Private Security Contractors in Iraq: Background, Legal Status, and Other Issues
Private Security Contractors in Iraq:
Background, Legal Status, and Other Issues
Updated September 29, 2008
Jennifer K. Elsea
American Law Division
Analyst in Defense Acquisition Policy
Foreign Affairs, Defense, and Trade Division
Kennon H. Nakamura
Analyst in Foreign Affairs
Foreign Affairs, Defense, and Trade Division
Private Security Contractors in Iraq:
Background, Legal Status, and Other Issues
The United States is relying heavily on private firms to supply a wide variety of
services in Iraq, including security. From publicly available information, this is
apparently the first time that the United States has depended so extensively on
contractors to provide security in a hostile environment, although it has previously
contracted for more limited security services in Afghanistan, Bosnia, and elsewhere.
In Iraq, private firms known as Private Security Contractors (PSCs) serve to protect
individuals, transport convoys, forward operating bases, buildings, and other
economic infrastructure, and are training Iraqi police and military personnel.
By providing security for reconstruction and stabilization efforts, many analysts
and policymakers say, private contractors contribute an essential service to U.S. and
international efforts to bring peace to Iraq. Nonetheless, the use of armed contractors
raises several concerns, including transparency and accountability. The lack of
public information on the terms of the contracts, including their costs and the
standards governing hiring and performance, make evaluating their efficiency
difficult. The apparent lack of a practical means to hold contractors accountable
under U.S. law for abuses and other transgressions, and the possibility that they could
be prosecuted by foreign courts, is also a source of concern.
Contractors working with the Department of State or the U.S. military (or with
any of the coalition forces) in Iraq are non-combatants who have no combat
immunity under international law if they engage in hostilities, and whose conduct
may be attributable to the United States. Section 552 of the John Warner National
Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors
supporting the Armed Forces in Iraq subject to court-martial, but due to
constitutional concerns, it seems more likely that contractors who commit crimes in
Iraq would be prosecuted under criminal statutes that apply extraterritorially or
within the special maritime and territorial jurisdiction of the United States, or by
means of the Military Extraterritorial Jurisdiction Act (MEJA). Generally, Iraqi
courts do not have jurisdiction to prosecute contractors without the permission of the
relevant member country of the Multi-National Forces in Iraq. Some contractors,
including those with the State Department, may remain outside the jurisdiction of
U.S. courts, civil or military, for improper conduct in Iraq.
This report summarizes what is currently known publicly about companies that
provide personnel for security missions in Iraq and some sources of controversy
surrounding them. A treatment of legal status and authorities follows, including an
overview of relevant international law as well as Iraqi law, which currently consists
primarily of Coalition Provisional Authority (CPA) orders that remain in effect until
superceded. The various possible means for prosecuting contractors under U.S. law
in civilian or military courts are detailed, followed by a discussion of possible issues
for Congress, including whether protective services are inherently governmental
functions. The report also summarizes pertinent legislative proposals. This report
will be updated as events warrant.
In troduction ......................................................7
Services Provided by Private Security Contractors....................2
Number of Private Security Companies Operating in Iraq..............3
Private Security Companies Working for the U.S. Government..........4
Pay Scales for PSC Employees...............................5
Dangers Faced by PSC Employees............................5
State Department and DOD Private Security Contracts................6
State Department Private Security Contracts.....................6
DOD Private Security Contracts..............................9
Sources of Controversy........................................11
Legal Status and Authorities........................................14
Can Contractors Be “Combatants”?...........................16
Are They “Mercenaries”?..................................18
Iraqi Law (Including Coalition Provisional Authority Orders)..........19
Prosecution in U.S. Federal Court............................21
Military Extraterritorial Jurisdiction Act (MEJA)................23
Uniform Code of Military Justice (UCMJ).....................25
Issues for Congress...............................................31
“Inherently Governmental Functions” and Other Restrictions on
Need for and Suitability of Private Contractors......................35
Flexibility Considerations for the State Department..............35
Military Requirements and Private Contractors..................36
Concerns About Reliability and Quality of PSC Personnel in Iraq...38
Oversight and Control/Coordination Issues.........................41
Transparency and Congressional Oversight.....................41
Military Oversight in the Field...............................42
State Department Oversight in the Field.......................43
Tighter State Department Oversight..........................43
State Department/DOD Memorandum of Agreement.............45
Control and Coordination in the Field.........................46
Effect of DOD and Department of State Efforts to Improve PSC
Management and Coordination..........................48
Perception of State Authority and Commitment.....................50
Selected Legislation in the 110th Congress.............................50
H.R. 4986 (Skelton) — National Defense Authorization Act for FY2008
H.R. 5658 (Skelton) — Duncan Hunter National Defense Authorization
Act for FY2009..........................................53
S. 3001 (Levin) — National Defense Authorization Act for FY2009.....53
S. 2147 (Obama) — Security Contractor Accountability Act of 2007 ....53
H.R. 2740 (Price) — MEJA Expansion and Enforcement Act of 2007...54
S. 674 (Obama) — Transparency and Accountability in Military and
Security Contracting Act of 2007............................55
H.R. 369 (Price) — Transparency and Accountability in Military and
Security Contracting Act of 2007............................55
H.R. 3695 (Hall) — Freeze Private Contractors in Iraq Act............56
H.R. 4102 (Schakowsky) and S. 2398 (Sanders) — Stop Outsourcing
H.Res. 97 (Murphy, Patrick) — Providing for Operation Iraqi Freedom
List of Tables
Table 1. Department of State Security Contractors in Iraq WPPS
(As of May 29, 2008)...........................................9
Table 2. Department of Defense Security Contractors in Iraq
(As of March 31, 2008)........................................11
Private Security Contractors in Iraq:
Background, Legal Status, and Other Issues
The 110th Congress is grappling with a broad range of issues regarding the use
of private contractors to provide security for people and property in Iraq and
elsewhere. The United States has gradually increased the types of tasks and roles for
which it contracts private companies in military operations. Congress has generally
accepted the concept of using unarmed private contractors to carry out support
functions in military operations, such as providing food and laundry services,
although not without concerns regarding the costs of contracts and alleged favoritism
in issuing them. But for the Department of State and the military, Iraq is, in some
ways, an atypical situation. There, the United States is relying heavily, apparently for
the first time in an unstable environment, on private firms to supply a wide variety1
of security services. Especially given a shortage of Diplomatic Security agents and
U.S. troops, private security contractors are widely viewed as vital to U.S. efforts to
protect many Iraqi and U.S. government officials, general contractors working to
stabilize and reconstruct Iraq, and government facilities. Nevertheless, many
Members are concerned about transparency, accountability, and legal and symbolic
issues raised by the use of armed civilians to perform security tasks formerly
performed by the military and federal employees, as well as possible long-term
effects on these organizations.
This report first summarizes available information on the private contractors2
providing security services under U.S. government contracts in Iraq. It then
1 Iraq appears to be the first case where the U.S. government has used private contractors
extensively for protecting persons and property in potentially hostile or hostile situations
where host country security forces are absent or deficient, but it is not the first time private
contractors have been used for such purposes. In Afghanistan, there appears to be some
contracting for protecting Afghani government officials and the DOD is using contractors
to provide security for forward operating bases. The U.S. Government Accountability Office
(GAO) reported that contractors have provided security guards in the Balkans and
Southwest Asia, noting that in Bosnia “the Army replaced soldiers at the gate and base
perimeter with contracted security guards.” Military Operations: Contractors Provide Vital
Services to Deployed Forces but Are Not Adequately Addressed in DOD Plans. GAO-03-
695, June 2003, p 8. The United States also uses private contractors (U.S. and foreign
citizens) for guard duty at U.S. military installations and U.S. embassies and consulates in
a number of countries where stability generally is not an issue.
2 This report does not deal with private contractors whose function is to gather intelligence
from prisoners, even though reports indicate that they may be armed. For information on
such contractors, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq: Selected
provides information on relevant U.S., international, and Iraqi law, and legal issues
involved in the use of armed contractors. It concludes with a discussion of issues
involving the need for and suitability of private contractors, costs, oversight, and
control, as well as potential foreign policy implications.
The United States is just one of many entities — including other governments,
international organizations, and private industry — that employ private security
contractors in Iraq. In recent years, the United States and many other nations and
organizations, including the United Nations, have increasingly turned to private
contractors to provide security, as well as a variety of other functions in support of3
stabilization and reconstruction efforts. This increased reliance on contractors has
fueled the growth of the private security industry.
Services Provided by Private Security Contractors
There is some debate as to what constitutes a private security contractor. Some
commentators define private security as any activity directly related to protecting a
person, place, or thing.4 Others may use a broader definition that includes such
activities as providing intelligence analysis, operational coordination, or security
training. The National Defense Authorization Act for Fiscal Year 2008 (P.L. 110-
facilities, or properties, and any other activity for which personnel are required to be
armed. In addition to armed security, many private security contractors also offer a
variety of unarmed services, which in a number of cases may represent 50% or more
Legal Issues, by Jennifer K. Elsea.
3 According to one publication, “Not since the 17th century has there been such a reliance
on private military actors to accomplish tasks directly affecting the success of military
engagements. Private contractors are now so firmly embedded in intervention, peacekeeping,
and occupation that this trend has arguably reached the point of no return.” Fred Schreier
and Marina Caparini. Privatising Security: Law, Practice and Governance of Private
Military and Security Companies. Geneva, Switzerland: Geneva Centre for the Democratic
Control of Armed Forces, March 2005. p. 1. For discussions on the growth of private
companies providing security and other support to military efforts worldwide, see, for
example: Deborah D. Avant. The Market for Force: The Consequences of Privatizing
Security. Cambridge, UK; New York: Cambridge University Press, 2005; Simon
Chesterman and Chia Lehnardt. From Mercenaries to Market: The Rise and Regulation of
Private Military Companies. Oxford, UK; New York: Oxford University Press, 2007; and
Singer, Peter W. Corporate Warriors: The Rise of the Privatized Military Industry. Ithaca,
NY: Cornell University Press, 2003. For a discussion of United Nations use of such
contractors, see William J. Durch and Tobias C. Berkman. Who Should Keep the Peace?
Providing Security for the Twenty-First-Century Peace Operations. Washington, D.C.: The
Henry L. Stimson Center, September 2006. pp. 83-84.
4 Doug Brooks, President of the International Peace Operations Association, an industry
trade group, defines private security as any activity directly related to protecting a “noun.”
of the company’s revenues. As such, the services provided by private security
companies operating in Iraq can be divided into two major categories: armed services
and unarmed services. Armed services include
!static security — protecting fixed or static sites, such as housing
areas, reconstruction work sites, or government buildings;
!convoy security — protecting convoys traveling in Iraq;
!security escorts — protecting individuals traveling in unsecured
areas in Iraq; and
!personal security details — providing protective security to high-
Unarmed security services include5
!operational coordination — establishing and managing command,
control, and communications operations centers;
!intelligence analysis — gathering information and developing threat
!security training — providing training to Iraqi security forces.
Number of Private Security Companies Operating in Iraq
It is estimated that some 50 private security contractors employing more than
private industry, and international organizations such as the United Nations.6 Peter
Singer of the Brookings Institution estimates that citizens of some 30 countries are
employed by private security companies in Iraq.7 Many PSC employees are security
professionals from western countries — such as the United States or British
Commonwealth countries — with experience in the military or law enforcement.8
Others are third-country nationals, coming from such countries as Chile, Fiji, Nepal,
and Nigeria. A third category of PSC employees consists of local Iraqis. Most of
those working in Iraq as private security contractors are Iraqi, according to Doug
Brooks of the International Peace Operations Association (IPOA), an industry group.9
Some of the third-country nationals and local Iraqis working for PSCs have extensive
military training and experience.
5 Contractors providing training that includes the use of weapons may be armed. However,
the use of weapons for training purposes is being categorized as an unarmed service because
the weapons are used as training tools and not to provide armed security.
6 The estimate does not include Iraqi PSCs and their employees working for the Iraqi
government or Iraqi private industry. Estimated based on an Email correspondence with
Lawrence Peter, Director, Private Security Companies Association in Iraq, June 14, 2008.
7 Conversation with Peter Singer, Brookings Institution, June 13, 2007.
8 Some Americans are working for foreign PSCs and are providing security services to
9 E-mail correspondence from Doug Brooks, President, International Peace Operations
Association, July 2, 2007.
Private Security Companies Working for the U.S. Government
Some 20 different PSCs, employing 10,000 people, are working directly for the
U.S. government, primarily for DOD and the Department of State.10 These security
contractors are providing an array of armed and unarmed security services, including
static security, personal security details, intelligence analysis, and operational
coordination. The United States also has an indirect contractual relationship with
many PSCs. For example, reconstruction contractors working for the United States
Agency for International Development (USAID) have in turn subcontracted with
PSCs to acquire security services.
The total direct cost to the U.S. government for acquiring security services in
Iraq is not known. The U.S. Congressional Budget Office (CBO) recently estimated
that between 2003-2007 the U.S. government obligated between $3 billion and $4
billion to PSCs to acquire security services.11 In 2005, the U.S. Government
Accountability Office (GAO) reported that as of December 31, 2004, U.S. agencies
had already obligated over $450 million to acquire security.12 CBO has estimated
that starting in 2005, agencies have spent between $500 million and $1.2 billion
annually on security services.13
The total cost to the U.S. government for private security services acquired by
government contractors in Iraq is also unknown. CBO recently estimated that
between 2003-2007, U.S.-funded contractors spent between $3 billion and $6 billion
to acquire security services.14 In 2007, House Oversight and Government Reform
Committee Chairman Henry Waxman stated at the committee’s February hearings
on Iraq reconstruction that almost $4 billion “has been paid for private security
services in the reconstruction effort alone.”15 The amount of money spent by
government contractors on security represents a significant portion of available
reconstruction funds. In 2005, a GAO report surveying 15 U.S. government
reconstruction contracts found that on more than half of the contracts security costs
exceeded 15% of total billings; on four of the contracts security costs exceeded 25%
10 This report only discusses PSCs working for the Department of Defense and the
Department of State.
11 U.S. Congressional Budget Office, Contractor’s Support of U.S. Operations in Iraq,
August 2008, p. 13. Due to data limitations and data reliability concerns, CBO’s estimate
is a range.
12 U.S. Government Accountability Office. Rebuilding Iraq: Actions Needed to Improve Use
of Private Security Providers, GAO-05-737, July 28, 2005, p. 13.
13 CBO. Contractor’s Support of U.S. Operations in Iraq, op. cit., p.14
15 CQ Transcriptions. House Oversight and Government Reform Committee Holds Hearings
on Waste, Fraud and Abuse in Iraq Reconstruction, Part 2. February 7, 2007. This is about
a fifth of the $20 billion in spending through FY2007 from the Iraq Relief and
Reconstruction Fund and over a tenth of the $35 billion in total U.S. Reconstruction
Assistance, as computed in CRS Report RL31833, p. 3.
of total billings.16 A 2006 report by the Special Inspector General for Iraq
Reconstruction (SIGIR) surveying nine major U.S. contractors found costs to range
from a low of 7.6% to a high of 16.7%, whereas the State Department in 2005
estimated such security costs as 16%-22%.17
There has been much debate ast to whether the use of private security
contractors by the U.S. government is cost-effective. According to the CBO, the
costs associated with using private security contractors in Iraq “did not differ greatly
form the costs of having a comparable military unit performing similar functions.
During peacetime, however, the military unit would remain in the force structure and
continue to accrue costs at a peacetime rate, whereas the private security contract
would not have to be renewed.”18 Agencies generally have not conducted
comprehensive cost-benefit analyses comparing the costs of using private security
companies with the costs of using in-house security resources.
Pay Scales for PSC Employees. Pay scales for these contractors
reportedly vary depending on their experience, their nationality, and the U.S.
government’s perceptions of danger involved. When the hiring of such contractors
first became controversial, the news media reported (in April 2004) a pay range of
$500 to $1,500 per day.19 Since the earlier days of the conflict, experts suggest that
the pay scale has decreased and is on average lower globally as the supply of those
desiring such work has risen.20 The highest amounts are paid to highly trained and
experienced former military personnel from the United States and British
Commonwealth, with lower amounts paid to personnel from developing countries
such as Chile and Nepal, and the lowest amounts going to locally hired Iraqis.
Dangers Faced by PSC Employees. Like soldiers, private security
contractors incur the risk of death and injury from insurgents in Iraq. For example,
all three contractors working for the Department of State under the Worldwide
Personal Protective Services contract have had employees killed and wounded while
providing security services.21 According to the private security contractor Blackwater
Worldwide, 32 employees have been killed and more than 46 wounded while
providing security in Iraq since March 1, 2004.22 Convoy-related deaths appear to
be a significant portion of total private contractor deaths. U.S. Army Corps of
Engineers data reportedly show that registered supply convoys have come under
16 Rebuilding Iraq: Actions Needed to Improve Use of Private Security Providers, p. 32.
17 As cited in CRS Report RL31833, Iraq Reconstruction Assistance, by Curt Tarnoff.
April 6, 2007, p. 25.
18 CBO. Contractor’s Support of U.S. Operations in Iraq, op. cit., p.14
19 David Barstow, “Security Companies: Shadow Soldiers in Iraq,” New York Times, April
20 Interview with Doug Brooks, December 13, 2006 and subsequent discussions with
officials from PSCs currently operating in Iraq.
21 Based on data provided by Blackwater Worldwide, DynCorp International LLC, and
Triple Canopy, Inc.
22 Data provided by Blackwater Worldwide, as of June 2008.
frequent attack.23 Of those involved in the 12,860 Corps-registered convoys that
transported supplies in Iraq from August 2004 through May 10, 2007, some 132
“security employees and drivers” were killed and 416 were wounded, according to
a report on that data.24 Recent reports indicate that violence in Iraq has significantly
diminished. For example, according to media reports, the rate of attacks on convoys
has dropped markedly: only about 1.5% of convoys were attacked in the first six
months of 2008 compared with about 20% being attached in late 2006 and early
2007.25 While attacks on convoys and other targets have been on the decline, private
security contractors remain at risk of being killed or wounded.
State Department and DOD Private Security Contracts
In the first years of Operation Iraqi Freedom, little information was available on
State Department and DOD contracts for private security services in Iraq. The State
Department and DOD have since made available the names of the companies holding
its primary contracts for security services and the numbers of security personnel
serving directly and indirectly under those contracts. Within the Department of
Defense, the office of the Assistant Deputy Undersecretary of Defense (Program
Support) is responsible for all contractor oversight, including private security
contractors, in forward areas of operation. The office was established in response to
section 854 of the National Defense Authorization Act of 2007 (H.R. 5122/P.L. 109-
State Department Private Security Contracts. Nearly 1,500 special
agents of the State Department’s Bureau of Diplomatic Security (DS) serve in the
United States at 285 U.S. offices, and overseas posts and missions. DS special
agents are law enforcement officers involved in deterring visa and passport fraud,
overseeing worldwide training and assistance programs in anti-terrorism, providing
a courier service for the Department, and providing a wide range of protective
services for the Secretary of State, the U.S. Ambassador to the United Nations, and
foreign dignitaries visiting the United States. DS is also responsible for the security
of U.S. embassies and consulates around the world, the personnel and the homes of
those who staff those facilities, and the U.S. dignitaries who visit those countries.
