Since the start of the Iraq war, tens of thousands of heavily-armed military contractors have been roaming the country — without any law, or any court to control them. That may be about to change, Brookings Institution Senior Fellow P.W. Singer notes in a Defense Tech exclusive. Five words, slipped into a Pentagon budget bill, could make all the difference. With them, “contractors ‘get out of jail free’ cards may have been torn to shreds,” he writes. They’re now subject to the Uniform Code of Military Justice, the same set of laws that governs soldiers. But here’s the catch: embedded reporters are now under those regulations, too.
Over the last few years, tales of private military contractors run amuck in Iraq — from the CACI interrogators at Abu Ghraib to the Aegis company’s Elvis-themed internet “trophy video” —- have continually popped up in the headlines. Unfortunately, when it came to actually doing something about these episodes of Outsourcing Gone Wild, Hollywood took more action than Washington. The TV series Law and Order punished fictional contractor crimes, while our courts ignored the actual ones. Leonardo Dicaprio acted in a movie featuring the private military industry, while our government enacted no actual policy on it. But those carefree days of military contractors romping across the hills and dales of the Iraqi countryside, without legal status or accountability, may be over. The Congress has struck back.
Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon’s fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that “Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking `war’ and inserting `declared war or a contingency operation’.” The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).
The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn’t normally matter for much. But with this change, contractors’ ‘get out of jail free’ card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice, better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not formally declared war, civilians — even those working for the US armed forces, carrying out military missions in a conflict zone — fell outside their jurisdiction. The military’s relationship with the contractor was, well, merely contractual. At most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities.
Getting tattled on to the boss is certainly fine for some incidents. But, clearly, it’s not how one deals with suspected crimes. And it’s nowhere near the proper response to the amazing, awful stories that have made the headlines (the most recent being the contractors who sprung a former Iraqi government minister, imprisoned on corruption charges, from a Green Zone jail).
And for every story that has been deemed newsworthy, there are dozens that never see the spotlight. One US army officer recently told me of an incident he witnessed, where a contractor shot a young Iraqi who got too close to his vehicle while in line at the Green Zone entrance. The boy was waiting there to apply for a job. Not merely a tragedy, but one more nail in the coffin for any US effort at winning hearts and minds.
But when such incidents happen, officers like him have had no recourse other than to file reports that are supposed to be sent on either to the local government or the US Department of Justice, neither of which had traditionally done much. The local government is often failed or too weak to act – the very reason we are still in Iraq. And our Department of Justice has treated contractor crimes in a more Shakespearean than Hollywood way, as in Much Ado About Nothing. Last month, DOJ reported to Congress that it has sat on over 20 investigations of suspected contractor crimes without action in the last year.
The problem is not merely one of a lack of political will on the part of the Administration to deal with such crimes. Contractors have also fallen through a gap in the law. The roles and numbers of military contractors are far greater than in the past, but the legal system hasn’t caught up. Even in situations when US civilian law could potentially have been applied to contractor crimes (through the Military Extraterritorial Jurisdiction Act), it wasn’t. Underlying the previous laws like MEJA was the assumption that civilian prosecutors back in the US would be able to make determinations of what is proper and improper behavior in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. The reality is that no US Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence at hand. The only time MEJA has been successfully applied was against the wife of a soldier, who stabbed him during a domestic dispute at a US base in Turkey. Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished. Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind.
The situation perhaps hit its low-point this fall, when the Under Secretary of the Army testified to Congress that the Army had never authorized Halliburton or any of its subcontractors (essentially the entire industry) to carry weapons or guard convoys. He even denied the US had firms handling these jobs. Never mind the thousands of newspaper, magazine, and TV news stories about the industry. Never mind Google’s 1,350,000 web mentions. Never mind the official report from U.S. Central Command that there were over 100,000 contractors in Iraq carrying out these and other military roles. In a sense, the Bush Administration was using a cop-out that all but the worst Hollywood script writers avoid. Just like the end of the TV series Dallas, Congress was somehow supposed to accept that the private military industry in Iraq and all that had happened with it was somehow ‘just a dream.’
But Congress didn’t bite, it now seems. With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed (as in, Corporate Warriors, meet A Few Good Men). On face value, this appears to be a step forward for realistic accountability. Military contractor conduct can now be checked by the military investigation and court system, which unlike civilian courts, is actually ready and able both to understand the peculiarities of life and work in a warzone and kick into action when things go wrong.
The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land. Not only has the media not yet reported on it. Neither have military officers or even the lobbyists paid by the military industry to stay on top of these things.
So what happens next? In all likelihood, many firms, who have so far thrived in the unregulated marketplace, will now lobby hard to try to strike down the change. We will perhaps even soon enjoy the sight of CEOs of military firms, preening about their loss of rights and how the new definition of warzone will keep them from rescuing kittens caught in trees.
