Dogs of War Get a New Lease on Life: Why the Military Extraterritorial Jurisdiction Act Violates the Eighth Amendment in Light of United States v. Slatten
Washington and Lee Journal of Civil Rights and Social Justice
Dogs of War Get a New Lease on Life: W hy the Militar y Extraterritorial Jurisdiction Act Violates the Eighth Amendment in Light of United States v. Slatten
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Dogs of War Get a New Lease on Life:
Why the Military Extraterritorial
Jurisdiction Act Violates the Eighth
Amendment in Light of United States v.
Michael D. Stinnett-Kassoff*
I. Introduction .....................................................................362
A. Modern Use of Private Military Firms in Combat
Zones by the United States..............................................362
B. Nisour Square Massacre Leads to United States
v. Slatten ....................................................................368
C. Background of the 2007 Nisour Square Massacre....370
II. The United States Has Trouble Gaining Jurisdiction
over Civilians Overseas ...................................................373
A. Kinsella v. United States ...........................................373
B. Al Shimari v. CACI Premier Technology, Inc. ..........375
C. Military Extraterritorial Jurisdiction Act (MEJA)...377
* Michael D. Stinnett-Kassoff is a third-year law student at Washington &
Lee University School of Law. Michael is the Executive Editor for the Washington
& Lee Journal of Civil Rights & Social Justice and a Senior Articles Editor for the
German Law Journal. Prior to attending law school, Michael graduated cum
laude from Boston University with a B.A. in International Relations and Political
Science and a minor in History, with Honors distinction in International
Relations. For his IR major, Michael wrote an Honors Thesis titled Private
Military Firms in Combat: Factors That Promote Success or Encourage Failure.
Before embarking on his academic journey, Michael served in the U.S. Navy for
eight years as a helicopter weapons technician and instructor. Michael has
completed two deployments in the Persian Gulf and one surge deployment in the
Pacific Ocean. Michael has trained U.S. Navy personnel in San Diego, Hawaii,
and Japan, as well as members of the Singapore navy.
D. Immunity for Contractors Prevented the Prosecution of Blackwater Contractors Under Iraqi Law ........................................................380
III. The D.C. Circuit Court of Appeals Holds that a
Mandatory Minimum Sentence for Contractors in
War Zones Violates the Eighth Amendment
Prohibition Against Cruel and Unusual Punishment ....385
A. Procedural Background .............................................385
B. Appellate Decision .....................................................386
IV. The D.C. Circuit Ruling in United States v. Slatten Voids MEJA as a Reliable Means to Obtain Jurisdiction over Contractors in War Zones. ..................392
V. Congress Needs to Amend MEJA to Create a More
Certain Jurisdictional Framework with Which to
Prosecute Private Contractors Overseas.........................393
A. Congress Needs to Amend MEJA to Account for
the Varied Roles that PMFs Fill ...............................394
B. Congress Should Reduce or Eliminate the
Application of 924(c) to Private Contractors
Supporting DoD Missions..........................................397
C. Congress Should Coordinate PMF Regulation with
the International Community ...................................398
A. Modern Use of Private Military Firms in Combat Zones by the
The United States has relied on Private Military Firms
(PMFs) extensively to carry out its numerous overseas military
missions since the end of the Cold War.1 Civilians and contractors
have always had a place in American wars, even during the
American Revolution and beyond.2 But the recent American
1. See discussion infra Part I.
2. See David Isenberg, The Founding Contractors, CATO INST. (July 7,
2008), https://www.cato.org/publications/commentary/founding-contractors (last
incursions into Afghanistan and Iraq brought an unprecedented
number of private contractors into the forefront of these conflict
zones, the discussions surrounding them, and the legal questions
arising from their ashes.3 Particularly, private contractors in Iraq
seemed to be operating in a legal grey area?they clearly were not
soldiers, and they clearly were not civilians; one question loomed
over every incident involving a private contractor who
accompanied U.S. soldiers: Who has jurisdiction over them and
pursuant to which laws?4
In 2000, Congress seemed to solve this conundrum when it
enacted the Military Extraterritorial Jurisdiction Act.5 Federal
prosecutors successfully used it multiple times to convict civilians
and private contractors for their crimes committed abroad,
although these convictions are hardly the norm.6 But the United
States Court of Appeals for the D.C. Circuit threw a wrench in the
wheels of justice in the summer of 2017. The D.C. Circuit ruled in
United States v. Slatten7 that ?the application of Section 924(c)??
visited Nov. 4, 2018, 10:50 am) (discussing how private contractors were integral
in winning the American Revolution) (on file with the Washington & Lee Journal
of Civil Rights & Social Justice); id. (?Private contractors are as American as
apple pie. In fact, without private contractors there would not have been an
America. Or, to paraphrase Genesis: In the beginning, God created private
See discussion infra Part I.
4. See Stephen P. Cullen, Out of Reach: Improving the System to Deter and
Address Criminal Acts Committed by Contractor Employees Accompanying
Armed Forces Overseas, 38 PUB. CONT. L.J. 509, 511 (2009) (?As so many
contractor employees accompany U.S. armed forces in overseas operations, it is
inevitable that some contractor employees will commit crimes. An effective
system to deter and address crimes committed by contractor employees is notably
absent from current military operations. The gap created by this absence is
5. See Military Extraterritorial Jurisdiction Act, 18 U.S.C. ?? 3261?67
[hereinafter MEJA] (establishing jurisdiction to prosecute certain civilians
abroad when they commit a felony crime).
6. See U.S. v. Arnt, 474 F.3d 1159, 1165 (9th Cir. 2007) (ruling that Arnt
was properly indicted under MEJA for fatally stabbing her husband, Staff
Sergeant Matthias Arnt, III, while on Incirlik Air Base, Turkey); see also
CHRISTOPHER KINSEY, PRIVATE CONTRACTORS AND THE RECONSTRUCTION OF IRAQ:
TRANSFORMING MILITARY LOGISTICS 137 (2009) (discussing MEJA?s application on
two contractors: Aaron Langston who assaulted a fellow contractor with a knife
in Iraq and a U.S. contractor who worked at Abu Ghraib Detention Facility who
had child pornography on his computer).
7. See United States v. Slatten, 865 F.3d 767, 7
77 (D.C. Cir. 2017
and its accompanying thirty-year mandatory minimum
sentences?to three of the defendants, ex-Blackwater contractors
responsible for the 2007 Nisour Square massacre in Baghdad, Iraq:
[I]s cruel and unusual punishment. The sentences are cruel in
that they impose a 30-year sentence based on the fact that
private security contractors in a war zone were armed with
government-issued automatic rifles and explosives. They are
unusual because they apply Section 924(c) in a manner it has
never been applied before to a situation which Congress never
This sentence was the result of a conviction under 18 U.S.C.
? 924(c) which makes it a felony to use an automatic weapon to
further a violent crime and?in the case of the defendants?
mandated a minimum sentence of thirty years imprisonment.9
This Note argues that this appellate court decision throws
MEJA into jeopardy as a workable method with which to gain
jurisdiction over private contractors employed in U.S. conflicts
denied sub nom., Slough v. United States, 218 U.S. LEXIS 2836 (U.S., May 2018)
(holding that mandatory minimum sentence requirement of 18 U.S.C. ? 924(c)
violates the Eighth Amendment protection against cruel and unusual
punishment when applied to contractors who are working overseas in military
conflicts in support of U.S. government operations). In Slatten, the D.C. Circuit
Court considered whether three defendants? thirty-year mandatory minimum
sentences under 18 U.S.C. 924(c) violated the Eighth Amendment?s prohibition
against cruel and unusual punishment. Id. at 811. These three defendants were
found guilty of various counts including voluntary manslaughter and the use of
machine guns in the commission of a violent crime under 924(c). Id. These
defendants were found guilty of killing 17 Iraqi civilians and injuring others in
the 2007 Nisour Square Shooting in Baghdad, Iraq. Id. at 777?78. The issue with
their sentences was the fact that these three defendants were working in Iraq as
private security contractors in support of the Department of State and the
Department of Defense. Id. The Court reasoned that because 924(c) was meant to
combat the deadly combination of drug crimes and violent crimes in the United
States, 924(c) was improperly applied to the defendants. Id. at 812. The Court
held that 924(c)?s mandatory minimum sentences as applied to private
contractors performing their duties in a warzone violated the Eighth
Amendment?s prohibition against cruel and unusual punishment. Id. at 820.
8. Id. at 820. There are several different ways in which ?Nisour? is spelled,
including ?Nisur? and ?Nisoor.? Several of these variations occur throughout this
Note depending on the citation, although the ?Nisour? spelling is most prevalent
in media and is the most used spelling in this Note.
9. See 18 U.S.C. ? 924(c)(B)(ii) (2006) (?If the firearm possessed by a person
convicted of a violation of this subsection is a machinegun or a destructive device,
or is equipped with a firearm silencer or firearm muffler, the person shall be
sentenced to a term of imprisonment of not less than 30 years.?).
abroad.10 This Note argues that the language in MEJA is too broad
and too easily invites federal prosecutors to charge defendants
with crimes that carry sentences that will likely be ruled to violate
the Eighth Amendment just as they were in United States v.
Slatten.11 This Note offers suggestions for how Congress might
address this problem, amend MEJA, and give federal prosecutors
a concrete tool with which to prosecute private contractors who
violate the laws and norms of both the U.S. and the international
The use of PMFs around the world has increased dramatically
over the past decade as there has been a ?surge of PMF activity
around the globe.?13 Initially comprising of just a few primary
actors?often owned by a single parent company or investment
firm?the market for PMFs today has transformed into a
billion-dollar industry comprising of several hundred PMFs who
provide a wide range of services. Blackwater USA alone earned
over two billion dollars providing services for the U.S. government
before it changed ownership and its name.14 As the industry stands
10. See discussion infra Part IV.
11. See discussion infra Part IV; see also Slatten, 865 F.3d at 820 (holding
that mandatory minimum sentence requirement of 18 U.S.C. ? 924(c) violates the
Eighth Amendment protection against cruel and unusual punishment when
applied to contractors who are working overseas in military conflicts in support
of U.S. government operations).
See discussion infra Part V.
14. Beyond Blackwater: An Industry Reinvents Itself After the Demise of Its
Most Controversial Firm, ECONOMIST (Nov. 23, 2013),
https://www.economist.com/news/business/21590370-industry-reinvents-itselfafter-demise-its-most-controversial-firm-beyond-blackwater (last visited Nov. 4,
2018, 10:52 am) (?Blackwater . . . rose to worldwide prominence as an outsourced
branch of the American army during the occupation of Iraq and Afghanistan . . . .