The State Department has increasingly employed private security contractors for
more than 20 years to provide protection to both overseas posts and missions and the
personnel and their families who staff them in an increasingly dangerous world.
Starting in 1983 after the U.S. embassy bombing in Beirut, Lebanon, the State
23 Steve Fainaru. “Iraq Contractors Face Growing Parallel War,” Washington Post, June
16, 2007, p. A12. According to the article, registered convoys were attacked 5.5% in 2005
and 14.7% in early 2007 (from January 1- May 10).
24 Ibid. The cause of death and injury was not reported, however, and may include accidents
as well as shooting deaths. In addition, the totals for all convoys may well be higher as there
are likely deaths and injuries associated with convoys that are not registered with the Corps’
Reconstruction Logistics Directorate.
25 Peter Eisler, “Attacks on U.S. Convoys Plummet; Shipments Crucial to Rebuilding Iraq,”
USA Today, July 22, 2008, p. A1; August Cole, “U.S. Tightens Rules for Security
Contractors,” The Wall Street Journal, August 19, 2008, p. A14.
Department resorted to using contractors to provide perimeter security to U.S.
diplomatic and consular posts around the world. The State Department’s Bureau of
Diplomatic Security first used PSCs in 1994 when MVM, Inc. was hired to help
protect Haitian President Jean-Bertrand Aristide as he returned to Haiti. This was
followed with the use of PSCs in Bosnia, Israel, Afghanistan, and most recently, Iraq.
In 2004, when the United States opened its embassy in Baghdad, DS took over
the responsibility from the military of providing security for what was fast becoming
the U.S.’s largest embassy. It became clear, however, that DS did not have sufficient
personnel to take on this responsibility while continuing to accomplish its other
duties around the world. To meet the shortfall, DS signed Blackwater USA (now
Blackwater Worldwide), to a one-year sole-source contract to provide security
services for the new Baghdad embassy and its staff. The State Department said it
chose Blackwater because the company was already in-country, having operated there
under a previous DOD contract to provide security for the Coalition Provisional
In the Summer of 2005, the State Department opened the Worldwide Personal
Protective Services II (WPPS II) contract for bids.26 The WPPS II contract for Iraq
is a five-year (one-year base and four optional years) $1.2 billion “Indefinite
Delivery-Indefinite Quantity” (ID/IQ)27 contract with task orders to be competed on
a firm fixed-price basis. The contract was awarded on a best value basis, meaning
its award was based on what was most advantageous to the federal government. The
WPPS II considered technical merit more important than cost.28
WPPS II contracts are used to provide bodyguards and static guards (i.e., guards
for buildings and other infrastructure) in Baghdad and other areas throughout Iraq.
Three private security companies were eventually hired under the WPPS-II umbrella
contract. These companies were Blackwater Worldwide, DynCorp, International,
LLC, and Triple Canopy, Inc. Triple Canopy also holds a separate State Department
contract to provide local guard services for the U.S. Embassy and other sites in the
Baghdad Green Zone, which are under Chief of Mission control.
Blackwater Worldwide, founded in 1997 as Blackwater USA and headquartered
in Moyock, North Carolina, has provided a variety of protective services in Iraq. It
was one of the original companies providing protection for CPA chief Paul Bremer
26 The WPPS contracts are used to provide security services not only in Iraq, but also in
Afghanistan, Bosnia, and Israel.
27 Indefinite Delivery/Indefinite Quantity contracts policies are discussed in the Federal
Acquisition Regulations (FAR) at 48 CFR Part 16.500 et seq., and provide for the
acquisition of supplies and/or services when the exact times and/or exact quantities, above
a specified minimum, of future deliveries during the contract period are not known at the
time of contract award. ID/IQ contracts are used when a recurring need is anticipated, and
the procurement process is somewhat streamlined because negotiations for the goods and
services can be made only with the selected ID/IQ contractor
[ h t t p : / / www.acqnet . go v/ f a r / cur r e nt / h t ml / Subpar t % 2016_5.ht ml ] .
28 Worldwide Personal Protective Services Contract Solicitation SAQMPD04R1016, Office
of Acquisition Management, Department of State, Washington, August 8, 2004, p. 218.
as well as other CPA employees and visiting dignitaries. The Blackwater staff
includes former military, intelligence, and law enforcement personnel. According to
news reports and its website, Blackwater, founded by former Navy SEAL Erik
Prince, has the largest private training center in the United States. The center
consists of various training ranges including those that simulate urban combat; the
country’s largest, multi-surface, multi-level tactical driving track; and an artificial
lake built for conducting simulations of boarding a hostile ship. The company also
has extensive technology design and manufacturing capabilities that have produced
remotely piloted airships and IED-safe armored personnel carriers.29 Under the
WPPS contract, Blackwater’s primary area of operation is the Baghdad area.
On April 5, 2008, the Department of State renewed Blackwater’s WPPS
contract for a fifth year. The Department explained that the FBI investigation into
the September 16, 2007, Nisoor Square shooting in which Blackwater employees
protecting a diplomatic convoy fired upon and killed 17 Iraqis, is ongoing, and the
current contract was to expire in May 2008. After the conclusion of the FBI
investigation, the Department is to examine the FBI findings to determine whether
the Blackwater contract should continue.30
DynCorp International LLC, based in Falls Church, Virginia, evolved,
according to its website, from a company formed in 1946 that provided support and
services to U.S. military aircraft and weapons systems under Air Force contracts.
Named DynCorp since 1987, it was acquired in 2003 by Computer Sciences
Corporation (CSC) and now has nearly 14,000 employees in 30 countries.31 Under
the WPPS contract, DynCorp operates primarily in the northern Kurdish area of Iraq.
Besides the WPPS contract, DynCorp also holds another State Department contract,
under the Bureau of International Narcotics and Law Enforcement, to provide police
training and related services in Iraq.
Triple Canopy, Inc., founded in September 2003 and based in Herndon,
Virginia, bills its operational leadership as “comprised of former operators from tier-
one special operations units....” Its two founders and co-chairs both served with the
29 Blackwater Worldwide Website, “Company Profile,”
30 Dana Hedgpeth, “State Department to Renew Deal with Blackwater for Iraq Security,”
Washington Post, April 5, 2008, pg. D02.
31 Information on the company’s history and size from its website at
[http://www.dyncorpinternational.com]. DynCorp’s performance under the State
Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL)
contract was reviewed by the Office of the Special Inspector General for Iraq Reconstruction
(SIGIR). Review of DynCorp International, LLC, Contract Number S-LMAQM-04-C-0030,
Task Order 0338, for the Iraqi Police Training Program Support. SIGIR-06-029. DoS-OIG-
AUD/IQO-07-20, January 30, 2007. According to this report, the contract was awarded in
February 2004, for a base year and four renewable one-year options. Its potential value is
U.S. Army Special Forces, one with Special Forces’s Delta Force.32 Under the
WPPS contract, Triple Canopy operates primarily in southern Iraq.
Table 1. Department of State Security Contractors in Iraq WPPS
(As of May 29, 2008)
Worldwide WPPSWPPS in IraqWPPS in Iraq —
Numbers(Includes bothPSS (U.S.
Companysupport and PSS) nationals)
Blackwater 1,090 968 601
T otal 1,574 1,400 641
Source: Department of State.
Notes: The numbers provided on May 29, 2008, are only the State Department’s prime contractors
performing either personal protective services (PSS) or support functions. The United States Agency
for International Development (USAID) also receives its protection under the State Department
contracts. These numbers do not include private security personnel who have been hired by State
Department or USAID contractor companies to provide other services, for instance, a company that
has a contract ro provide engineers. The State Department notes that the actual numbers of employees
working in Iraq vary widely on a daily basis due to personnel rotations, medical evacuations, and R&R
DOD Private Security Contracts. PSCs provide a wide variety of security
services to the Department of Defense. For example, one company, EOD
Technologies, Inc., provides static perimeter and internal security throughout Victory
Base Complex in Baghdad. Another company, Aegis Defence Services Limited,
coordinates the movement of all DOD, Department of State, and other participating
PSCs throughout Iraq. The company also continuously gathers, interprets, and
disseminates information on the security situation throughout Iraq. Other companies
provide security for convoys or officials traveling throughout Iraq. DOD uses both
American and foreign PSCs. For example, Aegis Defence Services Limited, Erinys
International, and ArmorGroup Services Ltd. are British companies.
The number of PSC employees working for DOD fluctuates significantly,
depending on a variety of factors, including troop strength and operational need. For
example, as of December 31, 2007, DOD had contracts with 32 different PSCs
employing almost 10,000 individuals to provide security services to the
government.33 By contrast, as of March 31, 2008, DOD had contracts with 18
different PSCs employing more than 7,000 individuals to provide security services
32 From the company’s history posted on the Triple Canopy website at
[ ht t p: / / www.t r i pl ecanopy.com] .
33 According to DOD, there were 9,952 security contractors working for the Department, of
whom 6,467 were armed.
to the government (see Table 2).34 DOD officials have stated that they anticipate the
number of PSC employees operating in Iraq to increase again in the near future to35
support military efforts. Some government officials and industry experts also
attribute part of the drop in the number of PSC employees working in Iraq to DOD’s36
improved ability to accurately track PSCs. Generally, private security contractors
constitute a relatively small portion — approximately 4-6% — of the over 160,00037
strong contractor workforce working for DOD in Iraq. DOD was unable to provide
data on how much was being spent on PSCs in Iraq.
Aegis Defence Services Limited, founded in 2002 and based in London, is a
privately owned company with offices in Afghanistan, Bahrain, Iraq, and the United
States. It bills itself as a security and risk management company. The company’s38
founder and CEO, Tim Spicer, is a retired British lieutenant colonel. The company
won an initial $293 million contract with the U.S. Army in 2004 and was
subsequently awarded a $475 million contract, the largest PSC contract in Iraq
awarded by DOD as of the date of the award. The contract award came under
significant criticism as a result of the alleged role that founder Tim Spicer played in
the late 1990s putting down a rebellion in Papua New Guinea and selling weapons39
to Sierra Leone in violation of a U.N. arms embargo.
ArmorGroup International plc, founded in 1981 and based in London, has
approximately 8,500 employees worldwide, with 38 offices in 27 countries. The
company bills itself as offering five security-related services: protective security; risk
34 The PSCs are Aegis Defense Services Limited [http://www.aegisworld.com/];
ArmorGroup International plc [http://www.armorgroup.com/]; CSS GLOBAL
[http://www.gocssglobal.com/]; EOD Technology, Inc. [http://www.eodt.com/]; Erinys Iraq
[http://www.erinysinternational.com/]; Falcon Security Ltd. [http://www.falconiraq.com/
security.html]; Global Strategies Group [http://www.globalsecuritygroup.com/]; Hart
Security Limited [http://www.hartsecurity.com/]; Olive Group FZ-LLC
[http://www.olivegroup.com/index.htm]; Pesh - Kurdistan Army; PWC Logistics
[http://www.pwclogistics.com/]; Sabre International Security
[http://www.securitybysabre.com/]; SAL Risk Group [http://www.salriskgroup.com/];
Securiforce International Ltd.; SOC-SMG, Inc.; Total Defense Logistics Ltd.; Triple
Canopy, Inc. [http://www.triplecanopy.com/triplecanopy/en/home/]; and Universal Security
35 Based on discussions with DOD officials in Iraq and the United States that took place
between April - June 2008.
36 Earlier in DOD’s effort to track PSCs, some companies hired to provide ammunition and
security-related items were included in the tally of PSCs. Such firms have since been
excluded from the count.
37 Percentage calculated based on data provided by DOD for Q1 and Q2 of fiscal year 2008.
38 Data provided by company’s website [http://www.aegisworld.com/]. Last visited July 9,
39 See Vanity Fair, “The Business of War: Iraq’s Mercenary King,” April 2007. For Aegis’
and Mr. Spicer’s response to the Vanity Fair article, see [http://www.aegisworld.com/
index.php/news/8/58]. Last visited, July 10, 2008. See also: The Boston Globe, “Security
Firm’s $293m Deal Under Scrutiny,” June 22, 2004; Washington Post Foreign Service, “In
Iraq, a Private Realm of Intelligence-Gathering,” July 1, 2007.
management consultancy; security training; development, humanitarian, and
construction support; and weapons reduction and mine action services. ArmorGroup
provides security training to more than 5,000 security professionals, government
officials, and corporate executives and their families worldwide.40
EOD Technologies, Inc., founded in 1987 and based in Lenoir City, Tennessee,
is an employee-owned firm with offices in the United States, Afghanistan, Iraq, and
Kuwait. The company bills itself as having three principal business units: munitions
response, security services, and critical mission support. Its security services include
armed security, guard force and reaction force training, surveillance and surveillance
detection, counter IED response services, and security consulting.41
Table 2. Department of Defense Security Contractors in Iraq (As
of March 31, 2008)
Number ofNumber ofNumber of Third-
Armed PSCs in Iraq3678494,3965,613
Unarmed PSCs in Iraq1488346651,646
T otal 515 1,683 5,061 7,259
Source: Department of Defense.
Notes: Data provided in June 2008 from data collected March 2008. Actual numbers of employees
working in Iraq vary widely on a daily basis due to personnel rotations, medical evacuations, and R&R
Sources of Controversy
Public awareness of the extent to which private contractors were being used for
security purposes was highlighted by the deaths of four Blackwater guards in Fallujah
on March 31, 2004. The guards were three former Army Rangers and a former Navy
SEAL. They were killed while escorting trucks carrying supplies for a private
company that provided food services to U.S. military dining facilities in Iraq, and
their bodies were then dragged through the streets and hung for display. Days later,
Blackwater personnel again hit the news as they reportedly fought a prolonged gun
battle in Najaf on April 4, 2004, allegedly defending the U.S. government
headquarters there. These events sparked congressional debate over the role of
private contractors in U.S. military operations, the desirability of using such
contractors, and the appropriate legal and contractual framework to control them.
Congress has taken a renewed interest in questions about management,
accountability, and transparency of PSCs. In November 2006, news reports about a
lawsuit filed in Fairfax County [VA] Circuit Court brought to light allegations that
40 Data provided by company’s website [http://www.armorgroup.com/]. Last visited July 10,
41 Data provided by company’s website [http://www.eodt.com/]. Last visited, July 10, 2008.
a Triple Canopy employee in Iraq twice had wantonly fired at Iraqi civilians in the
summer of 2005 and possibly killed one person. The two Triple Canopy employees
filing the lawsuit state that they were fired for reporting that their supervisor had
committed the act. The Company stated that while it does not have any evidence that
any persons were harmed as a result of the alleged weapons firing incidents, the
employees were terminated a result of their failure to immediately report the weapons
firings incidents.42 According to a news report, the Triple Canopy employee was
operating at the time under a KBR subcontract when the shootings occurred.43
More recently, Blackwater has been in the news because of its involvement in
several shooting incidents in which Iraqi civilians were wounded or killed. On
September 16, 2007, Blackwater guards, escorting a U.S. diplomatic convoy,
wounded or killed 17 Iraqi civilians at a Baghdad traffic circle in Nisoor Square.
According to news reports, the Blackwater guards felt threatened by an oncoming car
that did not stop as the convoy was going through the circle. Blackwater officials
insisted that the guards were ambushed but many witnesses state that Blackwater’s
actions were unprovoked. Many military officials reportedly also expressed concerns
that the security contractors were trigger happy and “out-of-control cowboys who
alienated the same Iraqis the military is trying to cultivate.”44 Defense Secretary
Gates said that the contractors were at “cross purposes” with the military goals, and
he suggested they be put under his authority.45
News reporting on these incidents also raised concerns regarding charges of
cultural insensitivity, Blackwater’s sense of impunity in dealing with Iraqis, and
whether the company was appropriately following the Department of State’s
guidelines for PSCs on the use of force. A Majority Staff hearing memorandum
prepared for the October 2, 2007, House Committee on Oversight and Government
Reform hearing regarding Blackwater and its involvement in shooting incidents in
Iraq, describes Blackwater’s record on the use of force to be “frequent and extensive
resulting in significant casualties and property damage.” The report states that
between January 1, 2005, through September 12, 2007, Blackwater employees were
involved in 195 incidents of firearms discharges. In 32 incidents, Blackwater
42 According to a news report, the jury ruled that the company did not wrongfully terminate
the two employees. However, according to the report, the jury wrote that "Although we find
for [Triple Canopy], we strongly feel that its poor conduct, lack of standard reporting
procedures, bad investigation methods and unfair double standards amongst employees
should not be condoned." Tom Jackman, “Security Contractor Cleared in Two Firings”,
Washington Post, August 2, 2007. p. A-15.
43 Tom Jackman. “U.S. Contractor Fired on Iraqi Vehicles for Sport, Suit Alleges,”
Washington Post, November 17, 2006, p. A-20.
44 Sudarsan Raghavan and Thomas E. Ricks, “Private Security Puts Diplomats, Military at
Odds,” Washington Post, September 26, 2007, p. A-01.
45 Karen DeYoung, “State Department Struggles to Oversee private Army,” Washington
Post, October 21, 2007, p. A01.
personnel returned fire after an attack, while on 163 occasions, Blackwater fired first,
according to the Majority Staff memorandum.46
Members of Congress have also raised questions about the State Department’s
oversight of its protective service contractors’ activities in Iraq. They accuse the
State Department of not only failing to supervise contractor performance adequately
but also of failing to properly investigate alleged killings by PSCs.47
PSCs’ use of deadly force, the actual and alleged killing of innocent Iraqi
civilians by PSC employees, and the State Department’s alleged lack of concern
about accountability, many believe, have undermined U.S. foreign policy and
specifically U.S. standing in Iraq. Many in the military reportedly expressed
concerns that Blackwater’s actions that day and over time could alter and degrade
relationships that the military is seeking to build with Iraqis.48 Speaking prior to the
September 16 killings, an Iraqi Interior Ministry official discussing Blackwater’s
actions in previous deadly fire incidents and the company’s attitude in ignoring Iraqi
law and customs, explained that Blackwater and its actions are part of the reason for
the hatred of Americans. “Iraqis do not know them as Blackwater or other PSCs but
only as Americans.”49
In a broader foreign policy context, the State Department’s alleged protection
of Blackwater as its employees act as if they are above Iraqi law and kill Iraqis with
impunity makes it difficult to advocate for such issues as the importance of the rule
of law and human rights as U.S. foreign policy objectives. Advances in worldwide
communications make it possible for allegations of human rights violations by those
associated with the United States to be spread worldwide almost instantaneously, and
may affect both the perception of the United States as a country respectful of human
rights as well as the international environment in which the United States works to
advance its foreign policy objectives.50 Representative Tom Davis, concerned over
the actions of PSCs, said:
Iraqis understandably resent our preaching about the rule of law when so visible
an element of the U.S. presence there appears to be above the law. That is why
46 Majority Staff Hearing Memorandum, “Additional Information about Balckwater USA,”
House Committee on Oversight and Government Reform, October 1, 2007, pg. 6.
