A bill introduced in the Senate on Wednesday could see military contractors in Iraq face justice in US courts in cases involving death, rape or serious injury.
While supporters of the bill hailed it as the end of "the Wild West of government contracting," some legal experts questioned whether the law could pass constitutional muster.
The bill, authored by Sen. Claire McCaskill (D-MO), would require foreign companies that contract with the US military to agree to answer in front of US courts when there has been a death, rape or serious injury, reports the Courthouse News Service.
McCaskill's inspiration for the law was the case of Army Lt. Col. Dominic Baragona, who died in Iraq in 2003 when a truck belonging to a Kuwaiti contractor slammed into his Humvee. Baragona's family sued the contractor, Kuwait Gulf & Link Transport. When the contractor didn't appear in court, the judge issued a $4.9 million judgment to the Baragonas. But the courts vacated that judgment when the company argued the US didn't have jurisdiction over the case.
As the Kansas City Star reports, the Baragonas faced resistance not only from the contractor, but from the US Army as well:
The family ran up against an Army investigation of the accident that didn’t include key details, among them the name of the company that owned the tractor-trailer, an interview with its driver or his identity.
The Baragonas pushed for a second probe, which found the driver was at fault. But they have endured legal stonewalling and a by-the-book attitude from the military that members of the Senate panel said seemed strangely removed from any concern over the death of one of its own.
“I am, frankly, flabbergasted that most — if not all — of the effort in this case came from the Baragona family and not from our military after a member of the military was killed,” McCaskill, chair of the Senate Subcommittee on Contracting Oversight, said Wednesday.
As Robert Brodksy at GovExec.com states, "legal experts argued that the legislation would close an important jurisdictional gap for federal courts, particularly for incidents in Iraq, in which contractors already have immunity from prosecution."
But some legal scholars expect the law to face a constitutional challenge from contractors. Columbia Law School lecturer and Harper's magazine contributor Scott Horton told Brodksy that contractors will challenge the bill if it becomes law, on the grounds that a defendant must have some "minimal connection" to the US in order for American courts to have jurisdiction. Supporters of the law would likely argue that a contract with the US military amounts to a "minimal connection."
The Defense Department reportedly also has concerns about the bill. Richard Ginman, deputy director for program acquisition at the Pentagon, told the Federal Times that the new law would limit the government's ability to contract for services in war zones.
But for the Baragona family, who have been seeking justice for six years for the death of their loved one, the bill represents only good news.
"When this bill passes, the Wild West of government contracting will finally be over," Dominic Baragona's father, Dominic Baragona Sr., said.
Details on the Lieutenant Colonel Dominic "Rocky" Baragona Justice for American Heroes Harmed by Contractors Act can be found here.