UN Panel Wants Iraq to Address Military Contractor Immunity

With the role of security contractors set to increase in Iraq, UN experts want the Iraqi government to settle their legal status once and for all.

Contractor numbers are expected to grow once American troops leave the country at the end of the year. Faiza Patel, head of the UN working group on the use of mercenaries, was at the UN today to present the group’s latest report. 

Patel says the 2007 killing of 17 Iraqi civilians in Nisoor Square allegedly carried out by Blackwater security guards, highlighted the legal challenges in holding private security companies accountable for crimes and rights abuses.

“Due to the coalition’s provisional authority grant of immunity to contractors, the alleged Blackwater perpetrators could not be prosecuted in Iraqi courts. “ she told reporters “Prosecution in the United States, the home country of Blackwater, now known as Xe, has also not yet produced satisfactory results. Four years after the incident, the criminal case against the Blackwater guards is still pending in US courts.”

In 2009,  the Iraq-US Status of Force Agreement (SOFA) ended the legal immunity for certain types of contractors. Patel says that while SOFA was an improvement, it was also unclear about which “category” of military contractors were exempt from prosecution in Iraq. 

But with US troops scheduled to withdraw from the country before the end of the year and SOFA no longer expected to be enforced, Patel says the immunity question needs to be addressed.

 “The status of foreign contractors in Iraq is quite unclear and this is a matter to which the working group believes the Iraqi government should pay urgent attention.”

The Obama administration decided to withdraw all US troops when it could not get an agreement on legal immunity from the Iraq government. But that decision will probably push the State department to rely on private security companies, so immunity will continue to be an issue.

Somali Torture Victims Try To Overcome Prime Minister's Immunity Claim

Bashe Abdi Yousuf and four other former Somalis claim they were tortured or had family members murdered by the Somali government in the 1980s. They sued Mohamed Ali Samatar, a former Somali Prime Minister, in US federal court after discovering that Samatar was living in Virginia. In the Supreme Court today, Samatar's lawyers argued that his actions were taken while he was a government official, and thus Samatar should have immunity under the 1976 Foreign Sovereign Immunities Act (FSIA).

The FSIA says that foreign governments cannot be sued in US courts (with the exception of countries listed by the State Department as state sponsors of terrorism), and Samatar's argument is that, while the statute's terms don't protect government officials from suit, the law would be ineffective if a plaintiff could sue the top officials in that government. The rationale behind the immunity is that US courts should not pass judgment on foreign governments, but that immunity would be worthless if foreign government officials could be threatened with lawsuits over official acts they carried out in their home country.

Justice Stephen Breyer seemed the most receptive to this argument in court today, at one point telling Yousuf's lawyer that if the law doesn't protect officials, "this act is only good as against the bad lawyer." Any clever lawyer, Breyer said, would just sue the officials directly.

The lawyers for the Somalis argued that there were still teeth in FSIA, even if it does not protect officials individually, since any suit that asked for a change in government policy, return of land, or other remedies against a foreign government would be thrown out under FSIA. Further, some actions taken by government officials would still be protected under common-law immunity principles.

The argument that seemed to gain the most support, though, was based on the Torture Victim Protection Act (TVPA), passed by Congress in 1991. If government officials have immunity, and the TVPA did not change that, then the TVPA served no purpose, several Justices suggested. Lawyers for the Somalis replied that, in some cases, governments waive immunity protection for their officials, so torture prosecutions can proceed.

Overall, the stance of the Justices was unclear, since they were faced with seemingly contradictory statutory language. The case, Samantar v. Yousuf, will be decided by this summer.

Remedial Harassment by Lawsuit in the Supreme Court

Remedial Harassment by Lawsuit in the Supreme Court
What can high-level government officials do to avoid being distracted from their work by lawsuits? That seemed to be the question of the day at the U.S. Supreme Court, considering the case of Ashcroft v. Iqbal. Javaid Iqbal sued then-Attorney General Ashcroft, FBI Director Mueller, and several other government officials after he was arrested on credit card fraud charges shortly after 9/11. Iqbal claims that he was mistreated—held in a maximum-security prison for nearly six months, where he was subjected to invasive daily searches, beatings, extremes in temperature, sleep disruption, and prohibitions on his religious practices—all because he was an Arab Muslim. He alleges his classification as a "high interest" detainee was racial and religious profiling by the government, in violation of his rights.

The trial has not even begun, though, since the Department of Justice is claiming that pre-trial discovery, including possible depositions with officials, would burden them and prevent them from doing their jobs. They say that the lawsuit's initial filings, claiming Ashcroft and Mueller knew about and approved of the racial and religious profiling, are not specific enough, so the lawsuit should be dismissed. Of course Iqbal's lawyers argue that they do have enough information to support their allegations, but they need discovery to fully develop their case.

All members of the Supreme Court today seemed perplexed by the situation. Federal Rules of Civil Procedure allow a case to be dismissed if it is purely frivolous, but generally not until after discovery has taken place. Further, the Rules allow judges to discipline attorneys who file frivolous lawsuits, but only after the lawsuits have been disposed of.

Justice Breyer, seeking to simplify the situation, asked how an important but non-government person would be able to escape the burden of lawsuits. He asked, as an example, how the president of the Coca-Cola Company would deal with a lawsuit claiming he personally put mice in Coke bottles: the claim is clearly preposterous, but neither attorney could give a clear federal rule that would allow dismissal of the case at such an early stage.

The Department of Justice argued that the resolution should come in a more stringent requirement on the initial filings of the case—when a suit is filed against an important government official, the filings should be held to a higher standard and need to be more specific. The DoJ said that this standard could be held to be a corollary of the "qualified immunity" rule that allows government officials to normally escape being held personally liable for actions taken while in office.

The Justices are unlikely to accept that suggestion, however. Firstly, there are procedures set out for changing the rules on court filings, so the Supreme Court cannot simply impose new standards. Secondly, such a standard would go against the American tradition of allowing easy access to the court system. Thirdly, the proposed standard would still allow private officials, such as the Coca-Cola president, to be burdened.

The Supreme Court will likely release its decision in the spring.