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Starting January 1, 2009, US citizens who are contractors in Iraq will be subject to the jurisdiction of Iraqi criminal and civil courts, according to the terms of the Status of Forces Agreement signed on November 17, 2008.

Nothing in this newly signed SOFA guarantees that a US citizen contractor arrested in Iraq will get even the basic due process protections. The SOFA doesn't even permit the US government to detain US citizen contractors who are awaiting trial in Iraqi courts. The SOFA requires that US soldiers and government employees arrested by the Iraqi police will be handed over to US authorities within 24 hours of detention or arrest. However, if the detained American citizen is a contractor, he or she is left entirely to the disposition of the Iraqi system, and will be left to sit in an Iraqi jail awaiting Iraqi justice.

Starting January 1, 2009, the US government can exert its own jurisdiction over its citizen contractors only if the Iraq government defers. According to the US Department of State, there will be no exceptions to this deference, not even if the contractor is arrested for doing exactly what his US government contract obligated him to do.

The US government is offering its contractors no due process guarantees, no indemnification, and, so far, no answers, but talks are continuing.

Some of the outstanding questions include:

• Will Iraqi criminal jurisdiction be retroactive, so that US citizens in Iraq can be charged for offenses allegedly occurring years ago?
• Will employees already back in the US now be subject to extradition if they are charged in Iraq?
• Will criminal defendants have rights to or access to legal counsel, basic sanitation and health care?
• In the civil court system, will Iraqi courts allow pre-judgment attachment of US contractor assets and will contractor equipment in Iraq be seized if a contractor is sued as of January 1?

As mentioned above, talks are continuing, but US citizen contractors doing business in Iraq should prepare to operate in a very different legal climate.

Please contact Ms. Lee at for further information.

To read Ms. Lee's most current writing on this topic, please click here.