It earn[ed] a total of around $2 billion from Uncle Sam for providing armed
personnel to the Pentagon, the State Department and, secretly, the CIA.?) (on file
with the Washington & Lee Journal of Civil Rights & Social Justice). Erik Prince,
the founder of Blackwater, sold Blackwater (now Academi) and is currently the
chairman of the Frontier Services Group, ?a logistics company focused on Africa
and South Asia.? Erik Prince, U.S. Forces Should Acquire Material and Hire
Manpower Support: Opposing View, USA TODAY (Aug. 7, 2017, 7:02 PM),
https://www.usatoday.com/story/opinion/2017/08/07/erik-prince-restructureafghanistan-war-editorials-debates/104389448/ (on file with the Washington &
Lee Journal of Civil Rights & Social Justice). Erik Prince recently?and
PMFs represent the newest addition to the modern battlefield,
and their role in contemporary warfare is becoming increasingly
significant. Not since the eighteenth century has there been
such reliance on private soldiers to accomplish tasks directly
affecting the tactical and strategic success of engagement. With
the continued growth and increasing activity of the privatized
military industry, the start of the twenty-first century is
witnessing the gradual breakdown of the Weberian monopoly
over the forms of violence. PMFs may well portend the new
business face of war.15
This modern incarnation of the PMF industry originated at
the end of the Cold War, but it was the U.S. occupation of Iraq that
transformed the industry into one that continues to grow
exponentially?currently, there are nearly 200 active PMFs.16 The
U.S. used more private contractors than soldiers at certain times
in this unique conflict, where these contractors were ?employed by
companies that have entered into contracts with the DoD
[Department of Defense], the Department of State, and other U.S.
government agencies operating in conflict zones. There are at least
as many of them as there are uniformed soldiers: More than
225,000 by mid-2009.?17
On the surface, none of this is surprising given that the
military is just one more area of government which privatized more
of its defense functions as Cold War tensions faded in the late
controversially?argued that the U.S. should ?restructure? the war in
Afghanistan ?similar to a bankruptcy reorganization.? Id. He argues that this can
be accomplished by imbedding private contractors into the Afghan army, giving
the U.S. an exit strategy. Id. He claims this can be done for twenty percent of the
forty-eight billion dollars spent in Afghanistan this year. Id. It should be noted
that Prince is the brother of Betsy DeVos, the U.S. Secretary of Education and
fellow billionaire, and is contemplating a Congressional bid in Wyoming as a
Republican. Jeremy W. Peters, Maggie Haberman & Glenn Thrush, Erik Prince,
Blackwater Founder, Weighs Primary Challenge to Wyoming Republican, N.Y.
TIMES (Oct. 8, 2017),
https://www.nytimes.com/2017/10/08/us/politics/erik-princeblackwater-wyoming-senate.html?_r=0 (on file with the Washington & Lee
Journal of Civil Rights & Social Justice).
Singer, supra note 13, at 2.
16. See DAVID ISENBERG, SHADOW FORCE: PRIVATE SECURITY CONTRACTORS IN
IRAQ 7 (2009) (describing the ?at least 200 foreign and domestic private security
companies in Iraq, ranging from major firms such as Aegis Defense Services,
ArmorGroup, Blackwater USA Group, DynCorp, and Triple Canopy to far smaller
1980s and early 1990s.18 Under President Bill Clinton,
privatization accelerated across all government sectors, including
the foreign policy sector.19
What is new, however, is just how dependent the U.S. has
become on the PMF industry to wage any credible intervention
overseas, ?creat[ing] a dependency syndrome on the private
marketplace that not merely creates critical vulnerabilities, but
shows all the signs of the last downward spirals of an addiction.?20
Despite the fact that the use of PMFs in Iraq actually harmed the
U.S. counterinsurgency effort, ?when it comes to private military
contractors and counterinsurgency, the U.S. has locked itself into
a vicious cycle. It can?t win with them, but can?t go to war without
them.?21 Peter W. Singer, who is highly regarded generally as an
expert in security studies and is an exceptional authority
specifically regarding the PMF industry, explained that:
When the history books are written about the Iraq war,
they will point to several critical turning points in U.S. efforts
to beat back the insurgency that flourished after the 2003
invasion and ?Mission Accomplished? victory speeches were the
order of the day. Certain to make the list are the battle for
Fallujah, the revelation of prisoner abuse at Abu Ghraib, and
now the shootout in Baghdad that left as many as 20 civilians
dead, the entire country seething and U.S. operations at a
standstill. What will distinguish these accounts from histories
of past wars is the new common denominator for each of these
incidents: [T]he private military industry.22
18. See id. at 30 (discussing the ?privatization revolution? that took place
during the presidencies of Ronald Reagan and George H. W. Bush in an effort to
trim waste from ?fattened government bureaucracies? and save taxpayer money
on the domestic sphere).
19. See id. at 31 (?Caught between escalating price tags for weapons systems
and political pressure to cut costs in the post-Cold War era without weakening
the military?s capabilities, [Department of Defense] Secretary [William] Cohen
turned to the private sector for advice . . . .?).
20. Peter W. Singer, Can?t Win with ?Em, Can?t Go to War Without ?Em: Private
Military Contractors and Counterinsurgency, BROOKINGS (Sept. 27, 2007),
https://www.brookings.edu/research/cant-win-with-em-cant-go-to-war-without-emprivate-military-contractors-and-counterinsurgency/ (last visited Nov. 4 10:54 am) (on
file with the Washington & Lee Journal of Civil Rights & Social Justice).
22. Peter W. Singer, The Dark Truth About Blackwater, BROOKINGS (Oct. 2,
2007), https://www.brookings.edu/articles/the-dark-truth-about-blackwater (on
file with the Washington & Lee Journal of Civil Rights & Social Justice).
Fanning the flames of the fledgling debate over the increased
privatization of the military is the fact that this massive reliance
on PMFs in Iraq failed to end the initial occupation on schedule,
created more burdens for the military and policy-makers, and
alienated the local civilian population, creating more problems for
the U.S. than solving, and tarnishing the reputation of the U.S.
military in the Middle East beyond repair.23
B. Nisour Square Massacre Leads to United States v. Slatten
One of the most prominent cases involving PMFs in Iraq
revolves around the 2014 sentencing of four ex-Blackwater
contractors to prison terms for their roles in the September 16,
2007 Nisour massacre which left fourteen Iraqi civilians dead and
seventeen injured.24 In this rare instance, the U.S. government
was able to successfully gain jurisdiction over the contactors and
earn convictions for the defendants. The U.S. government had
jurisdiction over the defendants pursuant to MEJA.25 Nicholas
Slatten, 30, of Sparta Tennessee, was sentenced to life in prison for
first-degree murder for firing the first shots.26 Paul Alvin Slough,
35, of Keller Texas, Evan Shawn Liberty, 32, of Rochester, New
Hampshire, and Dustin Laurent Heard 33, of Maryville,
Tennessee, were all sentenced ?to the mandatory term of
imprisonment for of thirty years for their convictions under 18
U.S.C. ? 924(c), plus one day on all of the remaining counts.?27
These counts included dozens of counts of attempted
manslaughter, up to 13 counts of voluntary manslaughter, and a
single charge of a firearms offense for each defendant.28
Slough was found guilty of 13 counts of voluntary
manslaughter, 17 counts of attempted manslaughter, and one
firearms offense. Liberty was found guilty of eight counts of
voluntary manslaughter, 12 counts of attempted manslaughter,
and one firearms offense. Heard was found guilty of six counts
of voluntary manslaughter, 11 counts of attempted
manslaughter, and one firearms offense.29
While these sentences seemed extreme to those who were
sympathetic towards the defendants, they signaled to the people of
Iraq that the U.S. would seek justice and punish those who
perpetrated atrocities in Iraq during the war and occupation,
regardless of how long it may take.30 The controversy surrounding
this case resulted from the mandatory minimum sentences given
to Slough, Liberty, and Heard under Section 924(c), which
924(c) (1) (A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime?
(i) be sentenced to a term of imprisonment of not less than 5
28. See Office of Public Affairs, Four Former Blackwater Employees Found
Guilty of Charges in Fatal Nisur Square Shooting in Iraq, DEP?T OF JUST. (Oct. 22,
https://www.justice.gov/opa/pr/four-former-blackwater-employees-foundguilty-charges-fatal-nisur-square-shooting-iraq (discussing the charges brought
against the defendants and the guilty verdicts that were found for most of the
charges) (on file with the Washington & Lee Journal of Civil Rights & Social
30. See id. (??This verdict is a resounding affirmation of the commitment of
the American people to the rule of law, even in times of war,? said U.S. Attorney
[for the District of Columbia Ronald C. Machen Jr.]?).
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation
subsection-(i) is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be sentenced to
a term of imprisonment of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with
a firearm silencer or firearm muffler, the person shall be
sentenced to a term of imprisonment of not less than 30 years.31
The language of 924(c) is clear, demanding, and, at first glance,
poses no real question regarding its application to this case.
