	Introduction

U.S. departments and agencies engaged in combat or stability operations overseas are relying on private firms to perform a wider scope of security services than was previously the case. The use of private security contractors (PSCs) to provide security for personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community. This report discusses the legal framework that applies to contractor personnel serving in Iraq and Afghanistan, including matters peculiar to private security contractors. After presenting a general description of the types of law applicable, the report addresses some implications of international law and proposals for the adoption of international "best practices" regarding the use of PSCs and an international convention to regulate and oversee their use. The report briefly discusses the possible implication of the roles of private security contractors with respect to inherently governmental functions. Finally, the report discusses jurisdiction over contractor personnel in U.S. courts, whether federal or military, identifying possible means of prosecuting contractor personnel who are accused of violating the law overseas in the context of U.S. military operations and providing a brief listing of known cases that have occurred or are pending. Afghan Law and Status of U.S. U.S. contractor personnel and other U.S. civilian employees in Iraq and Afghanistan are subject to prosecution in U.S. courts under a number of circumstances.. Military Extraterritorial Jurisdiction Act (MEJA)

Persons who are "employed by or accompanying the armed forces" overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 for any offense that would be punishable by imprisonment for more than one year (a felony offense) if committed within the special maritime and territorial jurisdiction of the United States. Article 2(a)(10), UCMJ, as amended by § 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 ( P.L. The trial of any civilian contractor by court-martial would likely be subject to challenge on constitutional grounds. Despite the amendment to the UCMJ to subject military contractors supporting the Armed Forces during contingency operations to court-martial jurisdiction, and despite the extension of MEJA to cover certain non-DOD contractors working with the military overseas, some private security contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq or Afghanistan.
U.S. departments and agencies contributing to combat or stability operations overseas are relying on private firms to perform a wider scope of security services than was previously the case. The use of private security contractors (PSCs) to protect personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community. While PSCs are widely viewed as being vital to U.S. efforts in the region, many Members are concerned about transparency, accountability, and legal and symbolic issues raised by the use of armed civilians to perform security tasks formerly performed by military personnel, as well as the adverse impact PSCs may be having on U.S. counterinsurgency efforts.
Contractors working for the U.S. military, the State Department, or other government agencies during contingency operation in Iraq and Afghanistan are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States. Contractors who commit crimes in Iraq or Afghanistan are subject to U.S. prosecution under criminal statutes that apply extraterritorially or within the special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial Jurisdiction Act (MEJA). Section 552 of the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed Forces in Iraq subject to court-martial jurisdiction, although the military trial of a civilian contractor would likely be subject to legal challenge on constitutional grounds. Despite congressional efforts to expand court-martial jurisdiction and jurisdiction under MEJA, some contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq or Afghanistan.
This report discusses the legal framework that applies to PSCs in Iraq and Afghanistan. After presenting a general description of the types of law applicable, including international humanitarian law and relevant status of forces agreements, the report addresses some implications of international law and a multilateral proposal for the adoption of international "best practices" regarding the use of PSCs. The report follows up with a discussion of jurisdiction over PSC personnel in U.S. courts, whether federal or military courts, identifying possible means of prosecuting contractor personnel who are accused of violating the law overseas in the context of U.S. military operations, including a listing of known cases that have occurred or are pending. Finally, the report briefly discusses the possible implication of the roles of private security contractors with respect to inherently governmental functions.