47 Opening Statement of Chairman Henry A. Waxman, in US Congress, House Oversight
and Government Reform Committee, Hearing on Private Security Contracting in Iraq andthnd
Afghanistan, hearings, 110 Cong., 2 sess., October 2, 2007.
48 Sudarsan Reghavan and Thomas E. Ricks, “Private Security Puts Diplomats, Military at
Odds; Contractors in Iraq Fuel Debate,” op cit.
49 Steve Fainaru, “Where Military Rules Don’t Apply; Blackwater’s Security Force in Iraq
Given Wide Latitude by State Department,” Washington Post, September 20, 2007, Pg. A1.
50 Under Secretary of State for Public Diplomacy and Public Affairs Karen Hughes,
speaking before the Council on Foreign Relations, New York City, N.Y., on May 10, 2006,
said of the new worldwide information environment that “there is an information explosion
and no one is hungry for information. We are now competing for attention and for
credibility in a time when rumors can spark riots, and information, whether it’s true or false
quickly spreads across the world, across the internet, in literally instants.”
the events of September 16th sparked such an outcry by the Iraqi government
which sees unpunished assaults on civilians as a threat to national sovereignty.
The incident is also being used by those seeking to exploit accumulated
resentments and draw attacks on private contractors, a force even the Iraqi51
government concedes is still a vital layer of security.
Along with the very serious issue of killing innocent Iraqis by PSCs and the
possible human rights, diplomatic, and military consequences, the Congress also
examined cases of alleged sexual harassment and rape of female KBR employees in
Iraq by other KBR PSCs, and the seeming lack of any judicial accountability in these
cases. The House Judiciary Committee, on December 19, 2007, held a hearing on
“Enforcement of Federal Criminal Law to Protect Americans Working for U.S.
Contractors in Iraq” — and the Senate Committee on Foreign Relations on April 9,
2008, conducted a hearing on “Closing Legal Loopholes: Prosecuting Sexual
Assaults and Other Violent Crimes Committed Overseas by American Civilians in
a Combat Environment.” These cases have again raised the question of the legal
accountability of PSCs for their actions in Iraq but in a different context.
Legal Status and Authorities
Contractors to the coalition forces in Iraq operate under three levels of legal
authority: (1) the international order of the laws and usages of war and resolutions
of the United Nations Security Council; (2) U.S. law; and (3) Iraqi law, including
orders of the CPA that have not been superceded. Under the authority of
international law, contractors and other civilians working with the military are52
civilian non-combatants whose conduct may be attributable to the United States or
may implicate the duty to promote the welfare and security of the Iraqi people.53
51 Opening Statement of Ranking Member, Representative Thomas Davis, “A Hearing of
House Committee on Oversight and Government Reform: Blackwater USA: Private Security
Contracting in Iraq and Afghanistan,” Federal News Service Transcript, Washington, D.C.,
October 2, 2007.
52 Conduct that violates international obligations is attributable to a State if it is committed
by the government of the State or any of its political subdivisions, or by any official,
employee, or agent operating within the scope of authority of any of these governments, or
under color of such authority. AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE
FOREIGN RELATIONS LAW OF THE UNITED STATES, Vol II (1987), § 207. Principles of State
responsibility require a State in breach of an obligation to another State or international
organization, without justification or excuse under international law, to terminate the
violation and provide redress. Id. at § 901, comment a.
53 See, e.g., U.N. Security Council Resolution 1483 ¶ 4 (May 22, 2003) (calling upon the
Coalition Provisional Authority, “consistent with the Charter of the United Nations and
other relevant international law, to promote the welfare of the Iraqi people through the
effective administration of the territory, including in particular working towards the
restoration of conditions of security and stability and the creation of conditions in which the
Iraqi people can freely determine their own political future”); id. ¶ 5 (calling upon “all
concerned to comply fully with their obligations under international law including in
Iraqi courts do not currently have jurisdiction to prosecute them for conduct related
to their contractual responsibilities without the permission of the Sending State.54
Some contractors, particularly U.S. nationals, may be prosecuted in U.S. federal
courts or military courts under certain circumstances.
The international law of armed conflict, particularly those parts relating to
belligerent occupation (at least for conduct that occurred prior to the handover of
sovereignty on June 28, 2004) and non-international armed conflict, appears to be
relevant in Iraq.55 The status of armed contract personnel in such circumstances falls
particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”) After the
handover of sovereignty to the Iraqi government, the Multi-National Forces in Iraq retained
the U.N. mandate to contribute to the provision of security and stability necessary for the
successful completion of the political process. U.N. Security Council Resolution 1511 ¶ 13
(October 16, 2003) (authorizing “a multinational force under unified command to take all
necessary measures to contribute to the maintenance of security and stability in Iraq,
including for the purpose of ensuring necessary conditions for the implementation of the
timetable and programme as well as to contribute to the security of the United Nations
Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi
interim administration, and key humanitarian and economic infrastructure”).
54 CPA Order 17, Status of the CPA, MNFI, Certain Missions and Personnel in Iraq, June
27, 2004, § 4 (Contractors) available at [http://www.cpa-iraq.org/regulations/20040627
_CPAORD_17_Status_of_Coalition__Rev__with_Annex_A.pdf] (last visited May 4, 2007).
A “Sending State” is defined in § 1(5) of CPA Order 17 to mean “a State providing
personnel, International Consultants, services, equipment, provisions, supplies, material,
other goods or construction work to: (a) the CPA, (b) the MNF [Multi-National Forces], (c)
international humanitarian or reconstruction efforts, [and] (d) Diplomatic or Consular
55 The relevance of various sources of international law may have fluctuated as the status
of the Iraqi government has transformed from an interim government to a permanent
government with a permanent Constitution. For a description of law applicable in Iraq after
June 28, 2004, see CRS Report RL31339, Iraq: Post-Saddam Governance and Security, by
Kenneth Katzman. The Multi-National Forces in Iraq (MFN-I) are currently fulfilling a UN
mandate established by United Nations Security Council (UNSC) Resolution 1511 (October
16, 2003) and continued by UNSC Resolution 1546 (June 8, 2004), UNSC Resolution 1637
(November 8, 2005), UNSC Resolution 1723 (November 28, 2006), and UNSC Resolution
1790 (December 18, 2007). The resolutions affirm the importance for MFN-I to “act in
accordance with international law, including obligations under international humanitarian
law...,” but do not clarify what those obligations entail. UNSC Resolution 1770 (August 10,
2007) makes reference to “international humanitarian law, including the Geneva
Conventions and the Hague Regulations,” as applying in Iraq, at least in the context of
protecting those associated with the UN humanitarian relief effort. Secretary of State Rice
assured the Security Council that “[t]he forces that make up MNF will remain committed
to acting consistently with their obligations and rights under international law, including the
law of armed conflict.” Letter dated 17 November 2006 from the Secretary of State of the
United States of America to the President of the Security Council, Annex II to UNSC
Resolution 1723. UNSC resolutions are accessible at [http://www.un.org/Docs/sc/
into a grey area.56 While civilians accompanying the Armed Forces in the field are
generally entitled to treatment as prisoners of war (POW)57 if captured by an enemy
State during an international armed conflict, they are considered civilians (non-
combatants) who are not authorized to take a direct part in hostilities.58
Can Contractors Be “Combatants”? A critical question appears to be
whether the duties of contractors amount to “taking an active part in hostilities.” In
an international armed conflict or occupation,59 only members of regular armed
forces and paramilitary groups that come under military command and meet certain
criteria (carry their weapons openly, distinguish themselves from civilians, and60
generally obey the laws of war) qualify as combatants. Because contract employees
fall outside the military chain of command,61 even those who appear to meet the
criteria as combatants could be at risk of losing their right to be treated as POWs if
captured by the enemy.
56 See Rebecca Rafferty Vernon, Battlefield Contractors: Facing the Tough Issues, 33 PUB.
CONT. L.J. 369, 401 (2004); P.W. Singer, War, Profits, and the Vacuum of Law: Privatized
Military Firms and International Law, 42 COLUM. J. TRANSNAT’L L. 521, 525-26 (2004)
(arguing that international law applicable to privatized military firms is nonexistent or
57 Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316 (entered
into force October 21, 1950) [hereinafter “GPW”]. GPW art. 4(A)(4) extends POW status
Persons who accompany the armed forces without actually being members
thereof, such as civilian members of military aircraft crews, war correspondents,
supply contractors, members of labour units or of services responsible for the
welfare of the armed forces, provided that they have received authorization from
the armed forces which they accompany, who shall provide them for that purpose
with an identity card....
58 Convention Respecting the Laws and Customs of War on Land, with Annex of
Regulations, October 18, 1907, Annex art. 3, 36 Stat. 2277, 2296 (entered into force January
59 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 2 defines the scope of
application of the Geneva Conventions in international armed conflicts as “all cases of
declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties ... [and] all cases of partial or total occupation of the territory of
a High Contracting Party....”
60 Id. at 4; Department of the Army Field Manual (FM) No. 3-100.21, Contractors on the
Battlefield ¶ 2-33, January 3, 2003.
61 See FM 3-100.21, supra note 55, ¶ 1-22:
Management of contractor activities is accomplished through the responsible
contracting organization, not the chain of command. Commanders do not have
direct control over contractors or their employees (contractor employees are not
the same as government employees); only contractors manage, supervise, and
give directions to their employees.
The Geneva Conventions and other laws of war do not appear to forbid the use
of civilian contractors in a civil police role in occupied territory, in which case
contractors might be authorized to use force when absolutely necessary to defend
persons or property.62 Given the fluid nature of the current security situation in Iraq,
it may sometimes be difficult to discern whether civilian security guards are
performing law-enforcement duties or are engaged in combat. If their activity
amounts to combat, they would become lawful targets for enemy forces during the
fighting, and, if captured by an enemy government (if one should emerge), could
potentially be prosecuted as criminals for their hostile acts.63 Contract personnel who
intentionally kill or injure civilians could be liable for such conduct regardless of
their combatant status.64
On the other hand, if the conflict in Iraq is a non-international armed conflict
within the meaning of Common Article 3 of the Geneva Conventions (CA3),65
customary international law would no longer distinguish between “unlawful” and
“lawful combatants.”66 Contractors captured by enemy forces who had engaged in
hostilities would be entitled to the minimum set of standards set forth in CA3, but
their right to engage in hostilities in the first place would likely be determined in
accordance with the prevailing local law. In this case, Iraqi law, including CPA
orders that have not been rescinded, apply.67
62 Army doctrine does not allow civilians to be used in a “force protection” role. See id. ¶ 6-
3 (“Contractor employees cannot be required to perform force protection functions
described [in ¶ 6-2] and cannot take an active role in hostilities but retain the inherent right
to self-defense.”). Force protection is defined as “actions taken to prevent or mitigate
hostile actions against DOD personnel, resources, facilities and critical information.” Id.
¶ 6-1. An Army combatant commander may issue military-specification sidearms to
contractor employees for self-defense purposes, if the contractor’s company policy permits
employees to use weapons and the employee agrees to carry the weapon. Id. ¶ 6-29.
63 The Army discourages the use of contractors in roles that could involve them in actual
combat. Major Brian H. Brady, Notice Provisions for United States Citizen Contractor
Employees Serving With the Armed Forces of the United States in the Field: Time to Reflect
Their Assimilated Status in Government Contracts?, 147 MIL. L. REV. 1, 62 (1995) (citing
Department of the Army, AR 700-137, Army’s Logistics Civil Augmentation Program
(LOGCAP) ¶ 3-2d(5)(1985) “Contractors can be used only in selected combat support and
combat service support activities. They may not be used in any role that would jeopardize
their role as noncombatants.”)
64 Combatants who intentionally harm non-combatants may be liable for violating the law
of war, while non-combatants would be liable for violating domestic law.
65 Common Article 3, expressly applicable only to conflicts “not of an international nature,”
has been described as “a convention within a convention” to provide a general formula
covering respect for intrinsic human values that would always be in force, without regard
to the characterization the parties to a conflict might give it. See JEAN PICTET,
HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 32 (1975).
66 Common Article 3 does not provide for POW status. Its protections extend to all persons
who are not or are no longer participating in combat. FM 3-100.21, supra note 55, does not
distinguish between international and non-international armed conflicts.
67 See infra.
Are They “Mercenaries”? Mercenaries are persons who are not members
of the armed forces of a party to the conflict but participate in combat for personal
gain. They may be authorized to fight by a party to the conflict, but their allegiance
to that party is conditioned on monetary payment rather than obedience and loyalty.68
For this reason, mercenaries are sometimes treated as “unlawful combatants” or
“unprivileged belligerents,” even though their employment is not strictly prohibited69
by international law. As discussed above, they may not qualify for POW treatment
under the Geneva Convention Relative to the Treatment of Prisoners of War (GPW),
and those meeting the definition of “mercenary” under the 1977 Protocol I to the
Geneva Conventions70 are explicitly denied combatant status.71 Because mercenaries
are not entitled to combat immunity, they may be tried, and if found guilty, punished
for their hostile actions (including by the death penalty), even if such actions would
be lawful under the law of war if committed by a soldier. Soldiers with a nationality
other than that of the party on whose side they fight are not automatically considered72
mercenaries. Article 47 of Protocol I defines a mercenary as follows:
(a) Is specially recruited locally or abroad in order to fight in an armed
(b) Does, in fact, take a direct part in the hostilities;
(c) Is motivated to take part in the hostilities essentially by the desire for
private gain and, in fact, is promised, by or on behalf of a Party to the
conflict, material compensation substantially in excess of that promised or
paid to combatants of similar ranks and functions in the armed forces of
(d) Is neither a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on73
official duty as a member of its armed forces.
68 See Gregory P. Noone, The History and Evolution of the Law of War Prior to World War
II, 47 NAVAL L. REV. 176, 187 (2000) (recounting origin of prohibition on mercenaries after
the Middle Ages).
69 See Singer, supra note 51, at 534.
70 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I) art. 47, June 8, 1977,
reprinted in 16 I.L.M. 1391.
71 Id. art. 43.
72 See HILAIRE MCCOUBREY, 2 INTERNATIONAL HUMANITARIAN LAW 145 (1998)(noting
that not all foreigners in service of armed forces of other countries should be treated as
“mercenaries,” as some may serve with the approval of their home governments or for moral
or ideological reasons); HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED
CONFLICT 75 (1979) (describing entitlement to POW status of nationals of neutral states or
states allied with enemy state as well-settled, while status of an individual who is a national
of a capturing state or its allies is subject to dispute).
73 The United States has not ratified Protocol I; however, some of its provisions may be
considered binding as customary international law. See Michael J. Matheson, The United
Under this definition, it appears that contractor personnel who are not U.S.
nationals, the nationals of other coalition allies or Iraqi nationals, and who were hired
to — and in fact do — take part in hostilities might be considered to be mercenaries,
assuming the definition in Protocol I applies as customary international law in the
context of the current hostilities in Iraq. On the other hand, it is not altogether clear
what constitutes “direct participation in an armed conflict,” and some of the other
requirements are inherently difficult to prove, particularly the element of
motivation.74 There is no distinction based on the offensive or defensive nature of
the participation in combat.
Iraqi Law (Including Coalition Provisional Authority Orders)
Contractors to U.S. agencies or any of the multinational forces or diplomatic
entities in Iraq operate under the law of the government of Iraq, which includes
orders issued by the CPA prior to the hand-over of sovereignty to the Iraqi Interim
Government that have not been rescinded or superceded.75 Under CPA Order
Number 17, as revised June 27, 2004, contractors are exempt from Iraqi laws for acts
related to their contracts.76 That order provides that “[c]ontractors shall not be
subject to Iraqi laws or regulations in matters relating to the terms and conditions of
their Contracts...,” but that they are subject to all relevant regulations with respect to
any other business they conduct in Iraq (section 4(2)). Contractors are also immune
from Iraqi legal processes for acts performed under the contracts (section 4(3)). Iraqi
legal processes could commence against contract personnel without the written
permission of the Sending State, but that State’s certification as to whether conduct
States Position on the Relation of Customary International Law to the 1977 Protocol
Additional to the 1949 Geneva Convention, 2 AM. U. J. INT’L L. & POL’Y 419 (1987).
74 See Singer, supra note 51, at 532 (commenting on similar definition found in the
International Convention against the Recruitment, Use, Financing, and Training of
Mercenaries, to which the United States is not a party).
75 The Coalition Provisional Authority (CPA) dissolved at the end of June, 2004, but certain
orders issued by the CPA, as modified by CPA Order 100, were to remain in place unless
modified or rescinded by the Iraqi Government. See Law of Administration for the State of
Iraq during the Transitional Period Article 26(C) (CPA orders remain in effect until Iraqi
legislation rescinds or amends them), available at
[http://www.law.case.edu/saddamtrial/documents/TAL.pdf]; CRS Report RS21820, Iraq:
June 30, 2004, Transition to Sovereignty, by Kenneth Katzman and Jennifer K. Elsea.
76 Under CPA Order 17, Status of the Coalition, Foreign Liaison Missions, Their Personnel
and Contractors, June 23, 2003, Coalition forces were immune from Iraqi legal processes
for their conduct during the period the CPA was in power. CPA Order 17 was modified in
See CPA Order 17, as amended June 17, 2004, available at
[ h t t p : / / www.c p a -i r a q.org/ regulations/20040627_CPAORD_17_Status_of_Coalition__Re
v__with_Annex_A.pdf]. CPA Order 17 remains in force for the duration of the U.N.
mandate, which will expire in December, 2008, unless the Security Council acts to revoke
it earlier or extend it beyond that date. By its terms, CPA Order 17 expires only after the
last elements of the MNF-I have departed from Iraq.
at issue in a legal proceeding was related to the terms and conditions of the relevant
contract serves as conclusive evidence of that fact in Iraqi courts (section 4(7)).
CPA Order Number 3, as revised on December 31, 2003,77 governs the use of
weapons. It restricts the authority to carry weapons to members of Iraqi security
forces and Coalition forces, and “groups and individuals who have been authorized
to carry weapons in the course of their duties by the CPA or Commander, Coalition
Forces or their duly authorized delegates,” (section 3). It further provides that
“private security firms may be licensed by the Ministry of the Interior to possess and
use licensed Firearms and Military Weapons, excluding Special Category Weapons,
in the course of their duties, including in public places.” Id. All others must apply
to the Iraqi Ministry of the Interior for a license in order to possess a weapon. The
unauthorized use or possession of weapons is subject to penalty.
CPA Memorandum Number 1778 provides for the registration and regulation of
private security companies (PSC) operating in Iraq. Two annexes to the
Memorandum provide for binding Rules for the Use of Force (Annex A) and a Code
of Conduct (Annex B) that all PSC employees must follow. Section 9 prohibits PSC
employees from conducting law enforcement activities; however, section 5 of Annex
A permits PSC employees to stop, detain, search, and disarm civilians where the
employees’ safety requires it or if such functions are specified in the contract.
Section 6 prohibits PSC employees from joining Coalition or Multi-national Forces
in “combat operations except in self-defense or in defense of persons as specified in
[their] contracts.” Section 9 makes PSC subject to all “applicable criminal,
administrative, commercial and civil laws and regulations,” and provides that their
“officers and employees may be held liable under applicable criminal and civil legal
codes,” except as otherwise provided by law.