C. Background of the 2007 Nisour Square Massacre
On the morning of September 16, 2007, Blackwater security
guards were escorting an American envoy in Baghdad, Iraq when
a car bomb exploded near the U.S. diplomat.32 The four
defendants?Slatten, Slough, Liberty, and Heard?were members
of team Raven 23 which was ?sent to provide secondary support in
the effort to evacuate the diplomat.?33 A similar car bomb had
previously exploded in Nisour Square that same year ?in response
to which Iraqi security had been dramatically increased, with
multiple checkpoints [stationed] at the Square?s entrances [to
protect against] potential threats.?34 Instead of directing Raven 23
to meet with the primary team at a pre-arranged checkpoint, ?shift
leader Jimmy Watson ignored his orders and directed his team to
Nisur Square, a traffic circle in downtown Baghdad that Watson
intended to ?lock down.??35
The Raven 23 convoy consisted of four armored vehicles and,
with the assistance of with Iraqi police, stopped at the south end
of the square and ?brought all traffic to a halt.?36 Almost as soon as
Raven 23 arrived and locked down traffic the chaos that would be
known as the Nisour Square Massacre unfolded:
Two or three minutes later, witnesses heard the "pops" of shots
being fired, and a woman screaming for her son. The car that
had been hit, a white Kia sedan, had been flagged days earlier
by a Blackwater intelligence analyst as a type that might be
used as a car bomb. According to the government, the Kia then
rolled forward and lightly bumped the vehicle in front of it. The
driver?s side of the Kia windshield had a hole in it and was
splattered with blood.37
Two Iraqi police officers readily observed that the driver of the Kia
had a bullet dead-center in the middle of his forehead.38 Despite
the attempts of both Iraqi police officers to cease Raven 23 from
firing on the Kia further,39 the onslaught escalated. As the Kia
rolled forward with its driver immobilized,40 ?heavy gunfire
erupted from the Raven 23 convoy into the Kia,?41 forcing the Iraqi
police to scramble for cover.42 At this time, ?[m]ultiple grenades
were fired at the Kia, causing it to catch fire?43 while the ?Kia
passenger was shot and killed.?44
Unfortunately, the carnage was far from over. According the
Indiscriminate shooting from the convoy then continued past
the Kia, to the south of the Square. Victims were hit as they
sought cover or tried to escape, giving rise to the bulk of
casualties that day. At some point a Raven 23 member radioed
that they were taking incoming fire, but others could not locate
any such threat. When the shooting died down, a radio call
indicated one of the Raven 23 vehicles had been disabled and
needed to be hooked up to another vehicle to be towed. During
the hook-up, a member of the Raven 23 convoy saw an Iraqi shot
in the stomach while his hands were up, by an unidentified
Blackwater guard who had exited his vehicle. Once the hook-up
was complete, the Raven 23 convoy began moving slowly around
the circle and north out of the Square, where isolated shootings
continued both to the west and north. By the time the convoy
finally exited the Square, at least thirty-one Iraqi civilians had
been killed or wounded.45
Additionally, according to a U.S. embassy ?spot report,?46 one of the
Blackwater teams that had originally escorted the U.S. official
back to the Green Zone was re-dispatched to assist Raven 23 in
Nisour Square.47 This further compounded the day?s tensions as
?[t]he re-deployed unit found itself stuck at an intersection in
Nisoor Square and was confronted by Iraqi police and army? after
which ?[a] U.S. forces quick reaction team was sent to help rescue
the unit.?48 All this set the stage for the trial of Slatten, Slough,
Liberty, and Heard who were ultimately prosecuted, convicted,
and sentenced under MEJA for carrying out this mayhem.49
46. See Blackwater Incident, supra note 32
(?One of the most detailed
accounts of the events according to Blackwater employees comes from an initial
report by the US embassy. This was seen by the Washington Post at the end of
September 2007. It was described as a ?spot report? and not intended to be
47. See id. (?According to those accounts . . . [o]ne of the Blackwater teams
that had transported the official back to the Green Zone was re-dispatched to help
out in Nisoor Square.?).
49. See generally MEJA, supra note 5.
II. The United States Has Trouble Gaining Jurisdiction over
The abundant use of private contractors overseas by the
United States government is another example of the law failing to
adapt to modern times, similar to the legal perplexities that plague
the attempt to consistently regulate the use of innovative
technology.50 Throughout the past few decades as the Supreme
Court has slowly recognized that civilians abroad cannot be
prosecuted pursuant to the same jurisdictional laws as military
servicemembers, Congress has failed to create a reliable
replacement jurisdictional framework with which to prosecute
civilians abroad whose activities render them seemingly
synonymous with their military counterparts.51
A. Kinsella v. United States
In Kinsella v. United States,52 the Supreme Court held that
civilians who committed a non-capital offense could not be tried via
Today, regulators in New York City and many other places in the U.S.
and around the world are struggling to recast taxi regulation, given the
ways that Uber and other taxi apps have fundamentally transformed
the market for "point-to-point" transportation. U.S. regulators to date
have not been nearly as innovative in their responses to the emergence
of the taxi apps as the apps have been in changing the taxi business.
51. See discussion infra Part II.
52. See Kinsella v. United States, 361 U.S. 234, 249 (1960) (holding that the
prosecution of civilians by court-martial was unconstitutional for lack of
jurisdiction because civilians are not under the authority of Congress to regulate
the military and because courts-martial fail to uphold the Article III protection of
civilians, as well as the Fifth and Sixth Amendments). Kinsella grappled with the
validity of the court-martial of civilian persons during peacetime who
accompanied the armed forces outside of the United States and were charged
under the Uniform Code of Military Justice (?UCMJ?) with noncapital offenses.
Id. at 235. Joanna S. Dial was the wife of a U.S. soldier and the two of them lived
in government housing at Baumholder, Germany with their three children. Id.
Both the husband and wife were charged with the unpremeditated murder of one
of their children under Article 118(2) of the UCMJ. Id. at 235?36. Both of them
pleaded guilty and were sentenced to the maximum penalty permitted. Id. at 236.
Because the Court had previously held that the Necessary and Proper Clause
court-martial, as a court-martial deprives non-military civilians of
their Constitutional rights under Article III and as guaranteed
under the Fifth and Sixth Amendments.53 In this case, Mrs.
Joanna S. Dial was living in Germany with her family.54 Her
husband was a U.S. soldier stationed in Germany.55 When one of
their children died, both Mrs. Dial and her husband were
eventually charged under Article 118 (2) of the Uniform Code of
Military Justice.56 They both pleaded guilty in exchange for lesser
offenses57 and, after Mrs. Dial?s jurisdictional challenge was denied
by the court,58 they both received the maximum sentences
possible.59 After a successful petition of habeas corpus, Mrs. Dial
was released by the district court,60 which resulted in subsequent
appeals by the warden of the Federal Reformatory for Women at
could not be expanded to prosecute civilian dependents under Clause 14 for
capital crimes, it was illogical to allow the expansion of Clause 14 to prosecute
them for noncapital crimes. Id. at 248. Therefore, the Court held that Mrs. Dial
could not be prosecuted and convicted by court-martial because of the protections
provided by Article III and the Fifth and Sixth Amendments. Id. at 249.
53. Id. at 249 (?We therefore hold that Mrs. Dial is protected by the specific
provisions of Article III and the Fifth and Sixth Amendments and that her
prosecution and conviction by court-martial are not constitutionally
54. See id. at 235 (discussing the relevant facts of the case, such as the
family?s residential situation on the military base).
55. See id. (?The appellee is the mother of Mrs. Joanna S. Dial, the wife of a
soldier who was assigned to a tank battalion of the United States Army. The Dials
and their three children lived in government housing quarters at Baumholder,
56. See id. at 235?36 (?In consequence of the death of one of their children,
both of the Dials were charged with unpremeditated murder, under Article 118
(2) of the Uniform Code of Military Justice.?).
57. See id. at 236 (?Upon the Dials? offer to plead guilty to involuntary
manslaughter under Article 119 of the Code, both charges were withdrawn and
new ones charging them separately with the lesser offense were returned. They
were then tried together before a general court-martial at Baumholder.?).
58. See id. (?Mrs. Dial challenged the jurisdiction of the court-martial over
her but, upon denial of her motion, pleaded guilty, as did her husband.?).
59. See id. (discussing how ?[e]ach was sentenced to the maximum penalty
permitted under the Code?).
60. See id. at 235?36 (?Their convictions were upheld by the Court of Military
Appeals, and Mrs. Dial was returned to the United States and placed in the
Federal Reformatory for Women at Alderson, West Virginia. Thereafter the
appellee filed this petition for habeas corpus and obtained Mrs. Dial?s discharge
Alderson, West Virginia where Mrs. Dial was previously held.61
The Supreme Court held that the UCMJ did not have jurisdiction
over civilians for noncapital offenses, even when charged with
crimes committed on military bases overseas.62 This case was one
of the last major cases which slowly but surely precluded trying
civilians by court-martial.
B. Al Shimari v. CACI Premier Technology, Inc.
Al Shimari v. CACI Premier Technology, Inc. 63 is a case that
is somewhat relevant to the general jurisdictional topic of this Note
61. See id. (?From this judgment the warden has appealed.?).
62. See id. at 248 (?We are therefore constrained to say that since this Court
has said that the Necessary and Proper Clause cannot expand Clause 14 so as to
include prosecution of civilian dependents for capital crimes, it cannot expand
Clause 14 to include prosecution of them for noncapital offenses.?); see also Reid
v. Covert, 354 U.S. 1, 75?78 (1957) (holding that civilian respondents, who had
been convicted by court-martial for murdering their soldier husbands overseas
and sentenced to life imprisonment, could not be tried under the UCMJ for capital
offenses for this violated their Constitutional rights under Article III and the
Fifth and Sixth Amendments); United States ex rel. Toth v. Quarles, 350 U.S. 11,
13, 23 (1955) (holding that an ex-service member could not be tried by
court-martial for a crime he committed after he left military service and was
officially a civilian); id. at 22 (?[t]here are dangers lurking in military trials which
were sought to be avoided by the Bill of Rights and Article III of our Constitution.
Free countries of the world have tried to restrict military tribunals to the
narrowest jurisdiction deemed absolutely essential to maintaining discipline
among troops . . . .?).
63. See Al Sharimi v. CACI Premier Tech., Inc., 840 F.3d 147, 162 (4th Cir.
2016) (holding that ?[t]he political question doctrine does not shield from judicial
review intentional acts by government contractors that were unlawful at the time
they were committed? when determining whether the Alien Tort Statute may be
applied to private contractors who orchestrated the Abu Ghraib detainee abuses).
In Al Sharimi, the Fourth Circuit Court of Appeals decided whether the district
court erred when it dismissed the plaintiffs? complaint because it presented a
non-justiciable political question. Id. at 151. The plaintiffs were four Iraqi
nationals who alleged that they were abused while in the custody of the U.S. Army
at Abu Ghraib prison near Baghdad, Iraq in 2003?04. Id. CACI Premier
Technology, Inc. (CACI) provided the military with interrogation services at the
time and were the recipients of this civil suit. Id. The district court made this
determination of non-justiciability based on three grounds. Id. First, the court
determined that interrogation operations at Abu Ghraib were under direct control
of the military. Id. Second, the questioning of sensitive military judgements by
the district court would be improper. Id. Finally, the district court did note possess
any judicially manageable standards to resolve the claims. Id. The Circuit Court
concluded that because the district court does in fact have manageable standards
but is only worth discussing for a few moments. This is a tort case
stemming from the Abu Ghraib detainee abuses at Abu Ghraib
prison near Baghdad, Iraq in 2003 and 2004.64 In this case, four
Iraqi nationals alleged that they were abused at the prison while
being detained;65 they were initially detained in 2003 and were
eventually released without being charged with a crime.66 They
filed a civil action against CACI Premier Technology, Inc. which
?provided contract interrogation services for the military at the
time of the alleged mistreatment.?67
This case is relevant because it shows how difficult it is to get
jurisdiction over private contractors and PMFs, even in civil cases.
