Will Contractors Lose Iraq Immunity?

Time (2008-02-13) Massimo Calabresi

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By Massimo Calabresi/Washington

The days of legal immunity for civilian contractors in Iraq may be numbered, as Washington and Baghdad prepare to renegotiate a long-term bilateral security agreement. Ahead of negotiations on the issue, which could begin in two weeks, the Bush Administration is trying to hammer out its positions on key issues such as authority over combat operations and detentions, as well as other elements of the mission over the next 24 months and beyond. And top of the list of deal-breakers for the Iraqis, is contractor immunity.

The immunity currently offered to contractors in Iraq is unique among the 120 or so status-of-forces agreements governing the terms of U.S. military operations in countries around the world. And there appears to be considerable sentiment for removing such special protections. "We do not ask for immunities from host nation laws for contractors anywhere," says a senior Administration official who spoke on condition of anonymity. "It's a special thing in Iraq and there's a real question about the extent to which we want to ask for them here."

It's a hot-button issue for Iraqis, thanks to incidents such as last September's shooting of 17 Iraqis by security guards from Blackwater USA and the Christmas Eve killing of a top Iraqi politician's bodyguard in 2006. In the wake of the September shootings, the Iraqi cabinet moved to revoke the U.S. decree giving the contractors immunity. Back-room diplomacy and high-profile reassurance has kept the contractors in place and still immune from prosecution.

Contractor immunity may be unique to Iraq and difficult to demand of Baghdad, but the Pentagon still wants it. In interagency discussions arranged in preparation for the start of negotiations, the Department of Defense has said it want to ask the Iraqis to maintain status quo. The State Department, however, has argued strongly against that position. "We are just still internally discussing this, and still haven't really come out with a position," says the senior Administration official. A State Department official says discussions are underway. Says Pentagon press secretary Geoff Morrell, "Don't confuse interagency discussions with disagreement. We're all trying to achieve a single U.S. position on the way ahead in Iraq."

One fix being contemplated is to do away with immunity for some kinds of contractors, such as truck drivers, and to bring organizations such as Blackwater under the same rules that apply to soldiers who break local laws. A legislative fix to make this possible is currently working its way through Congress.

But the fix may be less than meets the eye. Some outside observers say immunity is based not on current legal arrangements, but on the unwillingness of the U.S. to prosecute the contractors. Human Rights First argues that the initial rule that provided immunity to the contractors expired when the authority that adopted it — the Coalition Provisional Authority — closed up shop. The U.S. could subsequently have brought contractors to trial in courts in Iraq, the U.S. or elsewhere, says Peter Singer of the Brookings Institution, but "the political will to use them has been completely absent." By that measure, any fix to the rules of contractor immunity will only be as good as the U.S. willingness to prosecute.