M.E.J.A.

MEJA was brought up today in class in response to the presentation on creating an additional protocol to the Geneva Convention to encompass Private Security / Military Companies, so I thought I'd elaborate on it just a little bit.

Passed in 2000, the Military Extraterritorial Jurisdiction Act was intended to fill the jurisdictional gap that existed when Americans committed crimes on foreign territory and the host nation could not or would not pursue legal action.
MEJA grants jurisdiction over members of the Armed Forces or persons employed by or accompanying the Armed Forces (including civilians) outside the United States if they commit an offense punishable by imprisonment for more than one year.

When originally passed, MEJA had the potential to be a great tool for prosecutors in the fight against IHL and IHRL violators, however, in the four years between passage and amendment, only one person has been tried under MEJA. Perhaps this is because there is a inherent loophole in the definitions accompanying the Act. The definitions require that the civilian upon which jurisdiction is exercised be a DoD contractor or contractor's employee. This definition is a HUGE loophole. It means that it'll be impossible to use MEJA to prosecute employees or contractors of other branches of the government. Employees of the CIA, State, or any number of other government agencies with large numbers of employees posted overseas are not subject to the jurisdictional reach of MEJA. Thus, a large numbers of overseas U.S. employees falling outside of MEJA. Furthermore, it creates a situation where contractors and employees can escape potential accountability by simply establishing contracts with any other branch besides the DoD.

This loophole isn't just theoretical, but proved to be a real problem in the case of Abu Ghraib. As part of the scandal, CACI, Inc., a defense-contracting firm located in Arlington, Virginia was named as one of the two firms responsible for the prisoner abuses. However, U.S. courts could not exercise jurisdiction over CACI, Inc. employees because CACI, Inc.’s contract was with the Interior Department’s National Business Center in Fort Huachuca, Arizona and NOT DOD.

However, there are proposals to amend MEJA's definitions to include all employees, contractors, and employees of contractors 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. Thus, we shall see if MEJA will prove to be effective in the long run...

U.S. military contractors

The NY Times (apparently my favorite source of news since the majority of my blog posts involve a link to them) reported this morning that the U.S. has now charged a contractor with a crime while in the services of the military.

Now this phenomenon of the U.S. military hiring contractors is nothing new, but this attempt at holding a contractor liable for a crime is a new test of the military's legal jurisdiction.

Over the years, the “War on Terror” and the scandals at Abu Ghraib have raised public awareness of the use of private security/military forces, the use of contractors, and the privatization of traditional state functions. Much of the controversy and dialogue related to this issue has centered on the legal loopholes that allow violators of IHL to go unpunished. (granted the contractor in this article arguably did not commit an IHL violation, it is still relevant to this discussion)

Arguments have been raised that the issue could be resolved by applying the existing international legal instruments addressing mercenaries, however, the use of military contractors may not fall neatly within these confines. Yet, states still have a responsibility to ensure that the PSCs they hire respect international law. What should they do? Honestly, how easy is it for an individual country to regulate companies that primarily operate in a foreign jurisdiction? In my opinion, it's not.

It is not easy to legislate or regulate these types of actions because, beyond the logistical question of how to monitor activity in a foreign jurisdiction to ensure compliance with the regulation, there is the question of accountability. For regulation compliance to occur, there must exist an accountability / sanctioning mechanism. Now, this article has shown that the Uniform Code of Military Justice is being tested for this purpose, but how successful will it be is yet to be determined.

Generally, when it comes to accountability for PSC action in foreign jurisdictions, there are the legal hurdles to the proper exercise of jurisdiction. Without the legal instruments in which to hale the violator into court, there is no threat of punishment, thus no incentive to comply with the regulation.

Yet another comment on this John Yoo saga

Here is a NY Times editorial discussing the ongoing saga of the infamous Bybee memo.


Some of my favorite quotes from this editorial include:

Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States. It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.

Or this comment on Yoo's brilliant legal reasoning

American and international laws against torture prohibit making a prisoner fear “imminent death.” For most people, waterboarding — making a prisoner feel as if he is about to drown — would fit. But Mr. Yoo argues that the statutes apply only if the interrogators actually intended to kill the prisoner. Since waterboarding simulates drowning, there is no “threat of imminent death.”

Introducing the ex-Mr. Reese Witherspoon

Last weekend I saw the movie Stop-Loss and I have to admit that for an MTV movie, it was not that bad. The movie, created by the director of Boys Don't Cry (really good movie), followed the experiences of 3 soldiers who had served in Iraq but were now back on home leave. Of these 3 soldiers, 2 were suppose to be "getting out." Ryan Phillipe's character, Sgt. King, gets stop-loss but refuses to comply with the order. He then proceeds to go on the run. His best friend, Sgt. Shriver, voluntarily reenlists despite not having been stop-lossed.
I thought the movie was interesting because it depicted a situation were Sgt. King is damned if he does and damned if he doesn't. According to the movie, the only options Sgt. King had available to him were either comply with the stop-loss or be a fugitive from his own government forever.
Now I know that stop-loss and military recruitment issues are not really things we have touched upon in class, however, I thought that this movie was not a bad way to explore the lives of our weapons bearers. We spend a lot of time talking about training our troops to respect IHL and to not create an atmosphere of tolerance. What I wonder is, if we continue to abuse our troops and violate their civil rights, then what expectations do we have that they will respect other's rights? I think that if we continue to send troops against their will, we will be depleting morale and creating an atmosphere of resentment. I am not saying that all stop-lossed troops will commit violations of IHL, I am just saying that creating disgruntled and embittered troops is probably not going to help the cause.

Stop-Loss the Movie

Washington Times Article

US Code Section authorizing stop-loss

On April 2, The New York Times published an article entitled: NY 03 U.S. Memo Approved Harsh Interrogations
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Reading this article, I was torn as to how to feel. As a budding lawyer who has taken the federally mandated ethics exam, the idea that we are officers of the court has been drilled into my head. Lawyers have an obligation to not misrepresent the law, regardless of whether it is hurtful to our case. With this principle in mind, I had a hard time sympathizing with the OLC lawyers underfire over the Bybee memo and the waterboarding controversy.

That being said, I am also a realist. I realize that the OLC lawyers, although meant to be independent, are under pressure to please their clients, which in this situation is the Bush Administration. Furthermore, in the aftermath of 9/11, the country was caught up in an atmosphere of fear and terror. People were scrambling to find ways in which to cope with the atrocities that had happened. The administration felt the pressure to but didn't know how to catch "the bad guys." Therefore, the lawyers at the OLC may have been inclined to read the law in such a way that it would give Americans the tools to catch those that threatened our safety and way of life. This mentality I can understand. I'm not saying that I approval of it from a legal ethics standpoint, but I can understand it.

This leads me to my current conundrum. Dont' get me wrong, I am outraged at the audacity of the current administration's attempt to scapegoat their blatant flouting of international law. However, there is a small part of me that feels that the OLC attorneys should not have taken a part in creating a situation which has been turned around and used against them.