The plaintiffs brought suit under the Alien Tort Statute (?ATS?),
alleging ?that CACI employees committed acts involving torture
and war crimes, and cruel, inhuman, or degrading treatment. The
plaintiffs also asserted various tort claims under the common law,
including assault and battery, sexual assault and battery, and
intentional infliction of emotional distress.?68 While the Fourth
Circuit Court of Appeals eventually held that the district court
erred in holding that the plaintiffs? claims were not justiciable, it
remains to be seen whether the plaintiffs will successfully apply
the ATS to their case and win a judgment against a
with which to adjudicate because it can interpret statutory terms and established
international norms which are commonly used to interpret Alien Tort Statute
claims. Id. at 161. The Circuit Court also decided that the political question
doctrine does not screen intentional, unlawful acts of a government contractor
from judicial review. Id. at 162. Thus, the Circuit court held that the plaintiffs?
claims were justiciable by the district court. Id.
64. See id. at 151 (?Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili, and
Asa?ad Al-Zuba?e (the plaintiffs), four Iraqi nationals, alleged that they were
abused while detained in the custody of the United States Army at Abu Ghraib
prison, located near Baghdad, Iraq, in 2003 and 2004.?).
65. See id. (discussing the abuse allegations of the four Iraqi nationals which
are claimed to have been performed by CACI private contractors).
66. See id.
(?They were detained beginning in the fall of 2003, and ultimately
were released without being charged with a crime.?)
68. Id. (citing the Alien Tort Statute, 28 U.S.C. ? 1350 [hereinafter ATS]).
69. See id. at 158?59 (concluding that any unlawful acts of
the CACI employees are subject to judicial review ?to the extent that the
challenged conduct violated settled international law or the criminal law to which
the CACI employees were subject at the time the conduct occurred?).
C. Military Extraterritorial Jurisdiction Act (MEJA)70
MEJA was enacted in 2000 in order to ?establish Federal
criminal jurisdiction over offenses committed outside the United
States by persons employed by or accompanying the United States
Armed Forces.?71 It gives federal prosecutors jurisdiction in order
to prosecute those civilians whom are normally barred under the
UCMJ,72 specifically allowing prosecutors to charge contractors of
PMFs when they commit crimes abroad while working in tandem
with or under contract for the United States.73 The relevant
provision of MEJA at issue in this Note, Section 3261(a), is the
provision which makes a felony committed abroad able to be
prosecuted at home in the U.S. This Section states:
(a) Whoever engages in conduct outside the United States that
would constitute an offense punishable by imprisonment for
more than 1 year if the conduct had been engaged in within the
special maritime and territorial jurisdiction of the United
(1) while employed by or accompanying the Armed Forces
outside the United States.74
This broad language gave federal prosecutors a wide array of laws
from which to choose when they charged the four Blackwater
contractors who fired indiscriminately at Iraqi civilians at Nisour
Square?and this broad language is the Achilles? heel of MEJA.75
It allows prosecutors to essentially charge the defendants with
every possible felony action in order to maximize their odds at
reaching any conviction at all, on any charge.76
Unfortunately, many of these laws?and their subsequent
sentences? were not meant to be applied to contractors in a war
zone. In the case of Slatten, prosecutors charged all four
defendants with violating Section 924(c) because they used
machine guns when they committed their crimes.77 But 924(c) was
enacted to combat violent crimes and drug trafficking in American
neighborhoods, not regulate those individuals fighting in combat
zones on behalf of the U.S, as the ?Supreme Court has
described Section 924(c)?s basic purpose as an effort to combat the
?dangerous combination? of ?drugs and guns.??78 The majority in
Slatten further explained that 924(c) was meant to dissuade those
criminals who set out to commit a felony from also using an
automatic weapon to facilitate that felony.79 Thus, instead of
finally achieving justice for the victims? families after a decade of
litigation, we are left with more uncertainty after the D.C. Circuit
Court held that the mandatory minimum sentences issued in
Slatten violated the defendants? Eighth Amendment protections
against cruel and unusual punishment and remanded the case to
the district court for more litigation.80
Prior to the enactment of MEJA, the obligation to prosecute
crimes committed by U.S. civilians fell upon the host nation.81 If
the host nation was not willing or not able to exert its jurisdiction
to prosecute, ?then the offense would go unpunished.?82 The intent
of Congress to use MEJA to fill these jurisdictional gaps is evident
in its statutory construction, particularly section 3261(b) which
deals with concurrent jurisdiction:
No prosecution may be commenced against a person under this
section if a foreign government, in accordance with jurisdiction
recognized by the United States, has prosecuted or is
prosecuting such person for the conduct constituting such
offense, except upon the approval of the Attorney General or the
Deputy Attorney General (or person acting in either such
capacity), which function or approval may not be delegated.83
This section serves two purposes. First, Congress intended for
MEJA to be used only in those few cases where an existing scheme
of criminal law was not an option for addressing crimes committed
by U.S. civilians overseas.84 Second, while the American notion of
double jeopardy does not apply to situations where two separate
sovereigns wish to prosecute a crime, Congress intended to use
MEJA to prosecute crimes which no other sovereign would
prosecute.85 MEJA is not meant to pursue duplicate and redundant
(describing how host nations had the sole authority to prosecute many criminal
offenses committed by civilians accompanying the armed forces).
82. Id. at 101?02.
84. See Perlek, supra note 81, at 102 (?Where international agreements
recognized by the United States already provide for foreign criminal jurisdiction,
and that jurisdiction is exercised, then Congress is content to allow that existing
scheme of law, namely foreign law, to be applied.?); id. (?In a recently publicized
case involving . . . American service members in Germany, German law was
applied, yielding sentences between seven years and eight-and-a-half years for
the three defendants.?).
85. See id. 103 (discussing the roles of the Attorney General and Deputy
Attorney General in ensuring that the U.S. ?will not pursue concurrent or parallel
prosecutions except in the most extraordinary of circumstances, and with the very
highest level of authorization?).
86. See id. (?Although the American legal doctrine of ?double jeopardy? does
not apply where there are two separate sovereigns (for example, the United States
and Germany), Congress wants to avoid redundancy.?).
D. Immunity for Contractors Prevented the Prosecution of
Blackwater Contractors Under Iraqi Law
Charging contractors under Iraqi law is difficult for two
reasons.87 First, the new Iraqi government is not capable of trying
cases of this magnitude, especially when many of the contractors
have more advanced weaponry than the host nation.88 Second, the
Coalition Provisional Authority (CPA) granted immunity to
contractors, with the successive Iraqi government failing to repeal
this immunity.89 The legal system in post-Saddam Iraq while the
CPA was taking root was murky at best.90 The CPA issued Order
No. 7, which preserved the Iraqi Penal Code of 1969 as long as the
CPA did not issue a conflicting law.91 CPA?s inaugural regulation
Unless suspended or replaced by the CPA or superseded by
legislation issued by democratic institutions of Iraq, laws in
force in Iraq as of April 16, 2003 shall continue to apply in Iraq
insofar as the laws do not prevent the CPA from exercising its
rights and fulfilling its obligations, or conflict with the present
or any other Regulation or Order by the CPA.92
87. See Belen, supra note 73, at 187 (discussing the legal challenges that
arise when attempting to prosecute contractors under Iraqi law).
88. See id. at 187 (discussing the legal vacuum in post-Sadam Iraq and the
complications that arose from that situation); see also PETER W. SINGER,
CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY 93?94
(2008) (discussing how many PMFs can provide small armies with state-of-the-art
weaponry to clients who possess a weak military or lack one altogether).
89. See Belen, supra note 73, at 175 (discussing the legal immunity that
foreign contractors received while they were working in Iraq while supporting
United Stated Department of Defense operations).
90. See id. at 188?89 (discussing the confusion that plagued the Iraqi legal
system after the Coalition Provisional Authority replaced Sadam Hussein as the
sole source of legal policy and the direct and indirect consequences that followed
as a result of the CPA?s decisions, regardless of how detailed or improvised they
91. See id. (?Although the CPA further amended the Penal Code?s
applicability, the Penal Code?s relevant provisions remained in effect at the time
of the Blackwater incident and, therefore, would form the basis for any criminal
prosecution in an Iraqi court.?).
92. Id. at 188.
This Order No. 7 amended the Iraqi Penal Code, which was still in
force at the time of the Blackwater incident in 2007.93
The CPA later issued Order No. 17, however, which provided
immunity for contractors in Iraq, regardless of the condition of the
Iraqi Penal Code.94 The CPA issued Order No. 17 in June 2004
under the title ?Status of the Coalition Provisional Authority,
[Multi-National Force]-Iraq, Certain Missions and Personnel in
Iraq.?95 This Order ?granted immunity from legal liability to a wide
swath of contractors operating in Iraq.?96 This Order specifically
addressed personnel working to reconstruct Iraq once the U.S.
military offensive ended.97 This Order was issued pursuant to
several United Nations Security Council Resolutions.98
Section 4 of Order 17 fulfilled three goals. First, it described
the process for registering with a centralized governmental body.99
Second, it established choice of law.100 Third, and most
importantly, it granted legal immunity to contractors.101 Section 4
93. See id. at 189
(?In June 2004, the CPA released an Order under the
innocuous title ?Status of the Coalition Provisional Authority, [Multi-National
Force]-Iraq, Certain Missions and Personnel in Iraq.? Although unnoticed at the
time, this Order granted immunity from legal liability to a wide swath of
contractors operating in Iraq.?)
94. See id. at 189 (discussing immunity from prosecution under the Iraqi
criminal law system for foreign contractors in Iraq which included Blackwater
95. Id. at 189.
96. See id. (?The Order specifically sought to ?clarify the status? of personnel
assisting in the reconstruction of Iraq after the end of the U.S. military
97. See id. (?In light of its purpose to clarify the status of personnel
associated with the occupation, rebuilding, and transitional period in
post-Saddam Iraq, the broad definition of persons covered by the Order is
99. See id. at 190 (?Section 4 of CPA Order 17 accomplishes three primary
goals: [P]roviding requirements for registration with a centralized governmental
body, establishing particularized choice of law, and granting partial legal
immunity to contractors.?).
100. See id. (describing one of the goals of Section 4 of CPA Order 17 as
?establishing particularized choice of law . . . .?).