U.S. contractor personnel and other U.S. civilian employees in Iraq may be
subject to prosecution in U.S. courts. Additionally, persons who are “employed by
or accompanying the armed forces” overseas may be prosecuted under the Military
Extraterritorial Jurisdiction Act of 2000 (MEJA)79 or, in some cases, the Uniform
Code of Military Justice (UCMJ).80 However, some contractor personnel who
commit crimes might not fall within the statutory definitions described below, and
thus might fall outside the jurisdiction of U.S. criminal law, even though the United
States is responsible for their conduct as a matter of state responsibility under
77 CPA Order 3, Weapons Control December 31, 2003, available at
[http://www.iraqcoalition.org/ regulations/20031231_CPAORD3_REV __AMD_.pdf].
78 CPA Memorandum Number 17, Registration Requirements for Private Security
Companies (PSC), June 26, 2004, available at [http://www.iraqcoalition.org/regulations/
20040626_CPAMEMO_17_Registration_Requirements_for_Private_ S e c u r i t y_ C o mp a n i
79 P.L. 106-523, 114 Stat. 2488 (2000), codified at 18 U.S.C. §§ 3261 -67.
80 Chapter 47 of title 10, U.S. Code.
international law81 and despite that such conduct might interfere with the ability of
the Multi-National Forces in Iraq to carry out its U.N. mandate.
Prosecution in U.S. Federal Court. U.S. contractor personnel and other
U.S. civilian employees in Iraq are subject to prosecution in U.S. courts under a
number of circumstances. Jurisdiction of certain federal statutes extends to U.S.
nationals at U.S. facilities overseas that qualify as part of the special maritime and
territorial jurisdiction (SMTJ) of the United States.82 For crimes involving a U.S.83
national as a perpetrator or a victim, the SMTJ includes:
(A) the premises of United States diplomatic, consular, military or other United
States Government missions or entities in foreign States, including the buildings,
parts of buildings, and land appurtenant or ancillary thereto or used for purposes
of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of those missions or entities or used
by United States personnel assigned to those missions or entities.
Criminal statutes that apply within the SMTJ include maiming,84 assault,8586878889
kidnapping, sexual abuse, assault or contact, murder and manslaughter. The
81 See supra note 47.
82 18 U.S.C. § 7(9) (as amended by the § 804 of the USA PATRIOT Act, P.L. 107-56, title
VIII, October 26, 2001, 115 Stat. 377) (excluding persons covered by the Military
Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261).
83 “U.S. national” is defined by section 101 of the Immigration and Nationality Act (8 U.S.C.
§ 1101(22)) to mean a citizen of the United States, or a person who, though not a citizen of
the United States, owes permanent allegiance to the United States. U.S. servicemembers
who are foreign nationals are generally considered U.S. nationals, but foreign nationals
employed by the U.S. government abroad are not.
84 18 U.S.C. § 114 punishes any individual who, within the SMTJ and with the intent to
torture, maim, or disfigure, “cuts, bites, or slits the nose, ear, or lip, or cuts out or disables
the tongue, or puts out or destroys an eye, or cuts off or disables a limb or any member of
another person; or ... throws or pours upon another person, any scalding water, corrosive
acid, or caustic substance....”
85 18 U.S.C. § 113 (prohibiting assault with intent to commit murder or a felony, assault with
a dangerous weapon, assault “by striking, beating, or wounding,” simple assault, and assault
resulting in serious or substantial bodily injury).
86 18 U.S.C. § 1201 (punishing “whoever seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise any person, except in
the case of a minor by the parent thereof ...”).
87 18 U.S.C. §§ 2241-45, 2248. 18 U.S.C. § 2241 criminalizes aggravated sexual abuse,
which includes the use of force or threat of death, serious bodily injury, or kidnapping, or
the rendering of a victim unconscious or impaired, to induce another person to engage in a
sexual act. 18 U.S.C. § 2242 prohibits sexual abuse using less serious threats or taking
advantage of an impairment not of the aggressor’s making. 18 U.S.C. § 2243 applies where
the victim is a minor or ward. 18 U.S.C. § 2244 criminalizes sexual contact (other than
sexual acts as defined in § 2246) under like conditions. 18 U.S.C. § 2245 provides for
Department of Justice (DOJ) is responsible for prosecuting crimes in this category.
A CIA contractor was convicted under this provision in 2007 for the assault of a
detainee in Afghanistan.90
Extraterritorial Jurisdiction. In addition, many federal statutes prescribe
criminal sanctions for offenses committed by or against U.S. nationals overseas,9192
including the War Crimes Act of 1996. The federal prohibition on torture applies
to acts outside the United States regardless of the nationality of the perpetrator (non-93
U.S. nationals need only be “found” in the United States to be prosecuted).
The War Crimes Act, as amended by the Military Commissions Act of 2006,94
prohibits “grave breaches” of Common Article 3,95 which are defined to include
torture, cruel or inhuman treatment, performing biological experiments, murder of
an individual not taking part in hostilities, mutilation or maiming, intentionally
causing serious bodily injury, rape, sexual assault or abuse, and taking hostages.
Federal jurisdiction is established for these crimes when they are committed by or
against U.S. nationals or U.S. servicemembers. It does not appear to cover foreign
nationals who commit war crimes in Iraq, even if they are employed by the U.S.
government or U.S. government contractors.
Other criminal proscriptions with extraterritorial reach include assaulting,
killing or kidnapping an internationally protected person, or threatening to do so.96
Jurisdiction exists over these offenses if the victim or offender is a U.S. national, or
if the offender is afterwards found in the United States. The federal prohibition on
torture applies to acts outside the United States regardless of the nationality of the
perpetrator (non-U.S. nationals need only be “found” in the United States to be
increased punishment if any of these acts results in death. All of these crimes are felonies.
Offenders may also be required to pay restitution to victims under 18 U.S.C. § 2248.
88 18 U.S.C. § 1111 (unlawful killing of a human being with malice).
89 18 U.S.C. § 1112 (voluntary or involuntary unlawful killing of a human being without
90 Department of Justice Press Release, David Passaro Sentenced to 100 months
imprisonment: First American Civilian Convicted of Detainee Abuse During the Wars in
Iraq and Afghanistan, February 13, 2007, available at [http://charlotte.fbi.gov/
doj pressrel/2007/ce021307.htm] .
91 See CRS Report 94-166, Extraterritorial Application of American Criminal Law by
92 P.L. 104-192, § 2(a), 110 Stat. 2104 (August 21, 1996), codified as amended at 18
U.S.C. § 2441.
93 18 U.S.C. § 2340-40B.
94 P.L. 109-366 § 6, 120 Stat. 2632 (Oct. 17, 2006).
95 18 U.S.C. § 2441(d).
96 18 U.S.C. § 112 (assault); 18 U.S.C. § 1116 (killing);18 U.S.C. § 1201 (kidnapping); 18
U.S.C. § 1203 (hostage-taking); 18 U.S.C. § 878 (threats).
prosecuted).97 There is extraterritorial jurisdiction over murder where both the
perpetrator and victim are U.S. nationals, but prosecution requires that the Attorney
General or his designee give approval, which requires that the foreign country where
the murder took place has not prosecuted the suspect for the same conduct and that
the suspect is no longer present in that country and the country lacks the ability to
lawfully secure the person’s return.98
Extraterritorial jurisdiction may be found to be implied in statute,99 especially
where the statute’s main purpose is to protect federal officers, employees and
property, or to prevent the obstruction or corruption of the overseas activities of
federal departments and agencies.100 Some statutes apply to conduct where foreign
commerce is affected, although that jurisdictional basis alone may be insufficient to
demonstrate that Congress meant to reach conduct overseas.101 Crimes involving
only foreign nationals as either perpetrator or victim, even where one or more are
employed by the U.S. government or a government contractor, may fall outside the
jurisdiction of U.S. courts.
Military Extraterritorial Jurisdiction Act (MEJA). Persons who are
“employed by or accompanying the armed forces” overseas may be prosecuted under
the Military Extraterritorial Jurisdiction Act (MEJA) of 2000102 for any offense that
would be punishable by imprisonment for more than one year if committed within
97 18 U.S.C. § 2340-40B. Prior to 2004, acts that occurred within the SMTJ were “outside
the United States” for the purpose of the statute, precluding prosecution for torture occurring
on a U.S. military base overseas. P.L. 108-375, § 1089, 118 Stat. 1811, 2067 (2004).
98 18 U.S.C. § 1119.
99 See United States v. Bowman, 260 U.S. 94 (1922)(courts examine the nature and purpose
of a statute to determine whether Congress intended it to apply outside of the United States);
Ford v. United States, 273 U.S. 593, 623 (1927)(implied jurisdiction for conduct overseas
having domestic effects).
100 Statutes prohibiting murder or kidnapping of federal officers have been found to apply
overseas. United States v. Felix-Guiterrrez, 940 F.2d 1200, 1204-206 (9th Cir. 1991); United
States v. Benitez, 741 F.2d 1312 (11th Cir. 1984). A statute prohibiting the murder of
Members of Congress was found to apply abroad. United States v. Layton, 855 F.2d 1388,th
to apply extraterritorially); United States v. Walczak, 783 F.2d 852, 854-55 (9 Cir. 1986)
(punishing false statement made by U.S. national abroad); United States v. Cotten, 471 F.2d.th
101 See Equal Opportunity Employment Commission v. Arabian American Oil Co., 499 U.S.
244, 251 (1991)(“[W]e have repeatedly held that even statutes that contain broad language
in their definitions of “commerce” that expressly refer to “ foreign commerce” do not apply
abroad”). Statutes that apply in circumstances involving foreign commerce include domestic
violence and stalking (18 U.S.C. §§ 2261 and 2261(A)); sex trafficking (18 U.S.C. §§ 2241-
102 Military Extraterritorial Jurisdiction Act of 2000 (MEJA), P.L. 106-523, 114 Stat. 2488
(2000), codified at 18 U.S.C. § 3261-67. For information about the legislative history
MEJA, see Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction over Civilians
Accompanying the Armed Forces Abroad — a First Person Account of the Creation of the
Military Extraterritorial Jurisdiction Act of 2000, 51 CATH. U. L. REV. 55 (2001).
the special maritime and territorial jurisdiction of the United States.103 Persons
“[e]mployed by the armed forces” is defined to include civilian employees of the
Department of Defense (DOD) as well as DOD contractors and their employees
(including subcontractors at any tier), and, after October 8, 2004, civilian contractors
and employees from other federal agencies and “any provisional authority,”104 to the
extent that their employment is related to the support of the DOD mission
overseas.105 Depending on how broadly DOD’s mission is construed, MEJA does not
appear to cover civilian and contract employees of agencies engaged in their own
operations overseas. It also does not cover nationals of or persons ordinarily residing
in the host nation. While it appears to cover other foreign nationals working under
covered contracts, it does not appear to extend federal jurisdiction over crimes not
expressly defined as covering conduct occurring within the SMTJ. For example, it
might not be available as a jurisdictional basis to prosecute non-U.S. national
contractors for war crimes under 18 U.S.C. § 2441. However, under DOD’s
interpretation of the statute, MEJA is available to prosecute federal crimes that are
prohibited everywhere within the United States, including areas that are not part of
DOD issued regulations for implementing MEJA in 2005.107 DOD Instruction
5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the
Armed Forces Outside the United States, Certain Service Members, and Former
103 18 U.S.C. § 3261. Crimes that are felonies withing the SMTJ include assault, 18 U.S.C.
§ 113 (but not assault “by striking, beating, or wounding,” or “simple assault,” which is not
defined; these are not punishable by imprisonment for more than one year, §113(3) and (4));
18 U.S.C. § 1111 (murder); 18 U.S.C. § 1112 (manslaughter); 18 U.S.C. § 1113 (attempted
murder or manslaughter).
104 “Provisional authority” is not defined. Presumably, “any provisional authority” is meant
to cover entities like the CPA; however, because the status of the CPA was never clearly
defined, it may prove difficult in future conflicts to determine whether an interim governing
body or occupational authority qualifies as a “provisional authority” within the meaning of
MEJA. See Glenn R. Schmitt, Amending the Military Extraterritorial Jurisdiction Act of
105 18 U.S.C. § 3267(1)(A), as amended by the Ronald W. Reagan National Defense
Authorization Act for FY2005, P.L. 108-375 § 1088, 118 Stat. 2066 (October 28, 2004).
106 32 C.F.R. § 153.3 (defining “felony offense” with reference to legislative history).
According to the report accompanying H.R. 3380 (106th Cong.), the Military Extraterritorial
Jurisdiction Act of 2000,
Although the bill uses the conditional phrase “if committed within the special
maritime and territorial jurisdiction of the United States,” acts that would be a
Federal crime regardless of where they are committed in the United States, such
as the drug crimes in title 21, also fall within the scope of subsection [18 U.S.C.
H.Rept. 106-778, at 14 - 15 (2000). The SMTJ of the United States, however, includes some
areas that are outside the territory of the United States, and federal criminal statutes that
apply generally within U.S. territory do not necessarily apply to such areas.
107 71 Fed. Reg. 8,946 (February 22, 2006).
Service Members, March 3, 2005, implements policies and procedures pursuant to
MEJA. Under the Instruction, the DOD Inspector General (IG) has the responsibility
to inform the Attorney General whenever he or she has reasonable suspicion that a
federal crime has been committed.108 The DOD IG is also responsible for
“implementing investigative policies” to carry MEJA into effect. The Instruction
notes that the Domestic Security Section of the DOJ Criminal Division has agreed
to “provide preliminary liaison” with DOD and other federal entities and to designate
the appropriate U.S. Attorney’s Office to handle a case.
The Department of Justice has reported that 12 persons have been charged under
MEJA since its passage in 2000, with several investigations underway that may result
in charges.109 Very few successful prosecutions involving DOD contractors in Iraq
under MEJA have been reported. A contractor working in Baghdad pleaded guilty
to possession of child pornography in February 2007.110 Another contract employee
was prosecuted for abusive sexual contact involving a female soldier that occurred
at Talil Air Force Base in 2004.111 A contract employee was indicted for assaulting
another contractor with a knife in 2007.112 In addition, a former U.S. soldier is being
prosecuted under MEJA for the rape and murder of an Iraqi girl and the murder of her
family while the defendant served on active duty in Iraq.113
The House of Representatives passed legislation on October 4, 2007, to expand
MEJA coverage during contingency operations (H.R. 2740) (for information on H.R.
2740, the Military Extraterritorial Jurisdiction Act (MEJA) Expansion and
Enforcement Act of 2007, see section on “Selected Legislation” below).
Uniform Code of Military Justice (UCMJ). Contract personnel may be
subject to military prosecution under the Uniform Code of Military Justice (UCMJ)
for conduct that takes place during hostilities in Iraq in some circumstances, although
any trial of a civilian contractor by court-martial is likely to be challenged on
108 DoD Instruction 5525.11 § 5.
109 Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes
Committed Overseas by American Civilians in a Combat Environment, Hearing Before theth
Senate Committee on Foreign Relations, 110 Cong. (April 9, 2008) (Statement of Sigal P.
Mandelker, Deputy Assistant Attorney General, Criminal Division, Department of Justice).
110 Press Release, U.S. Attorney for the Eastern District of Virginia, Military Contractor
Sentenced for Possession of Child Pornography in Baghdad (May 25, 2007), available at
111 United States v. Maldonado, 215 Fed. Appx. 938 (11th Cir. 2007) (unpublished). The
opinion does not explain the jurisdictional basis for the prosecution.
112 Press Release, U.S. Attorney for the District of Arizona, Military Man Charged with
Assaulting Woman on U.S. Military Base in Iraq, March 1, 2007.
113 Press Release, Department of Justice, Former Ft. Campbell Soldier Indicted in Iraqi
Civilian Deaths (Nov. 2, 2006), available at
[http://louisville.fbi.gov/dojpressrel/pressrel06/iraqideaths110206.htm]. The defendant has
challenged the court’s jurisdiction under MEJA, arguing that he was never properly
discharged from the military and should instead be subject to court-martial. United States
v. Green, Crim. Action No. 5:06CR-19-R (W.D. Ken.)(motion to dismiss filed 2/15/2008).
constitutional grounds. Article 2(a)(10), UCMJ,114 as amended by § 552 of the John
Warner National Defense Authorization Act for Fiscal Year 2007 (P.L. 109-364)
(“FY07 NDAA”), extends military jurisdiction in “time of declared war or a
contingency operation,”115 to “persons serving with or accompanying an armed force
in the field.” There is one reported use of the amendment; an interpreter with dual
Canadian-Iraqi citizenship pleaded guilty in connection with the stabbing of another
contractor.116 Additionally, if offenses by contract personnel can be characterized as
violations of the law of war, the UCMJ may extend jurisdiction to try suspects by
court-martial117 or by military commission.118
Prior to the FY2007 NDAA, the UCMJ covered civilians serving with the
Armed Forces in the field only in “time of war.” As a reflection of the constitutional
issues that arise whenever civilians are tried in military tribunals,119 as reaffirmed by
a series of Supreme Court cases beginning in 1957 with Reid v. Covert,120 courts have
114 10 U.S.C. § 802(a)(10). For summaries of legislative history and application of the
provision (and its predecessors) prior to amendment, see David A. Melson, Military
Jurisdiction over Civilian Contractors: A Historical Overview, 52 NAVAL L. REV. 277
(2005); Wm. C. Peters, On Law, Wars, and Mercenaries: The Case for Courts-martial
Jurisdiction over Civilian Contractor Misconduct in Iraq, 2006 B.Y.U. L. REV. 367 (2006).
115 “Contingency operation” is defined under 10 U.S.C. § 101(a)(13) to mean a military
operation that —
(A) is designated by the Secretary of Defense as an operation in which members
of the armed forces are or may become involved in military actions, operations,
or hostilities against an enemy of the United States or against an opposing
military force; or
(B) results in the call or order to, or retention on, active duty of members of the
uniformed services under section 688, 12301 (a), 12302, 12304, 12305, or 12406
of [title 10], chapter 15 of [title 10], or any other provision of law during a war
or during a national emergency declared by the President or Congress.
116 See Press Release, Multi-National Corps — Iraq PAO Civilian contractor convicted at
a court-martial, June 23, 2008, available online at
[ h t t p : / / www.mn f -i r aq.com/ i ndex.php?opt i o n = c o m_ c o n t e n t & t a s k =vi e w&i d =20671&It em
id=128]. The defendant was sentenced to five months’ confinement (time served) for
wrongful appropriation of a knife, obstruction of justice, and making a false official
statement to military investigators.
117 10 U.S.C. § 818 (providing jurisdiction over “any person who by the law of war is subject
to trial by military tribunal”).
118 10 U.S.C. § 821 (preserving “concurrent jurisdiction with respect to offenders or offenses
that by statute or by the law of war may be tried by military commissions, provost courts,
or other military tribunals”); cf. Ex Parte Quirin, 317 U.S. 1 (1942).
119 See, e.g., Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Duncan v. Kahanamoku, 327
U.S. 304 (1945).
