Members of the House of Representatives passed legislation making U.S. contractors operating overseas accountable under U.S. law.
The bill, passed 389-30 on Thursday, comes after the recent shooting deaths of Iraqi citizens by Blackwater USA, the private security firm hired to protect U.S. State Department officials in Baghdad.
Senate Democratic leaders said they planned to follow suit with similar legislation and send a bill to President Bush as soon as possible.
"There is simply no excuse for the de facto legal immunity for tens of thousands of individuals working in countries" on behalf of the United States, said Rep. Sheila Jackson-Lee, D-Texas.
The FBI has dispatched a team to Iraq to investigate a September shootout involving Moyock, North Carolina-based Blackwater contractors whereby some 11 Iraqis were killed.
The Iraqi government wants action.
Iraq's National Security Advisor, Mouwafak al-Rubaie was in Washington this week and was asked about controversial security contractor Blackwater and the problem of holding security contractors accountable for what they do in his country.
He bemoaned the fact that the Coalition Provisional Authority, to which he had been an advisor, adopted something that is known as Order 17. That order gave civilian contractors in Iraq immunity from prosecution in local Iraqi courts. That decision, he said, was at the root of Iraq's accountability problem.
"Who are they accountable" to, he told an audience at the Nixon Center. "If they are Americans, then fine, they will be tried in America or if they are South Africans working for Blackwater or South Koreans, which law are they under?"
The company that has come to personify that accountability problem is Blackwater. And by extension, the one man who has come to represent what is wrong with the security contracting system in Iraq is a young former Army paratrooper named Andrew Moonen.
He was working for Blackwater USA when he allegedly shot and killed a bodyguard of one of the Iraqi vice presidents last Christmas. Under normal conditions, he could be tried in a local court. But Order 17 prevents that from happening.
"It may be he falls nowhere, it may be he falls between the stools," said Eugene Fidell a military law expert. "We seem to have an understanding with the Iraqis — at least so far — that our personnel would not be subject to Iraqi criminal law."
Since the Christmas shooting episode came to light, American officials have been exploring other legal avenues to hold Moonen accountable. The problem has been none of the alternatives available quite fits his case. U.S. attorneys and judge advocates generally have said that a legal argument could be made that military jurisdiction applies.
By the same token, Moonen's lawyer could argue that his client isn't subject to military law because he was working for the State Department at the time of the alleged crime. What is more, experts also worry about trying a civilian in a military court. The track record of making those kinds of cases stick hasn't been stellar.
"In the 1950s there were a number of instances in which civilians of one kind or another were prosecuted in courts-martial and the Supreme Court had a lot of trouble with that," said Fidell.
The concern in the Moonen case is that prosecutors would go through a military trial only to have the conviction overturned for the same reason.
"We're just starting to see a lot of these problems of jurisdiction. Who has jurisdiction to prosecute, especially if the Iraqis have lost control of their sovereignty?" said former Army Judge Advocate Jordan Paust.
With all these complications in mind, experts said the likeliest scenario is that Moonen will end up in a U.S. federal court.
His case has been referred to the U.S. attorney in Seattle, where Moonen now lives. Legal experts say the U.S. Attorney is likely to try to get an indictment under the Military Extraterritorial Jurisdiction Act.
Congress passed that law in 2000 so the U.S. could prosecute defense department employees for crimes committed abroad. Legal expert Fidell said even that is a risk because "none of the options seem to be foursquare, head on, covering him."
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