But, ironically, the contractual nature of the military industry serves as an effective mechanism to prevent loss of rights. The legal change only applies to the section in the existing law dealing with those civilians “serving with or accompanying an armed force in the field,” i.e. only those contractors on operations in conflict zones like Iraq or Afghanistan. It would apply not to the broader public in the US, not to local civilians, and not even to military contractors working in places where civilian law is stood up. Indeed, it even wouldn’t apply to our foes, upholding recent rulings on the scope of military law and the detainees at Gitmo.
In many ways, the new law is the 21st century business version of the rights contract: If a private individual wants to travel to a warzone and do military jobs for profit, on behalf of the US government, then that individual agrees to fall under the same codes of law and consequence that American soldiers, in the same zones, doing the same sorts of jobs, have to live and work by. If a contractor doesn’t agree to these regulations, that’s fine, don’t contract. Unlike soldiers, they are still civilians with no obligation to serve. The new regulation also seems to pass the fairness test. That is, a lance corporal or a specialist earns less than $20,000 a year for service in Iraq, while a contractor can earn upwards of $100,000-200,000 a year (tax free) for doing the same job and can quit whenever they want. It doesn’t seem that unreasonable then to expect the contractor to abide by the same laws as their military counterpart while in the combat theatre. Given that the vast majority of private military employees are upstanding men and women — and mostly former soldiers, to boot — living under the new system will not mean much change at all. All it does is now give military investigators a way finally to stop the bad apples from filling the headlines and getting away free.
The change in the law is long overdue. But in being so brief, it needs clarity on exactly how it will be realized. For example, how will it be applied to ongoing contracts and operations? Given that the firm executives and their lobbyists back in DC have completely dropped the ball, someone ought to tell the contractors in Iraq that they can now be court martialed.
Likewise, the scope of the new law could made more clear; it could be either too limited or too wide, depending on the interpretation. While it is apparent that any military contractor working directly or indirectly for the US military falls under the change, it is unclear whether those doing similar jobs for other US government agencies in the same warzone would fall under it as well (recalling that the contractors at Abu Ghraib were technically employed by the US Department of Interior, sublet out to DOD).
On the opposite side, what about civilians who have agreed to be embedded, but not contracted? The Iraq war is the first that journalists could formally embed in units, so there is not much experience with its legal side in contingency operations. The lack of any legal precedent, combined with the new law, could mean that an overly aggressive
interpretation might now also include journalists who have embedded.
Given that journalists are not armed, not contracted (so not paid directly or indirectly from public monies) and most important, not there to serve the mission objectives, this would probably be too extensive an interpretation. It would also likely mean less embeds. But given the current lack of satisfaction with the embed program in the media, any effect here may be a tempest in a tea pot. As of Fall 2006, there were only nine embedded reporters in all of Iraq. Of the nine, four were from military media (three from Stars and Stripes, one from Armed Forces Network), two not even with US units (one Polish radio reporter with Polish troops, one Italian reporter with Italian troops), and one was an American writing a book. Moreover, we should remember that embeds already make a rights tradeoff when they agree to the military’s reporting rules. That is, they have already given up some of their 1st Amendment protections (something at the heart of their professional ethic) in exchange for access, so agreeing to potentially fall under UCMJ when deployed may not be a deal breaker.
The ultimate point is that the change gives the military and the civilians courts a new tool to use in better managing and overseeing contractors, but leaves it to the Pentagon and DOJ to decide when and where to use it. Given their recent track record on legal issues in the context of Iraq and the war on terror, many won’t be that reassured.
Congress is to be applauded for finally taking action to reign in the industry and aid military officers in their duties, but the job is not done. While there may be an inclination to let such questions of scope and implementation be figured out through test cases in the courts, our elected public representatives should request DoD to answer the questions above in a report to Congress. Moreover, while the change may help close one accountability loophole, in no way should it be read as a panacea for the rest of the private military industry’s ills. The new Congress still has much to deal with when it comes to the still unregulated industry, including getting enough eyes and ears to actually oversee and manage our contracts effectively, create reporting structures, and forcing the Pentagon to develop better fiscal controls and market sanctions, to actually save money than spend it out.
A change of a few words in a legislative bill certainly isn’t the stuff of a blockbuster movie. So don’t expect to see Angelina Jolie starring in “Paragraph (10) of Section 802(a)” in a theatre near you anytime soon. But the legal changes in it are a sign that Congress is finally catching up to Hollywood on the private military industry. And that is the stuff of good governance.
– P.W. Singer is Senior Fellow and Director of the 21st Century Defense Initiative at The Brookings Institution. He is the author of Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press) and the upcoming book Wired for War (Houghton Mifflin).
I have never been in the military but this I can tell you – 3000 dead and if I were in Iraq doing that jab for the U.S. of A, I’d make sure that I’m not 3001. If it means an innocent Iraqi makes a mistake and gets too close to my car that has “STAY BACK” in painted on it in Arabic, well I would be improving the literacy rate there before I leave my kids with no father. Iraq is a dangerous place full of dangerous, armed people on all sides of the conflict. If it’s going to be you or them – make sure it THEM.
lol
American’s working for American’s
cannot be mercenaries. Fools
WARNING To My Fellow Americans! STAY OFF OF AIRPLANES!
http://thehudsonvalleyfreeman.blogspot.com/
The constant complaints about the media not giving fair coverage to our military’s accomplishments in Iraq are finally answered. There are only 2 “real” US reporters embedded with our troops. I am left to wonder who they write for.