120 Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion overturning two cases involving
civilian spouses convicted of capital crimes by courts-martial, pursuant to UCMJ Art. 2(11)
as “persons accompanying the armed forces,” for the murders of their military spouses at
overseas bases); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960)(applying
Reid to non-capital case involving civilian dependent); Grisham v. Hagan, 361 U.S. 278
interpreted the phrase “in time of war” to mean only wars declared by Congress.121
In Covert, a plurality of the Supreme Court rejected the proposition that Congress’s
power to regulate the land and naval forces justifies the trial of civilians without
according the full panoply of due process standards guaranteed by the Bill of Rights.
The Supreme Court has also found that former servicemembers who have severed all
ties to the military cannot be tried by court-martial for crimes they committed while
on active duty.122
The trial of civilian contractors by courts-martial will likely be subject to
challenge on constitutional grounds. Congress’s authority to “make Rules for the
Government and Regulation of the land and naval Forces”123 empowers it to prescribe
rules for courts-martial that vary from civilian trials and are not restricted by all of
the constitutional requirements applicable to Article III courts. In addition to the
express exception in the Fifth Amendment regarding the right to presentment and
indictment in “cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger,” the Supreme Court has found
implicit exceptions to other fundamental rights as they pertain to servicemembers.124
Statutes relating to courts-martial have withstood objections based on due process.125
While the UCMJ offers soldiers procedural protections similar to and sometimes
(1960)(extending Covert to prohibit court-martial of civilian employee of the Army for a
capital offense); McElroy v.Guagliardo, 361 U.S. 281 (1960) (same, with respect to non-
capital offense). UCMJ art. 2(11) defines as persons subject to the UCMJ those who,
“[s]ubject to any treaty or agreement to which the United States is or may be a party or to
any accepted rule of international law, [are] serving with, employed by, or accompanying
the armed forces outside the United States and outside the Commonwealth of Puerto Rico,
Guam, and the Virgin Islands.”
121 See Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972); United States v. Averette, 41
C.M.R. 363 (1970); see also Latney v. Ignatious, 416 F.2d 821 (D.C. Cir. 1969)(finding that
even if the Vietnam conflict constituted a “war” within the meaning of the UCMJ, conduct
must be intimately connected to military in order for jurisdiction under Art. 2(10) to apply).
122 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
123 U.S. CONST., art. I, § 8, cl. 14.
124 See, e.g., Kahn v Anderson, 255 US 1 (1921)(Sixth Amendment does not require jury in
cases subject to military jurisdiction); Weiss v. United States, 510 U.S. 163 (1994)
(rejecting challenge to the military justice system based on the fact that military judges are
not “appointed” by the President within the meaning of Article II of the Constitution, and
the judges are not appointed to fixed terms of office); Parker v. Levy, 417 U.S. 742, 758
(1974) (stating, in the context of First Amendment protections, that “[t]he fundamental
necessity for obedience, and the consequent necessity for imposition of discipline may
render permissible within the military that which would be constitutionally impermissible
125 See AM. JUR. 2D Military and Civil Defense § 221.
arguably superior to those in civilian courts,126 courts have been reluctant to extend
military jurisdiction to civilians.127
On the other hand, the Covert Court distinguished the peacetime courts-martial
of civilian spouses at issue from Madsen v. Kinsella,128 in which a military spouse
was tried by military commission in occupied Europe, on the basis that
[that case] concerned trials in enemy territory which had been conquered and
held by force of arms and which was being governed at the time by our military
forces. In such areas the Army commander can establish military or civilian
commissions as an arm of the occupation to try everyone in the occupied area,129
whether they are connected with Army or not.
If Madsen remains valid, if and for so long as the United States is considered an
“occupying power” in Iraq, it may be acceptable under the Constitution to subject
DOD contractors there to military jurisdiction.
Further, the Covert plurality held open the possibility that civilians who were
part of the armed services could be tried by court-martial during wartime.130 While
the Court has suggested in dicta that courts-martial are never proper for the trial of
civilians,131 it has never expressly stated that the Constitution forbids military
jurisdiction over civilians who might properly be said to be “in” the Armed Forces
during war.132 Lower courts addressed the issue during World War II, and upheld
courts-martial of civilian employees of the U.S. Army in Eritrea.133 Merchant seamen
were sometimes tried by court-martial by the Navy. One such conviction was
overturned by a federal court on habeas corpus review because the offense charged,
126 For a comparison of due process rights, see CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, by Jennifer K. Elsea.
127 Reid v. Covert, 354 U.S. 1, 21 (1957)(“Every extension of military jurisdiction is an
encroachment on the jurisdiction of the civil courts, and, more important, acts as a
deprivation of the right to jury trial and of other treasured constitutional protections.”);
O’Callahan v. Parker, 395 U.S. 258, 267 (1969)(“[C]ourts-martial have no jurisdiction to
try those who are not members of the Armed Forces, no matter how intimate the connection
between their offense and the concerns of military discipline.”), overruled on other grounds
by Solorio v. United States, 483 U.S. 435 (1987)(overturning “service-connection rule” in
favor of a rule based strictly on military status).
128 343 U.S. 341 (1952).
129 354 U.S. at 35, & n.10.
130 Id. at 33-36.
131 O’Callahan v. Parker, 395 U.S. 258 (1969).
132 Covert, 354 U.S. at 23 (noting “there might be circumstances where a person could be
‘in’ the armed services for purposes of [Congress’s authority to regulate the armed services]
even though he had not formally been inducted into the military”).
133 Perlstein v. United States, 151 F.2d 167 (3d Cir. 1945)(concluding that accompanying
an armed force under “stark war conditions” justified trial by court-martial of a civilian
employee for a criminal offense); In re diBartolo, 50 F. Supp. 929, 930 (S.D.N.Y. 1943).
striking a superior officer, was essentially a military charge.134 However, another
court upheld the conviction of a merchant seaman for the military charge of
Assuming the Constitution permits the trial of civilians accompanying the
Armed Forces in wartime, a particular case will also have to satisfy the statutory
requirements of the UCMJ. To determine whether a civilian contractor who is
suspected of having committed an offense is subject to prosecution under the UCMJ,
it will be necessary to determine whether he is “serving with or accompanying an
armed force” that is operating “in the field.” The phrase “serving with or
accompanying” the forces was historically construed to require that the civilian’s
“presence [must be] not merely incidental to, but directly connected with or
dependent upon, the activities of the armed forces or their personnel.”136 Courts have
found that military jurisdiction over a civilian “cannot be claimed merely on the basis
of convenience, necessity, or the non-availability of civil courts.”137
The phrase “in the field” means serving “in an area of actual fighting” at or near
the “battlefront” where “actual hostilities are under way.”138 Whether an armed force
is “in the field” is “determined by the activity in which it may be engaged at any
particular time, not the locality where it is found.”139 Therefore, it appears that
contractors will not be subject to military jurisdiction merely because of their
employment in Iraq. They might, however, be subject to jurisdiction even if the
conduct occurs outside of Iraq, so long as it occurs away from a permanent garrison
and there is sufficient connection to military operations ongoing in Iraq or
el sewhere. 140
134 Hammond v. Squire, 51 F. Supp. 227 (D. D.C. 1943).
135 McCune v. Kilpatrick, 53 F. Supp. 80 (E.D. Va. 1943).
136 United States v. Burney, 21 C.M.R. 98 (1956) (concluding that a contractor’s connection
with the military, despite his indirect employment through a private company, was sufficient
to constitute “serving with or accompanying” an armed force). Some of the factors leading
to the court’s conclusion were that
[T]he accused worked directly for the benefit of the Air Force, he was supervised
by Air Force personnel, he was quartered and messed on a military installation
by military personnel, and he was accorded privileges normally granted only to
military personnel. The operational success of that military command depended
upon civilians such as this accused, and each of the services has found it
necessary to rely on civilian technicians to repair and maintain the highly
specialized signal and radar equipment now being used.
137 In re diBartolo, 50 F. Supp. 929, 930 (S.D.N.Y. 1943).
138 Reid v. Covert, 354 U.S. 1, 35 (1957).
139 Burney, 21 C.M.R. at 109.
140 Ex parte Gerlach, 247 F. 616, 617 (S.D.N.Y. 1917)(stating that “the words ‘in the field’
do not refer to land only, but to any place, whether on land or water, apart from permanent
cantonments or fortifications where military operations are being conducted”); Hines v.th
Mikell, 259 F. 28, 34 (4 Cir.), cert. denied, 250 U.S. 645 (1919)(upholding court-martial
Other likely issues include whether civilian contractors may be prosecuted for
military crimes, such as disrespect of an officer or failure to obey a lawful command,
or whether non-judicial punishment will be available to discipline contract
employees.141 Some of the standard punishments courts-martial ordinarily adjudge
would not be available in the case of civilians, such as a dishonorable discharge or
reduction in rank, and possibly forfeiture of pay. Appellate review over civilian cases
may be effectively restricted by these sentencing consideration.142 For example, the
government may appeal an adverse ruling (not amounting to a finding of not guilty)
on an interlocutory basis only in cases in which a punitive discharge may be
adjudged.143 On the other hand, there does not appear to be a means of compelling
continued employment in order for a civilian to undergo court-martial proceedings;
if misconduct by a contract employee results in his or her immediate dismissal by the
contractor, military jurisdiction may also cease.144
DOD recently issued guidance for implementing the new law.145 Secretary
Gates, citing “a particular need for clarity regarding the legal framework that should
govern a command response to any illegal activities by Department of Defense
civilian employees and DoD contractor personnel overseas with our Armed Forces,”
instructed the Secretaries of the Military Departments, the Chairman of the Joint
Chiefs of Staff, and the commanders of the regional combatant commands that the
exercise of jurisdiction over civilians must be based on military necessity and
supported by circumstances that meet the interests of justice.146 Such circumstances
include those where U.S. federal criminal jurisdiction does not otherwise apply or is
not being pursued, or where the conduct in question is adverse to a significant
military interest of the United States. For conduct that occurs within the United
jurisdiction over a civilian at Camp Jackson, South Carolina, during the First World War by
finding that “any portion of the army confined to field training in the United States should
be treated as ‘in the field’”).
141 Under 10 U.S.C. § 815, commanding officers may discipline “other personnel” (other
than officers) without convening a court-martial, but only members of the armed services
are entitled to demand court-martial in lieu of non-judicial punishment.
142 See 10 U.S.C. § 866 (appeal to Court of Criminal Appeals available as of right only
where “the sentence, as approved, extends to death, dismissal of a commissioned officer,
cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year
143 10 U.S.C. § 862.
144 At least one court has concluded otherwise. See Perlstein v. United States, 151 F.2d 167
(3d Cir. 1945)(military jurisdiction remained valid over fired contract employee so long as
he remained in military garrison). However, this conclusion might not be followed today
in light of United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), in which the Court held
a serviceman who had been discharged was no longer amenable to court-martial.
145 Secretary of Defense Memorandum, UCMJ Jurisdiction Over DoD Civilian Employees,
DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed
Forces Overseas During Declared War and in Contingency Operations, March 10, 2008,
available online [http://www.nimj.com/documents/2a10.pdf].
146 Id. attachment 3.
States, or in cases where the offender was not at all pertinent times outside the United
States, the Secretary of Defense is the sole authority for convening a court-martial or
initiating non-judicial punishment.147
For covered civilians outside the United States, commanders of geographic
combatant commands may initiate disciplinary proceedings or delegate such authority
to subordinate commanders who possess general court-martial convening authority.
These convening authorities are required, prior to initiating court-martial or non-
judicial proceedings, to follow the notification procedures outlined in DOD
Instruction 5525.11 (MEJA implementation) to give the Department of Justice the
opportunity to take action. The memorandum gives the Justice Department fourteen
calendar days (or longer, if DOJ determines that extraordinary circumstances warrant
more time to complete its determination) to advise DOD as to whether it intends to
exercise jurisdiction. If the period of review passes without an indication that DOJ
intends to exercise jurisdiction, DOD may notify DOJ that it intends to authorize the
appropriate commander to initiate disciplinary action, at his or her command
discretion. If DOJ elects to exercise jurisdiction, the commanders are not authorized
to initiate disciplinary action, unless U.S. federal criminal jurisdiction of the case is
later terminated. Military commanders are authorized to investigate and exercise
other law enforcement authorities with respect to violations by civilians while DOJ
makes its determination in order to be prepared to take appropriate action if DOJ
Issues for Congress
The use of private contractors in personal security and military operations raises
many questions regarding the appropriateness and practicality of entrusting private
companies with duties that have been traditionally reserved for military and civilian
federal personnel. Several issues are particularly sensitive when nations hire private
contractors for potentially hostile situations. Some are even more sensitive when148
State-hired contractors carry arms, even on a strictly defensive basis. These issues,
as related to contractors as a whole and to private security contractors in particular,
are briefly discussed below.
147 Id. attachment 2.
148 To some analysts, however, providers of armed protection are not the most worrisome
of the gamut of providers of military services, at least as far as those contracted by non-
governmental organizations (NGOs) are concerned. “While it is conceivable that some
regulation might be useful, in fact, informal voluntary agreements between the NGO
community and PSCs mean that such regulation is not critical and may in fact reduce the
level of flexibility that makes these agreements possible.” The companies these analysts
find of most concern for regulation are the private military companies (PMCs) “that
generally work for states and provide military services designed to significantly impact
strategic situations....active PMCs willing to carry weapons into combat, and passive PMCs
that focus on training and organizational issues.” Privatising Security, op. cit., p. 36.
“Inherently Governmental Functions” and Other Restrictions
on Government Contracts
One question that arises whenever a federal agency hires private persons or
entities to perform services is whether the duties to be performed under the contract
are “inherently governmental” in nature and therefore ought to be performed by
public officials. Congress defined “inherently governmental function” in the Federal149
Activities Inventory Reform (FAIR) Act of 1998 to mean a function that is “so
intimately related to the public interest as to require performance by Federal150
Government employees.” Under the FAIR Act, the term “includes activities that
require either the exercise of discretion in applying Federal Government authority or
the making of value judgments in making decisions for the Federal Government....”
It involves functions that can “determine, protect, and advance United States
economic, political, territorial, property, or other interests by military or diplomatic
action, civil or criminal justice proceedings,” contract management, and functions151
that can “significantly affect the life, liberty, or property of private persons....”
Infrequently, Congress has provided by statute that a function is “inherently152
governmental.” Congress may also directly forbid or limit the use of contractors
for certain functions153 or forbid the contracting of certain kinds of employees,154
where the functions or employment may be considered inherently unsuitable for
association with the government.
The Federal Acquisition Regulations (FAR) list examples of inherently155
governmental functions. The Office of Management and Budget sets forth in
Circular A-76 the guidelines and procedures that executive agencies should take into
account when determining whether an activity should be performed by government
149 P.L. 105-270, codified at 31 U.S.C.§ 501 note (requiring agencies to inventory civil
service functions and to identify jobs as commercial or inherently governmental). The
definition is consistent with longstanding executive branch practice.
150 Id. § 5(2)(A).
151 Id. § 5(2)(B)(i),(ii),and (iii).
152 E.g. 5 U.S.C. § 306 (drafting of strategic plans); 31 U.S.C. § 1115 (drafting of agency
performance plans); 33 U.S.C. § 2321 (certain functions involving the operation and
maintenance of hydroelectric power generating facilities at U.S. Army Corps of Engineers
water resources projects); 39 U.S.C. §§ 2801-05 (strategic planning and performance
management functions for the U.S. Postal Service); see also 10 U.S.C. § 2461 (requirements
for privatizing civilian positions in the Department of Defense).
153 E.g. 10 U.S.C. § 2465 (limiting DOD ability to enter into a contract “for the performance
of firefighting or security-guard functions at any military installation or facility”).
154 E.g. 5 U.S.C. § 3107 (“Appropriated funds may not be used to pay a publicity expert
unless specifically appropriated for that purpose.”); 5 U.S.C. § 3108 (prohibiting
government agencies from hiring employees of the “Pinkerton Detective Agency, or similar
organization,” which has been interpreted to prohibit the hiring of “quasi-military armed
forces” (see infra notes 135-39)).
155 48 C.F.R. 7.503 (listing as “inherently governmental,” among other things, the command
of military forces, the conduct of foreign relations and the determination of foreign policy,
and the direction and control of intelligence and counter-intelligence operations).
personnel or can be performed by the private sector. Executive agencies may also
take into account legislation when making such a determination.
Circular A-76, as revised in 2003, states that using contractors to provide
certain types of protective services — guard services, convoy protection services,
plant protection services, pass and identification services, and the operation of prison
or detention facilities, all whether performed by unarmed or armed personnel — is
not prohibited. Nevertheless, Circular A-76 also stipulates that executive agencies
should take into account whether circumstances exist where
the provider’s authority to take action...will significantly and directly affect the
life, liberty, or property of individual members of the public, including the
likelihood of the provider’s need to resort to force in support of a police or
judicial activity; whether the provider is more likely to use force, especially
deadly force, and the degree to which force may have to be exercised in public
or relatively uncontrolled areas.
DOD implementation of the FAR, known as the Defense Federal Acquisition
Regulation Supplement (DFARS),156 does not prohibit the use of contract personnel
for security, but it limits the extent to which contract personnel may be hired to guard
military installations157 and provides mandatory contractual provisions for contractors158
who are accompanying U.S. Armed Forces deployed overseas. Such contractors
are considered civilians accompanying the U.S. Armed Forces during contingency
operations and are not authorized to use deadly force against enemy armed forces
other than in self-defense. However, in June, 2006, DOD published a rule amending
the DFARS to create an exception for private security contractors, who are
authorized to use deadly force “only when necessary to execute their security mission
to protect assets/persons, consistent with the mission statement contained in their
contract.”159 The rule explained that
it is the responsibility of the combatant commander to ensure that the private
security contract mission statements do not authorize the performance of any
inherently Governmental military functions, such as preemptive attacks, or any
other types of attacks. Otherwise, civilians who accompany the U.S. Armed
Forces lose their law of war protections from direct attack if and for such time160
as they take a direct part in hostilities.
Further, the DFARS-mandated clause for contractors accompanying the armed forces
limits the provision of military security for DOD contractors providing other services
in the theater of operations to cases where, as determined by the Combatant
Commander, the contractor cannot obtain effective security services at a reasonable
156 48 C.F.R. Parts 201-299.
157 48 C.F.R. Part 237.102-70 (implementing 10 U.S.C. § 2465 limitation on private security
guards and firefighters, including temporary exceptions pursuant to P.L. 107-56 § 1010 and
P.L. 107-314 § 332).
158 48 C.F.R. Part` 252.225-7040.
