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. Civilians and contractors have always had a place in American wars, even during the American Revolution and beyond. But the recent American 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. 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? 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. 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, handing down thirty-year mandatory minimum sentences to three defendants, ex-Blackwater contractors, responsible for the 2007 Nisour Square massacre in Baghdad, Iraq. 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 abroad. 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. 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 community.



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