The chairman of the Senate Judiciary Committee is making a new push to apply some U.S. criminal laws to federal employees and government contractors who are working abroad.
The move by Sen. Patrick Leahy (D-Vt.) is at least the third such attempt since a high-profile killing of Iraqi civilians by Blackwater security guards in September 2007. But this time, Leahy has at least the tentative support of some in the contracting industry and of the U.S. Justice Department.
Leahy said in prepared remarks for a hearing today that he was planning to introduce the latest version of legislation soon, and that he will move forward with it if he finds bipartisan support.
The Justice Department’s case against the Blackwater guards, one of many incidents involving contractors abroad in recent years, is moving slowly. Last month, a federal appeals court reinstated the case, but prosecutors still face evidence problems that Leahy said could have been avoided if U.S. law clearly applied.
“Had jurisdiction for these offenses been clear, FBI agents likely would have been on the scene immediately, which could well have prevented the problems that have plagued the case,” Leahy said.
DLA Piper partner Tara Lee, who co-chairs the firm’s transnational litigation practice, said at today’s hearing that many of the government contracting companies she represents would welcome some version of the proposal because existing law is unclear. For example, the law generally applies to contractors working for the Defense Department but it doesn’t always apply to those working for other agencies like the State Department.
“If there’s lack of clarity in a statute, I stay busy all day,” Lee said. “But from the perspective of the companies I represent, I think you do have an opportunity to clearly articulate your intent here.”
Michael Edney, of counsel to Gibson, Dunn & Crutcher, urged caution. He said senators should include a blanket exception for employees and contractors who work on authorized intelligence operations, or who believe they are working on authorized intelligence operations. Otherwise, he said federal prosecutors would gain a veto power over what intelligence agents do.
“It would be a kind of de facto reorganization of how we conduct our intelligence operations,” said Edney, who was a legal adviser to the National Security Council under President George W. Bush.
Such a “carve-out” for intelligence and national security officials might be needed to win the support of Sen. Charles Grassley (R-Iowa), the Judiciary Committee’s ranking Republican. “There is a lot of merit to extending our criminal law to civilian contractors and employees abroad,” Grassley said in prepared remarks. “However, we must make sure that this is done in a manner that is narrowly tailored to the specific problem and is not overly broad.”
Assistant Attorney General Lanny Breuer told senators that the Justice Department has brought about 50 cases under the Military Extraterritorial Jurisdiction Act. The 2000 law applied many criminal laws to Defense Department employees and contractors and to those “supporting the mission” of the Defense Department abroad.
The category of “supporting the mission” could apply to many non-defense federal workers, Breuer said, but prosecutors have a difficult time making that link. “We can spend literally thousands of hours on one case trying to establish that nexus,” he said.
Breuer said the department supports Leahy’s bill with an exception for intelligence workers.