159 Id. para. (b).
160 71 Fed. Reg. 34,826-27 (June 16, 2006).
cost or “threat conditions necessitate security through military means.”161 In the
event a contractor hires a subcontractor to provide security services for its workers
and property, that contract must incorporate the substance of the required clause.162
A recent decision by the Comptroller General may shed additional light on the
current thinking regarding the nature of private security services. A contractor
protested the terms of a pair of solicitations for contracts involving cargo
transportation in Iraq on the basis that they included requirements for armed security
escorts.163 The prospective bidder challenged the security requirements as running
afoul of the Anti-Pinkerton Act164 as well as relevant DOD instructions regarding
contractors accompanying the U.S. Armed Forces overseas.165 Specifically, the
protestor contended that the statements of work (SOW) required performance of
security services that would constitute the provision of “quasi-military armed forces
for hire” and require civilian contractors to engage in combat. The Comptroller
General denied the protest, relying on an earlier interpretation that “a company which
provides guard or protective services does not thereby become a ‘quasi-military
armed force,’ even if the individual guards are armed....”166 With respect to the
charge that the work involved the “uniquely governmental” function of engaging in
combat, the decision noted DOD regulations and DFARS provisions that would
permit the contracting of armed security services but prohibit such contractors from
engaging in direct combat or offensive operations.167 It appears that neither the
Department of Defense nor the Government Accountability Office (GAO) regards
the government use of armed security escorts in Iraq as violating any restrictions on
government contracting. However, the Anti-Pinkerton Act might be construed to bar
the hiring of any particular contractor who is found to operate as a “quasi-military
armed force,” at least if it acted as a strikebreaker during a labor dispute.168
161 Id. para. (c).
162 Id. para. (q).
163 Brian X. Scott, Comp. Gen. B-298370, Aug. 18, 2006, 2006 CPD ¶ 125, available online
at 2006 WL 2390513 (Comp.Gen.).
164 5 U.S.C. § 3108; 48 C.F.R. 37.109 (interpreting Anti-Pinkerton Act (see supra note 148
for text), in accordance with United States ex rel. Weinberger v. Equifax, 557 F.2d 456 (5th
Cir. 1977), cert. denied, 434 U.S. 1035 (1978)) to prohibit “contracts with organizations that
offer quasi-military armed forces for hire, or with their employees, regardless of the
contract’s character”). The Anti-Pinkerton Act was enacted in 1892 in response to reports
that businesses had employed armed individuals and groups, including the Pinkerton
Detective Agency, as strikebreakers during labor disputes in the 1880s and early 1890s. See
Letter to John C. Stennis, United States Senate, B-139965, Mar. 6, 1980, available online
at 1980 WL 16981 (Comp.Gen.).
165 DoD Instruction (DoDI) No. 3020.41, “Contractor Personnel Authorized to Accompany
the U.S. Armed Forces.”
166 Brian X. Scott at 3 (citing Letter To The Heads of Federal Departments and Agencies,
B-139965, June 7, 1978, 57 Comp. Gen. 524).
167 Id. at 4-6.
168 Id. at 3 (“The plain meaning and legislative history of the [Anti-Pinkerton] Act, as
Neither the State Department acquisition regulations169 nor the U.S. Agency for
International Development regulations170 specifically addresses contractors overseas
during war or contingency operations. However, a recent amendment to the FAR
imposes new requirements for government contracts that entail contractor personnel
working in designated operation areas or at certain diplomatic or consular missions
outside the United States for agencies other than the Department of Defense.171
Need for and Suitability of Private Contractors172
Over the past two decades, the State Department and the Department of Defense
have increasingly turned to private security contractors to provide protective and
other services for the two departments. Both State and DOD report significant
benefits from the use of private security contractors. For the State Department, the
use of PSCs in Iraq offers a surge capability to meet an extraordinary but time-limited
need. For the U.S. military, contractors are considered part of the total force and
private security contractors contribute a small, but significant portion of the force
multiplier effect of using private contractors to achieve mission success.173 Analysts,
however, also note drawbacks in the use of private contractors.
Flexibility Considerations for the State Department. To meet various
surge requirements, the Department of State argues that PSCs allow Diplomatic
Security (DS) to rapidly expand its capability to meet security needs without a delay
in recruiting and training direct-hire DS personnel. DS has stated that contractors can
interpreted by the courts and [the Government Accountability Office (GAO)], point to a
strict reading of the statutory language to prohibit contracts with the Pinkerton Detective
Agency and other entities offering quasi-military forces as strikebreakers.”). Earlier in the
opinion, however, the Comptroller General suggested a broader interpretation. Id. at 3
(“The purpose of the Act and the legislative history reveal that an organization was ‘similar’
to the Pinkerton Detective Agency only if it offered for hire mercenary, quasi-military forces
as strikebreakers and armed guards.”). The FAR does not limit the prohibition to companies
involved in strike-breaking. 48 C.F.R. Part 37.109 (2006).
169 Department of State Acquisition Regulation (DOSAR), 48 C.F.R. Parts 601-653.
170 48 C.F.R. Parts 700-753.
171 Federal Acquisition Regulation 52.225-19, Contractor Personnel in a Designated
Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States
(Mar. 2008). Such personnel are authorized to use deadly force in self defense or, where
applicable, “when use of such force reasonably appears necessary to execute their security
mission to protect assets/persons, consistent with the terms and conditions contained in the
contract or with their job description and terms of employment.” Id.
172 This section and the following section draw on the section on commercial contractors in
CRS Report 97-454 F, Peacekeeping Options: Considerations for U.S. Policymakers and
the Congress, by Marjorie Ann Browne, Ellen Collier (Consultant), and Nina Serafino.
173 According to the Department of Defense, “the Department’s Total Force — its active and
reserve military components, its civil servants, and its contractors — constitutes its war-
fighting capability and capacity” Department of Defense, Quadrennial Defense Review
Report, February 6, 2006, p. 75.
be recruited, vetted, hired, trained, and deployed in 90 to 120 days. DS special
agents, on the other hand, are college-educated law enforcement officers, trained in
the full range of the work of DS agents, including personal security. DS states that
it takes two years to recruit, hire, and train a DS agent. DS also states that the use
of PSCs allows the fielding of an already trained, experienced cadre of security
professionals whose required skills can be designated in the contract. When the
surge need is gone, just as the State Department could rapidly expand its force, it can
also reduce its security force when requirements change.174
Even if one considers the current demands for PSCs an anomaly because of Iraq,
it appears to be the intention of the State Department to continue to use PSCs in
meeting future personnel and perimeter security requirements.175 It is for policy
makers to determine whether this flexibility is an appropriate long-term position for
the use of PSCs, better suited as a short-term response to current needs, or whether
the State Department should increase the number of full-time DS agents and security
specialists and provide sufficient appropriations to do so instead of relying on PSCs.
Military Requirements and Private Contractors. Many defense analysts
view private contractors as an indispensable force multiplier, especially needed over
the past decade to ease the strain on a downsized military.176 By supplementing
overstretched active duty personnel, beginning in the early 1990s, with contractors
for jobs that do not require military expertise such as feeding, housing, and otherwise
caring for soldiers’ basic needs, policy makers hoped to meet the demands on the
force while minimizing an increase in the number of military personnel and repeated
call-ups of reserve units. The U.S. government’s subsequent turn to private
contractors for assistance with a wide variety of security needs served the same
purposes. In Iraq, particularly, the use of private contractors may serve a variety of
other interests. As Iraqis constitute a significant percentage of private security
contractors, the use of private contractors provides a cultural and linguistic advantage
over the use of U.S. soldiers and ameliorates much potential friction with the local
populations, according to one expert. They may also forestall possible criticism from
U.S. taxpayers for using U.S. soldiers to protect the profit-making companies that177
carry out U.S. reconstruction efforts.
Without private contractors, the U.S. military would not have sufficient
capabilities to carry out an operation of the scale of Iraq, according to many analysts.
174 Testimony of Ambassador Richard J. Griffin, Assistant Secretary of State for Diplomatic
Security regarding “Private Security Contracting in Iraq and Afghanistan,” before the House
Committee on Oversight and Government Reform, Washington, October 2, 2007.
175 Discussion with Ms. Charlene R. Lamb, Assistant Director for International Programs,
Bureau of Diplomatic Security, Department of State, June 24, 2008.
176 For instance, in a 2005 study, the Defense Science Board referred to the private sector
as the “fifth force provider” in stability operations, i.e., in addition to the four branches of
the armed services, and recommended that a new institution be established to “effectively
exploit” the private sector. Office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics. Institutionalizing Stability Operations Within DoD. September
177 E-mail correspondence from Doug Brooks, July 9, 2007.
If the United States wishes to engage in and contribute to sizable stabilization and
reconstruction operations without contractor support to the U.S. military, policy
makers would probably need to contemplate increasing the number of U.S. troops,
perhaps also increasing incentives to attract volunteers or re-instituting the draft. On
the other hand, some analysts point out that private security contractors are but a
small part of the contractor workforce supporting the military in Iraq. Some analysts
also question whether the use of private security providers in Iraq and elsewhere is
beneficial to the U.S. military in the long run. Although contracting private sector
firms for guard duties may help alleviate the current shortage of military personnel,
analysts point to potential downsides to the force multiplier argument. One
important area of concern is whether the use of PSCs is detrimental to military force
structure; has a deleterious potential effect on the military mission, is flexible, and
are of an appropriate quality for personnel.
Effects on the U.S. Military Force Structure. Analysts for the 1995
Commission on Roles and Missions (CORM) found that reliance on contractors
could prove detrimental to military capabilities in a number of ways, the first of
which was that it could keep the United States “from building and maintaining178
capacity needed for strategic or other important missions.” Anecdotal reports that
private security firms have been hiring away military personnel, particularly special
forces personnel, with high salaries seem to illustrate the possibility that a competing
private sector could deplete the military of highly trained personnel in needed
Proponents of the use of private sector security providers discount such
concerns, stating that the numbers employed by private security companies are too
low to have a significant effect on U.S. capabilities. Quantifiable evidence of a
detrimental effect is lacking. A 2005 GAO analysis shows that the average attrition
rates for military occupational specialities preferred by private security providers
were lower in FY2004 (when demand for such providers in Iraq was high) than in
fiscal years 2000 and 2001. (These specialities were Army and Navy enlisted and
officer special operations forces, Army infantry, and military police from all four
services.) In the particular case of Army Special Forces enlisted personnel, however,
attrition was somewhat higher in 2004 than in 2000 and 2001. The GAO pointed out
that a variety of factors could play into an individual’s decision to leave the armed
servi ces. 179
178 The other two ways in which they judged the use of contractors could adversely affect
military capabilities were by limiting training opportunities in some military specialties
(which has occurred in some cases with non-security contractors: see GAO Report GAO-
03-695, op.cit. p. 9) and result in inadequate stocks of equipment needed to perform certain
tasks. Christine Cervenak and George T. Raach. “Contracting and Privatization in Peace
Operations,” in Peace Operations: Developing An American Strategy, edited by Antonia
Handler Chayes and George T. Raach. Washington, D.C.: National Defense University
Press, 1995, pp. 137-151. Although possible equipment needs have not been raised as an
issue, it is conceivable that if the U.S. military were to deploy to an operation where it was
providing more security, it might find itself with a shortage of the types of armored vehicles
now brought to Iraq by private security firms.
179 U.S. Government Accountability Office. Rebuilding Iraq: Actions Needed to Improve
Effects on the U.S. Military Mission in Iraq. Recent reports also point to
possible complications for military commanders with the use of private security
guards. Many analysts point out that the primary mission of private security
personnel is to ensure the security of the individuals, the transport convoys, and the
property they are hired to protect. News reports from Iraq indicate that this may have
led in some cases to a disregard of the sensitivities of and consequences for the Iraqi180
public. For a U.S. commander in Iraq whose mission may well include winning
“hearts and minds,” such a disregard is problematic, some analysts argue. These
reports, however, generally discuss incidents involving contractors who are
American, not Iraqi or other foreign nationals; as noted above, proponents argue that
a sizable presence of Iraqis among those providing security under U.S. contracts
overall reduces the possible friction that the use of U.S. soldiers in these positions
Concerns Regarding Flexibility. Some analysts also contend that military
forces have additional benefits in hostile situations. Although some state that private
contractors can be deployed more quickly than military forces, others argue that
military commanders can respond more quickly to changing situations when military
forces rather than contractors are used. Commanders do not exercise command and
control over private contractors, nor do they have the authority to amend contracts
in the midst of an operation to reallocate contract employees to perform necessary
tasks that fall outside the terms of the contract.181 Proponents of the use of private
security contractors discount such concerns, however, arguing that they are not
employed on the battlefield, where such flexibility is a needed.
Concerns About Reliability and Quality of PSC Personnel in Iraq.
The larger companies, particularly, have reputations for supplying high-quality
personnel. Some have wondered, however, if these companies can maintain that
standard as demand for their services increases.
Use of Private Security Providers. GAO-05-737. July 2005. p. 43. “While available data
indicate that attrition, in almost all of the military specialties favored by private security
providers, has returned to pre-September 11, 2001 levels, the data do not indicate why
personnel are leaving the military and what they are doing after they leave....Officials at the
Army Human Resources Command told us that after September 11, 2001, the opportunities
for employment in the security field became more widespread as government agencies as
well as private companies and organizations recognized the need to improve their security.
These officials as well as officials from the Special Operations Command noted that they
are losing personnel not only to private security firms operating in Iraq but also to security
management companies operating in the United States, and security operations in other
government agencies. Service officials at these commands also attributed the attrition rates
to other factors, such as the attraction of a strong civilian economy, high operational tempo,
and concerns about various quality of life conditions.”
180 For example, see Washington Post, November 17, 2006, op.cit.
181 GAO-05-737, op.cit., p. 20, and DOD Report to Congressional Defense Committees, as
required by Section 1206 of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005 (P.L. 108-375), October 28, 2004. p. 6, hereafter referred to as the Section
Although U.S. companies have generally hired former U.S. professional military
personnel with established careers, who may still possess the discipline,
professionalism, and esprit de corps that the U.S. Armed Forces seeks to instill in its
soldiers, the increasing use of private personnel may reduce the quality of contractor
recruits. On the other hand, some analysts point out that private companies can
maintain top quality people in the field indefinitely, whereas the military is required
to rotate soldiers regularly. Those who favor the use of such contractors also contend
that private companies can maintain standards because they can draw from a larger
and more competitive pool of personnel than the U.S. military does, including former
military personnel from elite forces of other countries and former police personnel.
Some critics are also concerned about the high number of non-U.S. citizens
hired under U.S. government contracts, especially third-country nationals from
lesser-developed countries who might be more difficult to screen. A GAO official
noted in June 2006 testimony that (1) private security companies and DOD “have
difficulty completing comprehensive criminal background screenings for U.S. and
foreign nationals when data are missing or inaccessible,” and (2) “[n]o U.S. or
international standards exist for establishing private security providers and employee
Industry Controls. Companies engaged in the private security business have
incentives and opportunities to control quality, proponents say. Companies
employing individual contractors have opportunities to observe their behavior and
performance during training sessions and, according to analysts, can screen out
potential misfits at that stage. U.S. government agencies establish baseline standards
in contracts, by specifying performance standards, experience requirements, and/or
precise qualifications to be met. U.S. government agencies have mandated changes
— under threat of penalties — when contracted personnel are perceived as not up
to standard, according to Doug Brooks, President of the International Peace
Operations Association (IPOA). In addition, according to Brooks, there are many183
examples of companies that act proactively to address client complaints. For
example, an industry association has instituted a system to review complaints
concerning its members and to sanction those found to have violated the
Association’s Code of Conduct.184 IPOA members include some of companies listed
above (i.e., ArmorGroup, DynCorp International, Erinys International, and EOD
Technologies, Inc.). In addition, PSC officials have stated that they fire or discipline
employees for an array of inappropriate behavior, including insubordination and
drinking alcohol in violation of established policy.185
182 GAO Report GAO-06-865T, op. cit.
183 E-mail correspondence from Doug Brooks, July 9, 2007.
184 Information on the IPOA Code of Conduct and enforcement mechanisms can be accessed
through the IPOA website at [http://www.ipoaonline.org].
185 At a congressional hearing on October 2, 2007, Committee Chairman Henry A. Waxman
stated that 122 Blackwater employees had been terminated for improper conduct. See
Opening Statement of Chairman Henry A. Waxman, in US Congress, House Oversight and
Government Reform Committee, Hearing on Private Security Contracting in Iraq and
State Department PSC Employee Standards and Training. In
testimony before the House Committee on Oversight and Government Reform,
Ambassador David Satterfield stated, “Insofar as the State Department’s security
contractors in Iraq are concerned, we demand high standards and professionalism.
Those standards include relevant prior experience, strict vetting, specified pre-
deployment training, and in-country supervision.”186 Possible employees of PSCs
undergo an initial screening process by their employer/contractor before the PSC
employer submits the application of the proposed employees to the State Department.
The Department performs a background check on American citizen applicants who
must qualify for an appropriate level of a security clearance. A similar process for
foreign national is also required and they must also qualify to receive an appropriate
level of clearance. All applicants must have at least one year of experience in
protective security assignments, law enforcement, or military service. After being
approved by the Department for employment, before the PSC employee is deployed,187
he or she receives 164 hours of DS-approved training.
Supporters of the use of private security contractors point out that while
objectionable contractor actions in Iraq have been highlighted recently, the
employees themselves and their work should be kept in perspective. They point out
that from January 1 to September 18, 2007, PSC contractors conducted 3,073
missions in which American diplomats or visitors were escorted outside of the
secured Green Zone in Baghdad. Of those missions, there were 77 incidents188
involving PSC personnel using weapons. While over 30 Blackwater employees
have been killed while performing their security duties, supporters state that no
American diplomat or visitor has been killed or seriously injured while being
escorted by Blackwater. Ambassador David M. Satterfield, former Deputy Chief of
Mission at the U.S. Embassy in Baghdad from May 2005 to July 2006, said that he
had “personally benefitted from Blackwater and other private security details ... and189
witnessed first hand their professionalism.”
If PSCs continue to be used in the long term, the adequacy of the selection and
vetting process and the training received should be a matter of continual review. For
Afghanistan, hearings, 110th Cong., 2nd sess., October 2, 2007.
186 Prepared testimony of Ambassador David M. Satterfield, Senior Advisor to the Secretary
and Coordinator for Iraq, regarding “Private Security Contracting in Iraq and Afghanistan,”
before the House Committee on Oversight and Government Reform, Washington, October
187 Testimony of Ambassador Richard J. Griffin, op. cit.
188 Testimony of Ambassador Richard J. Griffin, op. cit. However, a Committee majority
Staff Hearing Memorandum reported that from January 1, 2005 through September 12,
2007, Blackwater employees were involved in 195 incidents in which firearms were
discharged. Of these 195 incidents, 32 involved Blackwater returning fire after they were
attacked, and 163 incidents, or 84%, occurred with Blackwater firing first (Pg. 6, of an
October 1, 2007, House Committee on Oversight and Government Reform Majority Staff
189 Testimony of Ambassador David M. Satterfield, op cit.
instance, it has only been since the end of October 2007, following the September 16
Blackwater firing incident at Nisoor Square in Baghdad that human rights and
cultural sensitivity training has become a part of the pre-deployment training for PSC
employees along with the more standard Terrorist Operations, Organization of a
Protective Detail, Protective Services Formation and Standard Operating Procedures,
and Defensive Driver Training. A former Blackwater employee expressed his belief
that training such as in cultural sensitivity was not necessary in that Blackwater’s
mission was different from the military and the State Department. He said, “We’re
not paid to go out and find and eliminate the insurgents. Our job is to keep people
alive and safe, and do what we need to do.”190
Military Considerations. Proponents of the use of private security
contractors argue that they are as responsible as serving military personnel because
many are former soldiers or individuals equally dedicated to the national mission.
