Prosecutors to discuss the case against the security firm Blackwater at the central police station close to Nussur Square in central Baghdad on December 13, 2008. (Ahmad Al-Rubaye/AFP/Getty Images)

One of the thorny issues raised in recent years has been whether criminal jurisdiction extends to non-Defense Department contractors, such as those involved in Nisour Square. Current law in the form of the Military Extraterritorial Jurisdiction Act (“MEJA”) gives U.S. courts jurisdiction over contractors employed by the Department of Defense and some other agencies so long as their employment is related to “supporting the mission of the Department of Defense.”

While this law is an important piece of legislation, it leaves a significant jurisdictional gap in that it does not clearly apply to contractors supporting non-Defense related government operations, including those contracted by the State Department or the U.S. Agency for International Development.

As a response to these concerns, Senator Patrick Leahy (D-VT) and Congressman David Price (D-NC) have introduced bills to clarify and extend criminal jurisdiction to contractors and government employees overseas in a clearly articulated way: the Civilian Extraterritorial Jurisdiction Act (“CEJA”).

Outside of human rights advocates encouraged by such legislation, witnesses at a Senate Judiciary Committee hearing on CEJA were equally welcoming. Even members of the contracting community welcomed the legislation. Ignacio “Iggy” Balderas, Director and CEO of Triple Canopy, a private security company, recently wrote in a Huffington Post piece:

“We now have a chance to firmly lay down the rules, punish violators and allow the professional PSCs who make me proud every day do the jobs they’re trained to do. This is why I support The Civilian Extraterritorial Jurisdiction Act (CEJA), which will be reintroduced soon by Sen. Patrick Leahy, D-VT.”

The bill was originally introduced last year and goes further than the current law in holding contractors accountable and plugs potential legal loopholes that bad actors may take advantage of.

As the United States increasingly relies on private contractors to perform a range of services around the world, accountability measures need to be created, tightened, and enforced. In Iraq and Afghanistan, private military and security contractors about equal the number of U.S. troops there, and at times, have outnumbered them. With CEJA, this new reality is addressed and a clearer path to accountability created.

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