Does the U.S. overuse private contractors?

July 13, 2012 • Volume 22, Issue 25
Does the U.S. overuse private contractors?

By Marcia Clemmitt

Introduction

A private U.S. security guard stands in front of a chilling monument marking a mass grave for victims of dictator Saddam Hussein in Hilla, Iraq. In 2011, the Pentagon employed about 155,000 private security contractors in Iraq and Afghanistan, including some 39,000 Americans. (AFP/Getty Images/Saeed Khan)

The United States and other nations increasingly rely on private contractors, many of them armed, to guard military bases, protect diplomatic personnel, conduct surveillance of potential military targets and carry out other such duties. Over the past decade, security companies have greatly increased in number and size, becoming a major industry that attracts private-sector clients as well. Multinational corporations hire the same armed contractors that governments use to guard remote mining operations, and shipping companies hire them to fight pirates. Governments and other clients say private guards save money and provide strategic flexibility. Critics argue, however, that using soldiers-for-hire gives governments too much leeway to take armed actions without citizens’ or lawmakers’ consent. Furthermore, they contend, no system of law — national or international — holds armed contractors or those who hire them fully accountable for human-rights violations.

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Overview

The surveillance operation might never have come to light if the small plane hadn’t developed mechanical trouble over the Central African Republic in the summer of 2010. After an emergency landing, the American civilians aboard, along with two military observers from neighboring African countries, were detained by suspicious local officials.

“We felt like we were going to prison,” one of the Americans told The Washington Post.

As private security contractors working under contract to the Pentagon, the Americans had been hired to watch suspected terrorists. Using contractors, rather than military or CIA personnel, helps the Pentagon keep its expanding African counterterrorism campaign low-profile and provides the government with “deniability” if mishaps occur, explained Peter W. Singer, director of the 21st Century Defense Initiative at the Brookings Institution, a think tank in Washington.

Indeed, when the detained Americans called the State Department and United Nations for help, both agencies — wanting to avoid being linked to the surveillance effort — declined to intervene. “Eventually,” one of the contractors said, “we were able to talk our way out of it.”

The episode helps underscore the rapidly expanding role that private security contractors are playing for the Pentagon, CIA, State Department and other agencies in hot spots across the globe.

Kristal Batalona, the daughter of an American security guard who was killed in Iraq, testifies on Feb. 7, 2007, before a congressional committee investigating the use of private military contractors. As the United States increasingly turns to so-called guns for hire, critics argue that private contractors are not fully accountable for human rights violations and that they allow the government to take military action without citizens’ or lawmakers’ consent. (Getty Images/Alex Wong)

The government has increasingly turned to security companies over the past two decades to assist in armed and unarmed military operations and help other government agencies working abroad. The trend, originally driven by military downsizing in the wake of the Soviet Union’s collapse in the early 1990s, has accelerated sharply in recent years. The wars in Iraq and Afghanistan have fueled it, as has increased public acceptance of privatization as a way to increase quality and efficiency while reducing the number of jobs handled by government.

As of March 2011, approximately 155,000 Department of Defense (DOD) contractors were in Afghanistan and Iraq, comprising more than half of the DOD workforce in the two countries.

The overwhelming majority of private American contractors around the world perform unarmed support duties, such as running food-service operations on military bases or constructing temporary buildings. “Most of the time they don’t do sexy stuff,” says Joanna Spear, an associate professor of international affairs at George Washington University. “Much of it’s boring.”

A growing number of contractors, however, over the past decade have taken on delicate, mission-critical jobs, such as surveillance, prisoner interrogation and intelligence gathering to help the military accurately target drones — plus jobs in which the contractors bear arms. In 2011, for example, 10,448 contractors working in Iraq — 16 percent of the total — provided armed security, including in armored vehicles and helicopters.

The rise of armed contractors in the past decade has marked a new era in the long history of military privatization, according to an analysis by RAND, a think tank in Santa Monica, Calif., that studies military issues. While the military hired an increasing number of contractors during the 1990s, including as armed guards in conflict zones and disaster-relief situations, for example, there remained a long-held reluctance to send armed private citizens into actual war zones, RAND noted. Until the 2003 U.S.-led invasion of Iraq, such mercenaries had been rarely used in American history, it said.

The State Department points out that, unlike troops, contractors are under orders to use force only in defense, never in attack mode, and to back off from armed clashes whenever possible. “We run. We go. We do not stand and fight,” said Undersecretary for Management Patrick Kennedy, who oversees security for the U.S. Embassy in Baghdad.

But many analysts say that an increasing number of contractor activities skate perilously close to duties that should be performed only by military personnel.

In Iraq and Afghanistan, for example, tens of thousands of armed contractors have defended sensitive military installations, yet they are not part of the tight military chain of command. “They don’t get the same intelligence information,” said Steven Schooner, a professor of government procurement at the George Washington University Law School. “So when things begin to develop quickly, there’s an awful lot of people around with weapons” who will not receive the same commands and information as troops receive, he said.

 

Most armed private contractors were formerly in the U.S. or another national military. That raises questions about how easily they will obey the far more restrictive rules of force that apply in their private-sector role, said Dov Zahkeim, who worked in the Defense Department under President Ronald Reagan and as a foreign policy adviser to President George W. Bush. “If you’re coming under fire and you happen to have a gun in your hand, you’re a former military person — are you really going to cut and run?”

Military personnel pledge to uphold the public trust, support the national military mission and respect international law. But military contractors are not bound by that same pledge. Some analysts worry that the widespread use of contractors could erode the commitment of service members to adhere strictly to the military code. Laura Dickinson, a research professor of law at George Washington University, pointed, for example, to the 2004 scandal at U.S.-run Abu Ghraib prison near Baghdad, in which detainees had been severely abused by contractors and service members. The military’s own internal report concluded that heavy reliance on contracting had watered down the culture of respect for law and order, contributing to “an environment of lawlessness that resulted in torture,” Dickinson wrote.

Contractors fall into a legal gray area that makes them more difficult to prosecute than military personnel for illegal or improper actions. For example, a contractor may be a citizen of one country, work in a second, be employed by a company based in a third and work under contract to the government of a fourth. No international rules stipulate where, how or even if a person in that situation can be tried for a crime, RAND analysts note.

If service members are accused of a crime, they are generally apprehended and subject to court-martial. “But if a contractor shoots someone, he may be out of the country by nightfall,” says T. X. Hammes, a retired Marine colonel who served in Iraq and now is a senior research fellow at the Department of Defense’s National Defense University in Washington.

Some prosecutions of contractors have gone forward, but progress is slow. In June, for example, the U.S. Supreme Court agreed with an appeals court that four former contractors should be subject to criminal charges in connection with the allegedly unprovoked shooting deaths of 17 Iraqi civilians in Nisour Square, near Baghdad, in 2007. The four were employed by Blackwater Worldwide, a major military contractor now known as Academi.

Military contractors have many defenders, however. Fears that contractors may be more likely than military personnel to commit crimes and human-rights abuses are greatly overblown, wrote independent military-affairs analyst David Isenberg, author of Shadow Force: Private Security Contractors in Iraq. Violence is an integral part of war, and “even the worst of classical mercenaries from ancient times or the Middle Ages would have a hard time rivaling the record of human and physical destruction achieved by regular military forces,” he said. “Mercenaries did not invent concentration camps, firebomb cities from the air, use chemical or biological weapons or use nuclear weapons on civilian cities.”

Contractors can make it possible to carry out some valuable foreign missions that could not be done otherwise, wrote Anna Leander, a professor at Denmark’s Copenhagen Business School who studies so-called “non-state actors” in world politics. For example, she said, private security contractors have been “used to break cycles of violence” in countries that experience devastating civil wars or potential ethnic genocides. In North Africa, contractors have assisted international organizations and human-rights groups trying to end a prolonged genocidal conflict in Sudan’s Darfur region. When a country torn apart by such violence lacks strategic importance, a powerful nation such as the United States may not want to intervene with military force; however, it might hire contractors to do humanitarian work, avoiding the need for legislative approval or public support to deploy armed troops, she wrote.

Since the end of the Cold War in the early 1990s, “a lot of what [the U.S. government] would like to see done in the world doesn’t tie simply to a clear national interest,” as it more clearly did when the United States faced off against the Soviet Union, says Deborah Avant, a professor of international security and diplomacy at the University of Denver. That makes contractors a valued option when the White House or Congress believes that an international mission is necessary but fears the public won’t support armed intervention.

“If people don’t want to use private contractors, the choices are simple: Either scale back U.S. geopolitical commitments or enlarge the military, something that will entail more gargantuan expenditures and even, some argue, a return to the draft down the road,” wrote Isenberg.

As private contractors become a standard feature of military and other international operations, here are some of the questions being asked:

Does the United States over-rely on private contractors to conduct missions abroad?

When a group of retired military officers assessed the nature of future military operations back in 2007, they predicted an expanding role for private contractors.

“Whatever threats the Army next faces will be different from the last, but they are likely to be expeditionary” — carried out entirely in foreign countries — “and likely to involve high numbers of contractor personnel,” the officers declared.

So far, history has borne out their conclusion. Not only is the U.S. military hiring more and more contractors, but so too are civilian agencies active in foreign countries, including the State Department and the U.S. Agency for International Development (USAID).

Many analysts point out that contractors provide technical expertise that the military may lack and give government the flexibility to expand its forces on short notice. But others warn that the increased use of private contracting makes it easier for presidents to launch foreign missions without robust public discussion or congressional oversight.

Things that go wrong among armed troops can turn lawmakers and the public against a valuable international mission, says Spear of George Washington University. For example, if the military is training troops abroad and a foreign trainee shoots a trainer who is a U.S. service member, even accidentally, the event can destroy legislative support for the mission. But a similar shooting would cause little uproar if the trainer were a private contractor, she maintains.

 

Because governments often don’t anticipate dangerous international situations, contractors give officials the “ability to quickly mobilize and deploy large numbers of personnel,” wrote Hammes, the retired Marine colonel. Contractors also offer the possibility of more continuity of staff, since many are willing to stay in a conflict zone longer than the six- to 12-month rotation period that the Pentagon maintains for service members. What’s more, private security companies often hire local people, potentially boosting the local economy and enhancing U.S. “nation-building” efforts in countries such as Iraq and Afghanistan, Hammes noted.

Nevertheless, many analysts cite serious potential downsides to contracting. Some argue that contractors’ higher salaries and more flexible working schedules not only damage the morale of lower-paid troops but also encourage service members to abandon the military in favor of a private-sector security job.

“Private military contractors can be a morale deflator for our military guys,” said a staff member in the Office of the Secretary of Defense. “They create disincentives for staying with the military.” (RAND analysts note, however, that, while many service members express this view, data don’t show that hiring contractors has significantly harmed military retention.)