NEVER Forget Officer Danny Faulkner!
http://thehudsonvalleyfreeman.blogspot.com/2006/12/never-forget-officer-danny-faulkner.html
PS- Is anyone else annoyed with the tone of this author?
“Since the start of the Iraq war, tens of thousands of heavily-armed military contractors have been roaming the country — without any law, or any court to control them. That may be about to change, Brookings Institution Senior Fellow P.W. Singer notes in a Defense Tech exclusive…”
roaming around uncontroled?
memo to PW Singer – why don’t you pick up your check from Al Queda already, and why is defensetech hiring such an anti-military klymer?
Ok…I’ll weigh in again:
In August(maybe September) of 2005 we had to detain contractors who shot at Marines in Fallujah. These guys were out of control.
On a trip to the Green Zone, I had several reports of contractors who actually leveled their weapons at senior U.S. army officers.
Contractors, for the most part, are unaccountable to the commanders of their Area of Operations in which they worked. Of course, many of these contractors worked for State as PSDs and,as such, were not subject to military comamnd.
Now, I did see many hardworking contractors, but these were the ones who kept the lights on for us and who fed us. I can’t say the same for those who thought that because they were “civilians” that they were above the law just because they were armed.
For those of you who do not believe that there was abuse don’t know what you’re talking about.
When will the realities of war come into focus for those “observers from afar” who believe killing or being killed might be “sanitized?”
If the reader can get to the last paragraph of this poorly written article ie: syntax and grammer, the author states that Hollywood should be the model of our govement;
“A change of a few words in a legislative bill certainly isn’t the stuff of a blockbuster movie. So don’t expect to see Angelina Jolie starring in “Paragraph (10) of Section 802(a)” in a theatre near you anytime soon. But the legal changes in it are a sign that Congress is finally catching up to Hollywood on the private military industry. And that is the stuff of good governance.”
God help us if this is what our new Congress is about.
Call BS….? PV, Intersting theory that the Army Paymaster keeps the official record of Iraqi civilian deaths by counting the ‘payouts.’
Civilians were sometimes shot for being in the wrong place at the wrong time, period. The most common expression I heard from contractors coming back during the early days of the CPA was, “It’s the Wild Wild West …”
Why go there? Our CO on that Katrina detail went for a one year committment at $750 a day, 7 days per week, tax free. Paid for his house in CA. I don’t think he went to win Iraqi ‘hearts and minds.’
Like I say, haven’t been there myself but have classmates that provided Paul Bremer’s PSD. BTW, there is one, and only one, LLoyd’s of London five star rated security company in Iraq. I’ve never seen it referenced or mentioned in any news discussion in the entire war. Many of these contractor horror stories relate to the companies that were always lousy, like Custer Battles, but were lucky enough to put their hats under the cash waterfall that started after the invasion.
“why would a soldier take the chance of killing a US civilian (no matter how reprehensible the act he witnessed)”
Because it would be the right thing to do under the circumstances? Call me old fashioned I guess.
Some skell shoots a clerk at 7-11 and starts to draw down on the other clerk, I’m gonna pop him if I can get a clear shot. I’m not gonna think about the consequences. That’s for the lawers to sort out.
And as you stated – the outcome in the Pantano case WAS the correct one. THE SYSTEM WORKS when you give it a chance to.
This is probably a very bad idea. I’ve heard of a few most likely illegal incidents over there when I was there, but for the most part it was few and far between.
The Army dodged the question about armed contractors in 2003. A contractor asked Rumsfeld on live TV if contractors were going to be allowed to carry weapons in theater…Rumsfeld said Sanchez could answer the question and since then the Army has dodged the bullet.
Since then, contractors who have to drive trucks and travel off FOBs without military escort have ‘done what they had to do’ to protect themselves as obviously, getting captured would most likely end up in a beheading on video tape. I’ve also seen contractors left high and dry by the Army escorts who fled ambushes.
It won’t take but two or three cases of contractors getting prosecuted under UCMJ for have self-defense weaponry, and you can start looking at contract drivers who deliver soldier’s food, start costing well over $300K a year per head.
Good job DoD. You managed to stick it to the tax payer again to fix a problem that doesn’t exist.
Regarding the reporters – one does not need to be paid to be under contract. All that is required is offer, acceptance, and consideration. Some exchange of money usually coveres part of consideration, but a change in legal position also satisifies this demand. In other words, the military lets them embed, and the reporters agree to abide by the UCMJ. That’s sufficient consideration to make a valid contract.
Let me add this to the commenter’s claim of having witnessed a murder and then having done nothing about it.
Such a witness having done nothing about the murder could be subject to the UCMJ themselves even if the perp was not military. To wit:
878. ART. 78. ACCESSORY AFTER THE FACT
Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.