101. See id. (describing one of the goals of Section 4 of CPA Order 17 as
?granting partial legal immunity to contractors?).
Contractors shall be immune from Iraqi legal process with
respect to acts performed by them pursuant to the terms and
conditions of a Contract or any sub-contract thereto. Nothing in
this provision shall prohibit [Multi-National Force] Personnel
from preventing acts of serious misconduct by Contractors, or
otherwise temporarily detaining any Contractors who pose a
risk of injury to themselves or others, pending expeditious
turnover to the appropriate authorities of the Sending State. In
all such circumstances, the appropriate senior representative of
the Contractor?s Sending State in Iraq shall be notified.102
Contractors in general and the Blackwater defendants specifically
were not accountable to the Iraqi government for any crime
committed in Iraq and were only subject to the control of the
Sending State, unless this immunity was waived.103
Order 17 was still in force when the Nisur Square incident
occurred. Section 20 of Order 17 states:
[T]his Order shall enter into force on the date of
signature . . . [and] shall remain in force for the duration of the
mandate authorizing the [Multi-National Force (?MNF?)] under
U.N. Security Council Resolutions 1511 and 1546 and any
subsequent relevant resolutions and shall not terminate until
the departure of the final element of the MNF from Iraq, unless
rescinded or amended by legislation duly enacted and having
the force of law.104
Order 17 came into force under this provision on June 27, 2004.105
It would terminate when rescinded or when the final MNF element
departed Iraq.106 This differs from other CPA Orders which did not
address the order?s termination.107 This unique termination
language was inserted to ensure the Iraqi people that contractors
in Iraq were not being given limitless immunity.108 On the day of
102. Id. at 190?91.
103. See id. at 191 (discussing immunity for private contractors in Iraq, such
as those contractors working for Blackwater).
104. Id. at 194.
106. See id. at 194
(?Under this provision, Order 17 became effective June 27,
2004, and would terminate upon its rescission or the ?departure of the final
element of the MNF from Iraq.?)
107. See id. (?This provision distinguishes Order 17 from other orders issued
by the CPA.?).
108. See id. at 197 (?This language is unique: no other public notice included
similar language regarding the limited duration of an order?s effectiveness . . . the
the Nisur Square incident, however, this Order authorizing
immunity was still in effect.109
On June 28, 2004, power was transferred from the CPA to the
Iraqi government.110 On that day, CPA Administrator Bremer
signed Order 100.111 This new Order stated that unless the Iraqi
government acted, all previous CPA Orders were to remain in
effect.112 While Order 100 modified or rescinded some previous
Orders, Order 17 was not changed, as Order 100 ?expressly
provides that Order 17 is unaffected by Order 100.?113
With prosecution under Iraqi law extremely doubtful, there
was still a valid argument against applying MEJA to the Nisour
Square incident. The main argument against applying MEJA was
that ?[t]he fundamental obstacle lies in the necessary legal
argument that the Blackwater contractors acted while ?supporting
the mission? of the Armed Forces.?114 Prosecution under MEJA
prior to the 2004 amendment would have been impossible because
the Blackwater contractors were working for the State
Department, not the Defense Department.115 However, even after
2004, it would still need to be proven that the State Department?s
mission was in fact supporting the larger DoD mission.116
This is extremely complicated because while contractors may
not have been fulfilling offensive military missions, they were
completing jobs that previously been carried out by the military,
language likely was intended to assure the public that the blanket immunity
granted to contractors would not be limitless in duration.?).
109. See id. at 198?99 (?Therefore, Order 17 remained in force beyond the
CPA dissolution and, according to its terms, is enforceable until rescinded or
superseded by the Iraqi government which assumed responsibility for all powers
held by the CPA.?).
110. See id. (discussing the transfer of power in Iraq).
111. See id. (?On the same day, CPA Administrator Bremer signed Order 100,
providing for the effective transfer of power from the CPA to the new Iraqi
112. See id. (?Order 100 states that all CPA Orders will remain in effect unless
and until rescinded by the Iraqi government.?).
114. Id. at 201.
115. See id. (discussing the evolution of MEJA to include non-DoD
116. See id. (?[T]he expansion of the definition of ?employed by the Armed
Forces? to include non-DoD contractors removes a prohibitive barrier and replaced
it with a high hurdle.?).
especially in Iraq where there is no clear safe zone separate from
the fighting.117 However, the Blackwater contracts were explicit in
detailing their diplomatic duties and obligations to protect State
The argument in favor of applying MEJA in 2007 was context
specific.119 Iraq was a war zone, and most State Department
contracts can be assumed to be in support of this larger DoD
mission.120 In fact, ?[p]erhaps the only link between Blackwater?s
contract and the military mission in Iraq arises from the
often-lawless nature of the environment.?121 Blackwater
contractors, like any other person in Iraq, were operating in a grey
zone, both legally and operationally.122 Blackwater contractors
protected key personnel in warzones and were subjected to daily
violence and attacks.123 For every contractor employed in Iraq, a
US soldier was free to join offensive missions to combat
insurgents.124 Clearly the Blackwater contractors involved in the
Nisur Square shooting were in Iraq supporting the DoD mission
through their work with the State Department.125 Summed up,
117. See id. at 201?02 (describing how Blackwater contractors performed
different functions than their military counterparts, such as providing VIP escort
services for the State Department instead of tracking terrorists or acting as
118. See id. (?Rather than acting in support of the mission of the military,
Blackwater?s role was explicitly limited to supporting the mission of the
diplomatic corps and within that mission Blackwater?s support was limited to
providing personal protection services.?).
119. See id. at 202 (discussing the counter-argument in favor of applying
MEJA to the Nisour Square incident because Iraq was essentially a giant war
zone in 2007).
120. See id. (discussing the State Department?s role in supporting the DoD in
Iraq in 2007 when the Nisour Square incident happened).
122. See id. (?The daily violence and the nature of counter-insurgency conflict
blurred the traditional lines between military, law enforcement, and the
defense-oriented protection services provided by contractors like Blackwater.?).
See id. at 202 (same).
124. See id. (?Taking this reasoning one step further, without Blackwater?s
protective services, American military personnel would have to protect the
Embassy and diplomatic corps; this alleviation of responsibility is a form of
?support? for the military mission.?).
125. See id. at 169 (?The heavily armed Americans were not tourists or
ordinary criminals; they were employed by Blackwater USA, a State Department
contractor, and paid to protect the United States Embassy and diplomatic corps
?[a]t its essence, therefore, an argument in favor of applicability
must rest on, first, the heightened violence in Iraq as justification
for Blackwater?s contract and, second, a link between the military
mission in Iraq and that heightened violence.?126
III. The D.C. Circuit Court of Appeals Holds that a Mandatory
Minimum Sentence for Contractors in War Zones Violates the
Eighth Amendment Prohibition Against Cruel and Unusual
A. Procedural Background
After the shootings, the State Department held ?mandatory
de-briefing interviews? of Raven 23.127 These interviews proved to
be a source of contention, as various grand jury witnesses relied on
these statements to give their testimony.128 The district court
subsequently ?dismissed the case as tainted as to all
defendants.?129 The United States Court of Appeals for the D.C.
Circuit ?agreed that the oral and written statements that resulted
from the de-briefings were compelled, and thus could not be used
directly or indirectly by the government against the defendants
who made them.?130 The D.C. Circuit Court, however, remanded
the case so that the district court could analyze the magnitude of
the taint in question.131
Once remanded, a new prosecutorial team was used by the
government and a new grand jury was convened which ?returned
indictments against the defendants for voluntary manslaughter,
attempted manslaughter and using and discharging a firearm in
126. Id. at 202.
127. United States v. Slatten, 865 F.3d 767, 778 (D.C. Cir. 2017), cert. denied
sub nom., Slough v. United States, 218 U.S. LEXIS 2836 (U.S., May 2018).
128. See id. (discussing the reliance of ?certain? grand jury witnesses on the
mandatory de-briefing interviews).
129. Id. (citing United States v. Slough, 677 F. Supp. 2d 112, 166 (D.D.C.
2009; Kastigar v. United States, 406 U.S. 441 (1972)).
131. See id. (?The Court . . . remanded the case for a more individualized
analysis of the effect of the taint.?) (citing United States v. Slough, 641 F.3d 544,
548, 554?55 (D.C. Cir. 2011)).
relation to a crime of violence.?132 Then, Slatten ?moved to dismiss
the charges against him? because he argued they were
?time-barred.?133 The D.C. Circuit Court granted this motion by
writ of mandamus.134 The government, however, then successfully
obtained an indictment for Slatten which charged him with
first-degree murder.135 Finally, in mid-2014 all four defendants
were tried jointly.136 The jury deliberated for seven weeks.137 The
defendants were found guilty on all but three charges.138 Slatten,
who was found to have instigated the shootings when he fired the
first shot, was sentenced to life imprisonment by the district
court,139 while the district court ?sentenced Slough, Liberty and
Heard to the mandatory term of imprisonment of thirty years for
their convictions under 18 U.S.C. ? 924(c), plus one day on all of
the remaining counts.?140
B. Appellate Decision
Defendants Slough and Heard were found guilty under
? 924(c) for discharging their machine guns and ?destructive
devices? during the Nisur Square attack, while Liberty was found
guilty for the same offense but without the added ?destructive
device? element.141 They were each sentenced to the mandatory
minimum of 30 years, plus one day for the remaining voluntary
manslaughter charges and the attempted voluntary manslaughter
charges.142 They challenged these sentences as ?unconstitutionally
rigid and grossly disproportionate.?143 The D.C. Circuit agreed,
concluding that ?the mandatory 30-year sentence imposed by
? 924(c) based solely on the type of weapons Slough, Heard and
Liberty used during the Nisur Square shooting is grossly
disproportionate to their culpability for using government-issued
weapons in a war zone.?144
To begin its evaluation, the court addressed the
proportionality of the mandatory minimum sentences.145 The court
first addressed the ban on ?cruel and unusual punishments? as
stated in the Eight Amendment of the U.S. Constitution.146 The
court further added that a sentence for a crime must ?be graduated
and proportioned to the offense.?147 The court conceded that the
proportionality principle is narrow and that it concerns only
?extreme sentences that are grossly disproportionate to the
There are two types of Eighth Amendment challenges.149 The
first challenge addresses sentences as applied to an individual
defendant ?based on all the circumstances in a particular case.?150
The second challenge is categorical and applies to the nature of the
143. Id. (internal quotations omitted).
144. Id. (concluding that the sentences violated the Eighth Amendment and
remanding for resentencing).