By using contractors the government can avoid having to justify its foreign policy persuasively enough to make the case for recruiting troops from among the citizenry, says Avant of the University of Denver. As a result, “leaders can become less accountable to the populace. Everything that makes it easier to mobilize armed force means you can have a more aggressive foreign policy.”

Accordingly, the use of contractors allows presidents to mislead the public about how serious a military commitment the government is making, says Hammes. Contractors aren’t listed in government reports on the number of troops involved in a mission, he notes. In late 2011, for example, when President Obama announced a temporary “surge” of 30,000 troops to Afghanistan, a more accurate number — including contractors — was likely around 130,000, he says. “That might have changed the equation. People might have said, ‘No.’ So the fundamental question is, ‘Is this good for democracy?’”

Contractors help governments escape international scrutiny as well, says Hammes. “There are rumors of a large contingent of Chinese contractors in Africa,” for example, but because contractors are involved, the details are unknown. “If they’d moved an infantry division” to Africa, the details would be much more likely to come out and there would be international debate, he says.

Many security companies and other contractors are founded and staffed by high-ranking military officers. That raises the question of how objective Pentagon decision-making involving contractors can be when former staff members submit bids for contracting jobs, and current members mull jobs they might take after retirement.

“Using a previous relationship as an entrée to selling something” creates at least the perception of conflict of interest, suggested William “Buck” Kernan, a retired four-star Army general who once worked for the large Alexandria, Va.-based contractor MPRI. Often, he said, a contractor is a “previous superior” to the contracting officers at the Pentagon to whom he or she is pitching services. That can raise “all kinds of questions” about the objectivity of contracting decisions, he said.

Has using private contractors worked well in Iraq and Afghanistan?

Private contractors have played a large role in the Iraq and Afghanistan wars, doing jobs that would have been difficult without their help, such as keeping supply lines open through the Hindu Kush — the treacherous mountain range between central Afghanistan and northern Pakistan whose name translates to “Hindu killer.” However, contractors also have perpetrated high-profile violence against local people that likely harmed U.S. interests — such as the abuse of prisoners at Abu Ghraib prison that came to light in 2004 and the 2007 shooting deaths of 17 Iraqi civilians in Nisour Square by State Department contractors.

In 2007 Gen. David Petraeus, then commanding general of the multinational forces in Iraq, defended the heavy use of armed contractors in Iraq and Afghanistan. Because they guarded bases and performed other routine jobs, he told Congress, service members were available to carry out military missions. “Tens of thousands of contract security forces … guard facilities … that our forces … would otherwise have to guard and secure,” said Petraeus, who is now director of the Central Intelligence Agency (CIA).

RAND, the California-based think tank, said it found little evidence that private contractors working for the U.S. government in Iraq had behaved in a reckless fashion. “It does not appear that a majority of either the military or State Department personnel perceive private security contractors to be ‘running wild’ in Iraq,” as some critics charge, said RAND, basing its conclusions on a survey of about 1,000 service members and 1,700 State Department personnel.

While contractors have participated in abuse of civilians, such as at Abu Ghraib, service members have been equally if not more culpable in many incidents, wrote military analyst Isenberg. At Abu Ghraib, for example, while contractors abused prisoners, most abuse was “carried out by regular military forces,” he noted. Furthermore, one of the most serious human-rights breaches was the attempt to avoid oversight of activities at the prison, an action in which no contractors were involved, he said. It was government agencies such as the CIA that tried to hide prisoners’ records, Isenberg said.

Eleven service members were convicted of abuses at Abu Ghraib; no contractors were criminally charged. Federal courts are still determining whether a civil suit against contractors brought by former Abu Ghraib prisoners can proceed.

Some service members and other government workers surveyed by RAND praised contractors they’d worked with.

“We hired Kroll” bodyguards, and the company did a good job of avoiding negative interactions with Iraqis, a USAID staffer said. “They were former [Special Air Service] guys” from the British army, and “overall they did a pretty good — an excellent job…. They learned how to keep a low profile” to help USAID maintain good relations with local people.

New York City-based Kroll ended its bodyguard work in Iraq and Afghanistan in late 2006, after several employees were killed by suicide bombers.

But while private companies may perform well on specific jobs, they are less likely than the military to behave in ways consistent with a larger U.S. mission, some analysts say. For example, contractors have not been as effective as military personnel at winning over the “hearts and minds” of local people in so-called counterinsurgency efforts in Iraq and Afghanistan, they say.

 

In the RAND survey, 20 percent of service members who said they’d interacted with private contractors in Iraq said they had observed contractors behaving in a “threatening, arrogant or belligerent way” toward Iraqis. Fourteen percent said they’d observed armed contractors taking offensive action, even though private companies are banned from anything but the defensive use of force.

About one-fifth of State Department officials reported having seen armed contractors “often” or “sometimes” mistreating Iraqi civilians, according to RAND analysts. In a mission heavily dependent on winning over Iraqi loyalty to the United States, the number of incidents “does not need to be very high for it to be significant,” they said. Furthermore, about half the surveyed State Department officials who’d dealt with contractors told the analysts that they’d had to spend time managing disputes between Iraqis and contractors.

In some instances, contractors have flouted international principles of how civilians should be treated, said Mary Picard, senior disaster law officer at the International Federation of Red Cross and Red Crescent Societies, in Geneva, Switzerland. Because local people generally don’t distinguish between private-sector and public-sector American workers, such events make it “much more difficult for the military to maintain law and order and to be perceived as doing the right thing.”

Military missions require a high degree of coordination between commanders and commanded, but the spread of contracting makes such coordination tougher, some analysts say.

“I didn’t even have authority to speak to the contractors” onsite to request changes in procedure, said Hammes, the retired Marine colonel, of his Iraq experience. “I had to call the [company’s] home office” in the United States.

Technical barriers also inhibit coordination, said Ian Wing, an associate professor of policing at Charles Sturt University, in Australia, who served with the Coalition Forces’ Combined Operations Intelligence Center in Iraq. Troops and contractors “don’t have the same radios, they don’t have the same procedures,” he says. Furthermore, contractors “do what their contract requires, and they won’t do anything else.”

Being able to rely on contractors makes it easier for governments to say “yes” to some military missions when they should not, and the Afghanistan invasion may be an example, says Hammes. “Foreign militaries have never succeeded in pushing supplies through the Hindu Kush,” he says. The United States “has used local contractors to accomplish it. But when you’re in a position to absolutely need contractors to do something, you should probably ask yourself, ‘Is doing this a good idea?’”

Are nations doing enough to hold contractors accountable for fraud or abuse?

Over the past several years, the United States and other nations have stepped up their efforts to monitor the work of private contractors. However, many analysts argue that both the capacity and the political will to significantly increase oversight may be lacking.

By the late 1990s, Congress recognized that the rapidly growing sector of private security businesses based in the United States but operating abroad fell into a legal gray area. No court — military or civilian — had clear jurisdiction to prosecute criminal activity.

In response, Congress enacted the Military Extraterritorial Jurisdiction Act in 2000 to place contractors working abroad with the military under the jurisdiction of federal criminal law for any offense punishable by more than one year in prison. In 2004, Congress expanded the law to include contractors working abroad with other U.S. agencies during periods of armed conflict.

In 2007, the Uniform Code of Military Justice was amended to allow wider latitude to prosecute contractors in military courts. Previously, only contractors employed during wars declared by Congress could face court-martial, but the amended law includes contractors who work in so-called “contingency operations” — military activity undertaken without a formal congressional declaration of war, such as the wars in Iraq and Afghanistan.

The government has made heroic efforts to pursue cases despite the high price of investigating and prosecuting incidents that happen abroad, says Gary D. Solis, a former Marine prosecutor who is an adjunct professor at Georgetown University Law Center and author of the 2010 book, The Law of Armed Conflict. For example, after the 2007 shooting deaths of Iraqi civilians by Blackwater (Academi) contractors at Nisour Square, the government spent millions of dollars to collect and preserve evidence, even “boxing up the vehicles [involved in the case] and shipping them to the United States.”

Nevertheless, many analysts say it’s still far too easy for contractors to avoid oversight and accountability.

The government’s “whole regulatory infrastructure for contracting is sparse,” says the University of Denver’s Avant. Oversight offices don’t have the resources, experience or authority to investigate potential problems before they worsen, she says.

Private guards for the Blackwater security firm (now Academi) take positions near the Iranian Embassy in Baghdad, Iraq, following a roadside-bomb attack in July 2005. In 2007, four Blackwater guards working for the State Department were charged with manslaughter in connection with the shooting of 17 Iraqi civilians in Baghdad’s Nisour Square. In June 2012, the U.S. Supreme Court held that the former contractors should be subject to criminal charges for the deaths. (AFP/Getty Images/Ahmad al-Rubaye)

Several years ago, the Pentagon outsourced some contractor oversight to a private company, and the move spurred charges that the company would inevitably have conflicts of interest that would interfere with its work. But the arrangement worked better than the Pentagon’s internal oversight system, says Doug Brooks, president of the International Stability Operations Association, a membership group for contractors in the security and disaster-relief fields. The company’s contract stipulated that it would take on only a manageable workload, whereas the military’s own contract auditors are “often trying to deal with a workload 20 times the reasonable size,” Brooks says.

Because “the military is hesitant to apply” its expanded authority under the Uniform Code of Military Justice, the amendment to the code has done little to increase contractor accountability, as evidenced by the fact that hardly any cases have been brought, Solis says. The Pentagon is hesitant to pursue cases under the code for fear that the Supreme Court will strike down the law’s expansion, he says. In the 1950s and ’60s, the court declared that the military did not have authority to court-martial civilians.

When it comes to Americans charged with crimes abroad, “the United States has always said, ‘We will prosecute our own,’ partly to assure people a fair trial. But now we seem to have gone further with that approach: We don’t prosecute at all,” Solis says. What’s lacking is “political will,” he argues. “The attorney general has to say, ‘I don’t care how difficult it is. I want somebody in court in 30 days.’”

“Looked at through the lens of partisan politics,” however, it’s hard to aggressively prosecute Americans who work in dangerous situations abroad, Solis says. “Anyone who started prosecuting civilians would probably be a one-term president.”

The issue is not whether contractors are ultimately found innocent or guilty of offenses with which they’re charged but whether cases are pursued to conclusion, says Solis. If the government continues its apparent reluctance to see cases through, the result will be an “erosion in the confidence people have in America’s ability and willingness to achieve justice.”

