Legal Territory Untested for Civilian Translators
• Even if found culpable in prisoner abuse scandal, prosecution of contractors isn't clear-cut.

By Leon Worden
Signal City Editor

Sunday, June 6, 2004

he legal path is clear for the small number of military police guards who face charges of maltreating and sexually humiliating detainees at a prison 20 miles west of Baghdad where Saddam Hussein's Special Security Organization tortured and executed thousands of Saddam's fellow countrymen.
     The guards who stand accused of offenses at Abu Ghraib are covered under the Uniform Code of Military Justice. They'll face the equivalent of a pretrial hearing, followed by possible court-martial. If found guilty, they'll receive a sentence likely to include hard time in a military prison.
     But what about nonmilitary personnel who may have shared responsibility for the abuse of the same prisoners? They haven't committed an offense on U.S. soil or within America's maritime boundaries, and the Uniform Code of Military Justice doesn't apply to them.
     From Oct. 14 until sometime earlier this year, John B. Israel, 48, of Canyon Country, was one of an estimated 20,000 civilian contractors working in postwar Iraq as a "hired hand" for the coalition forces. Many of those 20,000 contractors are working to rebuild power plants, bridges, schools and hospitals.
     Many, but not all. Some are doing work that, in bygone days, would have been performed exclusively by military personnel.
     Last year, coalition forces quickly executed the war but encountered monumental hurdles when the major hostilities ceased. As they took on the responsibility of governing, they were confronted with escalating attacks from Iraqi insurgents that hindered their efforts to rebuild infrastructure and forced them to beef up internal security.
     Israel was part of the buildup of intelligence personnel who were needed to find out when and where the next attack would come.
     Abu Ghraib prison is a 280-acre compound built by British contractors in the 1960s. Israel was assigned to the 205th Military Intelligence Brigade, which was expanding its number of interrogation teams as more and more detainees were being brought to the prison for questioning. Israel's job was to translate back and forth between interrogator and detainee.
     Some of the intelligence experts on the interrogation teams, known as "tiger teams," were military personnel. Others may have been with government agencies such as the CIA. Others evidently were foreign nationals. Others were civilians working under contract. Israel fell into the latter group.
     Born in Baghdad in 1955, Israel was hired by SOS Interpreting Ltd., a New York-based intelligence firm that provided linguists to the prison under a "carve-out" contract with a larger intelligence firm, Titan Corp. of San Diego.
     At Abu Ghraib, the Army reserve guards wouldn't have known whether Israel was military or civilian. Tiger team members didn't wear identifying uniforms, and MP guards have claimed that they didn't use their real names.
     Just like a regular Army subordinate, Israel answered to the brigade commander, Col. Thomas M. Pappas, and to Pappas' second, Lt. Col. Steven L. Jordan.
     Now, Israel, Pappas, Jordan and another civilian contractor are likely targets of a full-blown investigation into the activities of their military intelligence brigade — which, on Nov. 19, had taken over operational control of the prison.
     In an earlier, well publicized, separate-but-equal investigation of the military police brigade that was below them, the four men were accused of being "directly or indirectly responsible for the abuses at Abu Ghraib."
     The earlier investigation of the military police brigade resulted in criminal charges against seven Army reserve guards.
     No charges have yet been filed against any intelligence personnel, military or civilian. Charges, if they are to come at all, would likely follow the completion of the new investigation in the next few weeks.
     If Pappas or Jordan or any other Army intelligence personnel were to be charged, their prosecution would follow a path outlined in the Uniform Code of Military Justice.
     It's a different story with the civilian contractors. Not only don't they fall under the military code, but they probably also aren't subject to prosecution by the new Iraqi government because of a status-of-forces agreement that covers Americans who commit crimes while carrying out an official U.S. government duty.
     Most attention is focusing on a relatively new, untested and highly obscure federal law called the Military Extraterritorial Jurisdiction Act.
     As the name implies, the act enables the U.S. government to extend its legal authority beyond the jurisdictional boundaries of the United States in cases where an American commits an offense while accompanying or working for the U.S. Armed Forces.
