GovernmentExecutive.com

A grand jury in North Carolina indicted a CIA contractor Thursday on charges of beating an Afghan prisoner to death last summer.

The Justice Department's handling of the case, meanwhile, has given an indication that contractors who are accused of prisoner abuse in Iraq also will be tried in the United States.

David Passaro, a 38-year-old North Carolina resident, became the first U.S. contractor charged with crimes committed in Afghanistan or Iraq. The Justice Department has accused Passaro of killing a local man, Abdul Wali, while stationed at a military base in northeastern Afghanistan. Wali, who military personnel suspected was involved in rocket attacks, had voluntarily surrendered at the front gate of the military base on June 18, 2003. During a press conference Thursday, U.S. Attorney General John Ashcroft said that during the course of a two-day interrogation, "Passaro beat Wali repeatedly using his hands and feet and a large flashlight." Wali died June 21, 2003.

Ashcroft declined to explain why Passaro was being charged with assault instead of a more serious crime.

The case provides a first glimpse into the federal government's handling of legal issues surrounding private contractors who are suspected of commiting crimes while supporting U.S. military operations overseas. Of the thousands of private contractors who have worked in Iraq since the United States invaded 16 months ago, none has been charged with a crime.

The situation was brought under a particularly harsh light during the military investigation of the Abu Ghraib prison scandal, which unfolded earlier this year and laid bare the apparent immunity of civilian contractors. The Pentagon's Abu Ghraib investigation identified several soldiers and military contractors as key players in the torture and humiliation of Iraqi prisoners. But while the gears of military justice are processing uniformed personnel involved in the scandal, the contractors identified by the investigation have not been charged.

Ashcroft suggested, however, that private contractors who have been implicated in Iraqi prisoner abuse will be tried in U.S. civilian courts.

"Regarding other prisoner abuse allegations, I can report that the Justice Department has received one referral from the Department of Defense, and additional referrals from the CIA," he said. "I have assigned all of our other ongoing prisoner abuse cases to a prosecution team at the United States Attorney's Office in the Eastern District of Virginia, and any new referrals will also be assigned to that office."

That revelation could clear up confusion surrounding the legal status of private contractors supporting the military in war zones. In interviews this week, Defense Department officials and outside observers said that contractor crimes in lawless countries most likely would be handled under the Military Extraterritorial Jurisdiction Act. It is relevant, however, for contractors who are working directly for the Defense Department. Subcontractors or CIA contractors, for example, would most likely fall outside the scope of MEJA. In those cases, the burden falls to the country in which the crime was committed, according to Peter Singer, a National Security Fellow at the Brookings Institution in Washington. That becomes problematic, however, when the local judicial system is lacking.

"The laws are gray. There's a vacuum in the law," Singer said, during a discussion of U.S. regulations that apply to private contractors in Iraq.

Ashcroft said, however, that Passaro was being charged in the United States under a provision of the controversial Patriot Act.

"The Patriot Act expanded U.S. law enforcement jurisdiction over crimes committed by or against U.S. nationals on land or facilities designated for use by the U.S. government," he said. According to Ashcroft, the CIA launched the initial investigation and the Defense Department referred the case to the Justice Department last November.

A further complication for prosecuting contractors in Iraq, however, could be a partial immunity order issued by Paul Bremer, the chief of the Coalition Provisional Authority. That order was intended to cover contractors as they performed their duties, and it could be raised by defendants who claim they were performing interrogations, according to Singer.

"Under CPA order number 17, there is limited immunity extended in matters - for contractors, extended in matters clearly related to their contract performance," said Dan Senor, a spokesman for the CPA, during a press conference this week. "This does not protect them in matters related to criminal activities, rape, murder, anything of that sort."

COMMENTS

• This is all BS! The guy killed an innocent man and should be punished. The lawyers are getting too involved in technical issues and the morals of the country have fallen accordingly. There is some ethical level of right and wrong and the process is not important. If the man clearly killed an innocent person he should be executed! Just as the snipers in the USA should be executed. The USA is not remembering the values of right and wrong! Forget the technicalities - that is all lawyer crap. Reading a potentail criminal his rights is ridiculous - people have to be expected to know a basic level of information and a criminal's rights are part of that basic level of knowledge a person should have. Also, a person has to have a basic level of ethics to know what is right and wrong and this contractor knew it was wrong to beat a guy with a flashlight! The miliary at the prison knew it was wrong to undress prisoners and make them perform sex acts - the accused and her companions should be jailed for a long time and thrown out of the military without any benefits or rights that adhere to decent military. citizen Posted June 24, 2004 7:40 AM
• Now, who killed the other 40 Iraqi prisoners? GovExec.com reader Posted June 21, 2004 8:49 AM