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*In 2005, some individual security contractors in Iraq earned $33,000 per month, compared to the $12,000 to $13,000 monthly salaries for Special Operations Forces. Private contractors also had much more liberal leave options, according to the Government Accountability Office.

Background

Private Enterprise

Armed forces for hire — either individual mercenaries or groups of salaried soldiers working as an army for hire — are nothing new. From ancient times until about 200 years ago, hired guns traveled the world to work for different governments. They were the most common kind of armed force, and, while the trend waned for a time, it never went out of existence.

Before about 1800, few rulers had the ability, or even the inclination, to assemble large armed forces of their own citizens.

Waging war effectively required specialized skills, such as shooting a crossbow or wielding a sword, that were best honed over decades. But few governments needed a standing army or could afford to pay soldiers to keep their skills sharp in peacetime. As late as the 19th century, most governments were either weak or despotic, and most people were poor, making it difficult for rulers to assemble a force of any size from among their citizenry.

Furthermore, until the 19th century there were few nation-states of the kind that we know today, with firm boundaries and stable populations, that citizen armies defended in war. Instead, kings presided over territories with shifting boundaries that they fought to expand into far-ranging empires, employing foreign soldiers-for-hire who were better suited for the task than local farmers or knights.

As a result, “the foreign soldier hired for pay, the mercenary, is an almost ubiquitous type in the entire … history of organized warfare,” wrote Singer, the Brookings Institution scholar. “Even the Bible tells their tales. The Pharaoh chased the Israelites out of Egypt with an army that included hired foreigners, while [the Israelite King] David and his men … were employed in the Philistine army.”

But employing freelance warriors had its downside, especially between wars, when the soldiers weren’t paid. Mercenary groups lived “off the land,” forcing local people to hand over food and money, “leaving the countryside devastated in their wake,” wrote Singer.

On the high seas, from the 13th through 19th centuries, armed sailors for hire — known as privateers — served governments in wartime but often terrorized other vessels as pirates in peacetime. At least some rulers “turned a blind eye,” probably because piracy honed the skills sailors needed “when serving as the king’s wartime privateers,” wrote Janice E. Thomson, a retired professor of political science at the University of Washington.

Warfare as business grew steadily larger and by the 17th century had become the “biggest industry in Europe,” according to Singer. “European armies of the period often were simple amalgamations of hired mercenary companies, all with their own specialties.” Eastern Europeans and Greeks were cavalry specialists, and the Swiss wielded pikes. “‘Patriotism’ was a meaningless concept to the average soldier,” in stark contrast to the strong nationalistic commitment that is a hallmark of modern armies, Singer noted.

During that period, a “new class of military entrepreneurs … recruited and equipped military units at their own cost” and leased them to rulers. In addition, countries such as Britain and the Netherlands granted monopolies in international trade to shareholder-owned “mercantile companies” such as the English East India Company. Empowered to develop and manage foreign trade — between India and Europe, for example — the companies received royal permission to conquer territories, make treaties and engage in combat to ensure that the country to which they were bound by contract dominated trade along a designated route.

Rise of States

Some thinkers doubted the wisdom of relying on private armies. In Florence, Italy, political philosopher Niccoló Machiavelli (1469–1527) — author of the influential political treatise The Prince — warned that private armies, by definition, are disloyal. “Mercenary commanders are either skilled in warfare or they are not,” Machiavelli wrote. “If they are, you cannot trust them because they are anxious to advance their own greatness by coercing you, their employer. If, however, the commander is lacking in prowess, as often as not, he brings about your ruin.”

While mercenary warfare persisted — and even expanded — during the 17th century, the era also saw technological and political trends that decreased mercenaries’ dominance.

The Thirty Years War (1618–1648) destroyed towns across Europe, caused famines and drove rulers into bankruptcy as two powerful imperial families — the Hapsburgs and the Bourbons — fought each other and numerous regional opponents, such as the Germans, to control huge swaths of the continent. So damaging was the war that, in the end, “the only conceivable resolution” was to abandon the struggle for imperial power that had dominated European politics to that point and “let each nation decide its own internal matters,” wrote Singer.

This principle was enshrined in the Peace of Westphalia treaties that ended the fighting. Afterward, freelancing mercenary armies “began to be replaced by standing state armies made up of citizens” who defended their own borders, he wrote. “The wars of kings finally evolve[d] into the wars of people.”

As guns and cannons replaced swords and pikes, combat skills mattered less than sheer numbers of soldiers, another trend that favored temporary conscription of citizens over hiring mercenaries. Furthermore, during the Enlightenment of the 17th and 18th centuries the idea arose that a “social contract” bound rulers and their people in a relationship of mutual responsibilities, rights and duties. As citizens, people were more willing to fight for their countries than when most were mere subjects of all-powerful emperors. In addition, citizens were increasingly viewed as representatives of their home state, leading governments to bar their citizens from fighting abroad, since rulers might be held responsible for harms they inflicted.

Thus, a new norm arose in which governments were considered to hold a “monopoly” on violence, and mercenary fighting became less common.

Weak governments and governments fighting abroad continued to hire some contract soldiers, however. Great Britain famously employed Hessians — troops hailing mainly from the German state of Hesse — to fight against the colonists during the American Revolution.

And while the United States relied mainly on a citizen army during its foreign wars of the 19th and 20th centuries, it gradually expanded the tasks assigned to private companies, from maintaining weaponry to training foreign militaries, such as occurred during the Vietnam War in the 1960s.

Turning Points

In the late 1980s, when the Soviet Union collapsed and the half-century Cold War ended, both the supply of and demand for private military contractors increased.

Many long-simmering power struggles began boiling over in regions once controlled by the Soviets, as independence movements grew and small nations once allied with either the United States or Soviet Union fended off threats. Such conflicts provided new markets for mercenaries. At the same time, mining companies and other international corporations and nonprofit organizations such as environmental groups hired private security personnel to protect staff members working in the unstable states.

In 1995, the government of Sierra Leone, in West Africa, hired several hundred troops from a South Africa-based mercenary company — Executive Outcomes — to put down a four-year-long civil war that government forces were too weak to stop. Executive Outcomes hit rebel forces with precision air and ground attacks, driving them away from the capital and the diamond fields that provided the government with its funding.

During the Cold War, the U.S. government could generally count on public support for military operations abroad, on the grounds that the Soviet Union posed a serious national threat. When that threat vanished, however, making the case for sending troops into armed conflicts or on humanitarian missions grew more difficult. Private contractors increasingly enabled the U.S. government to conduct such operations, however, especially as the supply of potential contractors grew during the past two decades.

In recent years, contractors have come from many countries, but in the 1990s most came from three sources: South Africa, Russia and the other countries that had made up the Soviet Union, and the United States and its allies, such as Australia.

As the United States and the former Soviet Union countries downsized their militaries after the Cold War, thousands of service members searched for jobs, helping to fuel the growth of security-contracting firms. At the same time, South Africa ended apartheid, its brutal racial segregation policy. From the country’s large, newly unemployed army of white government security forces arose powerful armed private contractors, such as Executive Outcomes.

With this workforce available, the U.S. government could contract with private security companies to conduct missions abroad — or simply introduce foreign leaders to companies that they might hire. The Clinton administration likely did both as it engineered a series of arms-length interventions in civil and ethnic violence that raged in the Balkan states in the 1990s.

In the mid-1990s, Virginia-based MPRI — Military Professional Resources Inc., (now L-3 MPRI) — provided consulting services under contract to the fledgling state of Croatia that may have included military training and possibly military strategizing. Croatia had declared independence from the former Soviet-allied Yugoslavia at the end of the Cold War. But it faced armed resistance from a Serbian ethnic minority hoping to push Croatia to rejoin Serb-dominated Yugoslavia.

As Croatia’s military foundered, ethnic strife left hundreds of thousands dead and millions homeless. But in 1995, the Croats suddenly launched a highly professional strike that quickly ended that phase of the fighting. Many observers argue that there’s no way to explain the Croat army’s quick transformation without ascribing it to military training from L-3 MPRI. The U.S. government did not hire L-3 MPRI but reportedly brought Croat leaders together with the company, whose founders and staff have included scores of retired top military officers, including a former U.S. Army chief of staff.

“According to European military officers who witnessed the attack, the initial Croatian river crossing into Serb-held territory was a ‘textbook U.S. field manual river crossing. The only difference was the troops were Croats,’” wrote Brookings’ Singer.

L-3 MPRI, however, says it provided only business-management training. “We don’t teach … battlefield skills … We didn’t teach that in Croatia,” said Lt. Gen. Ed Soyster, an L-3 MPRI vice president and retired chief of the Defense Intelligence Agency. “We teach general management, … planning, programming, … budgeting.”

Over the past 20 years, a new philosophy of government that advocates privatizing as many jobs as possible has bolstered contracting. A congressionally mandated periodic review of Pentagon priorities declared in 2001 that “only those functions that must be performed by [the Department of Defense] should be kept by DOD. Any function that can be provided by the private sector is not a core government function.”

Furthermore, armed security contractors do not work only for governments. As the supply of contractors has grown, multinational corporations have increasingly hired the companies to act as militarily trained, sometimes heavily armed private police forces, protecting mines and other such operations. In some cases, severe human-rights abuses by contractors are alleged. In July 2011, for example, the London- and Hong Kong-based mining company Monterrico Metals paid damages but did not admit liability to settle a lawsuit brought by Peruvian environmental protesters, who alleged that contractors tortured and sexually assaulted them.

New Era

While private security contracting grew during the 1990s, the 2003 Iraq invasion marked a new era, according to analysts at RAND. Before that, while the military hired contractors aplenty, “armed contractors had rarely been used in a [U.S.] war zone,” they said.

Since the Iraq invasion, the use of contractors has burgeoned, though the Pentagon did not begin gathering and releasing contractor data until the second half of 2007. It says that because of the difficulty of counting subcontractors, all its tallies are estimates.

As of March 2011, DOD counted approximately 155,000 contractors in Afghanistan and Iraq combined, making up slightly more than half of the Defense Department’s workforce. In Iraq, 10,448 contractors — 16 percent of the total contracting force — were armed security personnel. Out of the 90,000 contractors Defense counted in Afghanistan, about 20,000 were U.S. citizens, 46,000 were Afghans and 24,000 came from other countries.

While contractors were once hired mainly for support services, such as running food service operations for the military, they have taken on duties closer to core military missions in the Middle East. When a 2010 drone strike killed 15 civilians and injured a dozen more in central Afghanistan, for example, Air Force investigators found that although military personnel operated the drone and made the decision to fire, that “decision was largely based upon intelligence analysis … conducted and reported by a civilian contractor,” wrote Capt. Keric Clanahan, an Air Force lawyer.

Public awareness of contractors has come mostly from periodic high-profile incidents of alleged misbehavior.