145. See id. (same).
146. Id. (internal quotations omitted). See generally Graham v. Florida, 560
U.S. 48 (2010) (ruling that the Eighth Amendment prohibited the imposition of a
life-without-parole sentence on the juvenile offender who committed a
147. Slatten, 865 F.3d at 811 (citing Graham, 560 U.S. at 59) (internal
quotations omitted). See generally Harmelin v. Michigan, 501 U.S. 957 (1991)
(ruling that while mandatory sentences are cruel, they are not unusual in the
constitutional sense because they have been used throughout U.S. history).
148. Slatten, 865 F.3d at 811 (citing Harmelin, 501 U.S. at 1001) (internal
quotation marks omitted).
149. See id. (?There are two types of Eighth Amendment Challenges to
sentence: 1) challenges to sentences as applied to an individual defendant based
on ?all the circumstances in a particular case? and 2) categorical challenges to
sentences imposed based on the nature of the offense or the ?characteristics of the
offenders.? (quoting Graham, 560 U.S. at 59?61)).
150. Id. (internal quotation marks omitted).
offense itself and the ?characteristics of the offender.?151 The three
defendants in this case challenged their sentences on both
methods, claiming that their individual circumstances, as well as
?all defendants who have discharged their government-issued
weapons in a war zone,? warranted relief from their sentences.152
Although the court recognized that the automatic weapons in
question drastically increased the severity of their crimes, it
believed that that application of ? 924(c) in this case only
tangentially related to the Congressional intent for enacting the
statute in the first place.153 Congress cited prior Supreme Court
rulings to explain that the primary purpose of ? 924(c) was to
combat the violence associated with drug crimes in the United
States and to deter would-be felons to leave their guns at home.154
This case differs from the Congressional intent of ? 924(c) because
the defendants did not set out to commit a felony, such as selling
and trafficking narcotics; they were carrying out their wartime
duties.155 The court also noted that the severity of the defendants?
crimes did not stem from the type of weapons used, but from their
?hypervigilance? in a crowded area while simultaneously using
poor judgment in responding to misperceived threats;156 the court
elaborated that ?[t]he tragedy that unfolded shortly after their
arrival in Nisur Square owed more to panic and poor judgment
than to any coordinated plan to murder Iraqi civilians.?157
151. Id. (internal quotation marks omitted).
153. See id. at 812 (?Moreover, under normal circumstances, we would be
?reluctant to review [Congress?s] legislatively mandated terms of imprisonment.?
However, we do not believe such deference is owed when a statute?s application
only tangentially relates to Congress?s purpose for creating the statute in the first
place.? (quoting Hutto v. Davis, 454 U.S. 370, 374 (1982)) (citing Gonzalez v.
Duncan, 551 F.3d 875, 884?86 (9th Cir. 2008))).
154. See id. (?The Supreme Court has recognized Section 924(c) was created
?to persuade the man who is tempted to commit a Federal [sic] felony to leave his
gun at home.?? (citing Muscarello v. United States, 524 U.S. 125, 132 (1998))).
155. See id. at 813 (explaining that Section 924(c) was not intended to apply
to those whose jobs required them to be armed and dangerous).
156. See id. at 813?14 (?While we agree the defendants are responsible for
their exaggerated response to perceived threats, the crime?s severity and
Defendant?s culpability flow from the harm caused by their hypervigilance, not
from the use of weapons which would have been appropriate had they not
misperceived the threat.?).
It is easy to understand why prosecutors would charge the
defendants with violating ? 924(c) given that it is ?one of the most
frequently used mandatory minimum sentencing provisions.?158
Section 924(c) applies to defendants who commit a drug trafficking
crime or crime of violence, knowingly possessed a firearm, and
possessed the firearm in furtherance of the underlying crime.159 A
crime of violence for the purposes of ? 924(c) is
a felony that (a) has, as an element, the use, attempted use, or
threatened use of physical force against the person or property
of another; or (b) that by its nature involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense.160
There is a relatively low bar for charging a defendant with
violating ? 924(c), so when a defendant is charged with over a
dozen counts of voluntary manslaughter, it is safe to assume
? 924(c) will be part of the indictment.161
However, the court did not believe that this case rose to the
level of criminality required for ? 924(c) to be applied. The court
discussed the defendants? job at the time of the Nisur Square
attack.162 They were not attempting to facilitate a crime, but
instead were providing diplomatic security for the State
Department in Iraq, a war zone.163 They did not choose to carry
158. Thomas A. Clare, Smith v. United States and the Modern Interpretation
of 18 U.S.C. 924(c): A Proposal to Amend the Federal Armed Offender Statute, 69
NOTRE DAME L. REV. 815, 815 (1994).
159. See Darian B. Taylor, What Constitutes ?Possession? of Firearm for
purposes of 18 U.S.C.A. ? 924(c)(1), Providing Penalty for Possession of Firearm
in Furtherance of Drug Trafficking Crime or Crime of Violence, 89 A.L.R. Fed. 2d
37, Art. 12 (defining the criteria to charge someone with violating ? 924(c)).
161. See generally United States v. Grajales, No. 13?11224, 2014 WL 2186437
(11th Cir. May 27, 2014) (ruling that the defendant possessed a firearm in
furtherance of a crime of violence where the defendant told an informant that
there were guns ?inside the hood,? a gun was hidden in a car, others were armed,
and the need to be armed was discussed with undercover officers).
162. See United States v. Slatten, 865 F.3d 767, 813 (D.C. Cir. 2017), cert.
denied sub nom., Slough v. United States, 218 U.S. LEXIS 2836 (U.S., May 2018)
(?None of these concerns are implicated in this case. On the day of the Nisur [sic]
Square attack, Slough, Heard, and Liberty were providing diplomatic security for
the Department of State in Iraq.?)
163. See id. at 813?14 (explaining the court?s findings on the series of events
that occurred). The court stated:
their weapons but were required to do so.164 In fact, they were
responding to an explosion near a U.S. diplomat, not haphazardly
injecting themselves into dangerous situations in which they
should not be.165
The court also dismissed the government?s argument that the
defendants could have used less deadly weapons, such as pistols or
using the semi-automatic settings on their rifles instead of full
automatic.166 The court explained that ?this argument mistakenly
applies the ?20/20 vision of hindsight,? an approach the Supreme
Court has explicitly rejected when evaluating a police officer?s use
of force.?167 The court gave the defendants the benefit of the doubt
just as they would police officers in the United States, stating ?this
Court applies an analysis that ?allow[s] for the fact that police
officers are often forced to make split-second judgments?in
circumstances that are tense, uncertain and rapidly evolving?
about the amount of force that is necessary in a particular
The court evaluated the impact of the defendants? criminal
history on the appropriateness of the mandatory minimum
sentences.169 The court noted that the government has free reign
to impose harsh sentences on first-time offenders, but that this
method of rehabilitation is customarily reserved for ?hardened
The government argues Slough, Heard and Liberty could have
used less deadly weapons, such as pistols or the semi-automatic setting
on their rifles, in response to perceived threats. But this argument
mistakenly applies the ?20/20 vision of hindsight,? an approach the
Supreme Court has explicitly rejected when evaluating a police officer?s
use of force.
Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
164. See id. at 813 (?As part of their jobs, they were required to carry the very
weapons they have now been sentenced to thirty years of imprisonment for
165. See id. (discussing how the contractors responded to an explosion in the
course of performing their duties and did not interject themselves into danger
haphazardly without reason or justification).
166. See id. at 814 (?The government argues Slough, Heard and Liberty could
have used less deadly weapons, such as pistols or the semi-automatic setting on
their rifles, in response to perceived threats.?)
167. Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
168. Id. (citing Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016)).
169. See id. (?We also find it highly significant that none of the defendants
sentenced under Section 924(c) have any prior convictions.?).
criminals.?170 Since the defendants had clean records, these
particular mandatory minimum sentences were not appropriate.171
In fact, the court addressed the issue of recidivism and the purpose
of mandatory sentences as a method of preventing repeat crime,
an issue not present in this case.172
The court looked at two more factors to determine whether the
defendants? sentences were appropriate. First, the court examined
whether the sentences accurately depicted the three defendants?
individual culpability.173 The court determined that these
sentences failed in this aspect.174 The three defendants were not
charged with the exact same crimes, so allowing the trial judge to
examine each defendant independently and give each defendant a
sentence custom made for that person would better serve justice,
instead of the ?one-size-fits-all? method.175
Second, the court examined the severity of a thirty-year
sentence in the context of this case.176 The court acknowledged the
difference between life in prison with or without parole, and then
it turned to the severe nature of a thirty-year sentence.177 The
170. See id. (?Although the government is free to impose harsh, mandatory
penalties for first-time offenders, a regime of strict liability resulting in draconian
punishment is usually reserved for hardened criminals.?).
171. See id. (discussing the defendants? lack of criminal records and how the
district court noted ?they were ?good young men who [had] never been in trouble??
and that they had honorably served in the military).
172. See id. (discussing how the Supreme Court usually reserves harsh
sentences for minor violent crimes for cases involving recidivism and holding that
?the defendants? clean criminal records weigh against the imposition of a harsh,
173. See id. at 815 (?Additionally, the imposition of a mandatory 30-year
sentence through section 924(c) fails to truly account for the culpability of Slough,
Heard and liberty individually. Because these men were not convicted of the same
counts, it makes little sense for the sentences to be identical.?).
174. See id. (stating that it would make more sense to try each defendant as
an individual because they were not charged with the same exact crimes).
175. See id. (discussing how the sentencing judge was bound by Section
924(c)?s mandatory minimum sentence, thus precluding him from taking into
account the differences in offenses of the three defendants and other factors such
as any diagnoses of post-traumatic stress disorder (PTSD)).
176. See id. (?Turning now to the severity of the sentence, we consider the
actual severity of the penalty, not the penalty?s name.?).
