Questions linger about how the government will deal with contractors who may have exceeded their contractual authority — and the bounds of the law
Wednesday's papers contain a few new developments relating to the civilian contractors working at Abu Ghraib. Two corporations appear to have provided linguistic and interrogation support for detention and intelligence operations there — CACI Corp. and Titan Corp. There is a great deal of speculation right now as to what will happen to these corporations, as well as their employees, for their apparent misconduct.
The New York Times has a pair of articles on the subject, starting with a report
about one of the civilian contractors and his denial of the allegations surrounding Abu Ghraib. John B. Israel, an Iraqi-American from Southern California, denies that he was involved with these abuses, and has not even hired an attorney to rebut them or defend himself.
Mr. Israel, who was born in Baghdad in 1955, was one of three Iraqi-Americans working as translators at Abu Ghraib. The Army report on the abuses described him as "either directly or indirectly responsible for the abuses at Abu Ghraib."
On Monday, his employer, SOS Interpreting, with offices in New York and suburban Washington, called Mr. Israel here for talks. That same evening, SOS issued its first statement about Mr. Israel, saying simply that the company, a subcontractor for the Titan Corporation for the work in Iraq, "fully intends to cooperate with the Army and with Titan" in the investigations. SOS said it would have nothing more to say.
Almost nothing was known about Mr. Israel before now. Among a raft of documents from the Army investigation, obtained by The New York Times, is a brief statement by Mr. Israel in which he denies any knowledge of the abuses. In it he says he arrived in Iraq on Oct. 14 and served as a translator for military intelligence. Asked if he had "witnessed any acts of abuse," he wrote: "No I have not."
Ms. Israel said her husband was "just a translator" and knew nothing of the Abu Ghraib abuses. She said a fellow employee had given his name to investigators. She would not say when he expected to return home, and he could not be reached for comment.
Another interesting report
from Adam Liptak of the New York Times discusses some of the possible sanctions these contractors could face at home and abroad. The contractors implicated in the Abu Ghraib mess could face U.S. criminal charges. (The WP reported
Saturday that the Justice Department started a criminal inquiry into one civilian employee at Abu Ghraib.) However, Iraqi courts will probably never get to touch this issue, and it's unclear whether these contractors will face any civil sanctions for their actions.
Prosecuting civilian contractors in United States courts would be "fascinating and enormously complicated," said Deborah N. Pearlstein, director of the U.S. law and security program of Human Rights First.
It is clear, on the other hand, that neither Iraqi courts nor American courts-martial are available.
In June 2003, L. Paul Bremer III, the chief American administrator in Iraq, granted broad immunity to civilian contractors and their employees. They were, he wrote, generally not subject to criminal and civil actions in the Iraqi legal system, including arrest and detention.
That immunity is limited to their official acts under their contracts, and it is unclear whether any abuses alleged can be said to have been such acts. But even unofficial conduct by contractors in Iraq cannot be prosecuted there, Mr. Bremer's order said, without his written permission.
Similarly, under a series of Supreme Court decisions, civilians cannot be court-martialed in the absence of a formal declaration of war. There was no such declaration in the Iraq war.
In theory, the president could establish new military commissions to try civilians charged with offenses in Iraq, said Jordan Paust, a law professor at the University of Houston and a former member of the faculty at the Army's Judge Advocate General's School. The commissions announced by President Bush in the wake of the Sept. 11 attacks do not, however, have jurisdiction over American citizens.
That leaves prosecution in United States courts. There, prosecutors might turn to two relatively narrow laws, or a broader one, to pursue their cases.
For more on this subject, see my Slate article "Hired Guns
" and my Explainer
on disciplining private contractors, as well as this excellent Writ column
by Anthony Sebok on the applicability of the Alien Tort Claims Act and Federal Tort Claims Act to this case. Query
: Can the Iraqi prisoners abused at Abu Ghraib file a Bivens
action in federal court against the U.S. government, just as a U.S. citizen might do if he/she were abused by the FBI? It's not a question I can readily answer, because I don't have a substantive background 42 U.S.C. 1983 or civil rights law, but it's one that may become relevant soon if the Iraqis seem some relief in U.S. courts.