In 1999, the Army asked Falls Church, Va.-based DynCorp International to oust five employees from Bosnia, in the Balkans, after the men were accused of purchasing female sex slaves, some as young as 12, from an organized-crime group and employing them in a prostitution ring. Ultimately, however, neither the U.S. military nor Bosnian police claimed jurisdiction to prosecute, and none of the accused was charged. One worker admitted guilt and left the company. DynCorp fired two whistleblowers who had reported the behavior and moved most of the accused to jobs in other countries.

The incidents demonstrated that DynCorp didn’t effectively screen, monitor or discipline employees and may have turned a blind eye to human-rights violations, said independent military analyst Isenberg. But the company “was not particularly hurt by the scandal” and continued to receive security contracts from the United States, Great Britain and others, he said.

In 2009, workers from Arlington, Va.-based ArmorGroup North America — under contract to guard the American Embassy in Kabul — reported misbehavior by coworkers that included illegal brothel visits and sexual hazing of other guards. In one incident, guards hid in abandoned buildings at night, dressed as Afghans and carried illicitly borrowed embassy equipment such as night goggles, apparently acting out a fantasy “reconnaissance mission.”

In 2009, the State Department announced it would not renew ArmorGroup’s embassy contract, but allegations of wrongdoing by another contractor picked for the job caused repeated delays in the handover. In 2011 ArmorGroup paid the government $7.5 million to settle some charges arising from the incidents. The contract was eventually awarded to London- and Virginia-based Aegis.

In August 2011, the congressionally chartered Commission on Wartime Contracting reported that heavy use of contractors has dangerously diminished the knowledge base within federal agencies and overwhelmed inadequately staffed oversight offices. The government “has come to over-rely” on private companies and should restrict the use of armed contractors, the panel concluded.

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Current Situation

New Jobs

As military contracting continues, Congress and a range of international groups, as well as security companies themselves, are mulling new regulatory mechanisms. But whether rules will be tightened remains unclear.

The U.S. military left Iraq in 2011, and a U.S. Embassy staff of about 15,000 is taking its place in efforts to rebuild the war-ravaged nation. Up to 5,000 armed contractors are assisting the diplomats, driving armored transports and providing protective air cover from armed helicopters.

Afghan President Hamid Karzai announced in 2010 that all armed contractors except those protecting diplomats would be replaced by the central-government-controlled bodyguard group called the Afghan Public Protection Force (APPF). Karzai charged that private contractors cost too much and encourage bribery, nepotism and other corruption. The changeover date has repeatedly slipped as the APPF proved hard to assemble, train and fund. But a gradual phase-in of the public force finally began this spring.

That doesn’t necessarily mean that the number of security contractors is on the wane, however. New clients and new kinds of work are emerging.

The Pentagon is rapidly expanding the use of contractors to combat drug trafficking, which it increasingly calls a national-security threat equivalent to terrorism. This year, the Counter Narco-Terrorism Program Office will hand out more than $3 billion in contracts for jobs such as providing helicopter training for Mexico’s public-security forces, operating drones and helping governments with surveillance tasks such as analyzing media to spot hidden trends.

In the past, nonprofit groups that act as human-rights watchdogs have not hired armed contractors, saying they wanted to avoid compromising their neutrality. Recently, however, violent incidents reportedly have led even staunchly anti-mercenary organizations, including the International Red Cross and Doctors Without Borders, to hire armed guards.

Congressional Action

Even as security contractors proliferate, their legal status remains “opaque,” wrote analysts at RAND. “A number of both international and domestic U.S. laws are arguably applicable to private contractors in war zones,” but all are difficult to apply with confidence, they wrote. Among other problems, “There is currently no standard formula for prosecuting contractors who come from one country, operate in another country, and work for a firm based in a third country.”

Up for consideration in 2012 are congressional proposals first introduced five years ago to expand civilian courts’ jurisdiction over contractors working abroad for federal agencies, even when no military mission is occurring there. Current versions of the bills — sponsored by Rep. David Price, D-N.C., and Sen. Patrick Leahy, D-Vt. — would apply to contractors who work abroad for any federal agency, as well as to their dependents, and include federal offenses such as assault, murder, drug or human trafficking, corruption-related crimes such as bribery and treason-related crimes such as providing support to terrorists.

In March, bipartisan bills were introduced in both houses of Congress to crack down on abusive labor practices by contractors, such as seizing workers’ passports to trap them in a low-paying or abusive job. The bills would require companies with contracts worth $1 million or more to implement plans to prevent worker abuse and authorize the government to suspend contracts for violations.

The Comprehensive Contingency Contractors Reform Act of 2012, introduced by Democratic Sens. Claire McCaskill of Missouri and Jim Webb of Virginia, would increase contract oversight at DOD, the State Department and USAID and require automatic suspension of contractors charged with contracting fraud.

Former Blackwater guard Paul Slough leaves federal court in Salt Lake City, Utah, with his wife on Dec. 8, 2008. He is among four of the security firm’s guards charged with manslaughter in connection with the shooting of 17 unarmed Iraqi civilians in Baghdad in 2007. The guards used machine guns and grenade launchers against the civilians, some with their hands up, federal prosecutors alleged. Blackwater (now Academi) said the guards returned fire after they were ambushed by insurgents while responding to a car bombing. (Getty Images/Danny La)

Meanwhile, the federal Court of Appeals for the Armed Forces is reviewing the constitutionality of the military’s expanded authority to prosecute under the Uniform Code of Military Justice (UCMJ), amended by Congress in 2007.

Military courts give the accused fewer rights than do civilian courts — no juries or bail exist, for example — because warfare requires a strictly disciplined force that carries out a mission without deviation. Critics say subjecting civilians to military court jurisdiction is troublesome. It could unduly blur “the line between military and civilian authority — a very real concern of the [country’s] Founders” that is evident in both the Declaration of Independence and the Constitution, wrote Stephen Vladeck, a professor at American University’s Washington College of Law.

The key question is whether the UCMJ’s expansion might subject civilians to harsh military discipline even in nonwar situations that the president or Congress might designate a “national emergency,” he said.

But while academics and some courts debate big-picture questions, few officials in the upper hierarchies of government are doing so, argues Hammes, the retired Marine colonel. “I don’t think there is a serious discussion at the power centers” such as Congress or the White House, he says.

The law that created the Commission on Wartime Contracting, for example, explicitly limited what the panel could investigate to issues of contract oversight. Congress thereby effectively banned the panel from exploring such questions as whether contractor use might make it too easy for presidents to start wars without public consent or make it harder for officers in the field to command and control a mixed public-private force, he says.

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Outlook

Regulated or Unregulated?

As the market for armed security expands, the debate over how effectively contractors can be regulated is likely to grow. More than 360 contractors have signed onto the International Code of Conduct for Private Security Service Providers (ICOC), which was completed in late 2010, says Brooks of the International Stability Operations Association. Now representatives of several of the largest companies, governments including those of the United States and the United Kingdom, and other groups, such as nonprofit human-rights watchdog organizations, are working to create an enforcement mechanism. Public comments on a first draft revealed widely varying views of how the mechanism should work, however.

Completion must not be long delayed, warns James Cockayne, co-director of the Center on Global Counterterrorism Cooperation, a New York-based policy group. Otherwise, he argues, public-interest groups will grow “skeptical over whether governments and companies are truly committed to effective international oversight,” and contractors may decide that, if governments aren’t fully committed, it’s not imperative for the industry either.

Failure to fully implement the ICOC would have serious consequences for the U.S. government, which has been a leading participant, Cockayne says. For one thing, he says, “it will give ammunition to countries — especially Cuba — who have long argued that the ICOC will not work and that an international treaty” — rather than a public-private partnership — “is needed to regulate this industry.” A collapse of the ICOC would also cast doubt on the future of other U.S.-backed public-private efforts to commit international businesses to human-rights protections, such as worldwide fair labor practices, Cockayne says.

Despite missing an initial, ambitious deadline, however, the ICOC process has strong momentum, says Mark DeWitt, vice president and deputy general counsel of Triple Canopy, a Reston, Va.-based security company, and chair of the enforcement-mechanism drafting panel.

“Now that we’ve homed in on the main issues” that must be addressed to get buy-in from the stakeholding groups, “it’s better to be careful and do it right” than to rush, says DeWitt. “We’ve gotten to the point of having to talk about and build bridges on the really hard issues. I’d say we’re going in the opposite direction from losing credibility.”

The ICOC may provide a basis for additional oversight, DeWitt says. For example, he says, a U.N. treaty “could be built on top of multi-stakeholder efforts like this.” The U.N.’s working group on mercenaries seems to be seriously considering such an effort, DeWitt says.

Eventually, hiring security companies that fully embrace the code will become the norm, not just for governments but for nongovernmental buyers, such as international corporations that hire contractors to protect mining operations, for example, predicts Sylvia White, general counsel and board director of Aegis, a London-based security company. When the code is fully operational, hiring companies that operate outside it “would be embarrassing for them,” she says.

Others are leery about how privatization of government services will affect the military itself. Joining the service has long been viewed as a commitment to professionalism and the upholding of public values, says Jon Michaels, an acting professor of law at the University of California, Los Angeles. As more positions become jobs-for-hire — and pay more than government service itself — “there’s a danger that people will stop thinking of [service positions] as careers and start thinking of them as just the credential you need before you can become a contractor.”

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Pro/Con

Should Congress increase oversight of private contractors?

 

Lawrence J. Korb
Senior Fellow, Center for American Progress Action Fund. From a statement for the record, Senate Homeland Security and Governmental Affairs Committee, Contracting Oversight Subcommittee, April 17, 2012

If the U.S. is to protect its vital national interests in a cost-effective manner, the Congress must pass and the president should sign S 2139, the Comprehensive Contingency Contracting Reform Act of 2012, as soon as possible. [The law would increase contract oversight at the Defense and State departments and the U.S. Agency for International Development and require automatic suspension of contractors charged with contracting fraud.] If we do not act expeditiously, we will continue to needlessly squander blood and treasure and undermine our image in current and future conflicts….

S 2139 addresses most of the … problems identified by the Commission on Wartime Contracting in Iraq and Afghanistan.

This legislation is necessary because officials in the executive branch have shown that they are unable or unwilling to implement most of the commission’s recommendations. If S 2139 is not passed, large amounts of appropriated money will continue to be wasted: In Iraq and Afghanistan at least $31 billion and possibly as much as $61 billion of $200 billion appropriated to contracts has been lost to contractor fraud and waste. Additionally, if S 2139 does not pass, contractors will continue to perform activities that are inherently governmental, thus frequently undermining the mission.

