They've largely escaped legal scrutiny. But U.S. contractors could soon be subject to Iraqi law under the Status of Forces Agreement being considered by the Iraqi parliament this week.
The proposed agreement does away with the immunity Defense Department contractors received under the 2003 Coalition Provisional Authority order. But it would only give Iraqis authority to charge DOD contractors committing crimes off base and outside their official duties -- a narrow definition that would likely limit much real impact.
"It's a positive gesture because it's a move to recognize the sovereignty of Iraq," said Haider Hamoudi, a professor at the University of Pittsburgh School of Law. "But I don't think it's as practical as it is symbolic."
However, contractors in other areas, such as for the State Department or USAID, wouldn't have as many protections and would fall directly under Iraqi authority, regardless of whether they were acting in official duty, according to a copy of the agreement.
A State Department official said that the agreement brings U.S. contractors in line with procedures for U.S. citizens across the globe, including in Afghanistan.
But some legal experts are concerned that subjecting U.S. citizens to the Iraqi judicial system, which has been widely criticized, could hinder their due process rights.
"This is exceedingly unwise," said Bruce Ackerman, a constitutional scholar at Yale Law School. "The SOFA has done something that is very seriously risking these peoples' rights."
Instead, these critics, such as Oona Hathaway, a professor at Berkeley Law School, argues that Congress should extend broader jurisdiction for federal courts to prosecute these individuals. "There is a real problem. There needs to be some place for non-DOD contractors who commit crimes," she said. "But to subject them to the Iraqi court system is probably not the best solution."
Indeed, some government contractors are already "worried what the practical implications are and whether the judicial system will be fair," said Cheryl Semmel, head of government relations for the National Association of Government Contractors.
Contractors in Iraq have long been in sort of a legal free zone, immune from Iraqi control and outside the reach of U.S. authorities. Recent congressional legislation has extended jurisdiction to U.S. prosecutors to charge DOD contractors for crimes in federal court, but the number of prosecutions have been limited. Meanwhile those contractors working for the State Department, like Blackwater, have largely escaped legal ramifications. This loophole drew fierce protests from the Iraqis, particularly after the 2007 Blackwater shooting killed 17 civilians.
The backlash that and other incidents generated made Iraqis particularly sensitive to winning legal jurisdiction over contractors, particularly security personnel, officials and experts said.
The agreement has yet to be finalized but is expected to reach final approval in the coming weeks. Last week, it passed over a major hurdle when the Iraqi cabinet gave it the green light. The Iraqi parliament is expected to take a vote next week after which it needs sign off from the executive.