Criminal charges have been filed against the U.S. military personnel accused of torturing prisoners at Iraq's infamous Abu Ghraib prison. Reports have also alleged that government contractors coached these soldiers on how to abuse the Iraqis, in apparent violation of international and domestic law. These contractors are not subject to military justice, and so far, the Justice Department has taken no steps to prosecute them. When private military contractors break the law, what can be done to discipline them?
Quite a bit, as it turns out. Misbehaving firms can have their government contracts terminated; they can be barred from competing for future contracts; and they may also be subject to civil and criminal liability. However, nearly all of these penalties are at the discretion of the agency that issued the original contract. Procurement officials, political leaders, prosecutors, and judges get to decide whether to sanction contractors for allegedly breaking the law in Iraq.
The first and easiest way to discipline contractors is to fire them. Practically, this means terminating their government contract, cutting them off from thousands (or millions) of taxpayer dollars. The two contractors implicated in the Abu Ghraib scandal, CACI Corp. and Titan Corp., hold contracts with the Army for the provision of linguistic support at prison facilities in Iraq (among other things). Under Part 49 of the Federal Acquisition Regulations, the government may kill these contracts in the event of a "material breach" or other "default" on the contractor's part. Such a breach can mean simple failure to perform under the terms of the contract, as well as criminal conduct by employees or by the corporation itself. The discretion to terminate these agreements rests with the Army, though the contractors could appeal this decision to the courts.
Private contractors who misbehave can also be prohibited from bidding for future contracts. Part 9 of the Federal Acquisition Regulations commands procurement officials to award contracts only to "responsible" companies. The alleged conduct by CACI and Titan employees could lead procurement officials to designate those firms as not responsible.
A more serious way to discipline bad contractors is through "suspension" or "debarment" proceedings. Military procurement officials can decide not to consider a private contractor for future federal contracts for a certain period of time. For example, in July 2003, the Air Force suspended three divisions of Boeing from eligibility for new contracts in response to misconduct relating to the Evolved Expendable Launch Vehicle program. "Serious improper misconduct" by an employee during the performance of a contract can serve as grounds for suspension or debarment. A criminal indictment (of either an individual or a company) may be enough to support a debarment, as can an internal investigation like the one conducted by the Army at Abu Ghraib. However, if the grounds for debarment depend on an individual employee's conduct, that conduct must be attributed to the corporation, which may, say, have shown negligence in failing to investigate, train, or supervise its employees. The decision to suspend or debar a company rests with the executive agency—in the case of Abu Ghraib, the Army.
Government contractors can also be criminally prosecuted (as described in this "Jurisprudence" article) if they misbehave badly enough, but the Justice Department told the Wall Street Journal on Monday that it has no current plans to prosecute any contractors involved with the abuses at Abu Ghraib. Civil suits may also be brought against the contractors and the U.S. government, as was done following the U.S. Navy's downing of an Iranian passenger jet in 1988. Families of the dead passengers attempted to sue the government contractors who built the U.S.S. Vincennes and its weapons systems under the Federal Tort Claims Act. However, this lawsuit failed, in part because of a legal doctrine known as the "government contractor" defense, which shields government contractors from liability when they build something or provide services in accordance with government specifications. This defense, and other procedural obstacles, would likely prevent the Iraqi detainees from suing contractors in American courts for damages resulting from their treatment at Abu Ghraib.