Title I deals with the organization and management of the federal government for contracting for overseas contingency operations. The first title mandates the president [to] include information and the director of the Office of Management and Budget [to] provide the Congress with details of why Overseas Contingency Operations (OCO) funds are needed and subsequently report in detail on how those funds were spent. Hopefully these provisions will limit the various agencies’ tendency, exploited in particularly egregious fashion by the Department of Defense, to transfer items more appropriately included in the core budgets into the OCO accounts to hide budget growth and cost overruns….

Title II focuses on transparency, sustainability and accountability. It demands that, unless there is a waiver granted, contracts should be limited to three years for competitively bid contracts and one year for noncompetitive contracts; that contracts have only a single tier of subcontractors; and that the secretaries of State and Defense perform an annual review to determine for which functions it is appropriate to use contractors.

 

Stan Soloway
President and CEO, Professional Services Council. From a statement for the record, Senate Homeland Security and Governmental Affairs Committee, Contracting Oversight Subcommittee, April 17, 2012

The Comprehensive Contingency Contracting Reform Act of 2012, S 2139, contains some valuable and thoughtful proposals that can enhance future operations. At the same time, we also feel strongly that several provisions in the bill would have precisely the opposite effect.

As various reports have indicated, despite well-documented instances of malfeasance, the vast majority of the challenges and problems in both Iraq and Afghanistan have not been driven by fraud and abuse. Rather, the “waste” that has occurred has been predominantly driven by poor planning, a lack of coordination, and workforce gaps.

What is also clear is that contracting varies significantly based on the nature of the operation. What worked in Iraq and Afghanistan may not be appropriate for operations in East Timor or Haiti. Congress should be careful to avoid legislating for the last contingency and limiting agencies’ or contractors’ flexibility to respond rapidly to the U.S. government’s mission needs.

[The Professional Services Council] strongly opposes Section 113 as currently written. In effect, the provision amounts to a “suspend first, ask questions later” policy that tramples on the due-process rights that all citizens and companies are entitled to. The current Federal Acquisition Regulation (FAR) already allows government suspension and debarment officials (SDO) to take appropriate and immediate actions to suspend a contractor for a broad array of inappropriate behaviors….

The Professional Services Council (PSC) supports initiatives to prevent trafficking in persons, and Section 222 may be helpful. Unfortunately, Section 222 also places excessive requirements on contractors. While contractors may be able to implement prevention and monitoring procedures, it is impossible for them to “certify” with absolute certainty that none of their employees, subcontractors, or recruiters or brokers have engaged in any such activity.

PSC is a strong supporter of the current structure for evaluating contractor past performance. One critical element of the current process is that contractors shall be provided with completed evaluations as soon as practicable; given an opportunity to submit comments or provide additional information; and entitled to an evaluation review at one level above the contracting officer. Section 224 would universally do away with these important protections. Contractors would be left with little recourse for actions taken by an individual contracting officer that posted an unsupported or improper negative past performance evaluation.

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Chronology
1980s–1990s Cold War’s end increases supply of soldiers for hire.
1989 U.N. circulates treaty pledging signatories to ban mercenary activity.
1990 South Africa begins dismantling apartheid, its brutal segregation system; some ex-government security officers form mercenary companies.
1991 Cold War ends; shrinking defense budgets leave thousands of former military personnel looking for work.
1993 The deaths of 18 elite U.S. forces in Mogadishu, Somalia, in a raid to capture violent rebel leaders, helps turn Americans against foreign military missions.
1995 South Africa-based Executive Outcomes helps Sierra Leone put down a years-long violent uprising.
1999 Contractors working in Bosnia for Virginia-based DynCorp International allegedly buy young girls from organized criminals for prostitution; accused workers are relocated but never charged.
2000s–Present Security contracting expands into major industry.
2000 Military Extraterritorial Jurisdiction Act (MEJA) extends federal courts’ jurisdiction to contractors charged with serious crimes.
2001 The film “Black Hawk Down” is a fictionalized account of the 1993 Mogadishu raid…. Pentagon report states that any military job a private company can perform should be outsourced to industry…. U.N. anti-mercenary treaty takes effect, ratified by 20 nations; the United States and other highly industrialized nations do not sign.
2002 British government issues regulatory options for security companies; to date, none has been implemented.
2003 U.S. invasion and occupation of Iraq relies heavily on contractors.
2004 Contractors and military personnel accused of abusing detainees at Baghdad’s Abu Ghraib prison…. Iraqi insurgents in Fallujah kill four Blackwater employees, hang two bodies from bridge; Marines attack the city in response.
2007 Congress expands situations in which contractors may face military court-martial to times when war is not officially declared…. Army-commissioned report says all future missions will demand heavy use of private contractors…. Blackwater guards charged with manslaughter in connection with deaths of 17 Iraqi civilians in Baghdad’s Nisour Square…. Responding to congressional inquiries, Pentagon collects and releases data on contractor totals and costs.
2008 United States and 16 other countries sign nonbinding Montreux Document affirming their obligation to protect human rights when using armed contractors.
2010 Contractor deaths in Iraq and Afghanistan in 2010 exceed service-member deaths for first time…. Security contractors provide disaster assistance after Haitian earthquake…. Pentagon conducts 7,390 contract audits, down from 26,623 in 2004, but says the audits are much more thorough…. Afghan President Hamid Karzai declares that a government-controlled Afghan Public Protection Force will replace most armed contractors; shift delayed until 2012.
2011 Congressionally chartered Commission on Wartime Contracting concludes that the government over-relies on contractors…. Contractors make up at least 45 percent of Pentagon’s Iraq/Afghanistan workforce…. U.S. military leaves Iraq, replaced by 15,000 U.S. embassy staff members and 5,000 private security contractors…. New government database on contractors includes lawsuit and contract-suspension data.
2012 Supreme Court rules that 2007 Nisour Square shooting case must proceed to trial…. Pentagon disburses more than $3 billion in drug war-related contracts…. Congressional bills introduced to further expand civilian criminal courts’ authority over contractors working abroad, stiffen contract oversight and crack down on contractors’ abuse of workers…. More than 400 security contractors have signed an International Code of Conduct based on the Montreux Document, but companies, governments and groups representing the public struggle to agree on enforcement procedures.
   

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Short Features

Private Contractors vs. Military Personnel

Cost comparisons can be hard to calculate.

Do private contractors save taxpayers money? The answer is something of a toss-up. Some analysts argue that contractors’ wages are so much higher than military wages for similar jobs that contracting does not save money and might actually be more expensive than using military personnel.

“In 2007, private security guards working for companies such as Blackwater and DynCorp were earning up to $1,222 a day,” wrote Nobel Prize-winning economist Joseph Stiglitz, a professor at Columbia University, and Linda Bilmes, a Harvard University lecturer on budget and public administration. “By contrast, an Army sergeant was earning $140 to $190 a day in pay and benefits.”

Such comparisons are flawed, however, according to the nonpartisan Congressional Budget Office (CBO), which provides economic analysis to Congress. The $1,222 a day that Bilmes and Stiglitz cite as a salary is actually a salary plus additional money that goes not to the individual workers but to the company they work for, to cover costs such as overhead, the CBO said.

Hiring a private contractor costs roughly the same as using a comparable military unit, the CBO found. And over the long run, using contractors might actually be cheaper because military units continue to cost the government money during peacetime, while contractors do not, the budget analysts said.

Hiring private security companies to guard embassies in Iraq costs the State Department less in four out of five cases reviewed by the Government Accountability Office (GAO), Congress’ nonpartisan auditing agency, than it would have cost to use State Department personnel. The cost difference stems mainly from the fact that State Department guards would serve in Iraq for only a year at a time before rotating to posts in the United States. That means the government would have to hire additional guards to cover the Iraq duties while simultaneously paying the State Department personnel for their stateside posts. By contrast, the government does not have to pay any individual contractors unless they’re actually on the job.

GAO said it was unable to come up with a similar cost comparison for Department of Defense (DOD) contractors because the DOD couldn’t provide enough information about its own costs. DOD said it didn’t have information readily available about the number and rank of military personnel that would be required to fulfill a security contractor’s duties or about how much it would cost to train service members to do the jobs.

Military service members earn far less than many private security guards, according to scholars Joseph Stiglitz and Linda Bilmes. (Corel)

The fact that private contractors are temporary employees whom the government does not have to retain or train certainly makes them a lower-cost option, said Doug Brooks, president of the International Stability Operations Association, a security-contractor industry group. “As soon as the job’s over, you stop paying them,” he said. Yet the government continues to pay for service members even after they leave the military, providing education benefits through the GI Bill and veterans’ health care, for example, he said.

While some analysts say private contractors are cheaper than government or military personnel, however, others say they can wind up costing more. “Warfare is usually characterized by secrecy, heavy time constraints and the imperative of victory,” so the government spends little effort on rigorous competitive bidding or cost oversight of contractors, wrote independent military analyst David Isenberg. Between 1998 and 2003, for example, only 40 percent of government contracts were awarded through competitive bidding, and that number has risen only marginally more recently, Isenberg said.

Furthermore, more than half of the contracts aren’t monitored to assure that companies fulfill their contractual obligations, he said. “Thus, the market for private security services is only partially competitive,” and in some cases it’s a near monopoly — hardly the recipe for cost efficiency, Isenberg wrote.

— Marcia Clemmitt

[1] Quoted in “Contractors’ Support of U.S. Operations in Iraq,” Congressional Budget Office, August 2008, p. 14, www.cbo.gov/sites/default/files/cbofiles/ftpdocs/96xx/doc9688/08-12-iraqcontractors.pdf.

[2] Ibid.

[3] Ibid.

[4] “Warfighter Support: A Cost Comparison of Using State Department Employees versus Contractors for Security Services in Iraq,” Government Accountability Office, March 4, 2010, p. 5, www.gao.gov/assets/100/96571.pdf.

[5] Ibid., p. 2.

[6] Quoted in “Private Warriors,” PBS Frontline, www.pbs.org/wgbh/pages/frontline/shows/warriors/interviews/brooks.html.

[7] David Isenberg, “Private Military Contractors and U.S. Grand Strategy,” International Peace Research Institute, 2009, p. 23, www.cato.org/pubs/articles/isenberg-private%20military-contractors-2009.pdf.

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Setting Standards for Security Contractors

New code of conduct sparks many disagreements.

Differences among nations make it difficult to devise international rules on the use of private security forces. And countries that, until recently, were subjugated colonies are especially fearful that stronger nations can use hired force to make it even easier to impose their wills.

Not surprisingly, George Washington viewed “hired guns” with suspicion, having fought against mercenaries in the Revolutionary War. “Mercenary armies … have at one time or another subverted the liberties of almost all the countries they have been raised to defend,” the first president said. By the mid-20th century, though, American leaders’ views had changed.