     The act was written in 1999 by Sen. Jeff Sessions, R-Ala., and signed into law in 2000 by former President Bill Clinton in order to plug a gap. There was no way for the United States to prosecute a U.S. civilian accused of molesting his stepdaughter while living with his Army-sergeant wife at a military base in Germany.
     The act's first full test will come this summer when a civilian woman stands trial for the murder of her Air Force-sergeant husband while at an air base in Germany.
     Sessions couldn't have predicted his act would come into play the way it is today.
     Sessions declined to speculate on the act's applicability to Army contractors who may have shared responsibility for prisoner abuse at Abu Ghraib. A spokeswoman for Sessions referred The Signal's calls to the Justice Department, where Attorney General John Ashcroft announced last month that the act does indeed facilitate the prosecution of civilian contractors under federal anti-torture and civil rights statues.
     There's a "but."
     The act applies only in cases where the offense, if committed within the United States, would be punishable by imprisonment for more than one year.
     The devil could be in the details for civilians alleged by Maj. Gen. Antonio Taguba to have been "directly or indirectly responsible" for the abuse. Much will hinge on the specific findings of Brig. Gen. George R. Fay's new intelligence investigation.
     If civilian contractors merely looked the other way when military police officers were abusing detainees, is it a crime punishable by more than one year in prison? Would it be, if in fact they enticed or instructed or ordered or in some other way coerced the guards to "soften up" prisoners?
     "The legal question becomes, how do you characterize coercion?" asks Dan Guttman, a fellow at the Center for the Study of American Government at John Hopkins University. "Were Mr. Israel and others obliged to follow the Geneva conventions?"
     Bertrand Ramcharan, the acting U.N. High Commissioner for Human Rights, didn't have an answer to that very question in a 45-page report he released Friday on current conditions in Iraq.
     Acknowledging "the hiring by the coalition forces of private security organizations that have deployed personnel in significant numbers," Ramcharan wrote, "this raises the question of what legal regime applies to them, and what is the duty of protection" they owe to prisoners.
     He also left open the question of individual culpability, asking, "Were acts of depravity against prisoners committed by guards acting on their own, or were they part of a systematic process of information gathering?" — but found that the acts themselves, as detailed by Taguba, "might be designated as war crimes by a competent tribunal."
     Gay McDougall, executive director of the Washington, D.C.-based human rights organization Global Rights, said anyone can be held accountable for war crimes.
     "The laws ... say that military and civilians can be prosecuted for war crimes, whether we are at war or not," she said.
     "Without question, all of the people who are identified in these crimes can be prosecuted" under one statute or another, even if there are gaps and loopholes in the law, she said.
     One such potential loophole is the nature of Titan Corp.'s government contract. The company is actually providing linguists to Army intelligence under an umbrella contract with the Interior Department.
     The extraterritorial act applies only to civilians who work for the Defense Department. Lawyers may soon be debating whether it covers civilians who are technically under contract with a different agency but take orders from Army officers.
     "As a civilian contractor, their legal case depends on whom they are attached to," McDougall said, "whether they are with the military or with (other) government agencies."
     "(The) question is, if Israel was following orders, was he obliged to?" Guttman asks.
     In any event, Guttman said, the standard is high for prosecution under the federal War Crimes Act.
     "They would have to prove there was a 'grave breach' of the Geneva conventions," he said. "The attorneys will argue what a 'grave breach' is."
     According to Ramcharan, "the use of torture and other forms of physical and psychological coercion against any detainee to extract confessions of intelligence-related information is a violation of international humanitarian law," while both of the Geneva conventions the United States is respecting in Iraq — one for prisoners of war, another for civilian detainees — bar murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment."
     How will it all play out with the civilian contractors?
     "This is uncharted territory," Guttman said. "I couldn't guess."

    Israel's attorney, Christopher Darden, did not respond to inquiries for his opinion about the topics discussed here.

    Signal staff writer Burt Stillar contributed to this story.

    Correction 6/9/2004: CACI's contract is administered by the Interior Department. Titan's contract is directly with the U.S. Army Intelligence and Security Command (INSCOM).