The Detainee Treatment Act of 2005: embodying U.S. values to eliminate detainee abuse by civilian contractors and bounty hunters in Afghanistan and Iraq.

• Author: Logan, Ryan P.

ABSTRACT

The growth in the number of bounty hunters and civilian contractors accompanying the U.S. military into battle has swelled during the current conflicts in Afghanistan and Iraq. Civilians have been utilized in all facets of those military campaigns, including the interrogation of suspected terrorists or insurgents. Faced with intense pressure to rapidly obtain information about terrorist operations and yet having little oversight of their interrogation activities, some of these contractors and bounty hunters have been accused of abusing detainees. This Note explores the legal avenues for addressing accusations of detainee abuse by U.S. civilians in Afghanistan and Iraq and concludes that those offenses should be prosecuted in U.S. courts to ensure swift and efficient justice and protect the rights of the accused. The Author critiques several other proposed legal avenues, including international bodies, host-country justice, and civil suits in U.S. federal courts. Finally, the Note discusses the Detainee Treatment Act and argues that it provides the most comprehensive legal solution to the detainee abuse problem by promoting clear, uniform standards of interrogation, closing loopholes in existing criminal statutes, and allowing for a reasonable person defense by the accused.

TABLE OF CONTENTS I. INTRODUCTION II. CONTRACTORS AND BOUNTY HUNTERS IN WAR ZONES III. THREE APPROACHES TO PROSECUTING CIVILIANS ACCUSED OF TORTURE A. International Legal Approaches B. Host Country Justice C. Justice in U.S. Courts 1. Civil Remedies 2. Criminal Remedies IV. MOVING FORWARD IN FUTURE CASES A. Using MEJA and the Patriot Act to Establish Jurisdiction B. The Passaro Case: A Critical First Test C. The Detainee Treatment Act of 2005: Closing the Loopholes V. CONCLUSION I. INTRODUCTION

After the collapse of the Soviet Union caused the military threat of communism to dissipate, the U.S. military underwent a quiet revolution that transformed the size and structure of future military operations. From 1989 to 2000, both the U.S. defense budget and the number of military personnel were reduced by approximately 40%. (1) Apart from the Gulf War in 1990-1991, which involved approximately 500,000 soldiers, the U.S. military found itself involved in small, target engagements such as those in Panama, Somalia, and Haiti. (2) The attacks of September II, 2001 and the subsequent invasions of Afghanistan and Iraq, produced an immediate need for long-term engagements that required higher military expenditures and personnel. (3) Since 2001, the Department of Defense's base budget has increased by 35%, to a total of $402 billion in fiscal year 2005. (4) To cope with the demand for more soldiers, the Pentagon began the largest reserve mobilization since the Second World War. (5) Even with the increased utilization of National Guard and Reserve soldiers, the overall number of military personnel remained low when compared to Cold War levels--as evidenced by the reduction in the number of active army divisions from eighteen at the end of the Cold War to ten today. (6)

As a result of the downsizing, the Pentagon increasingly relies on private citizens to perform many tasks in war zones. These activities include everything from supplying fuel for convoys to providing food for soldiers and personal security services for important officials, (7) In order to promote the capture of notorious terrorists, the U.S. military also offered bounties for Osama Bin Laden and many members of Saddam Hussein's regime, who were identified in the infamous deck of cards that gained prominence in the media during the early days of the Iraq War. (8) The prospect of large financial awards, coupled with a post-9/11 surge in patriotism, caused many veterans and other individuals to head to Afghanistan or Iraq in order to obtain those bounties. (9) This led some soldiers returning from the war zones to compare those areas to the Wild West of the American frontier. (10)

The characterization of the new U. S. military frontiers as the Wild West may not be too far from the truth. In both Afghanistan and Iraq, the U.S. military focuses its efforts on fighting an insurgency that has maintained its intensity since the beginning of the military conflicts. Searching for ways to reduce the insurgencies, officials settled on a strategy to ramp up detention and interrogation activity. (11) Due to the grueling nature of the wars in Afghanistan and Iraq and the heightened focus on information-gathering, the U.S. military has become embroiled in several detainee abuse scandals, most notably the incidents that occurred at Abu Ghraib prison. (12) Private civilians, who have been heavily involved in Afghanistan and Iraq, have also been implicated as playing key roles in the torture of detainees. (13)

This Note explores the legal avenues available for dealing with U.S. civilian contractors or bounty hunters who stand accused of detainee abuse. Section II traces the history of the involvement of U.S. civilians in military conflicts and introduces the problem of contractors and bounty hunters who torture. Section III examines three different approaches for addressing this newly emerging and critical legal problem. Each approach offers benefits, such as promoting international cooperation and achieving swift and efficient justice, but ultimately fails to provide a comprehensive and effective solution to the problem.