The United Nations has always worried that armed contractors could threaten “people’s right to self-determination,” said José L. Gomez del Prado, former chairman of the U.N. Working Group on the Use of Mercenaries.

Beginning in 1989, the U.N. circulated a treaty to ban mercenary activity. It took effect in 2001 with 20 nations ratifying. The United States and other highly industrialized countries did not sign, however. The United States believed that “we could regulate the companies ourselves, in our own interests,” says Deborah Avant, a professor of international security and diplomacy at the University of Denver.

By the mid-2000s, many security contractors were large businesses interested in winning clients by demonstrating professionalism. “The more corporate a company is, the bigger stake they have in showing they’re legitimate,” says Molly Dunigan, an associate political scientist at RAND, a think tank with offices around the world.

At the same time, the Iraq and Afghanistan wars had led to high-profile reports of alleged human rights abuses by contractors, including unprovoked shootings of civilians. To many, the time seemed ripe to go beyond the traditional U.N. treaty process — in which governments agree to abide by and enforce certain rules — and create a regulatory system devised by security companies themselves in concert with governments, other potential clients such as multinational corporations, and representatives of the public.

Contracting is “a market,” says Avant, “so you can accomplish things by changing the way people buy” and “changing the profit equation for companies” so that the most responsible get the most business.

To start, the Swiss government and International Committee of the Red Cross led development of the Montreux Document — a non-legally binding pledge by governments that contractors they hire or that are based in or work in their countries comply with human-rights standards. In September 2008, 17 countries including the United States, the United Kingdom and China announced that they had signed. (Forty-one governments are signatories today.)

Then governments, security companies and so-called civil-society participants representing the interests of the public — such as universities and human-rights organizations — developed an International Code of Conduct (ICOC) for security contractors.

“We’re proud of the code” and its “very detailed” statement of companies’ responsibilities for fulfilling Montreux Document principles, says Meg Roggensack, senior adviser for the Business and Human Rights Initiative at Human Rights First, a Washington-based nonpartisan advocacy group, and a member of the committee drafting an implementation mechanism for the code. “It represents a real breakthrough.”

The toughest job is now under way — creating a credible system to monitor compliance and help people who allege violations by a company to have their complaints resolved through that company’s formal grievance mechanism.

Unless an “independent, credible oversight mechanism” is created, the ICOC would remain “just a fig leaf” that unscrupulous contractors and those who hire them could hide behind, knowing that violations would have no real consequences, says James Cockayne, co-director of the Center on Global Counterterrorism Cooperation, a New York-based policy group.

Early this year, a draft plan was released for comment. Responses revealed numerous disagreements over issues such as the balance of power between contractors and other stakeholders, the degree of confidentiality provided for allegations of wrongdoing and the procedures for dealing with companies that don’t quickly remedy their violations. In June, negotiators said they aim for a revised version by year’s end.

Such disagreements are no surprise, says Sylvia White, general counsel and board director of the London-based security company Aegis and a member of the drafting panel. A similar process occurred as the code was written, she says. “First, there was lots of interest, then people couldn’t necessarily agree on everything, then finally we got a great weight of people agreeing,” she says. “I’m hopeful we’ll get to that tipping point in the next few months.”

White says that the industry is committed to fully implementing the code, partly to end what she calls the widespread misconception “that there are no rules” for how security companies behave.

The enforcement mechanism’s feasibility raises questions, however. For example, it’s not clear how an industry-funded office to handle grievances could be truly independent, wrote an ex-Marine and security contractor who blogs about security issues under the name “Matt” at his Feral Jundi blog. “Isn’t it a conflict of interest if a mediator is getting payment by one group in the form of dues/membership fees, and then claiming to help out the other side (the aggrieved) who does not pay dues?”

Strong government commitment is also crucial but not assured, says Laura Dickinson, a research professor of law at George Washington University. “I think the U.S. government should mandate membership [in the ICOC mechanism] before it awards contracts.”

Meanwhile, at the Pentagon’s request, ASIS International, a membership group for security professionals in Alexandria, Va., has developed business-management standards to help companies conform to the ICOC, says Marc Siegel, commissioner of ASIS’s Global Standards Initiative. Companies that sign on will undergo periodic audits to ensure they follow the standards, which stipulate best practices for business functions vital to security contractors, such as accurately evaluating the risks at a job site and hiring staff for jobs that require bearing arms.

“If you’re a client hiring a firm for a high-risk environment where people can be hurt and rights violated, it behooves you to look for companies that are well managed,” Siegel says.

— Marcia Clemmitt

[8] Quoted in Jackson Nyamuya Magogot and Benedict Sheey, “Private Military Companies and International Law: Building New Ladders of Legal Responsibility,” Cardozo Journal of Conflict Resolution, 2009, Vol. 11, Issue 1, p. 99, http://cojcr.org/vol11no1/index111.html.

[9] José L. Gomez del Prado, “Mercenaries, Private Military and Security Companies and International Law,” lecture, University of Wisconsin Law School, Jan. 31, 2008, www.law.wisc.edu/gls/lawwarhumansecurity.html.

[10] Ibid.

[11] For background, see Anthony H. Cordesman, “Private Security Forces in Afghanistan and Iraq: The Potential Impact of the Montreux Document,” Center for Strategic and International Studies, Nov. 17, 2010, http://csis.org/files/publication/10115_Private_Security_Forces_Afghanistan_Iraq.pdf, and “Participating States of the Montreux Document,” Federal Department of Foreign Affairs, web site of the government of Switzerland, www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html.

[12] Minutes, TSC Meeting, June 5-7, 2012 in Washington, U.S., International Code of Conduct web site, www.icoc-psp.org/uploads/Minutes_TSC_Meeting_5-7_June_2012_Washington_DC.pdf.

[13] Industry Talk: So What IS Going on With the ICoC, Feral Jundi blog, Oct. 4, 2011, http://feraljundi.com/3643/industry-talk-so-what-is-going-on-with-the-icoc.

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Contracting Takes Unacknowledged Human Toll

“Everyone believes we’re underreporting contractor deaths.”

As the number of private security companies swells, the death and injury toll for contractors continues to rise, and other contracting-associated problems also are coming to the fore, such as mistreatment of contract workers by the companies who hire them or by labor recruiters.

At least 430 employees of American contractors were killed in Afghanistan in 2011, versus 418 U.S. service members. And the contractor death toll is likely much higher. Until about four years ago, the Department of Defense collected little data of any kind on security companies, including information on contractor deaths. The most reliable mortality data come from the Labor Department, which tallies contractors for whom insurance claims are submitted under a compensation program for federal workers.

“No one believes we’re underreporting military deaths. Everyone believes we’re underreporting contractor deaths,” said Steven L. Schooner, a law professor at George Washington University, in Washington.

The silence surrounding the deaths is disrespectful to the dead and harmful to democracy, argues Schooner. “An honest, accurate tally is important for the public and the nation’s elected leaders to understand the true human toll” of wars, in order to reckon their true costs and benefits, he wrote.

The high potential for death is not the only threat facing contractors. Many suffer from traumatic brain injury, post-traumatic stress disorder and other post-service conditions that also plague military personnel. But unlike service members, contractors are ineligible for veterans’ care, so their conditions are even more likely to go untreated than those of service personnel.

In addition, contractors have virtually no job security. In hiring private companies, government can quickly staff up for an emergency mission and just as quickly lay off workers when the mission is over. Thus contractors must cope with short-term, unpredictable employment.

Furthermore, while some contractors are covered by health and life insurance while on a job, “coverage usually lapses when they change jobs or return home,” says the U.S. Institute of Peace, a congressionally authorized, nonpartisan federal institution that studies and seeks to end armed conflicts.

“There’s a moral obligation that’s being overlooked. Can the government really send people to a war zone and neglect [its] responsibility to attend to their emotional needs after the fact?” asked Paul Brand, CEO of Mission Critical Psychological Services, a Chicago company that counsels civilians who work in war zones.

Also facing potential hazards are foreign nationals recruited by private companies under contract with the U.S. government to work in Iraq and Afghanistan. Many companies have been caught running bait-and-switch schemes in which workers are promised good salaries, only to face much lower pay, bad living conditions, disrespect, mistreatment and sometimes virtual imprisonment.

In one incident, 35 former Colombian soldiers were flown to Baghdad on the promise of being paid $4,000 a month to work for Virginia-based Blackwater (now Academi). The men were recruited by Colombia-based ID Systems S.A., a Blackwater subcontractor, and by the time they arrived, ID Systems allegedly had cut the wage to $1,000 per month. When the men protested, their tickets home were taken away, and they were told they’d have to find their own way back.

In December 2008, a group of South Asian workers staged protests of their treatment by Kuwait-based Najlaa International Catering Services, a subcontractor to Houston-based KBR, one of the largest Pentagon contractors. After promising jobs to about 1,000 workers, Najlaa held the workers upon their arrival and denied them work or pay for months.

The U.S. government already had a “zero tolerance” policy on such abuses at the time of the 2008 protests by the Najlaa workers, but its commitment to that policy is suspect, charges the Project on Government Oversight (POGO), a Washington-based government-watchdog group. “The U.S. has directly awarded contracts to Najlaa after the … protests, including one contract that lasts through 2012,” POGO analysts said.

— Marcia Clemmitt

[14] Rod Nordland, “Risks of Afghan War Shift from Soldiers to Contractors,” The New York Times, Feb. 11, 2012, www.nytimes.com/2012/02/12/world/asia/afghan-war-risks-are-shifting-to-contractors.html.

[15] Steven L. Schooner and Collin D. Swan, “Contractors and the Ultimate Sacrifice,” Service Contractor, September 2010, p. 16, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677506.

[16] Quoted in Nordland, op. cit.

[17] Schooner and Swan, op. cit., p. 18.

[18] Robert Perito, “The Private Sector in Security Sector Reform,” U.S. Institute of Peace, January 2009, www.usip.org/files/resources/USIP_0109.PDF.

[19] T. Christian Miller, “The Other Victims of Battlefield Stress; Defense Contractors’ Mental Health Neglected,” ProPublica, Feb. 26, 2010, www.propublica.org/article/injured-contractors-the-other-victims-of-battlefield-stress-224.

[20] Emily Speers Mears, “Security Privatisation in the Middle East,” Global Consortium on Security Transformation,” November 2010, p. 7; Peter Krupa, “Vote Tallying Company Also Hired Blackwater Mercenaries,” Lat/Am Daily blog, March 21, 2010, www.latamdaily.com/2010/03/21/olombian-vote-tallying-company-also-hired-blackwater-mercenaries; “Atrapados en Bagdad,” Semana.com , Aug. 19, 2006, www.semana.com/nacion/atrapados-bagdad/96550-3.aspx.