Finally, the Wall Street Journal (subscription required) has a report
on contract irregularities in the agreement that allowed CACI Corp. to send personnel to Iraq to assist in the interrogations at Abu Ghraib. (For non-WSJ subscribers, check out this AP version
of the story.) Apparently, the contracts were actually held by the Department of the Interior — not the Army, as previously reported. And, there were other irregularities too, which may have been devised to evade proper oversight.
WASHINGTON — Government auditors are investigating the Army's unusual use of a computer-services contract to hire interrogators for Iraqi prisons from a company with no prior experience in that work.This is not good for CACI.
* * *
To fund the interrogators, the Army paid CACI under a 1998 contract, which is being administered by the Interior Department. Under the contract, CACI supplied computers and associated equipment at military bases world-wide.
But investigators are now asking why the Army chose such an unusual, if not irregular, method of funding, given that the Defense Department already had several outstanding, multimillion-dollar contracts with CACI, which it administered in-house. By being tucked away in a massive agreement administered outside the Pentagon, the program budget for interrogators escaped the notice of Defense Department auditors for several months.
"This evaded all normal forms of oversight," said one Pentagon official familiar with the contract.
* * *
The Interior Department's Mr. Quimby said that at the time, a contract officer noted the unusual salary requests and began combing through government regulations, seeking a job-description category that "was broad enough to include interrogators." The federal government has detailed guidelines that lay out the qualifications and pay grades for hundreds of different contracted positions. But "interrogator" was evidently a job category that neither CACI nor Army contractors had encountered.
Mr. Quimby said the contract officer finally decided that such an interrogator could be allowed under the contract, because he probably worked with computer databases and analyzed information. But both Interior and the Pentagon have had a change of heart. Auditors at both agencies are looking into how CACI determined what pay is appropriate for a private interrogator. For pay purposes, according to one military official familiar with the contract, CACI listed its hired interrogators as different types of computer specialists, a step that may be forbidden under federal regulations.
As this article
explains, there are a litany of remedies available to the federal government when it finds improper conduct by government contractors. If the report in the WSJ is accurate, and I presume it is, the company could also face liability under the False Claims Act
and other federal procurement regulations. Suffice to say, these practices don't look kosher to me, and government contracting regs and laws are pretty strict when it comes to accounting practices. Ironically, the government may not ultimately prosecute these corporate entities for any of the actual wrongdoing at Abu Ghraib, because the culpability chain is somewhat weak there in my opinion. But I think there's a strong likelihood that the government will
prosecute these contractors if there were financial irregularities, because the government typically takes a very hard line on this stuff. More to follow...
: Ellen McCarthy adds some details
about the Interior Department contracts today in a Washington Post report.
The contract, which is officially called a blanket-purchase agreement and has a $500 million limit, was then reissued by Interior. Blanket-purchase agreements are large, vaguely worded contracts designed to give agencies flexibility and to speed up purchases. Critics say these open-ended contracts allow agencies to skirt public oversight.
A year ago CACI acquired Premier Technology Group. In August, Command Joint Task Force-7, the unit overseeing operations in Iraq, decided it wanted CACI to provide interrogators under the blanket-purchase agreement, and informed Interior of its plan.
Because the blanket-purchase agreement was by that time an Interior contract, an Interior official was required to evaluate the new orders to make sure the work was not "outside the scope" of the contract, said Quimby, and that CACI was charging the government appropriately.
The contract was for technology services, but Interior's contracting officer "was convinced under his own guidelines" that the Army could request CACI's help with interrogations because the order included computer integration and data processing work, Quimby said. Interior thus issued a $19.9 million order for the work.
In December 2003, the contract was used again to hire CACI for counterintelligence support in a deal worth $21.8 million.
To call this irregular would be an understatement. In the government contracts world, there are unconventional ways to do things, such as the authority to purchase services without bidding or the authority to purchase off-the-shelf items. But against those kinds of unconventional contracts, this CACI contract looks quite unorthodox. The problem here is that the government contracts process is supposed to have some measure of transparency built into it. The reason for this is accountability. After all, government contracts are really about taxpayer money — our
money — and Congress needs to be able to follow the money to ensure that it's spent properly. I have a feeling that this incident will lead to some action by Congress, and not just by the Armed Services Committees. I think we're going to see some oversight action by the Government Affairs Committees and others in Congress who are interested in these issues, separate from anything directly connected to Abu Ghraib.