881. ART. 81. CONSPIRACY
Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
On a trip to the Green Zone, I had several reports of contractors who actually leveled their weapons at senior U.S. army officers. John Folsom
Clearly you’re getting this second, third, fourth or fifth hand. Anybody who was in the Green Zone in 04-05 knows exactly who the PSD outfit was that did that – and it wasn’t officers, it was Army MPs who got drawn down on. Second, the reason nothing happened was because that particular outfit works for State and a certain three-letter agency.
If you think Army trumps State and agencies, then you are a noob. Who do you think is running this war, anyway? It isn’t Army – who do you think let Sadr live?
Putting contractors – the rest of them who don’t shoot people and are trying to do thier year and get the heck out dodge – under UCMJ is a really bad idea. I was under UCMJ for 21 years, and I’ll tell you what, I’ll take the civilian courts rights package over UCMJ any day of the week. Under UCMJ you go to jail for saying, “kiss my ass sir, thats the stupidest thing I’ve ever heard of in my life.” Go back two years and think of reservists refusing to commit suicide by driving unarmed and unescorted fuel tankers on the most IED and sniper laden route through Baghdad ever.
In any case, as was previously stated, disciplinary procedures are already stipulated by contract, and US law still applies. Calling the FBI is just that and they are in country. A contractor has got to go home sometime, and if a commander has a problem with a contractor, there is absolutely nothing that says he cannot put a contractor on a plane under armed escort back to the good old US of A.
I worked in Iraq for the past three years. Everyone with a gun points them at the contractors and if they want to, they shoot. Worse yet the Army is understaffed and they are shooting up the civilian people each day and they are not held accountable. They pull some trash with contractors too and they get away with it. Seems like the civilian contractor is going to be made a scape goat. 90% of the contractors over in Iraq have several years in uniform or served their 20+ and have retired. Give us (the contractors) the tools to do the job and let us do what we are paid to do. It is such a BS mess with these kids in uniform when they find out that you make more than they do. WTF, We were in their shoes before and now we have a chance to better our lives with that good training that we had from our time in uniform. Contractor is not a dirty word but sometimes it seems like it is. So send in more troops, is that the answer? Not realy, get everyone out and let them sort it out. They will just kill eachother so get out of their way and let them have at it.
Can’t wait to see somebody charged with disrespect….. This seems to be pretty poorly thought thorugh. Unless of course confusion and the ensuing weakness were the intent….
William sends.
Well what we have here is another VIP that states they saw something. Its Kinda hard when you dont leave the Sheraton or the IZ. Ive been in country since Feb 04, Ive seen all kinds of things and mostly from young troops. God Bless Them, we were just like them 5, 10,20 years ago. The fact is that 90% of your ” Armed Contractors” are vets and I dont appreciate being accused of not following ROE. The fact is most of us have more training and experience than the mojority of the young boots on the ground.
The use of the UCMJ would be a major mistake, It works good for keeping young troops in line but thats asuming that the 22 year old LT. fresh in the military is making the right desions. As contractors there is a lot of thought put into every mission with input from every military back ground you could immagine.
The fact is war is hell and the left is looking to nail someones 4th point of contact boys. They cant do it to the troops because that would be UnAmerican. So go after the guys that did there time and are now getting paid for the skills they spent there whole life perfecting.
Bottom line is embedding reporters is what has caused the majority of the problems in the war zone. When are they going to be brought up on charges of sedition and working with the enemy?
Remember the days when contractors were people you hired to fix your roof?
Whatever happened to the word mercenary?
“The generic definition of a mercenary is a soldier who fights or engages in warfare primarily for private gain, usually with little regard for ideological, national, or political considerations” Source: Wikipedia
I’m not sure this has reached fruition quite yet. I think that the Department of Defense has the next move.
I saw Scott Stucky speak about this halfway through a panel in DC on November 30. Scott was the outgoing General Counsel of the Senate Committee on armed forces (recently nominated to the Court of Appeals for the US Armed Forces). It was at the American Bar Association’s annual review put on by the Standing Committee on Law and National Security. Mr. Stucky spoke about a number of new initiatives, including this one.
audio: http://www.abanet.org/natsecurity/multimedia/2006/16th_Annual_Conference/Panel_II.mp3
According to Mr. Stucky, whose comments were enlightening, UCMJ used to only apply to civilian contractors in a time of declared war because of a 1970 Court of Military appeals case called U.S. v. Avarette (19 U.S.C.M.A. 363 (4/4/1970),
http://www.jstor.org/view/00029300/di981758/98p0229u/0
but now it can apply when there is a declaration of war or a declaration of contingency operation.