[21] David Isenberg and Nick Schwellenbach, “Documents Reveal Details of Alleged Labor Trafficking by KBR Subcontractor,” Project on Government Oversight blog, June 14, 2011, http://pogoblog.typepad.com/pogo/2011/06/documents-reveal-details-of-alleged-labor-trafficking-by-kbr-subcontractor.html.

[22] Ibid.

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Bibliography

Books

Dickinson, Laura A. , Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs , Yale University Press, 2011. A George Washington University law professor contends that increased privatization threatens government accountability and respect for human rights.

Singer, Peter W. , Corporate Warriors: The Rise of the Privatized Military Industry , Updated Edition, Cornell Studies in Security Affairs, 2007. A scholar at the centrist Brookings Institution describes the long history of private armed forces.

Articles

“Rise in Mercenary Activities Warrants Urgent Attention, Says UN Expert Group,” UN News Centre, UN News Service, Nov. 1, 2011, www.un.org/apps/news/story.asp?NewsID=40270&Cr=mercenar&Cr1<. The U.N. working group on mercenaries says contractors are helping governments subvert peaceful protest.

Ackerman, Spencer , “Pentagon’s War on Drugs Goes Mercenary,” Danger Room blog, Wired, Nov. 22, 2011, www.wired.com/dangerroom/2011/11/drug-war-mercenary. The Pentagon is handing out more than $3 billion this year to hire contractors to fight illegal narcotics around the world.

Bender, Brian , “From the Pentagon to the Private Sector,” Boston Globe, Dec. 26, 2010, www.boston.com/news/nation/washington/articles/2010/12/26/defense_firms_lure_retired_generals. As more military officers join private security companies after retiring, questions arise about whether the prospect of lucrative employment sways Pentagon decision-making.

Cockayne, James, and Emily Speers Mears , “Private Military and Security Companies: A Framework for Regulation,” International Peace Institute, March 2009, www.ipacademy.org/publication/policy-papers/detail/81-private-military-and-security-companies-a-framework-for-regulation.html. Current national and international regulation of security companies is flawed.

Isenberg, David , “The Rise of Private Maritime Security Companies,” Huffington Post, May 29, 2012, www.huffingtonpost.com/david-isenberg/private-military-contractors_b_1548523.html. An increase in piracy provides opportunities for private security companies and new legal challenges.

Reports and Studies

“Hired Guns: Views About Armed Contractors in Operation Iraqi Freedom,” RAND National Security Research Division, 2010, www.rand.org/pubs/monographs/2010/RAND_MG987.pdf. A survey of service members finds both support for and concern about contractors’ impact in conflict zones.

Gomez del Prado, Jose L. , “Why Private Military and Security Companies Should Be Regulated,” September 2010, http://198.170.85.29/Gomez-del-Prado-article-on-regulation-of-private-and-military-firms-3-Sep-2010.pdf. A member of the United Nations working group on mercenaries argues for strong oversight of security companies.

Isenberg, David , “Private Military Contractors and U.S. Grand Strategy,” International Peace Research Institute, Oslo, 2009, www.cato.org/pubs/articles/isenberg-private%20military-contractors-2009.pdf. An independent analyst argues that heavy U.S. reliance on contractors encourages a unilateral approach to international crises.

Mears, Emily Speers , Security Privatisation in the Middle East , Working Paper No. 10, Global Consortium on Security Transformation, November 2010, www.securitytransformation.org/images/publicaciones/190_Working_Paper_10_-_Security_privatisation_in_the_Middle_East.pdf. An analyst for a British nonprofit research and advocacy group on international development describes the range of private security operations in the Middle East.

Schooner, Steven L., and Collin D. Swan , “Dead Contractors: The Un-examined Effect of Surrogates on the Public’s Casualty Sensitivity,” Journal of National Security Law & Policy, April 16, 2012, www.jnslp.com/2012/04/16/dead-contractors-the-un-examined-effect-of-surrogates-on-the-publics-casualty-sensitivity. Analysts from George Washington University Law School argue that by failing to publicize contractor deaths, the U.S. government misleads the public about the costs of war.

Schwartz, Moshe, and Joyprada Swain , “Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis,” Congressional Research Service, May 13, 2011, www.fas.org/sgp/crs/natsec/R40764.pdf. Analysts for Congress’ nonpartisan research office describe contractor use in two wars.

Spear, Joanna , “Market Forces: The Political Economy of Private Military Companies,” Fafo, 2006, www.fafo.no/pub/rapp/531/531.pdf. A George Washington University professor discusses the history of security contractors as corporate entities.

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The Next Step

Military Contractors

Glanz, James , “Private Armies a Savior and a Menace: U.S. Military is Reliant on Contractors, who Add to Chaos at Every Turn,” International Herald Tribune, Oct. 25, 2010. Critics worry that contractors in Iraq now are adding to chaos in the Middle East.

Nordland, Rod , “Risks of Afghan War Shift from Soldiers to Contractors,” The New York Times, Feb 11, 2012, www.nytimes.com/2012/02/12/world/asia/afghan-war-risks-are-shifting-to-contractors.html. Concerns about rising contractor deaths are growing.

Nyden, Paul J. , “Manchin Questions Military Officials on Contractors,” The Charleston (W. Va.) Gazette, March 10, 2012, www.wvgazette.com/News/201203090208. A West Virginia senator has called for military officials to cut the number of contractors instead of regular military personnel.

Schmidt, Michael S. , “Military Contractors Are Fined over Aid to China,” The New York Times, June 28, 2012, www.nytimes.com/2012/06/29/business/global/arms-contractor-pleads-guilty-on-china-exports.html. A Canadian subsidiary of United Technologies Corp. pleaded guilty to helping the Chinese develop the Z-10 attack helicopter.

Whitlock, Craig , “Pentagon Faces New Budget Reality,” The Washington Post, Jan. 7, 2011, www.washingtonpost.com/wp-dyn/content/article/2011/01/06/AR2011010606646.html. Defense Secretary Robert Gates has proposed slashing the number of military contractors by a third over three years to comply with Pentagon budget cuts.

Whitlock, Craig , “U.S. Expands Secret Intelligence Operations in Africa,” The Washington Post, June 13, 2012, www.washingtonpost.com/world/national-security/us-expands-secret-intelligence-operations-in-africa/2012/06/13/gJQAHyvAbV_story.html. Military contractors in Africa signify the use of special-operations forces all over the world, not just in war zones.

Nation Building

“Five Principles Critical to Successful Nation Building, Finds History and Global Affairs Scholar,” Targeted News Service, Sept. 26, 2011, www.utexas.edu/news/2011/09/26/nation-building/. A history professor at the University of Texas, Austin, analyzes U.S. attempts at nation-building.

“Painfully Slow Drawdown,” The Palm Beach (Fla.) Post, June 23, 2011, www.palmbeachpost.com/news/news/opinion/painfully-slow-drawdown/nLtTq/. Despite calls for nation-building at home, many still feel too much of the national budget is spent on the military.

Hallow, Ralph Z. , “Libya Action has GOP Rethinking Nation-Building,” The Washington Times, March 27, 2011, www.washingtontimes.com/news/2011/mar/27/libya-action-has-gop-rethinking-nation-building/. After 10 years of U.S. nation-building in Afghanistan, some Republican leaders are warning against similar policies in Libya.

Contractor Lawsuits

Brooks, Drew , “Families Sue Military Contractor over Soldier Deaths in Afghanistan,” The Fayetteville (N.C.) Observer, July 12, 2011, www.fayobserver.com/articles/2011/07/12/1107794?sac=Home. The families of two U.S. soldiers killed by a local interpreter are suing the company for which the interpreter worked.

Liptak, Adam , “State Secrets Block Resolution of Contractor’s Suit, Justices Say,” The New York Times, May 24, 2011, www.nytimes.com/2011/05/24/us/24secret.html. The Supreme Court ruled it could not resolve a multibillion-dollar dispute between the government and military contractors.

Lundberg, Carol , “Blurring the Battle Lines: Plaintiffs Want to Hold Military Contractors Accountable for Abuses at Abu Ghraib Prison,” Michigan Lawyers Weekly, May 25, 2012, www.milawyersweekly.com/news/2012/05/25/blurring-the-battlelines/. Former Abu Ghraib detainees have renewed hope that contractors who allegedly humiliated and tortured them will answer for their actions in court.

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Contacts

ASIS
1625 Prince St., Alexandria, VA 22314-2818
703-519-6200
www.asisonline.org
International membership group for security professionals.

Civilian Contractors in Iraq and Afghanistan
www.americancontractorsiniraq.org
Website run by injured contractors and their families; includes information and commentary on contractor deaths and job-related issues.

Feral Jundi blog
http://feraljundi.com
Provides news and commentary by an ex-Marine and wilderness firefighter who works as a security contractor.

International Code of Conduct for Private Security Service Providers
www.icoc-psp
Website of an international government/security-company/civil-society consortium to create an international regulatory system for activities involving hired security.

International Stability Operations Association
1634 I St., N.W., Suite 800, Washington, DC 20006
202-464-7021
http://stability-operations.org
Trade association for companies working in disaster-relief and conflict zones; publishes the Journal of International Peace Organizations.

PrivateMilitary.org . Independent website that lists military and security contractors and provides links to academic research and other information.

Private Warriors, “Frontline,”
PBS website,
www.pbs.org/wgbh/pages/frontline/shows/warriors
Website of 2005 television documentary that includes interviews with a range of experts.

Project on Government Oversight/Contract Oversight
1100 G St., N.W., Suite 500, Washington, DC 20005
202-347-1122
www.pogo.org/investigations/contract-oversight
Independent government watchdog group.

U.N. Working Group on the Use of Mercenaries
Office of the United Nations High Commissioner for Human Rights (OHCHR), Palais des Nations, CH-1211 Geneva 10, Switzerland
41-22-917-9220
www.ohchr.org
Monitors mercenary activity and recommends actions to protect human rights in situations involving hired force.

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Footnotes

Quoted in Craig Whitlock, “Contractors Run U.S. Spying Missions in Africa,” The Washington Post, June 14, 2012, www.washingtonpost.com/world/national-security/contractors-run-us-spying-missions-in-africa/2012/06/14/gJQAvC4RdV_story.html.

Quoted in ibid.

Quoted in ibid.

Moshe Schwartz and Joyprada Swain, “Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis,” Congressional Research Service, May 13, 2011, p. 6, www.fas.org/sgp/crs/natsec/R40764.pdf.

Ibid., p. 16.

