Prosecuting abuse of prisoners

Issue: An untested law passed in 2000 is seen as key in pursuing charges against civilian contractors in mistreatment of Iraqi detainees.

May 29, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

The defendant was the husband of an Army sergeant, left to care for his 13-year-old stepdaughter at a base in Germany while her mother was on duty in Bosnia. Instead, he repeatedly had sex with the girl - a crime discovered only after the family returned to America and the girl gave birth to his child.

The outrage came from the federal appeals court that in June 2000 determined it had no choice but to reverse Milton Gatlin's sexual abuse conviction because the jurisdiction of U.S. prosecutors did not extend to the Army installation in Germany.

Ruling "with regret," a three-judge panel of the 2nd U.S. Circuit Court of Appeals took the extraordinarily rare step of directing the court clerk to send a copy of the case to key congressional committees, and said in the decision that it was up to lawmakers "to close this jurisdictional gap."

By year's end, a new law intended to do just that was on the books. But it remains untested more than three years later, raising questions about how effective a tool it can be for Justice Department officials who have called it the key to pursuing charges against civilian contractors involved in abusing Iraqi prisoners.

No regulations drafted

Defense Department lawyers have not drafted regulations to govern how the law, known as the Military Extraterritorial Jurisdiction Act, is implemented. U.S. prosecutors brought their first case under the law last summer, filing murder charges against a California woman accused of killing her Air Force staff sergeant husband on a base in Turkey. She is scheduled for trial in July.

The absence of established case law has spurred speculation whether the statute will fit any of the alleged abuses at the Abu Ghraib prison near Baghdad. A central issue is whether its definition of civilian contractors could extend beyond the Defense Department, because one company at Abu Ghraib was operating under a contract administered by the Department of Interior.

"Legal clarity does not come from clear language; it comes from precedents," said Deborah Avant, a political science professor at George Washington University who has researched military contracting issues.

When it was adopted in 2000, the extraterritorial jurisdiction act - sometimes referred to as MEJA - was considered a cure for the long-standing problem of how to prosecute criminal activity overseas by military civilians and contractors.

In a series of rulings that date to the 1950s, the Supreme Court established that civilians and contractors accused of wrongdoing overseas cannot be subjected to military courts-martial, except during declared war.

"The new law eliminates any prospective ambiguity about federal criminal jurisdiction over persons who ... are charged with committing felonies in foreign nations while associated with the United States' military," U.S. Solicitor General Theodore B. Olson said last fall.

The extraterritorial jurisdiction statute allows civilian prosecutors in U.S. district courts to bring charges against civilians, although it does not spell out where such cases should originate.

In the single existing prosecution, accused Air Force wife Latasha Lorraine Arnt was brought from Turkey to her home state of California to face charges that she killed her husband, a Pennsylvania native.

Such ambiguities frustrate legal experts and human rights advocates who backed the law.

"We have a statute ... that requires uniform implementation rules, and those still don't exist," said Gary D. Solis, a former Marine Corps judge advocate and now an adjunct law professor at Georgetown University.

Washington attorney Martina Vandenberg, a former researcher with Human Rights Watch, said the lack of regulations in some ways meant the law was "dead on arrival."

"I think it's reprehensible that four years after the passage of MEJA, we still haven't seen any [contractor] prosecutions," Vandenberg said.

Vandenberg worked on Human Rights Watch's investigation of alleged prostitution and human trafficking activities carried out by U.S. civilians working for defense contractor DynCorp in the Balkans during the late 1990s.

Reports compiled by Human Rights Watch, the U.S. Army Criminal Investigation Command and in two whistleblower lawsuits documented the purchasing of young girls as sex slaves and, in one instance, a videotaped rape.

Although the events did not become public until late 2001 and 2002, the records suggest most of the alleged illegal behavior occurred in 1999 and 2000 - before the passage of the extraterritorial jurisdiction act that could have allowed U.S. civilian prosecutors to pursue charges.

Instead, the contractors allegedly involved were sent home and fired.

In the current case of abuses at Abu Ghraib, the Justice Department has opened a criminal investigation into one civilian contractor, based on a referral from Pentagon investigators. Authorities have not identified the individual or the company involved in the probe.

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