DoD Risks Hiring Unscrupulous Arms Brokers with Foreign Arms Purchases

The Washington Post’s Saturday front page article “U.S. military criticized for purchase of Russian copters for Afghan air corps” once again raised concerns about the Pentagon’s purchase of foreign-sourced arms.  While the Post highlighted opposition of the helicopter deal by U.S. Senators such as Richard Shelby for “massive waste, cost overruns, schedule delays, safety concerns and major delivery problems”, it failed to mention the serious risk of DoD hiring unscrupulous or problematic arms brokers in such deals.  As DoD continues to purchase foreign-sourced arms, including 10 new Russian helicopters for Afghanistan, additional controls are urgently needed.

In September 2009, Amnesty International USA published a policy briefing that highlighted six cases in which Pentagon funds were used to contract arms brokers that had been either connected to breaches of international arms embargoes, named in reliable UN reports as being involved in illegal arms trafficking, listed on the U.S. Department of State’s Watch List, or whose agent had been indicted for breaches of U.S. arms control laws.  All of these contracts were for foreign-sourced assault rifles or ammunition.  As a result, millions of U.S. dollars were given to these individuals and in at least one case the U.S. government received tons of faulty ammunition, putting Afghan and U.S. forces at risk.

One of the key reason’s DoD funds were funneled to these arms brokers is a significant lack of controls on foreign-sourced arms purchases compared to controls on U.S. arms exports.  For example, in some cases DoD officials are not aware of or do not screen all of the subcontractors involved in a contract to procure or transfer foreign-sourced arms.  There are also no contract clauses that specifically prohibit prime contractors from subcontracting with entities that have been accused of transferring arms in contravention of U.S. national laws or convicted of arms trafficking in foreign courts.

Although some may think purchasing larger arms such as helicopters diminishes the risk of hiring problematic arms brokers, look no further than the Army’s past purchase of Russian helicopters for Afghanistan.  According to a blog in early 2009 on Wired, the U.S. Army reportedly hired an unknown Slovak ambulance company to supply three of the Russian Mi-17 helicopters to Afghanistan, and the helicopters had to be returned.

A real chance for accountability for private security contractors

At the end of December, the human rights movement had some disappointing news. Federal Judge Ricardo Urbina dismissed the charges against the five Xe (Blackwater) guards accused in the shooting death of at least 14 innocent Iraqi civilians in Nisour Square in September 2007.

While his decision indicates the need to examine more closely the conduct of the Justice Department’s prosecutors as well as the State Department’s practice of immunizing contractors’ statements given in the course of investigations, there is now reason for hope. On Tuesday, Rep. David Price and Sen. Patrick Leahy introduced companion bills under the short title of the Contractor Extraterritorial Jurisdiction Act (CEJA) of 2010 in the House (HR 4567) and Senate (S2979). The legislation closes gaps in U.S. law to ensure that contractors can be prosecuted for crimes committed overseas.

One of the single biggest hurdles to holding military and security contractors accountable for criminal acts committed overseas has been the duality of systems in place for Defense Department (DOD) contractors versus those working for other government agencies. DOD contractors implicated in crimes are subject, in theory, to the Uniform Code of Military Justice, the military’s judicial system, and the jurisdiction of federal courts by way of the Military Extraterritorial Jurisdiction Act (MEJA). But what about Blackwater, which was fulfilling the State Department’s Worldwide Personal Protective Services (WPPS) contract at the time of the Nisour Square shootings? Well, many feared that the Justice Department wouldn’t or wouldn’t be able to pull off a case against the shooters because of unsettled evidentiary and jurisdictional issues.

We – the human rights community, Congress, the President, the media, and othershave known about this inconsistent patchwork of laws for some time now. In fact, in 2007 Rep. Price and then-Senator Barrack Obama joined forces to try to amend MEJA to clarify that there would be no impunity for government contractors who commit crimes. While the House version of the bill passed with an overwhelming bipartisan vote of 389 to 30, it fizzled on the Senate side.

Two years on, we don’t need any more evidence to indicate the importance of acting decisively to make CEJA law. The DOS is about to release the Request for Proposal for WPPS III. In the upcoming weeks, we’ll be asking you to call on your members of Congress in the House and Senate to endorse CEJA and end impunity for rights violators. Let’s make sure that the framework is in place to hold military and security contractors accountable for human rights violations before we send out the next round of armed guards in the name of the U.S. government.

Private military and security companies wanted for hire by CIA as "hitmen"?

by Lillian Tan, Corporate Action Network Intern

September 16, 2009 will be the second anniversary of the Nisour Square shootings, in which six Blackwater (now Xe) personnel shot and killed 17 Iraqi civilians outside Baghdad’s green zone. The bad media which surrounded the incident galvanized the U.S. Government to take some steps towards ensuring that the Department of Defense (DOD) and Department of State (DOS) better regulate PMSC operations in Iraq. But was it enough?