177. See id. (discussing that ?the Supreme Court has acknowledged there is
an important distinction between a life sentence with the possibility of parole and
court discussed the fact that the defendants would be forced to
serve almost the entire sentence, which is drastic for a first
offense.178 In conclusion, the court stated that 924(c)?s harsh
mandatory minimum thirty-year sentence in this case was indeed
the rare instance of a gross disproportionality in sentencing.179
IV. The D.C. Circuit Ruling in United States v. Slatten Voids
MEJA as a Reliable Means to Obtain Jurisdiction over
Contractors in War Zones
There was already concern about the viability of MEJA as a
successful tool to prosecute military contractors overseas, in part
due to its ambiguous and outdated definitions of who was covered
in the Act.180 MEJA was intended to cover civilians overseas who
were attached to the military or helping facilitate military
operations, so there was considerable confusion as to whether
contractors could be included in the scope of MEJA whose agency
contracts were not specifically a part of military operations.181
MEJA specifically covered civilian Department of Defense
employees and contractors, but it was silent regarding other
agencies.182 As other agencies, such as the State Department,
increased their presence in Iraq and their reliance on contractors,
uncertainty loomed regarding their legal status under MEJA.183 In
a life sentence without the possibility of parole? and how this applies to the
178. See id. (explaining that ?a 30-year sentence is the harshest mandatory
sentence the federal criminal law can impose on a first-time offender? besides the
death penalty or life in prison without the possibility of parole).
179. See id. at 815?16 (concluding that ?Slough, Heard and Liberty?s
mandatory 30-year sentences create the ?rare case? that ?leads to an inference of
gross disproportionality?? and that their culpability is not on par with the typical
culpability of defendants convicted under Section 924(c)).
180. See Belen, supra note 73, at 174 (?This opinion reflects a belief that even
the statute intended to prevent this loophole?the MEJA?is not up to the task
because it suffers from ambiguous and outdated definitions of the persons covered
by the Act.?).
181. See id. (discussing State Department contractors who were overseas but
not a part of military operations).
182. See id. at 179 (?One of the MEJA?s drafters, Glenn Schmitt, later
explained that Congress ?simply never considered? expanding the MEJA?s
application beyond DoD-affiliated persons.?).
183. See id. at 180 (describing the State Department?s concern that their
2004, Congress eventually expanded ?the definition of ?employed
by the Armed Forces? in 2004, attempting to close this pesky
jurisdictional gap.?184 But this 2004 amendment was not a perfect
fix. While the amendment included federal agency employees other
than DoD, it only included them if their employment was in
support of a DoD mission.185
After successfully convicting private contractors for a brutal
massacre of Iraqi civilians under MEJA, the government is back
where it started. The three contractors in Slatten will likely still
serve prison time under the manslaughter convictions, but not for
the automatic weapons convictions. However, prosecutors are once
again dealing with an uncertain jurisdictional act when they
inevitably attempt to prosecute future crimes committed by
private contractors. Not only is section 924(c) now a questionable
charge with which to bring against contractors, but charging a
contractor with any felony that carries a mandatory minimum
sentence under MEJA is now risky. It would be unwise to bring
charges under MEJA that have a high chance of being overturned
on appeal for violating the Eighth Amendment. Prosecutors must
now guess what those charges might be.
V. Congress Needs to Amend MEJA to Create a More Certain
Jurisdictional Framework with Which to Prosecute Private
Congress created MEJA as a catch-all jurisdictional act, and
that is its underlying problem.186 Congress needs to spend the
appropriate amount of time necessary to diligently create a
workable jurisdictional act to guarantee that Americans abroad
will be punished for their felonious activity. Congress should create
different variations of MEJA, such as one for contractors who are
thousands of employees abroad would not be liable under MEJA for any crimes
committed overseas and proposing to expand MEJA).
185. See id. at 181?82
(discussing the details of the 2004 amendment)
186. See id. 176 (?MEJA is the primary statutory vehicle for criminal
prosecution of [PMFs] . . . . Congress believed it closed an accountability gap,
authorizing prosecution of Americans who commit serious crimes while overseas.
What emerged . . . was a well-intended law too ambiguous to apply to those who
contracted with non-DoD agencies.?).
directly supporting military and DoD missions abroad, and one for
other Americans who are not directly supporting DoD missions,
such as spouses on American bases or contractors who commit
routine felonies while not in the line of duty.187 Congress needs to
account for the middle ground between civilian and military actors
in which private contractors in conflicts zones occupy.
A. Congress Needs to Amend MEJA to Account for the Varied
Roles that PMFs Fill
This distinction requires Congress to engage with security
experts in order to avoid the perilous temptation to characterize
all civilians abroad in bimodal terms as either supporting DoD
operations or not. This is especially crucial when addressing
civilians who are employed as private contractors as the missions
executed by these contractors fall on a spectrum ranging from
base-support operations to actual enemy engagement.188 This
spectrum is better known as the ?Tip of the Spear? typology.189
According to this typology,
[U]nits within the armed forces are distinguished by their
closeness to the actual fighting (the ?front line?) that result in
implications in their training levels, unit prestige, roles in the
battle field, directness of impact, and so on. For example, an
individual serving in a front-line infantry unit (that is, the ?tip?)
possesses completely different training experiences and even
career prospects than one serving in a command or a logistics
Organizations sorted along this Tip of the Spear typology are
?broke[n] down into three broad types of units linked to their
location in the battle space.?191 These units are characterized as
those that operate ?in the general theater, those in the theater of
187. See discussion supra Part II. (discussing the various roles civilians play
while overseas and the difficulties that has created for prosecution teams when
attempting to gain jurisdiction).
188. See Singer, supra note 13, at 91 (?In the military context, the best way to
structure the industry is by the range of services and level of force that a firm is
able to offer the industry.?).
war, and those in the actual area of operations, that is, the tactical
PMFs also fall along various points of the Tip of the Spear
typology just as their military colleagues do. The PMF industry is
divided into ?three broad sectors: Military Provider Firms, Military
Consultant Firms, and Military Support Firms.?193 While many
firms fall neatly into one category,194 this is not always the case as
?similar to other industries and equivalent military functions,
other firms lie at the borders or offer a range of services within
various sectors.?195 More and more firms cross sectors as the
industry in general grows and, as such, more and more firms are
Examples of typical Military Provider Firms are Executive
Outcomes and Sandline International, ?having run active combat
operations in Angola, Sierra Leone, Papua New Guinea, Indonesia,
and elsewhere.?197 Executive Outcomes is a model firm in this
category as it easily flexed its military might in
counterinsurgencies.198 In Sierra Leone alone, Executive Outcomes
?deployed a battalion-sized unit on the ground, supplemented by
artillery, transport and combat helicopters, fixed wing combat and
194. See id. at 92 (?The proviso of any such typology, however, is that it is a
conceptual framework rather than a fixed definition of each and every firm. Some
firms are clearly placed within one sector.?).
195. Id. Academi, the PMF that succeeded Blackwater, offers various services
including client-based training, scenario-based training, supply chain logistics,
construction, life support, unmanned aerial systems, and complex program
management. See Managed Support Services, ACADEMI,
https://www.academi.com/pages/managed-support-services (last visited Sept. 28,
2018) (on file with the Washington & Lee Journal of Civil Rights & Social Justice).
Additionally, the parent company of Academi, Constellis, also owns the PMFs
Triple Canopy, Olive Group, Edinburgh International, Strategic Social, AMK9,
and OMNIPLEX, solidifying it as a player across multiple sectors within the
industry. See About Us, ACADEMI, https://www.academi.com/pages/about-us (last
visited Sept. 28, 2018) (on file with the Washington & Lee Journal of Civil Rights
& Social Justice).
196. See Singer, supra note 13, at 92 (?Moreover, with ongoing global
consolidation into ever larger PMFs, there is a potential growth in the numbers
of these firms, such as Armorgroup, that cross sectors.?).
197. Id. at 93.
198. See id. (discussing the military capabilities of Executive Outcomes and
similar PMFs in frontline combat operations).
transport aircraft, a transport ship, and all types of ancillary
specialists (such as first aid and civil affairs).?199
The middle of the Tip of the Spear typology is occupied by the
Military Consulting Firms.200 These PMFs primarily ?provide
advisory and training services integral to the operation and
restructuring of a client?s armed forces . . . .?201 These firms ?offer
strategic, operational, and/or organizational analysis? while also
?engag[ing] with the client at all levels, except at what
businessmen would describe as ?customer contact.??202 This means
that they do not engage the enemy on the battlefield, but they
provide the knowledge and training necessary for the client to
successfully wage a military campaign.203 The civilian counterpart
to this type of firm is the ?management consultant.?204
The final category of PMF is the Military Support Firm which
?provide[s] supplementary military services? encompassing
?nonlethal aid and assistance, including logistics, intelligence,
technical support, supply, and transportation.?205 As is the case
with the civilian supply-chain management industry, ?the benefit
of this type of military outsourcing is that these firms specialize in
secondary tasks not part of the overall core mission of the client.?206
Thus, these PMFs can ?build capabilities and efficiencies? which
are unsustainable by the client.207 This frees the military of the
client to focus the bulk of its resources on the actual fighting.208
Including Military Support Firms in the general conversation
about PMF regulation is critical because they are often overlooked,
yet they are operating in the same legal uncertainty as other PMFs
199. Id. at 93?94.
200. See id. at 95 (discussing the various roles occupied by Military
Consulting Firms and how they are just as important as those firms who
primarily occupy the battlefield).
203. See id. (explaining that ?they do not operate on the battlefield itself? but
provide the client with the capabilities necessary to ?re-engineer? the local force
which will ?bear the final risks on the battlefield?).
205. Id. at 97.
208. See id. (discussing the benefits of contracting support tasks to PMFs
which allow the client military to focus solely on fighting).
who interact with insurgents and are just as liable to commit
crimes overseas, especially while on military bases.209
B. Congress Should Reduce or Eliminate the Application of 924(c) to Private Contractors Supporting DoD Missions
Not everyone agrees that applying mandatory minimum
sentences are de facto unconstitutional when used in a warzone
context, as the dissenting opinion of Judge Rogers in Slatten
illustrates.210 As Judge Rogers noted, the Supreme Court has held
that ?nothing in Section 924(c) prevents a district court from, as
here, mitigating the harshness of a mandatory thirty-year
minimum by imposing a one-day sentence for the predicate
convictions.?211 The defendants were facing over 100 years in
prison each?over 200 years for one defendant?due to the severity
of their crimes, so while the D.C. Circuit has barred the use of
mandatory minimum sentences in this context, it remains to be
seen whether other circuit courts will agree or, for that matter, if
the Supreme Court will weigh in on this issue.212
But operating under the assumption that the majority?s
decision will remain the law of the land for the near future,
Congress should enact legislation to restrict the ability of
prosecutors to use 924(c) as a charging option when prosecuting
PMFs who are supporting DoD missions as its application has
already been ruled unconstitutional. This is especially important
when prosecuting private contractors who fill the roles of military
providers or military consultants. These contractors are more
209. See id. (?[M]ilitary support sector firms are typically not included in the
analysis of the privatized military industry . . . their often mundane operations
appear less ?mercenary.? However . . . although they do not participate in the
execution or planning of combat action, they fill functional needs critical to overall
210. See United States v. Slatten, 865 F.3d 767, 830?31 (D.C. Cir. 2017), cert.
denied sub nom., Slough v. United States, 218 U.S. LEXIS 2836 (U.S. May 2018)
(Rogers, J., dissenting in part) (arguing that because the defendants were facing
sentences ranging from 137 to 249 years in prison for the voluntary manslaughter
and attempted manslaughter charges, the mandatory minimum sentences of
thirty years in prison stemming from the weapons charges were not
?unconstitutionally ?grossly disproportionate to the crime[s]??).
