Bringing Contractors to Heel in Iraq

Somewhere there is an unsung Republican hero who slipped a five-word change into the Defense Authorization Act for FY 2007 that makes American military contractors subject to punishment for abuses.

From day one of the war in Iraq, the United States has had tens of thousands of heavily-armed military contractors present in Iraq, moving about the countryside unchecked, beholden to no law, no court, answerable to no external control.

That may be about to change, Brookings Institution Senior Fellow P.W. Singer notes in a Defense Tech exclusive. Five words, slipped into a Pentagon budget bill, could make all the difference. With them, "contractors 'get out of jail free' cards may have been torn to shreds," he writes. They're now subject to the Uniform Code of Military Justice, the same set of laws that governs soldiers. But here's the catch: embedded reporters are now under those regulations, too.

The one sentence section (number 552 of a total 3510 sections) states that "Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), was amended by striking `war' and inserting `declared war or a contingency operation'."

The addition of those five little words to the massive US legal code wouldn't normally matter for much. But with this change, contractors' 'suddenly become accountable. In the past, contractors only fell under UCMJ guidelines if Congress declared war. (This has not happened since WW II.) As a result, whenever military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no mechanism for redress. In the absence of a formal declaration of war, civilians -- even those working for the US armed forces, carrying out military missions in a conflict zone -- fell outside UCMJ jurisdiction. Usually, all that happened was the local officer in charge (OIC) could request to the employing firm that the individual be demoted or fired. In supported cases, where the officer suspected a felony might have been committed, the officer might be able to report them on to civilian authorities.

If I were to speculate on who slipped in the change, my money would be on Lindsey Graham. He is a former JAG officer and he was one of the Republicans that the president sort-of hosed on the torture bill. All the pieces fit - he knows military law, he has expressed misgivings in the past about contractor abuses, and he had access, sitting on both the Armed Services and Budget committees. I hope that Senator Graham, or whoever did the revision, steps forward and receives the thanks that is due for such a noble action.

Lawful and Unlawful Orders and a Soldiers Responsibility

At Making Light retired officer Jim McDonald has done what my own husband has been putting off doing: He has written the quintessential essay on lawful and unlawful orders. Here is his essay, in it's entirety:

You are not required to obey an unlawful order.

You are required to disobey an unlawful order.

You swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

The Constitution states (Article VI):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:

Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.


Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.

You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. “I was only following orders” is not a defense.

What all this is leading to:

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No “clarification,” whether passed by Congress or signed by the president, relieves you of that duty.

If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:

1. Request that your superior put the order in writing.

2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.

3. Request trial by courtmartial.

You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.

We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.

This post may be quoted in full. A linkback would be appreciated.

Thank you, Jim. I'm glad to link to your homepage, too.