The first of the three approaches utilizes international institutions, such as the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries (Convention Against Mercenaries) and the International Criminal Court (ICC). While this approach promises justice in a neutral international forum, the narrow language of the Convention Against Mercenaries renders it inapplicable to most torture cases, and the ICC fails to adequately protect the rights of U.S. citizens. The second approach entails turning over the accused party for trial in foreign judicial systems. This approach is best exemplified by the case of the recently convicted Jack Idema, a bounty hunter who had constructed his own private prison in Afghanistan. (14) Because justice can be swiftly rendered in the country where the alleged torture occurred, this method may provide more immediate resolution than international judicial institutions. Unfortunately, future detainee abuse cases that are the focus of this Note will arise in fledgling democracies such as Afghanistan, with developing legal systems ill-equipped to address the complex legal issues involved in the torture cases and protect the rights of the accused. The third approach pursues civil remedies, such as the Alien Tort Statute (ATS) and the Torture Victims Protection Act, and criminal remedies under the War Crimes Act. However, the proposed civil remedies fail to redress the wrongs since they only apply to officially sanctioned state torture while War Crimes Act prosecutions are unrealistic.

Section IV of this Note proposes a solution that addresses the problem of detainee abuse by U.S. civilians in military conflicts. Currently, the U.S. government is utilizing the Military Extraterritorial Jurisdiction Act (MEJA) and the Patriot Act to prosecute a civil contractor who interrogated a detainee in Afghanistan. (15) The landmark case of David Passaro, a CIA contractor accused of beating a prisoner to death, is currently underway in a U.S. District Court in North Carolina. (16) He is the first U.S. civilian to be tried in federal court for detainee abuse in Afghanistan or Iraq. (17) Although Passaro's prosecution offers an important test case, the Detainee Treatment Act of 2005 offers a more comprehensive solution to the problem of civilians who abuse detainees. (18) The Detainee Treatment Act establishes detailed interrogation standards, applies to all prisoners regardless of their location, and allows for a reasonable defense for accused torturers. (19) Section V concludes by reviewing the legal approaches for addressing detainee abuse by U.S. civilians and connecting the solution to broader U.S. values.

2. CONTRACTORS AND BOUNTY HUNTERS IN WAR ZONES

   The U.S. government has employed civilians throughout its history. In the Revolutionary War, George Washington used civilian drivers to haul supplies. (20) The Pentagon employed contractors to transport supplies and maintain railroads during the Korean War. (21) In Vietnam, the United States hired civilians to provide construction, energy supplies, and technological support. (22)

   The end of the Cold War and the dissolution of the Soviet Union provided greater opportunities for reductions in U.S. military forces and civilian involvement in non-combat positions. The Soviet Union's collapse coincided with a national consensus in favor of deficit reduction during the 1990s, as evidenced by the Presidential candidacy of Ross Perot in 1992. (23) Perot focused on the issue of deficit reduction and consequently had the best showing by a third-party Presidential candidate since Theodore Roosevelt. (24) The Department of Defense, which typically accounts for roughly half of all discretionary (non-entitlement) spending, offered many opportunities to help in reducing the deficit. (25) Unsurprisingly, the Pentagon's budget declined noticeably during the 1990s. (26)

   The Gulf War of 1990-1991 presented the first opportunity for large-scale civilian involvement in military conflict. That involvement was driven by several trends, including the downsizing of professional soldiers, increased global instability, and a general trend towards privatization. (27) During the Gulf War, the U.S. military used over 9,000 contractors to expel Saddam Hussein and the Iraqi army from Kuwait. (28) In Bosnia, the United States employed almost 6,000 contractors, a number roughly equal to the amount of U.S. military personnel involved in the conflict. (29) From 1994-2002, the Pentagon paid approximately...