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SOFA Discards Contractors and the Rule of Law

JURIST Guest Columnist Tara Lee, a former Navy JAG now a partner at DLA Piper (US) LLP, says that having a Status of Forces Agreement with Iraq that abdicates the jurisdictional reach of the United States over contractors (not just security contractors) who are US citizens acting on its behalf is too high a price to pay for recognizing Iraq's sovereignty....

Earlier this week the United Nations Assistance Mission for Iraq issued a report that is highly critical of the absence of due process in Iraq's criminal justice system. The UN Report notes that "many detainees have been deprived of their liberty for months or even years, often under precarious physical conditions, without access to defence counsel, or without being formally charged with a crime or produced before a judge. Continuing allegations of widespread torture and ill-treatment of inmates are of particular concern." The report is particularly timely, given that as of January 1, 2009, U.S. citizens who are contractors in Iraq will be subject to the jurisdiction of Iraqi criminal and civil courts, according to the terms of the Status of Forces Agreement signed on November 17, 2009.

Nothing in this newly-signed Status of Forces Agreement (SOFA) with Iraq guarantees that a U.S. citizen contractor arrested in Iraq will get even the most basic due process protections. The SOFA doesn't even permit the U.S. Government to detain U.S. citizen contractors who are awaiting trial in Iraqi courts. The SOFA requires that U.S. soldiers and government employees arrested by the Iraqi police will be handed over to U.S. authorities within 24 hours of detention or arrest. However, if the detained American citizen is a contractor, he or she is left entirely to the disposition of the Iraqi system, and will be left to sit in the Iraqi jail awaiting Iraqi justice.

The New York Times editorial board has called the SOFA's exclusions of protection for contractors "an acceptable price to pay to show this country's commitment to the rule of law." A diplomatic concession that blatantly and offensively treats one class of American citizen differently than others hardly demonstrates the U.S. commitment to the rule of law.

What it does demonstrate is that the U.S. government was eager to get a SOFA signed, so as to claim progress on the path to Iraqi sovereignty. To get it signed, the U.S. government made an enormous concession as to the due process rights of one currently unpopular class of its citizens: contractors. By so conceding, we achieved a document we can point to and claim that Iraq is sovereign. Iraqi sovereignty was our stated goal in Iraq. This SOFA is just one last way for us to wave a "Mission Accomplished" banner.

There was no legal reason to treat contractors differently. This SOFA does not fill a jurisdiction gap in accountability over contractors. There are already jurisdictional means by which U.S. courts can hold U.S. contractors in Iraq accountable for their actions. Nonetheless, starting January 1, 2009, the U.S. government can only do so if the Iraq government defers. According to the U.S. Department of State, there will be no exceptions to this deference, not even if the contractor is arrested for doing exactly what his U.S. government contract obligated him to do.

The U.S. government is offering its contractors no due process guarantees, no indemnification, and worst of all, no answers.

A few days after the signing of the SOFA, the State Department faced questions from its contractors at a meeting convened ostensibly to provide answers to the many unresolved questions surrounding implementation of the new agreement. Those questions include:

Will Iraqi criminal jurisdiction be retroactive, so that U.S. citizens in Iraq can be charged for offenses allegedly occurring years ago? (The U.N. Report suggests it may be.) Will employees already back in the U.S. now be subject to extradition if they are charged in Iraq? (A 1934 treaty suggests they might be.) Will criminal defendants have rights to or access to legal counsel, basic sanitation, and health care? (The U.N. Report suggests they won't.) In the civil court system, will Iraqi courts allow pre-judgment attachment of U.S. contractor assets and will contractor equipment in Iraq be seized if a contractor is sued as of January 1? (Unknown.)

When pressed for answers to these questions, the State Department repeated its diplomat-speak refrain about what a "significant step towards sovereignty this is for Iraq." No answers given, no guidance offered, no concern evident.

When asked, "Do you plan to get answers and some follow-on guidance to contractors in Iraq before the jurisdiction takes effect on January 1?" the State Department did finally have an answer…. "No."

The plan, not entirely surprisingly, seems to be to have no plan. We're just going to wait and see how the Iraqi courts handle each case as it comes up. But we owe better than that to the contractors we have hired to go into harm's way and do the Nation's work.

The problems related to criminal prosecution and due process could be solved through additional follow-on agreements that supplement and implement the SOFA. Our government could also work to reach written agreements with Iraq about the minimum due process all our citizens will receive. Both of those measures could theoretically be implemented by Executive Agreement before January 1, 2009, but there is no sign from the State Department that such efforts are even underway. Come January 1, we will be bound by an Agreement that lacks even a mechanism to notify U.S. authorities of the arrest, detention, conviction, and execution of U.S. citizens if they happen to be contractors. The omission of protections for contractors in the SOFA wasn't inadvertent, and no follow-on agreement protecting contractors seems likely so far. We owe better to the people who serve this country, whether they serve in uniform or not.

The problems related to civil jurisdiction and its overwhelming costs have an even easier fix. Public Law 85-804 gives the President the ability to authorize federal agencies to indemnify public contractors against unusually hazardous risks they undertake when facilitating the national defense. When indemnification is granted under PL 85-804, the contract is amended to provide indemnification for third-party claims (including litigation costs) resulting from the risk inherent in the contract. The indemnity applies only to the extent that the claims exceed the contractor's insurance coverage, and does not cover claims resulting from willful misconduct or lack of good faith. PL 85-804 indemnification is the right thing to do when we ask contractors to support the national defense and to incur extraordinary risk while doing so. It can be granted by Executive Order. At a minimum, PL 85-804 indemnification or something like it should now be granted to contractors supporting the U.S. mission in Iraq.

Sadly, neither due process protections nor cost indemnifications appear to be planned or in progress.

If ever we have placed U.S. contractors in harms way and asked them to do extraordinary things, we have done so in Iraq. We have done so because we had to, because our Armed Forces alone lacked the resources and manpower to simultaneously conduct both combat operations and security missions in that country. We called upon a "total force" of soldiers, civil servants, and contractors to undertake that burden. They answered that call, soldiers, civil servants, and contractors. They all acted, and continue to act every day in Iraq, on behalf of the U.S. government. Now, when it has become politically expedient, we have washed our hands of concern for the contractors.

Recognizing the sovereignty of Iraq is important, to be sure, but abdicating the jurisdictional reach of the United States over the citizens acting on its behalf is too high a price to pay for that recognition.

Since beginning the war in Iraq, America has shown that it cares deeply how we treat the enemy combatants that we detain and try as war criminals. We should care as much about what will happen to the American citizens who are arrested in Iraq after January 1, 2009. But instead, we signed an Agreement that evidences no care for them at all, if they happen to be contractors. That is a shameful abdication of the responsibilities our government owes to its citizens. To ALL of them.

Tara Lee is a former Navy JAG and former Resident Fellow at the Center for the Study of Professional Military Ethics at the United States Naval Academy. She is a partner at DLA Piper (US) LLP.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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