If You Can't Quit Them, Then Regulate Military Contractors

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By Lillian Tan, Corporate Action Network Intern

Their operations are vast and war zone contractors are likely here to stay, as Suzanne Simons writes in her CNN International article. Her article is a comprehensive piece that places emphasis on one of the more salient issues regarding private military and security companies (PMSCs) or contractors: lack of regulation, oversight, and accountability. The PMSC industry has grown rapidly since the war on terror and continues to play an integral role in the conflict in Afghanistan under the Obama administration, but the US government, as reported by the CWC in its Interim Report, lacks resources to manage the industry that it has come to depend on like a crutch.

Since 2001, Congress has appropriated about $830 billion to fund U.S. operations in Iraq and Afghanistan. Over that period, America’s reliance on contractors has grown to unprecedented proportions to support logistics, security, and reconstruction efforts related to those operations. More than 240,000 contractor employees—about 80 percent of them foreign nationals—now work in Iraq and Afghanistan, supporting the Department of Defense. Additional contractor employees support the Department of State and the U.S. Agency for International Development.

-Executive Summary, June 2009 Interim Report from the Commission on Wartime Contracting (CWC)

The result from the combination of a growing military industry and weak government regulation and oversight is a culture of impunity and lack of accountability for the many human rights abuses committed by PMSCs. Yes, five Blackwater guards will be tried in February 2010 for opening fire and killing civilians in Nisour Square and yes, a private civil lawsuit was filed against Blackwater contractor Andrew J. Moonen for killing one of the Iraqi Vice President’s bodyguards in Baghdad’s green zone. However, let us also keep in mind not only how long it took for the Department of Justice (DOJ) to act in the first case, but also the fact that numerous cases of detainee abuse committed by PMSC personnel have gone unprosecuted. In February 2008, Amnesty found out through Senator Durbin’s inquiry to the DOJ that 24 cases of detainee abuse were transferred to the Eastern District of Virginia; 22 of the 24 were dismissed and 2 are pending. Our efforts to find out why these cases were dismissed or unresolved were fruitless.

The industry cannot be expected to regulate itself and a government that is increasingly outsourcing its operations needs to ensure that it has the mechanisms to regulate PMSCs’ activities and hold the companies accountable for their actions (and not reward them with more contracts). Doug Brooks of the International Peace Operations Association (IPOA) stated that PMSCs are here to stay and that it’s about time we made it work but after the recent completion of a twelfth version of IPOA’s Code of Conduct, the trade association still has not made it work. Essentially, the Code is ineffectual. For starters, there are no guidelines detailing what compliance with its standards entails; companies do not have to show that they are operationalizing the Code to IPOA or any third-party monitor; and there are no requirements for public reporting on company efforts to adhere to the Code.

This is why the U.S. government will have to move beyond the Military Extraterritorial Jurisdiction Act (MEJA) to create a new body of legislation that will hold all U.S. government contractors working overseas accountable – irrespective of which government agency employs them – if they commit human rights violations.

For more information on PMSCs, visit www.aiusa.org/pmscs and read CorpWatch’s investigative report on intelligence contracting Outsourcing Intelligence in Iraq.

Much Ado about Blackwater: Part I – What were they (we) doing in Iraq anyway?

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In a series of blog posts, I will humbly try to contribute clarity to the plethora of news coverage recently devoted to Blackwater Worldwide, a company which, among other things, provides military and security services to the US government in Iraq. Together, we will sift through the criminal prosecution of the Blackwater contractors involved in the Nisour Square killings of 2007, the Iraqi license denial, the contract with the State Department, the US-Iraq Security Agreement and what this all means for corporate accountability on the battlefield.

Today, let’s start with the yesterday’s coverage of the letter signed by Defense Department Deputy Secretary Gordon England, stating that companies, including Blackwater, working on State Department Diplomatic Security contracts were not engaged in “employment in support of the DOD mission”.

Though it seems Mr. England is quite clear on this point, others are not, and have been debating it literally for years. (It’s an important point because it’s the part of the law that gives the DOJ jurisdiction over the contractors.)

What happens next in court might explain why there has been such a delay in getting to this brink of accountability in the first place – someone has to finally figure out what “the mission” in Iraq is. Maybe there were/are many missions. Once the court gets that sorted out, I suppose the next step will be to interpret the now famous (infamous?) Military Extraterritorial Jurisdiction Act to decipher what is meant by “supporting a DOD mission,” and finally to decide whether Blackwater was doing that.

These decisions could have sweeping implications not only for the state of US law and foreign policy, but also in interpreting the recently enacted US-Iraq Security Agreement, and possibly setting the State and Defense Departments on a trajectory of cooperative regulation of companies they contract – something, despite all the hoopla over Blackwater these days, that has yet to happen.

Blackwater Indictment Good Step; Better Law Next Step

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In indicting five Blackwater personnel, and accepting a guilty plea of a sixth, for the 2007 Nisour Square shootings resulting in the death of 17 Iraqis, the Justice Department relied on a much discussed law, the Military Extraterritorial Jurisdiction Act (MEJA) to get jurisdiction over the contractors. (U.S. criminal law is generally restricted to the confines of U.S. territories and thus inapplicable to crimes committed elsewhere.)

A debate about whether MEJA would apply to these contractors centered on one question: whether State Department security contractors, including Blackwater, could be said to be supporting a Defense Department mission in Iraq, and thus be considered “employed by the Armed Forces” as it is defined in the law.

Yet, whether the court ultimately decides that MEJA, as it stands, is applicable to DOS contractors in this instance or not does not mean there isn’t room for improvement in the law.

Now is the time to pick up the ball again and continue moving forward. We shouldn’t wait for the next Nisour Square to contemplate whether U.S. law has kept pace with U.S. companies that regularly operate internationally, often in high-risk environments like conflict zones. It’s not hard to imagine that the next case won’t involve a DOD mission at all, and we’ll be scrambling for law and order, again.

On September 16, 2007, the fury that must have existed in Nisour Square set off another nucleus of confusion and activity – once the killings were known, the issue was what could be done about them. Representative David Price (NC) was already on top of the issue, introducing a bill and leading an effort in the House to expand and clarify MEJA and better regulate the military and security industry. Senator Barack Obama led the cause in the Senate.

With Senator Obama now President-elect Obama, let’s hope that the move to the White House will bring not only fulfillment of promises to be a better neighbor in our foreign affairs but also that our new President will continue to support the efforts of his tireless colleagues in Congress to set the stage for a more humane way for the United States to do business.