The recent killing of Iraqi civilians by private American security contractors reveals one of the biggest changes in modern US war-fighting – its increased reliance on private companies. It also illustrates difficult questions about the legal standing of those workers that are just starting to be understood.
The nub of the problem: how to deal with civilian contractors who break the law in a seemingly lawless place.
Legal tools to prosecute such wrongdoing are available, experts say. But the relevant US government agencies have been slow to use them.
"There is a basis for the US Department of Justice to conduct an investigation and bring charges under MEJA," says Kevin Lanigan, a New York lawyer and law professor who served as a US Army Reserve judge advocate in Bosnia, Afghanistan, and Iraq. MEJA is the Military Extraterritorial Jurisdiction Act of 2000, which authorizes the Justice Department to prosecute employees of US contractors and subcontractors who commit crimes on foreign soil.
The Uniform Code of Military Justice, the legal system governing those in uniform, was amended by Congress last year to allow charges to be brought against civilian contractors, Mr. Lanigan also notes. But the Pentagon has yet to issue guidelines to military commanders on how to do this, according to Lanigan and others.
In recent congressional testimony, Scott Horton, an international lawyer who teaches at Columbia University in New York, explained the growth in reliance on military contractors. In World War II, the Korean War, and the Vietnam War, the share of the total force represented by civilian contract employees seldom exceeded 5 percent. That doubled during the Gulf War. But in the Iraq conflict, the ratio is nearly equal.
"Before the ... 'surge,' for instance, the total community of contractors in Iraq was around 100,000, and the number of uniformed service personnel was around 125,000," Mr. Horton said. "This represents an extremely radical transformation in the force configuration."
Many contract workers provide services once handled in-house by the military, such as food service and freight transport. Some 20,000 to 30,000 perform security functions, according to a July Congressional Research Service report.
Of the dozens of security companies holding contracts in Iraq, the largest and now most notorious is Blackwater USA. The secretive North Carolina-based company was founded in 1997 by former military special operations veterans. It has nine business units providing training at its main facility on 6,000 acres of private land as well as in other locations around the world.
Among other things, the company helps countries develop national and global security policies and military transformation plans.
Blackwater reportedly has received more than $500 million in US government contracts, mostly in Iraq but also for other assignments. Its employees come from many countries, including Fiji and Bulgaria, both of which have lost Blackwater men in Iraq.
It is known to hire "testosterone-filled and aggressive" men, says an active-duty Army officer now stationed in Baghdad's Green Zone. "The Iraqis hate them," the officer says, referring to Blackwater specifically.
From the start, the firm has had connections to high-ranking Republican officials. Its vice chairman is Cofer Black, State Department coordinator for counterterrorism during President Bush's first term. Blackwater founder and former Navy SEAL Erik Prince has been a major donor to Republican committees and candidates.
But those connections are unlikely to help in current circumstances, even if Blackwater is allowed to stay in Iraq.
"Blackwater and other security firms will not be able to function effectively if they must adhere strictly to the letter of Iraqi law," says Loren Thompson, military analyst at the Lexington Institute. "Iraq is in the midst of a brutal insurgency in which few of the players pay any attention to the law. Waiting for the police to show up isn't a viable option in today's Iraq."
Can Blackwater and other firms continue to operate in Iraq if their employees are subject to Iraqi law, as Iraqi officials want them to be?
They possibly would face more restrictive rules of engagement and aggressive prosecution by the Iraqi government, says Dina Rasor, coauthor of the book "Betraying Our Troops: The Destructive Results of Privatizing War" and a longtime investigator of military spending. "Even though many of the Blackwater employees may be willing to work for an approved company, they may think twice about operating under laws that the Iraqi government can enforce. They may not want to face Iraqi jail."
In any case, the problem of oversight remains. Defense Department spending on contracts rose nearly 80 percent over the past decade, while the number of Pentagon employees tracking such contracts dropped by some 40 percent, says Peter Singer, a foreign policy specialist at the Brookings Institution in Washington. "Basically you have more and more contracts with less and less people overseeing them," he says.
No matter how Blackwater's situation in Iraq turns out, a sound legal regimen for holding contractors accountable is still needed. Says Lanigan, "Right now, we don't have that."
• Gordon Lubold in Baghdad contributed.