My question for those who are more knowledgeable for I about the UCMJ is what is a contingency operation? Mr. Stucky implied that it was now up to DOD to amend their “Manual for Courts-martial†(MCM) to determine the scope of this.
http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf
Does anyone know about that process within DoD? The MCM states: “The Department of Defense Joint Service Committee (JSC) on Military Justice reviews the Manual for Courts-Martial and proposes amendments to the Department of Defense for consideration by the President on an annual basis. In conducting its annual review, the JSC is guided by DoD Directive 5500.17, “The Roles and Responsibilities of the Joint Service Committee (JSC) on Military Justice.†DoD Directive 5500.17 includes provisions allowing public participation in the annual review process.“
Hmmm. Public participation in the process or perhaps an executive order from the whitehouse could alter how this is implemented. See page 8 of the following for information on participation.
http://www.dtic.mil/whs/directives/corres/pdf/550017_050303/550017p.pdf
Has the window for this opportunity closed yet? Has anyone read about such a proposal in the federal register? Sounds like a good way for people to air their thoughts on this hot button issue. Is it politically preferable to have UCMJ apply rather than another system of law, perhaps even local or ICJ? I am not qualified to speak about the jurisidiction of Iraq’s courts or of the ICJ, but I pose the question to those who are.
Question; Unless I missed it, does Anybody know who stuck this in???
It’s too bad this is coming now, Way To Late for the Retaliations of any and all Atrosities that some of these Mecenaries Committed!
Those suffering from these Retaliations were Our Military Troops!! It’s bad enough when one of their own Royally Screwsup, but when a Mercenary does the Screwin it’s Fanatical!!
Billy,
Your CO is an Idiot and your an idiot for thinking that was cool. First off it is illegal to pull up anyones personal records without their written concent. Then to threaten the contractors with it is a true sign of his leadership capabiities. Then he knows the identities and wherabouts of Iraqi Police that are involved with the insurgency and counts them as assets to threaten fellow americans instead of the terrorist trash they are. Personally I think that your commander should be immediatly removed from duty or even better find his way to the terrorists he loves so well and you should never be allowed to wear the US uniform again. You insult me and my fellow veterans when doing so.
Thanks to all for the active responses to the article. It’s been entertaining to say the least. But more importantly, the reception from troops and officers on this and others has been heartening. I certainly won’t try to answer to them all, but thought it important to inject a few facts into the discussion, mainly to refute a few of the most insane/stupid posts:
** This is all part of some partisan “DNC” agenda, “anti-miiltary,” “liberal bullshit” out to get contractors and help Al Qeada.**
Yep, you caught us. Darn. Only one problem: The clause was put in by Senator Lindsay Graham. Graham is a REPUBLICAN and also a reserve JAG officer.
**This is made up, with the prove being that Abu Ghraib didn’t have contractors there. **
Since I am somehow a lying al Qaeda supporter, let’s instead use the
reports by US Army Generals Taguba, Fay, and Jones. They found that serving at Abu Ghraib with the unit you slur were contractors from the Titan firm (doing interpretation) and CACI firm (doing interrogation). They found that 100% of the interpreters and up to 50% of the interrogators (the percentage depends on the time as the exact number changed) were contractors. This is not even denied by the firms themselves. See for example, “CACI chief defends company’s interrogation work,” Government Executive Magazine, September 2, 2004, where the CEO of CACI says he had 19 guys there. This was also testified to in Congress. In his report on Abu Ghraib, General Taguba found that 16 of the 44 incidents of identified abuse involved contractors and referred 6 for potential prosecution. Among the worst offenders the reports name were “Civilian 11″ and “Civilian 21,” both contractors. To make it even more interesting, General Fay states “Approximately 35% of the contract interrogators lacked formal military training as interrogators.” The Army’s inspector general, concurred and found on July 21, 2004 that a third of contract interrogators at Abu Ghraib “had not received formal training in military interrogation techniques, policy, and doctrine.” In no where did I say that soldiers weren’t also part of Abu Ghraib. Also, for general interest, the FBI just cited contractors in abuses at Gitmo
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/03/AR2007010301759.html
**I am either making it all up or I was lied to by a US Army officer on contractor misconduct.**
Since I am a lying al Qaeda supporter and US Army officers are also liars as well to you, so what would convince you? Perhaps from contractors themselves? How about the sworn testimony by two Triple Canopy guys, on their supervisor saying “I’ve never shot anyone with my pistol before.” and then plugging a taxi cab driver on the way back to base. http://www.washingtonpost.com/wp-dyn/content/article/2006/11/16/AR2006111601615_pf.html.
If you want to go tit for tat on this area, here, please do. There is absolutely no way you will win the argument that incidents of contractor misconduct have never happened in Iraq. But go back and read. The point isn’t that all contractors are bad. As I wrote “the vast majority of private military employees are upstanding men and women — and mostly former soldiers, to boot.â€� Rather, its when these episodes of bad apples in the past have happened, they were never tried.
**I should get my GED as I don’t know anything about Halliburton/LOGCAP.**
Again with the namecalling. And what an odd slam. Somehow, it is better to be a high school dropout than go get your degree? Weird. In either case, the fact is that my PhD dissertation at Harvard was on the industry with a case study of LOGCAP and Halliburton. It is now taught at places ranging from National Defense University to Yale Law School. I think its pretty good, and thus really appreciate slams that allow me to plug it, but then again I am a biased Bin Laden employee apparently, so judge by the reviews instead http://www.pwsinger.com/books_corporate.html. Also, you have it wrong. The key in the testimony was the odd claim that it also held for all Halliburton subcontractors, which is where I put it in my article that is “essentially the whole industry.” As the rollover link to the Raleigh News and Observer story in that very section shows, this opens a bigger question as to the authorization for all the other contracts you identify as being armed, such as Blackwater’s contract (which was a sub to Halliburton if you follow the chain down) that led to the tragedy at Falluja.
