Friday, June 18, 2004

Pass the Petard 

Kevin Drum links to a spectacular catch by Phil Carter of Intel Dump. Yesterday, the DoJ indicted a civilian contractor on four charges of assault which led to the death of a prisoner in Afghanistan. Zemblans know that the legal status of contractors is a matter of some debate; as private citizens they fall outside the scope of both the Geneva Conventions and the Uniform Code of Military Justice -- and, as Carter explains,
the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA") . . . extends federal criminal jurisdiction to Defense Department contractors only when operating with U.S. forces abroad — but not to contractors from other agencies, or U.S. civilians generally who are working on military and diplomatic missions. This is a gaping lacuna in the MEJA, because it excuses lots of people from criminal liability, such as the Abu Ghraib contractors who were actually on an Interior Department contract but seconded over to the Army.
Carter was therefore quite startled to read in yesterday's DoJ press release that contractor David Passaro is being prosecuted under the terms of the USA-PATRIOT Act:
The USA PATRIOT Act of 2001 gives the United States jurisdiction in the Passaro case. In the wake of Sept. 11, 2001, the PATRIOT Act expanded the law enforcement powers of the United States and eased the challenges of prosecuting crimes and terrorist attacks abroad. Section 804 of the Act, later codified as 18 USC Section 7(9), provides jurisdiction over crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government, such as the Asadabad Base.
A close reading of the relevant clauses leads Carter to conclude that the Patriot Act does indeed close most, if not all, of the significant loopholes in MEJA. Which prompts him to ask:
What are the implications of this? The most obvious is that it extends federal jurisdiction to all locations where we have troops today. Can you think of any other military bases where jurisdiction has become an issue lately? Where U.S. soldiers and civilian intelligence officials are alleged to have committed crimes? I can think of two: Abu Ghraib and Guantanamo Bay. Both should fall squarely within the coverage of 18 U.S.C. 7, subsection (9). With jurisdiction firmly established, there's really no reason why we shouldn't see more aggressive prosectorial action by the Justice Department with respect to abuses at these locations . . . . Thus, any delays at this point are not the result of law, but of prosectorial discretion.

Coda: Does anyone else see the terrific irony in this situation? Here we have Attorney General John Ashcroft, the administration's top lawyer, riding to the rescue to prosecute a case of abuse within the CIA which was arguably sanctioned by the administration's top lawyers in DOJ and DOD? Or, seen another way, here we have John Ashcroft, chief law enforcer and moral arbiter, riding to the sound of laws being broken and morals being discarded by U.S. troops and contractors abroad. Or, seen a third way, isn't this DOJ prosecution ironic given the fact that an Office of Legal Counsel memo purported to justify torture practices? Maybe I'm reading too much into this, but there are some really interesting internal politics at work here that I think we're just starting to see. I expect more pushback from other parts of the Bush administration in the near future, especially the attorneys at DOJ and State who are uncomfortable with where the administration has gone on the detainee issue.

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