Iraq Watch: The Lynching Law

Installment #3 for the New School Free Press runs in tomorrow's issue.

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A roving squad of unlawful combatants rampaged through Baghdad's Nisour Square and slaughtered at least 17 people on September 16.

Although the attack kicked off three government investigations, none of the unlawful combatants—militants that are not identified by national insignia or operate under the military chain of command, but engage in offensive activities during war time—were charged with a crime. The U.S. government has not even rounded these killers up and flown them to Guantanamo Bay for the standard series of torturous interrogations.

This time, the United States knows these attackers all too well: decked out in beige vests and toting assault rifles, the killers were operating under a government contract paid for by the State Department, and taking a group of U.S. diplomats along for the ride.

Military law experts are wondering whether these contractors fall under the same legal status as Guantanamo Bay's detainees. "If we hire people and direct them to perform activities that are direct participation in hostilities, then at least by the Guantanamo standard, that is a war crime," Michael N. Schmitt, a former Air Force lawyer and an international law professor at the Naval War College, recently told the Los Angeles Times.

But the contractors are above the law. Paul Bremer III, once the envoy to Iraq, granted all U.S. contractors immunity from Iraqi laws in 2004. Unlike contractors that work for the U.S. military, those that work for the State Department cannot be prosecuted under the Uniform Code of Military Justice.

When Congress passed the Military Commissions Act of 2006, the Bush Administration ratified the invented term "illegal enemy combatant" to describe anti-American terrorists on which the government intended to implement "enhanced interrogation techniques." That day, I lost my faith in America's rule of law.

This act permits the government to detain anyone for as long it deems necessary, so interrogators can interrogate the detainee without issuing a charge or granting the detainee access to a lawyer. In other words, "illegal enemy combatant" is denied the rights of any "prisoner of war" under any kind of national or international law.

Unlike our combatant contractors in Iraq, then, America promises "illegal enemy combatants" the punishment of institutionalized lynching.

Recently, the House approved a bill to place U.S. contractors under the legal purview of American criminal law. But the law would not work retroactively, and it still has to face passage by the Senate. Thus, the killers in Nisour Square are free to return home after their contracting tenure and go on with their lives in peace.

In America, rule by law has become the freedom of choice. Some enemy combatants are guilty of murder but legally innocent. Others are guilty of terrorism until proven innocent. As judge, jury and executioner, American officials get to pick the combatant's fate.