**The shift to UCMJ is only bad news for contractors.**
Actually, under previous murky status, a few contractors have been treated like unlawful combatants and detained in ways that shouldn’t happen ( some would point here to theZapata situation or the recent news story on contractor Donald Vance held for some 90 days in Bagdad, despite working for FBI). And that was by our guys. Legally, contractors were also in murky situation if captured as POWs by other side. not so much an issue with AQ, who would likely justbehead and save the paperwork. But say in a conflict with China, contractors caught in such roles could be sent to their version of Gitmo (maybe some converted casino in Macau). Its sounds bizarre, and its not something that the firms tell their guys, but that’s what the military lawyers have worried about for years. Clarifying that contractors fall under UCMJ, could also clarify status and treatment when in custody, giving legal protections that haven’t been there before. Again, though, it all depends on interpretation.
**The implementation will be impossible as UCMJ covers much more than civilian life.**
It’s a very good question. UCMJ covers far more than just felony offenses and technically now contractors potentially fall under it as well in such operations. A big key, as I wrote, is how far down that line of coverage extends, if you go beyond the old MEJA standard. Example: what if a contractor in the Green Zone got drunk, revealed to a JAG that he was openly gay, and then went back to his room and spent the night downloading porn. Each of these is a no-no in Iraq, not felonies in civilian life, but certainly not allowed under UCMJ. Seeing such violations of the UCMJ, is that officer obligated to call an MP in and send the contractor to the brig? I don’t think it should, but then again, I’m not the JAG’s who have to figure these things out.
My own two cents is that the most sensible implementation would be comparable to MEJA, whose loopholes it intends to fill. That is, while MEJA references the jurisdiction back (and hence to all of domestic civilian law), it only is supposed to kick in when there is a suspicion of the equivalent of the commission of a felony offense. Example, if you jaywalk in Iraq, MEJA can’t be enacted, even though jaywalking is a crime back in the US, because it’s not a felony. But any crime that could get up 1 year or above in jailtime, could fall technically under MEJA. The difference is that MEJA was never designed to apply to military/security missions or the context of conflict zones (its point of origin was a family abuse case at a US base in Germany) and has proven to be pretty much mythical in application to the contractor world (the only MEJA case activated was a domestic dispute at a base in Turkey). Court martials, for all their faults, are designed for the context of military action and conflict, such as being better set up to interpret things like whether someone violated the rules of engagement or not than a civilian court. And, while they can be equally politicized or leave out senior leaders (Abu Ghraib), they actually do happen.
But again, that’s what I as a non lawyer think would be a fair interpretation of the new expansion, that it just kick in for felonies. What happens next up in the air (and why I recommend the military clarify it to Congress).
The point is 1) It’s a new law that holds great potential to solve a lot of problems, but, like all laws, that potential depends on interpretations and implementation decisions, 2) that both military and contractor folks now have to scramble to figure how they will act given this new reality, and 3) like it or not, it’s the law of the land.
Thanks for this, news like this would NEVER make the majors…….
The Military contractors will never be dealt with because those companies are run by the same men who run the Federal Reserve and reap the profits of America. And don’t expect the media to digging around, this is a kosher affair.
Yo Mike, you’re getting mighty close to fever swamps truther territory here. You might want to put down the crack pipe and take a walk around the block and get some fresh air.
If the US dosen”t req the UN courts when it comes to their troops. Why do they think if they start the conflict the can Judge Hmm sounds like I want my cake and eat it to.
Boys you doing a great job. GET ER DONE. WATCH YOU CORNERS
As an aside, I think there is a basic issue that bothers many folks regarding the armed “contractors” in Iraq. A civilian hired by a corporation to carry a weapon in a war zone is a mercenary – someone who fights not for nationality or principles, but for personal gain only. To most Americans I know, that is repulsive.
It can be fancied up a lot, but these guys are just mercenaries, and mercenary is not a respectable profession to most. In my mind, a mercenary is worse than the enemy, because they fight for no cause except their paycheck. Their loyalty is to the corporation, not the country.
A mercenary takes all that is good about a soldier and perverts it into an ugly mirror image. There is no respect in being a mercenary precisely because of the money being made.
A nation’s warriors are respected because they *don’t* get rich, they don’t live in luxury, and yet they still risk their life in service to their nation and fellow soldier. None of that applies to a mercenary.
The former military men that have turned mercenary have sold their soul in my opinion. I pity them.