Sarah K. Cotton, et al., “Hired Guns: Views About Armed Contractors in Operation Iraqi Freedom,” RAND, 2010, p. 11, www.rand.org/pubs/monographs/MG987.html.

Quoted in Tom Bowman, “No U.S. Troops, But an Army of Contractors in Iraq,” NPR, Dec. 27, 2011, www.npr.org/2011/12/27/144198497/no-u-s-troops-but-an-army-of-contractors-in-iraq.

Quoted in “Private Warriors,” Frontline, PBS, July 2005, www.pbs.org/wgbh/pages/frontline/shows/warriors/interviews/schooner.html.

Ibid.

Laura A. Dickinson, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs (2011), p. 19.

Cotton, op. cit., p. 15.

James Vicini, “Supreme Court Rejects Blackwater Iraq Shooting Appeal,” Reuters, June 4, 2012, www.reuters.com/article/2012/06/04/us-usa-iraq-blackwater-idUSBRE8530KB20120604.

David Isenberg, “Shadow Force: Private Security Contractors in Iraq,” Feb. 16, 2009, www.cato.org/publications/speeches/shadow-force-private-security-contractors-iraq.

Anna Leander, “The Market for Force and Public Security: The Destabilizing Consequences of Private Military Companies,” Journal of Peace Research, September 2005, p. 605, http://jpr.sagepub.com/content/42/5/605.abstract; Anna Leander and Rens van Muster, “Private Security Contractors in the Debate About Darfur: Reflecting and Reinforcing Neo-Liberal Governmentality,” International Relations, May 23, 2007, http://ire.sagepub.com/content/21/2/201.short.

Isenberg, op. cit.

“Urgent Reform Required: Army Expeditionary Contracting, Commission on Army Acquisition and Program Management and Expeditionary Operations,” U.S. Commission on Army Acquisition and Program Management in Expeditionary Operations, 2007, p. 3, www.army.mil/docs/Gansler_Commission_Report_Final_071031.pdf.

T.X. Hammes, testimony before the House Oversight and Government Reform Subcommittee on National Security and Foreign Affairs, June 22, 2010, http://oversight.house.gov/wp-content/uploads/2012/01/20100622Hammes.pdf.

Quoted in. Cotton, op. cit., p. 19.

Ibid., p. 20.

Quoted in Bryan Bender, “From the Pentagon to the Private Sector,” Boston Globe, Dec. 26, 2010, www.boston.com/news/nation/washington/articles/2010/12/26/defense_firms_lure_retired_generals.

Nominations Before the Senate Armed Services Committee, 110th Congress, First Session, transcript, 2007, www.gpo.gov/fdsys/pkg/CHRG-110shrg42309/html/CHRG-110shrg42309.htm.

Cotton, op. cit., p. 33.

Isenberg, op. cit.

“Army Tosses Abu Ghraib Conviction,” USA Today, Jan. 10, 2008, www.usatoday.com/news/world/2008-01-10-AbuGhraib-me_N.htm; Keith Herting, “Federal Appeals Court Revives Lawsuit Against Abu Ghraib Contractors,” Jurist, May 13, 2012, http://jurist.org/paperchase/2012/05/federal-appeals-court-revives-lawsuits-against-abu-ghraib-contractors.php.

Cotton, op. cit., p. 28.

For background, see Guy Dinmore and Rebecca Knight, “Kroll to Sell Iraq and Afghan Security Unit,” Financial Times, Nov. 2, 2006, www.ft.com/intl/cms/s/0/24fa237c-6a13-11db-952e-0000779e2340.html#axzz1xWHZLznq; “Iraq Bomb Blast Killed UK Workers,” BBC, Feb. 26, 2007, news.bbc.co.uk/2/hi/uk_news/6397759.stm.

For background, see Thomas J. Billitteri, “Afghanistan Dilemma,” CQ Researcher, Aug. 7, 2009, updated May 25, 2011.

Cotton, op. cit., p. xiv.

Cotton, op. cit., p. xv.

Quoted in “Private Military Contractors,” transcript, “Law Report,” ABC Radio National (Australia), Sept. 9, 2008, www.abc.net.au/radionational/programs/lawreport/private-military-contractors/3182656.

Quoted in ibid.

For background, see Missye Brickell, “Filling the Criminal Liability Gap for Private Military Contractors Abroad: U.S. v. Slough and the Civilian Extraterritorial Jurisdiction Act of 2010,” Legislation and Policy Brief, Spring 2010, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1014&context=lpb.

For background, see Peter W. Singer, Frequently Asked Questions on the UCMJ Change and its Applicability to Private Military Contractors, Brookings Institution website, Jan. 12, 2007, www.brookings.edu/research/opinions/2007/01/12defenseindustry-singer.

For background, see Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (updated edition, 2007).

Ibid., p. 20.

Ibid., p. 29.

Janice E. Thomson, Pirates, Mercenaries and Sovereigns (1996), p. 23.

Singer, op. cit., p. 28.

Ibid., p. 29.

Quoted in Singer, op. cit., p. 164.

Ibid., p. 29.

Ibid., pp. 30–31.

Leadership, L-3 MPRI website, www.mpri.com/web/index.php/content/our_company/leadership.

Singer, op. cit., p. 5.

Quoted in David Isenberg, “MPRI Couldn’t Read Minds: Let’s Sue Them,” Huffington Post, Aug. 19, 2010, www.huffingtonpost.com/david-isenberg/mpri-couldnt-read-minds-l_b_688000.html.

Quadrennial Defense Review Report, Department of Defense, Sept. 30, 2001, www.defense.gov/pubs/qdr2001.pdf, p. 53.

PSMC Bulletin, Business & Human Rights Resource Centre, Sept. 16, 2011, www.business-humanrights.org/media/documents/pmsc-bulletin-issue-1-16-sep-2011.pdf.

Cotton, op. cit., p. 11.

Schwartz and Swain, op. cit., p. 4.

Ibid., p. 6.

Ibid., p. 16.

Ibid., p. 10.

Keric D. Clanahan, “Drone-Sourcing? United State Air Force Unmanned Aircraft Systems, Inherently Governmental Functions, and the Role of Contractors,” Federal Circuit Bar Journal, May 4, 2012, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2051154.

David Isenberg, “Sex and Security in Afghanistan,” Asia Times, Oct. 6, 2009, http://atimes.com/atimes/South_Asia/KJ06Df03.html.

Ibid.

For background, see “POGO Letter to Secretary of State Hillary Clinton Regarding U.S. Embassy in Kabul,” Project on Government Oversight website, Sept. 1, 2009, www.pogo.org/pogo-files/letters/contract-oversight/co-gp-20090901.html#clintlett; David Beatson, “Kiwi Connections in Kabul Embassy Scandal,” Pundit [New Zealand], Dec. 14, 2009, www.pundit.co.nz/content/kiwi-connections-in-kabul-embassy-scandal; and State Department Oversight and Contractor-Employee Conduct, transcript, Commission on Wartime Contracting in Iraq and Afghanistan, Sept. 14, 2009, www.wartimecontracting.gov/images/download/documents/hearings/20090914/CWC_State_Dept_Contractor_Oversight_Transcript_2009-09-14.pdf, p. 29.

“ArmorGroup North American and Its Affiliates Pay $7.5 Million to Remove False Claims Act Allegations,” press release, U.S. Department of Justice, July 7, 2011, www.justice.gov/opa/pr/2011/July/11-civ-889.html.

“Audit of the Department of State Process to Award the Worldwide Protective Services Contract and Kabul Embassy Security Force Task Order,” Office of Inspector General, U.S. Department of State, December 2011, http://oig.state.gov/documents/organization/180395.pdf.

“Transforming Wartime Contracting: Controlling Costs, Reducing Risks, Commission on Wartime Contracting in Iraq and Afghanistan,” Commission on Wartime Contracting in Iraq and Afghanistan, August 2011, www.wartimecontracting.gov.

Tom Bowman, “No U.S. Troops, But an Army of Contractors in Iraq,” NPR, Dec. 27, 2011, www.npr.org/2011/12/27/144198497/no-u-s-troops-but-an-army-of-contractors-in-iraq.

Quil Lawrence, “Afghan Public Protection Force Replaces Contractors,” NPR, May 23, 2012, www.npr.org/2012/05/23/153354514/afghan-public-protection-force-profile.

Spencer Ackerman, “Pentagon’s War on Drugs Goes Mercenary,” Danger Room blog, Wired, Nov. 22, 2011, www.wired.com/dangerroom/2011/11/drug-war-mercenary.

Benjamin Perrin, ed., “Private Security Organizations and Humanitarian Organizations: Implications for International Humanitarian Law,” Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations (2012), p. 134.

Cotton, op. cit., p. 15.

Charles Doyle, “Civilian Extraterritorial Jurisdiction Act: Federal Contractor Criminal Liability Overseas,” Congressional Research Service, Feb. 15, 2012, www.fas.org/sgp/crs/misc/R42358.pdf. The bills are HR 2136 and S 1145.

Pete Kasperowicz, “GOP, Dems Come Together to Fight Human Trafficking by Contractors in Iraq, Afghanistan,” The Hill, March 27, 2012, http://thehill.com/blogs/floor-action/house/218353-gop-dems-come-together-to-fight-human-trafficking-by-contractors-in-iraq-afghanistan. The bills are HR 4259 and S 2234.

Neil Gordon and Jake Wiens, “McCaskill, Webb Introduce Wartime Contracting Legislation that Could Save Taxpayers Billions,” POGO blog, March 1, 2012, http://pogoblog.typepad.com/pogo/2012/03/mccaskill-webb-introduce-wartime-contracting-legislation-that-could-save-taxpayers-billions.html. The bill is S 2139.

Steve Vladeck, “Can the Military Court-Martial Civilian Contractors?: Reflections on the Oral Argument in the United States v. Ali,” Lawfare blog, April 12, 2012, www.lawfareblog.com/2012/04/can-the-military-court-martial-civilian-contractors-reflections-on-the-oral-argument-in-united-states-v-ali.

Steve Vladeck, “United States v. Ali and Military Jurisdiction Over Civilians,” Lawfare blog, Dec. 8, 2011, www.lawfareblog.com/2011/12/united-states-v-ali-and-military-jurisdiction-over-civilians.

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About the Author

 

Staff writer Marcia Clemmitt is a veteran social-policy reporter who previously served as editor in chief of Medicine & Health and staff writer for The Scientist. She has also been a high school math and physics teacher. She holds a liberal arts and sciences degree from St. John’s College, Annapolis, and a master’s degree in English from Georgetown University. Her recent reports include “Internet Regulation” and “U.S.-Pakistan Relations.”

 

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