Skeptics voice concerns that individual contractors may be less reliable in some
situations as they probably bear lesser costs than military personnel if they refuse to
perform a particular task. According to a 2003 GAO report, The DOD recognized
the risk that contractors might not be available in crisis or hostile situations.191
Nevertheless, proponents argue that private security contractors working for the U.S.
government, as well as other contractors, have been “remarkably robust in terms of192193
reliability.” There is little evidence to the contrary.
Oversight and Control/Coordination Issues
Many analysts claim that the U.S. government is unable to adequately oversee
and control or coordinate the performance of military contractors in general and
private security contractors in particular. Members are concerned with transparency
issues that impede oversight by Congress, as well as control and coordination in the
Transparency and Congressional Oversight. Some Members have been
concerned with the dearth of information made available to Congress by the
Administration and to the public on U.S. government contracts with contractors in
general and private security contractors in particular. As oversight hearings have
191 See GAO Report GAO-03-695, op.cit. The GAO noted that despite this determination,
it “found little in the way of backup plans to replace mission essential contractor services
during crises if necessary.” p 16.
192 E-mail correspondence from Doug Brooks, July 9, 2007.
193 A recent news report from a Santiago, Chile newspaper reported that in 2005 “the Your
Solutions security firm sent 147 Chileans into conflict zones in Iraq; 28 of the recruits broke
their contracts and returned home early, claiming they received inadequate training and poor
equipment.” The article implies that these Chileans were contracted on behalf of a U.S.
company, but does not state that directly nor name a U.S. firm. Mike Hager. The Santiago
Times. “Chile’s Iraq Mercenaries Under Investigation by U.N. Group.” July 9, 2007, as
posted online by Worldpress.org at [http://www.worldpress.org/Americas/2853.cfm].
demonstrated,194 the executive branch either has not kept sufficient records to
produce or has been unwilling to present basic, accurate information on the
companies employed under U.S. government contracts and subcontracts in Iraq. The
lack of contracting personnel, discussed below, may be responsible at least in part for
this problem. In response to calls for greater transparency, DOD and the State
Department have been providing additional information to Congress. For example,
DOD now submits a quarterly report that includes information on the number of
active PSC contracts, the number of employees working under these contracts, and
an analysis of the contractor workforce (i.e., number of contractors that are armed
versus unarmed, number of contracts that are American, Iraqi, or third-country
Military Oversight in the Field. One industry professional described the
oversight situation in the early years of Operation Iraqi Freedom as “a nightmare”195
and stated that the better companies would prefer closer oversight. Some U.S.
government officials believed that U.S. agencies did not adequately supervise
contracts. At the field level, the problem is often attributed by many, including U.S.
government personnel, to a lack of qualified contracting oversight personnel,196
including contracting officer’s representatives (CORs), who are responsible for
supervising the contracted work. Arguing for an increase in such personnel, they
state that over the years, the number of such representatives has been cut sharply in
the Departments of Defense and State, while the number of contractors has escalated.
According to officials at the Department of Defense, the Blackwater shooting
incident that took place at Nisoor Square on September 16, 2007, was a watershed
event that highlighted the need for improved management and oversight of all U.S.
government private security contractors operating in Iraq. According to these
officials, DOD initiated a number of steps to improve contractor oversight, including
establishing an Armed Contractor Oversight Division and significantly increasing the
number of Defense Contracting Management Agency personnel performing
contractor oversight in Iraq. In addition, MNC-I has consolidated the rules and
regulations regarding private security companies and issued mandatory guidance on197
the management and oversight of PSCs.
194 For examples of hearing citations, see footnotes 13 and 41.
195 Interview with Doug Brooks, op.cit.
196 A COR “is an individual appointed in writing by a contracting officer to act as the eyes
and ears of the contracting officer,” according to Army doctrine. “This individual is not
normally a member of the Army’s contracting organizations ... but most often comes from
the requiring unit or activity.” U.S. Army. Headquarters. Contractors on the Battlefield.
Field Manual No. 3-100.21. January 2003. p. 4. According to the same source, a contracting
officer is “the official with the legal authority to enter into, administer and/or terminate
197 For a more detailed discussion on DOD efforts to manage PSCs, see U.S. Government
Accountability Office. Rebuilding Iraq: DOD and State Department Have Improved
Oversight and Coordination of Private Security Contractors in Iraq, but Further Actions
are Needed to Sustain Improvements. GAO-08-966. July 2008. pp. 9-16.
Many observers of developments in Iraq point to the important role that CORs
can play and the possible results when contracting agencies have insufficient or the
wrong staff to do this important work. Recognizing the important role of CORs in
managing PSCs, DOD recently issues an order which states that contracting office
representatives should be appointed who possess the appropriate rank given the
contract oversight responsibilities, and that oversight should be the primary — and
not an ancillary — responsibility of the COR.198 It is for Congress, in the end, to
determine whether sufficient staff has been requested by the Administration, and if
the Administration fills the slots provided in the various contracting bureaus of the
government. Further, through the power of the purse, Congress could make sure that
the government’s CORs have sufficient resources and training to do their work.
State Department Oversight in the Field. In its formal structure, the DS
Regional Security Officer (RSO) at post provides general oversight and manages the
operation of security contractors. The DS High Threat Protection Program personnel
in Washington meets weekly with contractor management and conducts periodic
program management/contract compliance reviews of task order operations at posts.
The WPPS II base contracts require that PSCs follow the mission firearms policy of
the post to which they are assigned. In the case of the U.S. Embassy in Baghdad, the
mission firearms policy is defensive in nature and utilizes a seven-step escalation of
force continuum that ends with the use of deadly force when no safe alternative is
available to protect the diplomat or dignitary being guarded. There are levels of
incident reporting requirements to the RSO when weapons are discharged, or there
are attacks, serious injury or death. Contractors are also required to report any
incident that would reflect negatively on the United States, the Department, the
Embassy, or the contractor.199
While oversight and management of PSC procedures seem to be in place in Iraq,
many news reports relate embassy officials rebuffing Iraqi complaints about
Blackwater employees’ alleged involvement in Iraqi deaths or firing on Iraqi
civilians, actions by PSC employees as being arrogant, and the State Department
allowing Blackwater to ignore Iraqi law such as operating without an Interior
Ministry license, even after the requirement became a standard part of Defense
Department requirements for its security contractors. Many in Iraq have come to see
Blackwater as untouchable because they have a sponsor, the State Department, who
would defend the company at every turn regardless of what the company does.200
Tighter State Department Oversight. After the September 16, 2007,
shooting in Baghdad’s Nisoor Square, several studies were conducted to investigate
the shooting and the embassy’s actions. Among these, Secretary of State Rice
formed a review panel led by Ambassador Patrick Kennedy to examine the shooting
incident in terms of management and policy. The Federal Bureau of Investigation
sent a separate team to investigate the shootings and, in particular, Blackwater’s
compliance with U.S. policy. Through an October 4 Interim Report and an October
198 Ibid, p. 14.
199 Testimony of Ambassador Richard J. Griffin, October 2, 2007, op. cit.
200 Steven Fainaru, Washington Post, September 20, 2007, op. cit.
Among its findings, the panel stated the following:201
!The Department’s security operations in Iraq have been highly
effective in ensuring the safety of mission personnel.
!Improvements are necessary to address shortcomings in coordination
and oversight that have undermined confidence in the operation of
the security program on the part of the U.S. military command and
the Iraqi government and public.
!The U.S. military in Iraq does not consider it feasible or desirable
under existing conditions in Iraq for the Department of Defense to
take on responsibility for provision of Personal Protective Service
support to the Embassy.
!The drawdown of the U.S. military in Iraq is likely to create
increased requirements for personal protective services.
!The Diplomatic Security Service does not have sufficient special
agents worldwide to take on all personal service operations in Iraq
and meet requirements in other countries.
Following Ambassador Kennedy’s reports and recommendations, the Secretary
ordered new measures to increase State Department oversight of contractors’
activities in Baghdad. From among the recommendations made by the Kennedy
panel, Secretary Rice ordered the following:202
!DS Special Agents, serving as the Officer in Charge, accompany all
State Department personal security details leaving the Green Zone
in Baghdad for other parts of the city. Additional agents from other
DS posts were ordered to Baghdad to assure sufficient personnel to
cover all of the Blackwater convoys.
!DS mount video cameras on security vehicles and begin taking and
archiving electronic video information regarding reported incidents.
!DS monitor and record radio transmissions of PSCs while they are
operating outside the Green Zone to increase the Department’s
capability to review material after an incident.
!State amend the WPPS II contracts to require (1) contractors to
employ a limited number of Arabic language staff for convoy
movements; (2) PSC employees to take predeployment training in
cultural awareness and sensitivity, and the diplomatic and military
environment in which they will be operating; (3) tightening of the
rules on the use of deadly force to ensure greater parallelism with
USCENTCOM rules; and (4) revision of the embassy’s U.S.
Mission Firearms Policy to specify that if an authorized employee
must fire his/her weapon, he/she must fire only aimed shots; fire
with due regard to the safety of innocent bystanders, and make every
effort to avoid civilian casualties.
201 Ambassador Patrick J. Kennedy, et al., “Findings,” Report of the Secretary of State’s
Panel on Personal Protective Services in Iraq, Department of State, October, 2007, pg. 5.
202 Ibid, “Recommendations,”pp. 5-12.
!A “Go Team” of embassy security officials be established to quickly
proceed to the scene of any weapons discharge involving State
Department PSCs to gather information and material and provide an
analysis of what happened, why, and report on the incident.
!An Embassy Joint Incident Review Board be established, made up
of embassy diplomatic and security officials, a U.S. military officer,
and another U.S. government official other than State or Justice, to
review all incidents involving contractor use of deadly force, and
recommend to the recommend to the ambassador whether the use of
force was justified, and if not, whether the case should be referred to
the Department of Justice.
!A permanent working group be established between the Regional
Security Office and Multi- National Force-Iraq to develop
commonly agreed operational procedures, establish a robust liaison
element, exchange information ensure optimal situational awareness,
and ensure that any issues are discussed and quickly resolved.
State Department/DOD Memorandum of Agreement. To address the
growing concerns in both the executive and legislative branches regarding perceived
insufficient management of PSCs in Iraq and the negative impact their actions can
have on U.S. efforts in the region, Deputy Secretary of State John Negroponte and
Deputy Secretary of Defense Gordon England signed a Memorandum of Agreement
(MOA) for their departments on December 5, 2007, regarding PSCs. The MOA
defined the authority and the responsibility for accountability and operations of U.S.203
PSCs in Iraq. Under the categories of responsibilities and standards, the
Departments agreed on the following:
!The Secretary of Defense and the Combatant Commanders
(COCOM) are responsible for the security of all DOD elements and
personnel under operational control of COCOM.
!The Secretary of State is responsible for the security of U.S.
government personnel on official duty in Iraq, other than those under
the command of an area military commander.
!The Secretary of State and the Secretary of Defense will jointly
develop, implement, and follow core standards, policies, and
procedures for the accountability, oversight, and discipline of PSCs.
!The core standards would, at a minimum, include
(1) management of PSC personnel;
(2) coordination of PSC operations outside secure base and U.S.
(3) clear legal basis for holding private security contractor employees
accountable under U.S. law;
(4) recognition of investigative jurisdictions and coordination of joint
investigations where conduct of PSC personnel are to be investigated.
203 Memorandum of Agreement (MOA) Between the Department of Defense and the
Department of State on USG Private Security Contractors, Washington, D.C. December 5,
2007, pg. 1
!Tthe Chief of Mission and the COCOM would make every effort to
consult and coordinate responses to common threats.
The MOA also outlines a process for dispute resolution between the two
departments, and a requirement for the two secretaries to designate their Washington
representatives regarding the MOA to meet as frequently as necessary but not less
than every quarter.204
Further, the departments agreed to an ANNEX A: Deliverables As Part of the
MOA. The annex, to be jointly completed by the U.S. Embassy in Baghdad and the
Multi-National Force — Iraq (MNF-I), stated the details of how the MOA would
actually operate on the ground. Other elements to be included in the Annex were
still to be developed, such as a common graduated warning system for PSCs to use
when they felt threatened so that the threatening individual/force could withdraw.
Some of the elements of the MOA/Deliverables are as follows:205
!Common definitions for Defense of Self or Others, Imminent Threat,
Hostile Act, Hostile Intent.
!The Use of Deadly Force.
!The authority to possess and carry firearms and the minimum
requirements that must be met for a person to have such authority.
!The coordination and control of PSC details outside of secure areas,
which include advance notification to MNC-I of time, route,
destination, and convoy composition outside the Green Zone or a
military base, and the right of MNC-I to recommend that the route
or time be altered or PSC mission be cancelled.
!The steps to be taken by the embassy and MNF-I as an immediate
response to any serious incident involving PSCs. The steps include
securing the area for investigation of the incident, determining who
has jurisdiction to conduct the investigation, notifying the
Government of Iraq, and providing condolence payments to Iraqi
!An agreement for State and DOD to work together to develop a
common database for the purpose of increasing PSC accountability
Control and Coordination in the Field. The GAO has issued several
reports regarding DOD contracting in Iraq that address issues regarding the use of
private security contractors, several of which mention control and coordination
issues. As pointed out above, military commanders do not have a command and
control relationship with contractors, and thus must know how to secure cooperation
204 Ibid, pg. 2.
205 “Annex A: Deliverables,” Memorandum of Agreement (MOA) Between the Department
of Defense and the Department of State on USG Private Security Contractors, Washington,
D.C. December 5, 2007, p. 1
from contractors to promote order in the theater of operations.206 In June 2006
testimony before Congress, a GAO official cited two major related problems: (1)
that private security providers did not coordinate with the U.S. military when they
entered the “battle space” in Iraq and (2) that military units were not trained prior to
deployment on (a) private security provider operating procedures and (b) the role of
the Reconstruction Operations Center (ROC)207 (The ROC was charged with
coordination between military and private security personnel. Coordination is now
managed by Contractor Operations Cells, as discussed below). In March 2007, DOD
set forth a new requirement that companies enter data on their personnel, before
deployment, into a new “Synchronized Predeployment and Operational Tracker”
(SPOT).208 In April 2007, testimony the Comptroller General stated that GAO
continued “to find little evidence that DOD has improved training for military
personnel on the use of contractors prior to deployment.”209
As a result of the December 5, 2007, Memorandum of Agreement between
DOD and the Department of State, the agencies have worked to coordinate the
movement of PSCs throughout Iraq, taking such steps as giving advance notification
to MNC-I of time, routes, destination, and convoy composition of PSC details
operating outside the Green Zone or a military base, and the right of MNC-I to
recommend that the route or time be altered or PSC mission be cancelled. In addition,
the State Department and USAID now require their contractors to coordinate PSC
movements with MNC-I. MNC-I manages and coordinates the movement of PSCs
in Iraq through Contractor Operations Cells that are co-located with the tactical
operations centers of MNC-I’s five division operating in Iraq.
206 According to the Section 1206 Report, op.cit, however, the terms and conditions of
contracts with private security (and other) companies largely set the parameters for military-
contractor relationships. “The interaction between U.S. military forces and security
contractors in Iraq is one of coordination rather than control because private security
contractors have no direct contractual relationship with the commander. If a Federal agency
or a reconstruction contractor issued a contract that required the private security firm to
coordinate with military units ... such a contract would need to contain clauses ... giving the
Commander coordination authority over private security contractors.” Nevertheless,
according to the document, Commanders can, to a certain extent, “influence the discipline
of contractor employees [by] working with the contracting officer to pursue contract
remedies. Commanders can also limit or revoke any benefits or special status of a contractor
employee accompanying the force, if the contractor employee violates the Commander’s
instructions or directives.” p. 6. For the full report, see [http://www.fas.org/irp/agency/
207 GAO Report GAO-06-865T. op.cit.
208 Office of the Under Secretary of Defense, Acquisition, Technology, and Logistics.
Memorandum for Directors of Defense Agencies, et.al. Class Deviation — Synchronized
Predeployment and Operational Tracker, March 19, 2007. Accessed July 11, 2007,
[http://www.acq.osd.mil/dpap/ policy/ policyva ult/2007-0605-DPAP.pdf].
209 U.S. Government Accountability Office. Stabilizing and Rebuilding Iraq: Conditions in
Iraq are Conducive to Fraud, Waste, and Abuse. Statement of David M. Walker,
Comptroller General of the United States, before the Subcommittee on Defense, House
Committee on Appropriations, GAO-07-525T. April 23, 2007.
Effect of DOD and Department of State Efforts to Improve PSC
Management and Coordination. Since the institution of measures to manage
PSCs better, the Department of Defense reports that incidences where weapons were
fired by PSCs have decreased by about 67%.210 DOD and Department of State
officials have stated that while they believe their efforts to improve management have
contributed to the improved performance of PSCs, they cannot determine to what
degree the reduction in shooting incidents is the result of their efforts, the general
decrease in violence in Iraq, or the military surge.211
A recent report issued by the Government Accountability Office found that
since the September 16, Nisoor Square Blackwater incident, both DOD and the State
Department have taken steps to increase staffing, oversight, and coordination over212
PSC, and that these steps may help reduce the number of PSC incidents in Iraq.
The report also stated that DOD and the State Department have improved
coordination related to PSCs in Iraq and points to several steps taken as an
illustration of the point.213 Further the report states that the State Department and214
DOD have improved their coordination with the Government of Iraq. However,
the report expressed concerns regarding DOD’s ability to sustain its staffing and
training efforts in managing its PSCs in Iraq, as well as pointing to steps that the
State Department still has to take in implementing the Kennedy Group
Through its oversight responsibilities, Congress might use a variety of measures
to determine whether the management and coordination taken by the State
Department and DOD are adequate in controlling the actions of PSCs in Iraq or
whether additional steps are still needed. Changes in the number of weapons
discharge by PSCs may serve as an indicator that the issue of PSC oversight and
management may need to be revisited. Another measure may be the number and
veracity of complaints lodged by the Iraqi people, Iraqi government, or U.S.
government personnel against PSCs. Also, if PSCs continue to play an important
role in the protection of U.S. personnel and dignitaries abroad, which seems likely,
will agencies take the lessons learned in Iraq and apply those lessons to other
locations where the U.S. government will call upon PSCs to provide security.
CRS is unaware of comprehensive agency-conducted analyses comparing the
use of private security companies, U.S. servicemembers, and State Department
210 Based on data provided by the DOD on June 24, 2008.
211 Ms. Charlene R. Lamb, Assistant Director for International Programs, Bureau of
Diplomatic Security, discussion, June 24, 2008, op cit., and discussions with DOD officials.
212 See U.S. Government Accountability Office. Rebuilding Iraq: DOD and State
Department Have Improved Oversight and Coordination of Private Security Contractors
in Iraq, but Further Actions are Needed to Sustain Improvements, General Accountability
Office. GAO-08-966. July 2008. p. 30.