211. Id. at 831 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).
212. See id. (discussing mandatory sentences).
likely to be required to carry firearms as a part of their day-to-day
jobs, just as the defendants in Slatten were required. These
contractors are far more likely than other civilians to find
themselves in the position of the defendants in Slatten, increasing
the likelihood that Eighth Amendment issues and violations will
occur as their cases progress.
In contrast, civilians in combat theaters who are not directly
supporting DoD operations, such as military spouses or contractors
attached to Military Support Firms, are less likely to possess
firearms in the course of their jobs, thus decreasing the likelihood
that they would they would find themselves in the same position
as the Slatten defendants. For these civilians, restricting the
application of 924(c) is not as imperative, but should be carefully
C. Congress Should Coordinate PMF Regulation with the
Congress should also coordinate with international
organizations in an effort to standardize a framework for holding
contractors accountable for war crimes. The U.S. participated in
the creation of the Montreux Document, which is the product of a
?joint initiative of the Swiss government and the International
Committee of the Red Cross (ICRC).?213 This initiative sets out best
practices for countries to follow when they contract with PMFs and
operates as an ?intergovernmental statement clearly [that] clearly
articulates the most pertinent international legal obligations with
regard to [Private Military Security Companies (PMSCs)] and
debunks the prevailing misconception that private contractors
operate in a legal vacuum.?214
However, this initiative is not legally binding and ?does not
affect existing obligations of States under customary international
law or under international agreements to which they are
parties.?215 Instead, this initiative ?recalls existing legal
213. ICRC, The Montreux Document, ICRC 5 (Aug. 2009),
https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf (on file with the
Washington & Lee Journal of Civil Rights & Social Justice).
215. Id. at 9.
obligations of States and PMSCs and their personnel, and provides
States with good practices to promote compliance with
international humanitarian law and human rights law during
armed conflict.?216 While this may have signaled a willingness to
establish an international legal framework under which PMFs
could operate a decade ago, more substantial agreements must be
crafted today, especially agreements which carry with them legally
One entity working to lay the international legal foundations
for PMF regulations is the United Nations Working Group on the
use of mercenaries as a means of violating human rights and
impeding the exercise of the rights of peoples to self-determination
(UNWG).217 In fact, the Slatten case has been referred to as ?an
?excellent case in point? for the need for more international
regulation of the private security industry, perhaps through an
international treaty that the U.S. government has opposed.?218
In a recent report, the UNWG described its activities as
focusing ?extensively on, inter alia, the need for robust regulation
of private military and security companies, with particular
emphasis on ensuring accountability for human rights violations
217. See generally United Nations Working Group on the Use of Mercenaries
As a Means of Violating Human Rights and Impeding the Exercise of the Rights
of Peoples to Self-Determination, U.N. HUM. RTS. OFF. OF THE HIGH COMM?R,
ariesIndex.aspx (last visited Sept. 28, 2018, 3:20 pm) (illustrating the seriousness
with which the international community is addressing the private contractor
industry) (on file with the Washington & Lee Journal of Civil Rights & Social
218. Spencer S. Hsu, Murder Convictions in Blackwater Case Thrown out,
Other Sentences Overturned, WASH. POST (Aug. 4, 2017),
https://www.washingtonpost.com/local/public-safety/murder-conviction-inblackwater-case-thrown-out-other-sentences-overturned/2017/08/04/a14f275c792e-11e7-9eac-d56bd5568db8_story.html?utm_term=.f0498d0e8b2a (?This is
exactly the wrong way to pursue foreign policy. Creating private armies to fights
war for states is medieval, and contrary to any reasonable interpretation of what?s
good for the United States and what is good for human rights.?) (quoting Cardoza
School of Law at Yeshiva University in New York visiting professor Gabor Rona,
who is also the chairman of the UN working group on mercenaries) (last visited
Nov. 4, 2018, 10:48 am) (on file with the Washington & Lee Journal of Civil Rights
& Social Justice). See generally International Convention Against the
Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989, 2163
U.N.T.S. 75 (demonstrating yet another international effort to curtail the
negative effects of the private contractor industry).
committed by company personnel.?219 That report illustrates just
how massive and complex the private contracting industry is, as
this report from UN working group on mercenaries focused not on
PMFs or combat operations, but the increasing privatization of
prisons around the world.220 Particularly, much of the report
focused on ?the situation in the United States, given the high rate
of incarceration and the tremendous growth of private contractors
on the prison industry in that country in the past 30 years.?221
According to the UNWG report, the U.S. private prison industry is
dominated by just three companies: The Corrections Corporations
of America, now known as CoreCivic; the Geo Group; and
Management and Training Corporation.222 This echoes the
domination of the PMF industry by a few massive firms. This also
highlights the speed with which traditionally public domains are
being privatized around the world and how difficult it is for
legislation to keep pace.
The U.S. is not abandoning the use of private contractors to
supplement or fully replace its military any time soon, so it is
imperative that Congress not only creates a working jurisdictional
framework with which to prosecute its own contractors abroad, but
one that helps standardize the legal framework internationally so
that international law catches up with twenty-first century
Private contractors in warfare have been reliable as force
multipliers around the world for decades.223 They may be efficient
ad hoc alternatives to expanding State militaries, but the legal
framework with which to regulate these contractors has either
219. U.N. General Assembly, Report of the Working Group on the use of
mercenaries as a means of violating human rights and impeding the exercise of
the right of peoples to self-determination, 3, U.N. Doc. A/72286 (Aug. 4, 2017).
220. See id. at 6 (discussing the privatization of prisons around the world).
223. See Singer, supra note 13, at 93 (discussing the role of firms in the
provider sector as force multipliers for clients ?with comparatively low military
capabilities, faced with immediate, high threat situations?).
13. Peter W. Singer , Corporate Warriors: The Rise and Ramifications of the Private Military Industry, 26 INT'L SECURITY 1 , 3 ( 2002 ).
23. Id .
24. See generally United States v . Slatten , 865 F. 3d 767 (D.C. Cir . 2017 ) ; see also generally Wesley Bruer & Michael Pearson, Ex-Blackwater Contractors Sentenced in Nusoor Square Shooting in Iraq , CNN (Apr. 14 , 2015 8:41 PM), http://www.cnn.com/ 2015 /04/13/us/blackwater-contractors -iraqsentencing/index.html (on file with the Washington & Lee Journal of Civil Rights & Social Justice).
25. See Slatten, 865 F. 3d at 777 (ruling that the Court had proper jurisdiction under MEJA) .
26. Id . at 776-78.
27. Id .
31. 18 U.S.C. ? 924(c) (emphasis added).
32. See Slatten, 865 F.3d at 777 (? On September 16 , 2007 , a car bomb exploded in Baghdad near a United States diplomat who was under the protection of Blackwater, a private security firm under contract with the State Department .?). See generally Blackwater Incident: What Happened , BBC (Dec. 8 , 2008 ), http://news.bbc.co.uk/2/hi/7033332.stm (telling the story of what happened on September 16, 2007 ) ( on file with the Washington & Lee Journal of Civil Rights & Social Justice).
33. Slatten , 865 F.3d at 777.
34. Id .
50. See , e.g., Katrina M. Wyman , Taxi Regulation in the Age of Uber , 20 N.Y.U. J. LEGIS. & PUB. POL'Y 1 , 4 ( 2017 ) (highlighting the issues in regulating peer-to-peer ride-sharing) .
70. MEJA, supra note 5.
71. H.R. Rep . No. 106 - 778 , at 4 ( 2000 ).
72. See discussion supra Part II.
73. See Christopher D. Belen , Reining in Rambo: Prosecuting Crimes Committed by American Contractors in Iraq, 27 PENN ST . INT'L L. REV . 169 , 176 ( 2008 ) (?MEJA is the primary statutory vehicle for criminal prosecution of private military contractors. When the MEJA was originally passed . . . Congress believed it closed an accountability gap . . . . What emerged, however, was a well-intended law too ambiguous to apply to those who contracted with non-DoD agencies .?).
74. MEJA, supra note 5.
75. See Achilles' heel, MARRIAM-WEBSTER DICTIONARY (online ed .) (last visited February 18 , 2017 , 4 :10 pm ) (?A fault or weakness that causes or could cause someone or something to fail.?) (on file with the Washington & Lee Journal of Civil Rights & Social Justice).
76. See Belen, supra note 73 , at 174 (? MEJA extended federal court jurisdiction to include U.S. civilians who commit felonies while employed by or accompanying the military overseas .?).
77. See United States v. Slatten , 865 F.3d 767 , 778 (D.C. Cir . 2017 ), cert. denied sub nom ., Slough v. United States , 218 U.S. LEXIS 2836 (U.S., May 2018 ) (?On remand, the government used a new prosecutorial team and convened a new grand jury, which returned indictments against the defendants for voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence.? (emphasis added)).
78. Id . at 813.
79. See id. at 812 (?[T]he Supreme Court has recognized Section 924(c) was created 'to persuade the man who is tempted to commit a Federal felony to leave his gun at home.' Thus, precedent clarifies Section 924(c) applies against those who intentionally bring dangerous guns with them to facilitate the commission of a crime.? (quoting Muscarello v . United States , 524 U.S. 125 , 132 ( 1998 )) (citing Busic v . United States , 446 U.S. 398 , 405 ( 1980 ))).
80. See id. at 820 (concluding that 924(c) was not meant to apply to warzones and that the mandatory 30-year sentences are cruel and unusual ).
81. See Joeseph R. Perlek , The Military Extraterritorial Jurisdiction Act of 2000: Implications for Contractor Personnel , 169 MIL. L. REV. 92 , 101 ( 2001 ) 98 . See id. (?The Order specifically cited United Nations Security Council Resolutions 1483 ( 2003 ), 1511 ( 2003 ), and 1546 ( 2004 ).?).