Krag
former Sgt, USMC
Yo,
I have been down range since 2/2003 building Commo nets for the war fighter. I am prior Service and have been from the Horn of Africa, Afganistan and Iraq. I am here because I love my country and I believe in taking the fight to the bad guys. Are there Idiots working as contractors? Yes, just like there are idiots in jornalisim. Are there mistakes made? Sure, just like every other profession. I have been embeded with the Iraqi Army for a year now and get this, I carry an AK and use it when I have to. By the way numnuts You only get 82,500K tax free. So much for you doing your homework.
Are the problems yeah, but guess what, because congress put a limit on the number of Military trigger pullers we are needed on this wall and we are wanted on this wall and we do an excellant job overall. Do we need to be accountible? Yes, and guess what we are more so than the war fighter at times.
Remmeber this, we are here because we are needed, we are good at what we do and we support the war fighter. I bet you are a Democrat! The good news for you is Nancy is in town.
Yes accountability is needed and can be better but take it easy on guys who have been getting shot at with the war fighter, we are all Americans and most of us are here because we believe in what we are doing…..
Get your facts right. NUMNUTS
Hoohaa
Amazing the concern over a inconsequential change without addressing hat has always existed under the Laws of War and jurisdiction of a military court martial to try civilians in certain situations and circumstances. It further amazes me such attention is being given to such a inconsequential change without and mention being made of Rome Statute of the International Criminal Court. Personally, if I was a contracted mercenary, privateer, or whatever you want to call a gun for hire, I’d rather take my chances of a fair trail in a U.S. military court martial than I would in an International Criminal Court.
Link to Rome Statute of the International Criminal Court http://www.un.org/law/icc/statute/romefra.htm
Link to MANUAL FOR COURTS-MARTIAL UNITED STATES (2005 EDITION) http://www.usapa.army.mil/pdffiles/mcm.pdf
The following is cut and paste from MANUAL FOR COURTS-MARTIAL UNITED STATES (2005 EDITION).
In addition to the power to try persons for offenses under the code, general courts-martial have power to try certain persons for violations of the law of war and for crimes or offenses against the law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or part by the military authority of the occupying power. See R.C.M.
201(f)(1)(B). In cases where a person is tried by general courtmartial for offenses against the law of an occupied territory, the
court-martial normally sits in the country where the offense is committed, and must do so under certain circumstances. See Articles
4, 64, and 66, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, arts. 4, 64, and 66, 6 U.S.T. 3516, 3559-60 T.I.A.S. No. 3365
Rule 202. Persons subject to the jurisdiction of courts-martial
(1) Authority under the code. Article 2 lists classes of persons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midshipmen (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, specified categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion).
(b) Offenses under the law of war. Nothing in this rule limits the power of general courts-martial to try persons under the law of war. See R.C.M. 201(f)(1)(B).
201(f)(1)(B) Cases under the law of war.
(i) General courts-martial may try any person who by the law of war is subject to trial by military tribunal for any crime or offense against:
(a) The law of war; or
(b) The law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or part by the military authority of the occupying power. The law of the occupied territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power.
…
(ii) When a general court-martial exercises jurisdiction under the law of war, it may adjudge any punishment permitted by the law of war.
To The Former USMC Sgt,
Sir,
If you knew how many times your Marine brothers have come to me to give the Comms, telephone, internet and C2C you wouldn’t say what you say. . I have been running around in these AO’s half blind in one eye and on one kindney. Things that you have been sent home for a long time ago. Face it Marine… As much as you don’t like it We are here to stay and I have personaly saved several Marines from getting fragged in Falluga. I love you guys, We need to work together. God bless all of our fighting men and women! If you have a problem please ask the former CSM of the 10th Mountain Div, the CSM of the 101Am and the CO of the HMH 461st USMC about me. Numnuts. Tell the Dave D from Philly and they will tell you whats shaken. By the way I am 46 Playing your game!!!!!!
Dave D, South Philly
No matter how much a mercenary blusters and sadly performs a macho typefest – the fact remains a civilian carrying a weapon in a war zone is a mercenary at best – a terrorist at worse.
These “contractors” are not working for the United States of America, are not sworn to defend the Constitution, and are not in uniform. They are men that have voluntarily taken money to kill people at the behest of a civilian corporation.
They may attempt to rationalize that in whatever way it takes to settle their soul. But the reality won’t change.
God hope they are never caught by bad guys, in any conflict, running around a battlefield with a gun and no uniform nor any displayed symbol of allegiance.
They deserve pity but little else.
Funny, when I was younger I had the potental to get drafeted. Now its all vollenter, Hum, funny, What it comes down to is that some, but not all have a problem with us making a living to support our families!! The same reason most you the enlisted are doning what there are doing, I love you guys. I am one of you guys, I am old enough to be your father and I am still doing it. Hum, guess what, I do it because I love you guys and wish I was 20 years younger, the good new is that I am here for you just like you are here for all the families at home. You Keep them safe and I am your humble assistant to do the same!
Semper Fi!!
