The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although in the domestic context many scholars argue that privatization leads to a dramatically reduced scope of accountability, we may not be able to translate that conclusion to the international sphere because the baseline is different; accountability is actually very difficult to achieve under international law with respect to either state or private actors. Although there are not many avenues to hold private actors accountable, there are some possibilities, which will be discussed in this essay. In particular, this essay suggests that human rights lawyers and scholars should consider not only accountability through the vehicle of suits to enforce international law norms, but also suits to enforce ordinary municipal law.
Laura Dickinson, Accountability of State and Non-State Actors for Human Rights Abuses in the 'War on Terror', 12 Tulsa J. Comp. & Int'l L. 53 (2005).