The six Blackwater guards who allegedly indiscriminately opened fire in Nisour Square on September 16, 2007 were finally indicted late last year. The trial hasn’t even started but Blackwater/XE personnel are already implicated in another incident. On May 5, 2009, four Blackwater/Xe personnel reportedly shot and killed two Afghan civilians in Kabul. So much for lessons learned in Iraq; so much for regulation, oversight, and accountability.

However, the U.S. government should not keep pushing aside the questions of how to effectively regulate and where to set the limits on using PMSCs — especially with the increased number of contractors flooding into Afghanistan in the wake of the planned surge in troops. The longer it takes for the U.S. government to finally take a position and answer these questions, the longer PMSCs operate in a legal limbo, in which they may commit human rights abuses with impunity.

Just recently, it has been reported that the CIA contracted Blackwater/Xe to assist in a secret assassination program of which the Congress was not even aware. According to the August 20, 2009 New York Times, “it is unclear if the CIA planned to use Blackwater/Xe to actually capture and kill Qaeda operatives, or just to help with training and surveillance in the program.”

The article also mentions that government officials are concerned about serious issues of accountability when contractors are brought into covert and lethal operations. Where there is no transparency, accountability will be near impossible if a crime were committed during those operations. The past administration has been quick to invoke several legal reasons to withhold sensitive information from the public — from the Glomar response to claiming that releasing detainee abuse photos would be against the Geneva Conventions. When the same photos were about to be released in May 2009, the Obama administration sought to block their release arguing that the images could further inflame anti-American opinion. If it is already this difficult to get information out of government agencies, then imagine the difficulty of obtaining information for the purpose of accountability when there’s a private contract involved in a sensitive national operation.

Another area of great concern that the New York Times article briefly touches upon is whether, aside from the concerns about accountability for PMSCs in such a program, PMSCs should be involved in the first place? As Senator Diane Feinstein (CA) aptly states, “It is too easy to contract out work that you don’t want to accept responsibility for”. In the debate about the use of PMSCs in modern warfare, there is the pressing question of what functions a government can and cannot outsource. In U.S. statute and policy, inherently governmental functions are loosely defined as “a function so intimately related to the public interest” that it must be performed by Federal employees. The list of functions that fall under “inherently governmental” is also extremely inconsistent, varying from agency to agency. Because of this lack of a clear and consistent definition, PMSCs are contracted to perform duties in highly sensitive areas such as intelligence and now, even assassinations.

To better regulate the industry, Congress also needs to pass legislation that will close the legal vacuum in which PMSCs are operating and appropriate more resources to regulation and oversight. The U.S. government currently does not adequately regulate the industry and its statutes to hold PMSCs accountable for crimes overseas are few. In its June 2009 Interim Report, the Commission on Wartime Contracting finds that U.S. government oversight of PMSCs is inadequate. Because they mostly operate transnationally, jurisdiction can become a problem. While PMSCs contracted by the DOD can be held accountable under the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ), contractors hired by other agencies such as the DOS often fall through legal gaps.

The foundation to improve regulation, oversight and accountability of PMSCs has already been set. To close legal gaps such as the one in MEJA, legislation has been proposed in the past and we look forward to similar legislation in the 111th Session of Congress. As for clarifying definitions of “inherently governmental functions”, a bipartisan Commission on Wartime Contracting was established in Public Law 110-181 to recommend among other things improvements in its Final Report on the “process for determining which functions are inherently governmental and which functions are appropriate for performance by contractors in a contingency operation, especially whether providing security in an area of combat operations is inherently governmental.” On an international level, the UN Working Group on Mercenaries (UNWGM) completed its two-week visit to the U.S. on August 3rd, 2009. During that time, the UNWGM met with the DOJ, members of Congress, governmental officials and public interest groups to discuss how PMSCs can be regulated on international, regional, national and local levels. Such efforts are all a step in the right direction.

US-Iraq Security Agreement Forgets Blackwater

Yesterday, the Associated Press ran the headline US Contractors Lose Immunity in Iraq Security Deal.

But, if what comes to your mind when you think of US contractors operating in Iraq with immunity is, for example, the indiscriminate shooting and killing of civilians by Blackwater personnel, read the fine print – the new assertion of joint Iraqi-US jurisdiction doesn’t apply to companies contracted by anyone other than the Defense Department.

This means Blackwater personnel working on a contract with the State Department — the same one under which Nisoor Sq killings occurred – are good to go with Iraqi immunity.

There are murmurings that US State Department contractors will be subject of similar, future agreements. It’s not clear why this agreement couldn’t have defined contractors more broadly to begin with.