The Justice Department needs more tools from Congress to prosecute crimes committed by U.S. government contractors abroad, Assistant Attorney General Lanny Breuer of the DOJ Criminal Division said Wednesday before the Senate Judiciary Committee.
U.S. law governing the growing number of American contractors in other countries is often uncertain. Under the Military Extraterritorial Jurisdiction Act, the United States only has criminal jurisdiction over contractors who do work supporting Defense Department missions.
Breuer said “significant gaps” exist in MEJA concerning criminal jurisdiction over U.S. contractors abroad. The Assistant Attorney General said many cases are not referred for prosecution because a Defense Department nexus cannot be located. He added that the DOJ can spend “thousands of hours” attempting to create a Defense Department connection to a case referred for prosecution.
The Assistant Attorney General said a legislative fix is “critically important.”
“In addition to permitting us to prosecute U.S. government employees who are currently beyond our reach, the legislation would also show our international partners that we take seriously the conduct of U.S. government employees within their borders,” Breuer said.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Rep. David Price (D-N.C.) in the last Congress introduced bills designed to ensure the United States has criminal jurisdiction over federal contractors and employees abroad. But the bills died in committee.
Leahy said Wednesday at the hearing that he intends to introduce legislation similar to the bill he put forward in the last Congress.
“As the military withdraws from Iraq and Afghanistan, the American presence in those countries will consist largely of civilian employees and contractors,” Leahy said. “There has to be accountability. If you’re representing our government overseas, you ought to be bound by the same laws that you and I and everybody in this room are bound by.”
Sen. Charles Grassley of Iowa, the top Senate Judiciary Committee Republican, said concerns have been raised about past legislative proposals that did not have an exception for contractors working for the U.S. intelligence community. He said any bill on criminal jurisdiction abroad should include intelligence and national security protections.
“I think there is a lot of merit to extending our criminal law to civilian contractors and employees abroad,” Grassley said. “However, we must make sure that this is done in a manner that is narrowly tailored to the specific problem and is not overly broad.”
The hearing comes a few months after the Commission on Wartime Contracting in Iraq and Afghanistan, an independent U.S. government panel, urged Congress to draft legislation clarifying criminal jurisdiction over non-Defense Department contractors.
In a February report on the government’s use of contractors, the commission expressed frustration with what it called “incidents of outright misconduct [that] have marred the contingency-contracting effort.”
“While U.S. officials are clearly subject to laws and penalties for such conduct, that is not always the case for all private contractors,” the commission wrote in the report. “High-profile cases of misconduct demonstrate the difficulties the United States has faced while using contractors.”
Blackwater (now called XE Services LLC), a State Department contractor, became a household name over its security operations in Iraq and Afghanistan. The company faced intense scrutiny from the Justice Department and Congress after its guards were accused of killing 17 Iraqi civilians in 2007.
A U.S. District Court judge dismissed the case against the guards, citing prosecutorial errors. But, in April, a federal appeals court reinstated the case.
