In the midst of our obsession with primary politics this week, we've also been trying to follow the latest revelations in the torture debate. (I can still hardly believe I'm typing that.) I saw this detail earlier but failed to comment on it:
The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.
Many of the contractors involved aren't large corporate entities but rather individuals who are often former agency or military officers. However, large corporations also are involved, current and former officials said. Their identities couldn't be learned.
According to two current and former intelligence officials, the use of contracting at the CIA's secret sites increased quickly in the wake of the 9/11 attacks, in part because the CIA had little experience in detentions and interrogation. Using nongovernment employees also helped maintain a low profile, they said.
I suspect the use of "contractors" (who were probably recently privatized CIA employees) was done for some very specific reasons, namely that they mostly exist in legal no-man's land, falling under no jurisdiction and answerable to no treaties, at least up to now. It's very convenient.
The Military Commissions Act theoretically put military contractors under the jurisdiction of the Uniformed Code of Military justice, although it's hard to see that any would ever be tried in a military court:
“It’s the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasize ‘potential’ here, to finally bring some legal status and accountability to a business that has expanded well past the laws,” said Brookings Insitute Fellow Peter W. Singer, who’s both an acknowledged expert on private security forces and a sharp critic of them, back in January.
Potential is right, but no one in the military is ready to seize the day and exercise their authority over contractors. One JAG officer I spoke to — who emphasized he was not speaking on behalf of the whole military or offering any explicit legal opinions about the issue — said trying contractors in military courts is “pretty radioactive.”
“I have asked some senior Army prosecutors about it and they laughed and shook their heads about what the prosecution would look like,” he said. “I mean nobody wants to be the first to touch it or try to use it, [it’s] not expressly a criticism of the extension of jurisdiction itself.”
Further confounding the problem is that while the UCMJ was amended in late 2006, the 2007 update of the Manual for Courts Martial offers no clarification on how the new language should be implemented. According to Army Lawyer, an official Army publication, “Subjecting contractor personnel to the UCMJ during all contingency operations appears to constitute a significant change rather than a clarification. No legislative history explains this change. Further, as there is no published guidance, it is unclear how this change will be implemented and precisely what the ramifications will be.” Translation: We’ll let somebody way above our pay grade decide what this means before we start bringing contractors to court — particularly since there are far more legal precedents for protecting civilians from military trials (notably Reid v. Covert), rather than vice versa
I don't think CIA contractors are even subject to that, at least as far as I can tell. Indeed it's highly likely that somebody at the DOJ made a legal finding that these contractors aren't subject to any law at all. The testimony of all these people, McConnell, Hayden and Mukasey certainly suggest that the administration has made sure that nobody could ever be held legally liable for instituting and carrying out a torture regime.
As with the retroactive immunity for corporations who did the government's dirty work to keep civilian courts from every probing the facts in these domestic spying cases, by outsourcing so much of its work to contractors in the war zone, they have attempted to shield military contractors' operations from civilian jurisdiction, and have succeeded remarkably well so far:
Why and how those commitments to KBR's employees apparently unraveled on April 9, 2004, is now the subject of a controversial and critically important suit. In May 2005 Ray Stannard and Edward Sanchez, along with seven other drivers who survived the massacre -- and relatives of those who didn't -- sued KBR and its then-parent, Halliburton Co. (Kellogg Brown & Root was a subsidiary of Halliburton until last year, when it changed its name to KBR.) They've also sued the Cayman Islands-based subsidiary of Halliburton that hired them, as well as the recruiting companies that published the help-wanted advertisements. The plaintiffs claim that the drivers were fraudulently induced into believing they would not be sent into active combat zones, only to be sent out on a route where KBR knew the drivers were likely to be attacked.
"KBR had internal information that it was going to be attacked that day," says Christina Fountain, a partner at Lopez McHugh in Newport Beach, Calif., who is representing the plaintiffs in the case, Fisher v. Halliburton/KBR. "This was a road that was in battle, in active combat, and Halliburton/KBR knew it," adds co-counsel T. Scott Allen, a partner at Cruse, Scott, Henderson & Allen. He represents the plaintiffs from Houston, where the case was filed.
There is plenty of evidence to support the plaintiffs' claims. But at this point, thanks to the arguments of KBR lawyers from McKenna Long & Aldridge, the facts are irrelevant, at least as a legal matter. In September 2006, shortly after KBR hired McKenna to take over the case from longtime KBR counsel Jones Day, the federal district court in Houston dismissed the case, declaring it nonjusticiable. McKenna partners David Kasanow and Raymond Biagini convinced the court that the case raises a political question beyond the competence of the federal judiciary.
The plaintiffs have appealed that decision to the 5th U.S. Circuit Court of Appeals. But if the district court's decision stands, it will mean that the actions of virtually any military contractor working for the federal government could be deemed beyond the authority of the courts -- and immune from American law.
All this outsourcing and contracting was done for many reasons, some of it no doubt to sneak around regulations and budgetary accountability. But legal immunity may have been the main reason. We may find that CIA contractors who torture are not only considered immune under the Mukasey" I was only following orders" legal interpretation, but that they don't fall under any legal jurisdiction at all.
Considering that all this was done by people who had previously brought us secret wars in Cambodia and sold arms to our alleged enemies to fund illegal wars from a shadow government run out of the white house, it really shouldn't be surprising that they did what they did. And unless there is a reckoning, it would be criminally stupid if we are surprised the next time they get their hands on the white house and do it all again. It's what they do.
Sadly, very few people seem to think it's a problem.
Update: via Avedon, here's Charles Pierce on the subject.