NYT : House’s Iraq Bill Applies U.S. Laws to Contractors

House’s Iraq Bill Applies U.S. Laws to Contractors

By DAVID M. HERSZENHORN | October 5, 2007

WASHINGTON, Oct. 4 — With the armed security force Blackwater USA and other private contractors in Iraq facing tighter scrutiny, the House of Representatives on Thursday overwhelmingly approved a bill that would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.

The bill was approved 389 to 30, despite strong opposition from the White House. It came as lawmakers and human rights groups are using a Sept. 16 shooting by Blackwater personnel in Baghdad to highlight the many contractors operating in Iraq who have apparently been unaccountable to American military or civilian laws and outside the reach of the Iraqi judicial system.

The State Department, which had been leading the investigation into the shooting, said Thursday that a team of F.B.I. agents sent to Baghdad in recent days had taken over the inquiry. No charges have been filed in the case, and Justice Department officials have said it is unclear whether American law applies.

Even if enacted, the House bill would have no retroactive authority over past conduct by Blackwater or other contractors.

Federal law enforcement officials said the team of about 10 F.B.I. special agents had been sent to Baghdad at the request of the State Department to oversee the Blackwater investigation. One official, who like others who discussed the investigation spoke on the condition of anonymity because he was not authorized to speak about it publicly, described their assignment as a fact-finding mission to determine whether any of the Blackwater employees had engaged in activity in violation of American laws.

Iraqi officials have said they would like to prosecute the Blackwater case, but it is extremely unlikely that American authorities would allow them to assert jurisdiction.

Shortly after the occupation of Iraq in 2003, the American administrator, L. Paul Bremer III, issued a decree granting immunity to American military and civilian personnel from criminal prosecution in Iraqi courts.

The House bill, sponsored by Representative David E. Price, Democrat of North Carolina, would expand a law that in 2000 brought defense contractors working with American troops overseas under the jurisdiction of United States criminal law. The 2000 law has rarely been used and might not apply to firms like Blackwater, which was hired to guard diplomats and could argue that its work is not tied directly to war operations.

But Republican critics, who said they supported the overall goal of increasing accountability for contractors, said there were weaknesses in the legislation, including imprecise descriptions about the locations where the law would apply. They also said that the F.B.I. was not equipped to conduct numerous investigations overseas and that the effort would prove costly.

Mr. Price has been working on the contractor issue for about three years and first introduced his bill in January. A similar measure was submitted in the Senate by Barack Obama, Democrat of Illinois. Mr. Obama, a candidate for his party’s nomination for president, introduced an updated version on Thursday.

The F.B.I. maintains a sizable office in Iraq. But law enforcement officials said the Blackwater inquiry would be left to the visiting agents.

The officials said the F.B.I. had received no specific accusations of criminality from the State Department in opening the investigation, which is expected to focus on Blackwater operatives who are accused of involvement in the deaths of Iraqi civilians or other violent acts. But it could prove extremely difficult to prosecute under American civilian or military laws.

The White House said it was willing to work with Congress to achieve greater accountability for contractors but it had “grave concerns” about the new House bill, which it said would overburden the F.B.I. and the Defense Department and interfere with crucial “national security activities and operations.”

Before the bill was passed, Democrats agreed to add language specifying that it was not intended to hamper intelligence efforts.

Because the Justice Department had prosecuted few crimes under the 2000 law, Congress last year approved a measure that brought Defense Department contractors in the war zone under the Uniform Code of Military Justice, potentially subjecting them to court-martial. But no prosecutions have been brought under that provision, watchdog groups said.

Mr. Obama’s measure, like the one approved by the House, would require the F.B.I. to establish “theater investigative units” — field offices in the war zone — to investigate criminal accusations against any of the roughly 180,000 contractor personnel working in Iraq. And it would require the Justice Department to report to Congress on the number of complaints, investigations and criminal cases brought against contractors.

But analysts said that even if the legislation was adopted it could prove extremely difficult to prosecute cases. Under the law adopted in 2000, only two criminal cases have originated in Iraq, the analysts said, one involving a contractor accused of possessing child pornography and another accused of attempted rape.

Under the law, responsibility for the cases falls to prosecutors in the defendant’s home jurisdiction, meaning that law enforcement officials must conduct expensive investigations overseas under dangerous conditions, then bring evidence and witnesses back to the United States.

“At the end of the day, the execution of this depends not on Congress but the executive branch,” said Peter W. Singer, a senior fellow at the Brookings Institution who has followed the contractor issue closely.

He said that by some accounts, as many as 20 potential criminal cases involving contractors had been referred to the Justice Department, but none were pursued. “They have disappeared into a black hole,” he said.

But Mr. Singer said prosecutors in American criminal courts would face enormous obstacles in any case where the activity described as a crime under civilian laws might be viewed by a jury as justifiable in a war.

Scott Horton, a human rights lawyer who has been heavily involved in efforts to develop legislation that would hold contractors accountable, said in an interview that the House bill would close a loophole that might allow Blackwater employees to argue that their work was unrelated to the war effort because the company had a contract to protect State Department diplomats around the world.

But he expressed frustration that officials had not been more active in prosecuting crimes in Iraq and that the legal situation remained gray.

“When we have got a contractor city, say, of 180,000 people, and there hasn’t been a completed prosecution of anybody coming out of Iraq, not one,” he said, “what sort of city in America would be like that, where no one is prosecuted for anything for three years? It’s unthinkable.”