213 Ibid., pp. 19-20.
214 Ibid., pp. 5-6.
Diplomatic Security Agents. Both proponents and opponents of the use of
contractors have made cost comparisons but usually have not elaborated on what
factors were involved in the assumptions underlying the cost comparisons, and
whether those factors were comparable. The relative direct cost advantage of
contractors can vary, and may diminish or disappear altogether, depending on the
circumstances and contract conditions. Apart from the direct cost of salaries, which
will vary according to the mix of countries of origin of employed personnel offered,
the costs to the U.S. government of private security contracts can depend on any
benefits provided and the terms negotiated in a contract or a subcontract. For
instance, the U.S. government does not pay for benefits such as health insurance or
incur long-term liabilities such as disability compensation and pensions when private
security contractors are employed. On the other hand, some analysts contend that the
total costs of private security contracts have been underestimated because they do not
include the subsidy that the U.S. government in effect provides contracting
companies, including when former U.S. soldiers, trained at taxpayer expense, are
Proponents of the use of private security contractors have said that private
security contractors are less expensive than using U.S. military forces because private
companies can employ locals and third-country nationals whose earnings are a
fraction of U.S. servicemembers. Private contractors can incur much lower costs by
using local hires extensively, as they do not have to transport them, house or feed
them, and can pay wages that are relatively low compared to those paid to U.S.
servicemembers. Private security contractors in Iraq keep total costs low by
employing many Iraqis, according to proponents.
One recent congressional analysis, however, found that in the case of personnel
provided by one company (i.e., Blackwater Worldwide), the total cost of private
security personnel was “significantly higher than the direct costs that would-be
incurred by the [U.S.] military” because of markups and other costs charged the U.S.
From a State Department perspective, in testimony before the House Committee
on Oversight and Government Reform, Deputy Assistant Secretary of State for
Logistics Management testified that considering a fully loaded cost analysis, it costs
around $400,000 for an American diplomat or a DS agent to serve in a regular
215 A February 7, 2007, Memorandum to Members of the Committee on Oversight and
Government Reform, written by the Committee’s Majority Staff and posted on the
Committee’s website, states that the “security services provided by Blackwater would
typically be performed by an Army Sergeant, whose salary, housing, and subsistence pay
range from approximately $140 to $190 per day, depending on rank and years of service.
These equate to an annual salary ranging from approximately $51,100 to $69,350 per year.”
According to the memo, Blackwater was providing those services in conjunction with a
Kuwaiti company, Regency Hotel & Hospital Company, to ESS Support Services
Worldwide “which in turn was providing dining services and construction for other
contractors such as KBR and Fluor Corporation.” Taking markups and other costs into
account, the memo concluded that the “Blackwater costs are four to tens time higher” than
the costs of a U.S. soldier. (Memo last accessed June 19, 2007, through
[http://oversight.house.gov], pp. 4-5.)
mission around the world. To have an American diplomat or a DS agent serve in
Iraq, by comparison, costs around $1 million. Part of that amount, such as
transportation and shipping of goods, does not appear in the employee’s salary.216
In August, 2008, CBO issued a report that compared the costs of a particular
security contract between Blackwater and the State Department to the cost of an
equivalent U.S. military force. The report estimated that the costs of PSCs did not
differ significantly from the costs of a comparable military unit. The report pointed
out that in peacetime there would be carrying costs for maintaining the military unit
whereas a contract with a PSC could be terminated.217
Perception of State Authority and Commitment
The desire to entrust the capability to use force legally on behalf of the United
States to private companies, including those employing non-U.S. citizens has foreign
policy implications for the United States. Although many analysts perceive the
officially sanctioned private use of force as significantly eroding the modern state’s
monopoly on the use of force, whether this erosion is beneficial or detrimental to
U.S. foreign policy and to the international order is a matter of dispute.218 To the
extent that private companies are perceived as participating in combat operations, it
may be difficult for the United States to persuade other states to recognize
contractors’ rights to protection under the Geneva Conventions. On a symbolic level,
the use of private companies may be perceived by some observers as signaling a
lesser U.S. commitment than would the use of national military forces.
Selected Legislation in the 110th Congress
H.R. 4986 (Skelton) — National Defense Authorization Act for
FY2008 (P.L. 110-181)
Subtitles D and F of P.L. 110-181 address contracting in Iraq and Afghanistan.
Subtitle A, which addresses acquisition of services, also contains provisions that may
affect private security contracts. Section 808, for example, requires an independent
management review of contracts for services, including an assessment of their use to
contract for services related to inherently governmental functions.
216 Testimony of William Moser, Deputy Assistant Secretary of State for Logistics
Management, regarding “Private Security Contracting for Iraq and Afghanistan,” Before the
House Committee on Oversight and Government Reform, Washington, October 2, 2007.
217 CBO. Contractor’s Support of U.S. Operations in Iraq, p.14, 16-17.
218 For an examination of a variety of related issues and perspectives, see, among others:
Deborah Avant, “The Privatization of Security and Change in the Control of Force,”
International Studies Perspectives, Vol. 5, Issue 2, May 2004; David Shearer, “Outsourcing
War,” Foreign Policy Magazine, Fall 1998; and P.W. Singer, Corporate Warriors: The Rise
of the Privatized Military Industry, Ithaca and London: Cornell University Press, 2003.
Section 841 of P.L. 110-181 provides for the establishment of a special
Commission on Wartime Contracting to investigate and report to Congress on federal
agency contracting for the reconstruction of Iraq and Afghanistan, the logistical
support of coalition forces and the performance of security and intelligence functions
in Operation Iraqi Freedom and Operation Enduring Freedom. It requires the
Commission to assess the extent and impact of reliance on contractors, the extent of
waste, fraud, abuse, or mismanagement under such contracts, and the appropriateness
of the organizational structure, policies, and practices of the Departments of Defense
and State for handling contingency contract management and support. An interim
report from the Commission is due March 1, 2009, and a final report is due no later
than two years after the date of appointment of all Commission members. Section
regulations on the selection, training, equipping, and conduct of personnel
performing private security functions under a covered contract or covered subcontract
in a combat area. These include processes for (1) registering, processing, and
accounting for such personnel; (2) authorizing and accounting for their weapons; (3)
investigating the death and injury of such personnel and their discharge of weapons;
(4) investigating the injury, death, or damage of property caused by the actions of
such personnel; and (5) incidents of alleged misconduct. The regulations also
provide guidance to commanders of combatant commands on orders, directives, and
instructions to contractors and subcontractors performing private security functions
relating to force protection, security, health, safety, relations and interaction with
locals, and rules of engagement. Section 861 requires the Secretary of Defense, the
Secretary of State, and the Administrator of USAID to enter into a memorandum of
understanding (MOU) no later than July 1, 2008, regarding contracting in Iraq and
Afghanistan, including matters related to authorizing the carrying of weapons,
establishing minimum qualifications for personnel carrying weapons, and setting
rules regarding the use of deadly force. The MOU is to delineate responsibilities for
investigating and referring possible violations of MEJA by contractor personnel. The
MOU is also to identify a common database to house information on all contracts in
Iraq and Afghanistan.219 Section 862 calls for the revision of relevant Federal
Acquisition Regulations to require all contracts and subcontracts for such personnel
to conform with these regulations.
Vetoed forerunner to H.R. 4986 is H.R. 1585, which was introduced March 20,
2007. H.R. 1585 was referred to the House Armed Services Committee. Referred
to HASC subcommittees April 10, 2007. Subcommittee mark-ups were held May
2-8, 2007. Committee consideration and mark-up was held May 9, 2007. Reported
(amended) May 11, 2007 (H.Rept. 110-146). A supplemental report was filed May
14, 2007 (H.Rept. 110-146, part 2). The House passed a substitute amendment in
lieu on May 17, 2007. H.R. 1585, as passed by the House, was placed on Senate
calendar, June 5, 2007; laid before the Senate by unanimous consent, June 28, 2007.
H.R. 185 was passed by the Senate with amendments, October 1, 2007. The
219 On July 10, 2008, DOD, the State Department, and USAID signed an MOU identifying
each agency’s roles and responsibilities relating to coordinating the movement of contractors
in Iraq, maintaining a common database to house information on contracts in Iraq, and
tracking cases of criminal acts committed by contractors.
Conference Report filed December 6, 2007 (H.Rept. 110-47. The Conference
recommendations were agreed to in the House on December 12, 2007, and in the
Senate on December 14, 2007. President Bush vetoed H.R. 1585, as agreed to by the
House and Senate, on December 28, 2007, based on objections to provisions not
germane to this report. A modified H.R. 1585 was reintroduced as H.R. 4986 and
passed by the House on January 16, 2008, and by Senate January 22, 2008. President
Bush signed H.R. 4985 on January 28, 2008, as P.L. 110-181.220
Section 864 defines private security functions as guarding personnel, facilities,
or property, or any other activity that requires contractors to be armed to perform
H.R. 3222 (Murtha) — Department of Defense Appropriations
Act, 2008 (P.L. 110-116)
While not addressed in law, the joint explanatory statement of the managers of
the conference version (H.Rept. 110-434) of H.R. 3222 states that the DOD “lacks
accountability and management of its contracted services.” It states that additional
funding totaling $48 million has been provided to the Defense Contract Audit
Agency ($10 million), the Defense Contract Management Agency ($14 million), and
the Defense Inspector General ($24 million) “to provide more robust staffing of
contractor management and oversight personnel. It calls on the DOD to improve its
management of contract services “by instituting clear accountability mechanisms;
instituting unambiguous and short chains of command to the most-senior decision
makers; and improving the tracking and reporting of contract service costs and
management of contract service performance.” The conferees directed the Secretary
of Defense to develop, within 90 days of enactment, uniform minimum personnel
standards for contracted personnel and a compliance mechanism that specifies
penalties for noncompliance with personnel standards “including fines, denial of
contractual obligations or contract rescission.” The Secretary is also directed to
establish “a clear set of rules of engagement for all contracted security personnel
operating in the Iraq and Afghanistan theaters of operations.”
House Committee on Appropriations introduced an original measures, H.R.
H.R. 3222 was passed by the House August 5, 2007, and by the Senate October 3,
220 The President issued a signing statement objecting to sections 841 (Commission on
Wartime Contracting ) and 846 (whistle blower protection for contract employees) on the
basis that they:
purport to impose requirements that could inhibit the President’s ability to carry
out his constitutional obligations to take care that the laws be faithfully executed,
to protect national security, to supervise the executive branch, and to execute his
authority as Commander in Chief.
See 44 WEEKLY COMP. PRES. DOC. 115 (Feb. 4, 2008). The President further indicated that
the “executive branch shall construe such provisions in a manner consistent with the
constitutional authority of the President.” Id.
November 8, 2007. President Bush signed the legislation and it was enacted as P.L.
H.R. 5658 (Skelton) — Duncan Hunter National Defense
Authorization Act for FY2009
Section 322 of H.R. 5658 would mandate that development of a single
government-wide definition for “inherently governmental functions.” Section 824
would bar the Department of Defense from allowing contractors to perform
inherently governmental functions in a combat area. The section would also require
the Secretary of Defense to list those functions that should not be performed by
private security contractors. Section 847 would require PSCs working for the U.S.
government in a combat area to report whenever a weapon is discharged against a
private security contractor, and whenever a private security contractor takes active,
On May 22, 2008, the House passed the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (H.R. 5658).
S. 3001 (Levin) — National Defense Authorization Act for
Section 841 of S. 3001 would mandate that private security contractors not be
authorized to perform inherently governmental functions in an area of combat
operations. The section defines “inherently governmental” as protecting people,
information, equipment, and supplies in non-permissive environments where deadly
force is likely to be initiated by security personnel in public places or where security
personnel are expected to make real-time decisions that could affect the private
individuals or U.S. interests. Section 842 would require the establishment of
mechanisms to ensure that contractors are required to report specified offenses that
are alleged to have been committed by or against contractor personnel. Section 1036
would require that the Federal Acquisition Regulations to prohibit contractors from
interrogating prisoners during or after the cessation of hostilities.
On August 1, 2008, with a Cloture motion failing to receive sufficient votes, the
Senate proceeded to consider S. 3001 on the Floor.
S. 2147 (Obama) — Security Contractor Accountability Act of
S. 2147 would expand the coverage of the Military Extraterritorial Jurisdiction
Act (MEJA) to include all persons “while employed under a contract (or subcontract
at any tier) awarded by any department or agency of the United States, where the
work under such contract is carried out in a region outside the United States in which
the Armed Forces are conducting a contingency operation.” The bill would mandate
that the Federal Bureau of Investigation (FBI) establish a “Theater Investigative
Unit” for each contingency operation in which contract personnel are working to
investigate suspected misconduct. The FBI and other agencies or departments
affected by the bill would have 90 days to implement to the provision, and the
Department of Justice Inspector General would be required to report to Congress
within 30 days of enactment on the investigation of abuses alleged to have been
committed by contract personnel.
Introduced October 4, 2007. (Similar to H.R. 2740). Referred to the Committee
on the Judiciary.
H.R. 2740 (Price) — MEJA Expansion and Enforcement Act of
H.R. 2740, passed as amended by the House of Representatives, would extend
the coverage of the Military Extraterritorial Jurisdiction Act (MEJA) to include all
persons “while employed under a contract (or subcontract at any tier) awarded by any
department or agency of the United States, where the work under such contract is
carried out in a region outside the United Sates in which the Armed Forces are
conducting a contingency operation.” Currently, MEJA covers contractors only if
employed by “the Armed Forces outside the United States,” or if employed by other
federal agencies or “provisional authority,” to the extent their employment is related
to the support of the DOD mission overseas. The bill would mandate that the Federal
Bureau of Investigation (FBI) establish a “Theater Investigative Unit” for each
contingency operation in which covered contract personnel are working to investigate
suspected misconduct. It would also require that the Department of Justice Inspector
General report to Congress within 30 days of enactment on the investigation of
abuses alleged to have been committed by contract personnel.
Introduced June 15, 2007. Referred to the House Judiciary Committee.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security. Full
Committee consideration and mark-up, July 24, 2007. Ordered to be reported August
2, 2007. Reported (amended) September 27, 2007, H.Rept. 110-352. House passed
an amendment in the nature of a substitute, October 4, 2007, 389-30. The amended
version includes a new section, which provides that “[n]othing in this Act shall be
construed to affect intelligence activities that are otherwise permissible prior to the
enactment of this Act.” (Sec. 6). Section 6 was added in response to the
Administration’s concerns that the bill “would have unintended and intolerable
consequences for crucial and necessary national security activities and operations.”221
Ordered placed on the Senate Legislative Calendar under General Orders October 5,
221 See Letter, Executive Office of the President, Statement of Administration Policy, H.R.
2740 — MEJA Expansion and Enforcement Act of 2007 (Oct. 3, 2007), available at
Administration also opposes the bill on the basis of its concern that the bill’s vagueness will
“give rise to extensive litigation on jurisdictional issues,” that the bill “would place
inappropriate and unwarranted burdens on the Department of Defense,” and that it interferes
with the prosecutorial discretion of the executive branch.
S. 674 (Obama) — Transparency and Accountability in
Military and Security Contracting Act of 2007
S. 674 would require the Secretaries of Defense, State, and the Interior; the
Administrator of the U.S. Agency for International Development; and the Director
of National Intelligence to provide information to the Congress within 90 days of
enactment on U.S. government contractors and subcontractors working in
Afghanistan and Iraq, with particularly detailed requirements for information on
private security contractors. This information would include the number of persons
performing work in Iraq and Afghanistan under contracts and subcontracts; the
companies awarded such contracts and subcontracts; the total cost of these contracts;
and a method for tracking the number of persons killed and wounded while serving
under such contracts. Also contains provisions intended to improve coordination
between the U.S. Armed Forces and contractors performing private security
functions, and to clarify the legal status of contract personnel by expanding MEJA
(similar to H.R. 369, H.R. 2740 and S. 2147).
Introduced February 16, 2007. Referred to the Senate Armed Services
H.R. 369 (Price) — Transparency and Accountability in
Military and Security Contracting Act of 2007
H.R. 369 would require the Secretaries of Defense and State and the
Administrator of the U.S. Agency for International Development to prescribe
minimum hiring standards and issue equipment guidance for contracts regarding
private security contractors and would require contractors to provide specified
information on costs and personnel and update it during the period of contract
performance. Also contains provisions intended to improve coordination between
the U.S. Armed Forces and contractors performing private security functions, and to
clarify and extend the Military Extraterritorial Jurisdiction Act (MEJA). Would
extend MEJA to cover contractors “while employed under a contract (or subcontract
at any tier) awarded by any department or agency of the United States, where the
work under such contract is carried out in a region outside the United Sates in which
the Armed Forces are conducting a contingency operation.” MEJA covers
contractors only if employed by “the Armed Forces outside the United States,” or if
employed by other federal agencies or provisional authority, to the extent their
employment is related to the support of the DOD mission overseas. (This last
provision is also included in H.R. 2740, below.)
Introduced January 10, 2007. (Similar to S. 674.) Referred to the House Armed
Services Committee (HAS) and the Judiciary Committee. Referred to the HAS
Subcommittee on Readiness, February 1, 2007. Referred to the Judiciary
Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, February
H.R. 3695 (Hall) — Freeze Private Contractors in Iraq Act
H.R. 3695 would prohibit the DOD and the Department of State from increasing
the number of private security contractors it uses to perform security functions in
Introduced September 27, 2007. Referred to the Committees on Foreign Affairs
and Armed Services.
H.R. 4102 (Schakowsky) and S. 2398 (Sanders) — Stop
Outsourcing Security Act
H.R. 4102 and S. 2398 would require that only U.S. federal government
personnel provide security to all personnel at any U.S. diplomatic or consular mission
in Iraq within six months after enactment. It also would require that the President
report to specified congressional committees on “the status of planning for the
transition away from the use of private contractors for mission critical or emergency
essential functions by January 1, 2009, in all conflict zones in which Congress has
authorized the use of force.” Contracts with the federal government requiring
personnel to perform mission critical or emergency essential functions may be
renewed after that date only if the President reports tho those committees that the
relevant agency does not have adequate personnel to perform the duties stipulated in
the contract. The President must also certify that all contract employees meet set
standards, including having undergone background checks to ensure they do not have
criminal records and have not been accused of human rights abuses, and that they
would remain in the custody of the United States if they are accused of crimes by the
host country. It also would provide for Congressional access to contracts under
certain conditions and reports to Congress on Iraq and Afghanistan contracts.
H.R. 4102 was introduced on November 7, 2007. It was referred to the
Committees on Foreign Affairs, Armed Services, and Intelligence. S. 2398 was
introduced on November 16, 2007, and was referred to the Committee on Homeland
Security and Governmental Affairs.
H.Res. 97 (Murphy, Patrick) — Providing for Operation Iraqi
Freedom Cost Accountability
H.Res. 97 would resolve that the Department of Defense Inspector General and
the Special Inspector General for Iraq Reconstruction should report to Congress on
the expenditure of military and reconstruction funds in Iraq and on the types and
terms of U.S. contracts there. It would resolves that Congress should create a
“Truman Commission” to conduct an ongoing investigation of the award and
implementation of U.S. contracts with regard to Operation Iraqi Freedom.
Introduced January 24, 2007. Referred to the House Armed Services and
Foreign Affairs Committees. House Foreign Affairs Committee hearing held March