Go Eagles
Although I share Peter’s general enthusiasm for the subject matter (and, as a native of Los Angeles, I even enjoyed his nearly obsessive references to the motion picture industry), I am concerned about his analysis and preference for regulation in respect of litigation against individual accused wrongdoers under the UCMJ. For a variety of reasons, the conflation of military and civilian law is problematic, whether it is in regard to so-called unlawful combatants or persons (US nationals or others) working for PMC/PSC’s in conflict zones. Peter’s analysis is anecdotal and incomplete and mistakenly entangles contract, penal, constitutional, and international law. Moreover, the attention to individual penal responsibility, though alluring in its ability to address acts of individual misconduct, obviously avoids the policy, normative, and larger legal questions surrounding the very nature and employment of such firms in conflict zones.
Civilian contractors are being hired to do jobs that the military can’t do because of the reduction in the force since the draw down of the mid-90’s. We are also cheaper (no insurance, no retirement, etc) Therefore we should have the same rights and obligations and follow the same ROE’s as the military. The Military did give me authority to carry a weapon and I took that responsibility seriously just as I did when I was in uniform. We have a right of self defense when in harm’s way doing a job the military did in the past when we had over 1/2 million soldiers.
Posted by: Keith Gosney at January 4, 2007 05:08 PM
“If the reader can get to the last paragraph of this poorly written article ie: syntax and grammer, the author states that Hollywood should be the model of our govement;”
Physician, heal thyself.
Since you probably have no clue what I meant, Mr Gosney, try this: If you are going to criticize someone’s post for how it’s written, be damned sure you know how to spell, how to use grammar, how to use punctuation, and how to write.
Anyone want to start a pool for how many errors will be in the frothing-at-the-mouth reply he’ll post to this?
lets talk about facts
i serve in the army for 12yr got recruited for the LAR program the last 5yrs A (DOD) department of defense and Department of the army (DAC)tech assist program (not a contractor);but a GS) i HAVE to wear army uniform and authorize to carry a weapon (9mm)base on the theater commander)approval. The fact is the us military want the its cake and eat it too, force 21 modernization technology and draw down as spoil the US military, they have stop training the troops and have made them more depended on civilian work force to fill the gap;weather contractual or department of defense employee, the fact is US army have a number of arm contractor running around with guns, fact: when any dignitary come over to the green zone they uses a mercenaries(i am sorry arm contractors to pull embassies security for personnel from point A to B in the green zone not using our high-speed HMMV but a south African Armor vehicle).. the US army allow haliburton to setup arm convoy and allow them to run between FOB, because the US army had limited troops in theater. the US had hunter teams in (silence death) Afghanistan because of limited troops. the fact is us arm forces can not operate without civilian work force because of the presence size and the power of the company defense contractor.the thing will happen is the new LAW will force some of the brightest to stay at home, believe it or not a lot government DOD AND DAC are not VOLUNTEER but are place on orders and only serve six months and do not get tax break even if we stay here for a yr because of the law..
Well… Interesting, if not entertaining commentary all around. A few thoughts…
Dr. Singer should be credited with bringing the subject of private ontractors to the fore with his 2003 book, “Corporate Warriors” which I believe was his thesis project while at the Belfer Center at Harvard. While mostly accurate, the book offers some subjective opinions and is now somewhat dated given the changes in the industry. That, when combined with all of Dr. Singer’s writings seem to demonstrate that he is positioning himself for a political appointment in a Democratic administration. I am not sure Dr. Singer has even been to Iraq or Afghanistan and seen current private contractor operations. Things have changed since he visited Bosnia some ten years ago.
As to the merits of the change in the UCMJ. Slick move on the part of Senators Graham and Kerry, but it is still unclear as to whether the change will survive a challenge to the existing US v. Avarette ruling. Having said that, there are more subtle challenges here that directly affect the men and women serving as private contractors. Will the change in the UCMJ apply to private contractors not working for the DoD, or does it extend, as MEJA does, to anyone supporting a DoD mission? What defines a DoD mission and does a DoD mission supercede a DoS or USAID mission? Additionally, if the UCMJ has been expanded to cover private contractors and embedded reporters, will it also apply to other USG civilians serving in the same area? If MEJA and other domestic and international legal instruments are good enough for USG civilians, why isn’t it good enough for private contractors and embeds? Lastly, if a private contractor is working on a contract that originates from another USG agency and in the proper execution of that contract somehow violates the UCMJ, does the Code still apply? Does the current institutional bias between some active duty professionals and private contractors preclude a private contractor from receiving fair and impartial treatment? Can the local commander issue a non-judicial punishment in lieu of a court-martial? Can a private contractor be charged with adultery, disrespect to a commissioned officer, etc.? The list of questions goes on and on. In my mind, one of the most important questions to ask is whether or not the JAGs in each service were consulted to see if they were ready and willing to take on the added case-load that would ensue?
There will no doubt be numerous challenges to this change, which seems to be more of a political maneuver rather than a serious solution to ensuring accountability for anyone working at the behest of the USG. To date, there has still not been an clear and direct discussion between the private contractor industry and the government to establish ground-truth from folklore. That seems to be the most logical point of departure. It would certainly prevent political posturing and bureaucratic bumbling in dealing with a serious challenge.
Would anyone know what companies have a private military?