Six weeks after a fatal shootout in a Baghdad square involving contractor guards from Blackwater USA, private security firms in Iraq may no longer be able to operate quite as privately as they used to.
And that is a good thing, too, say US officials and defense analysts. Placing such guards under Department of Defense oversight may mitigate any abusive behavior, as well as ensure better coordination with military activities.
At the same time, it remains unclear whether any Blackwater employee will ever be prosecuted for the Baghdad shootings, which Iraqi officials say left 17 civilians dead. And given current force levels, there is little chance that uniformed US troops themselves will take over the guards' protection duties.
"It's not a question of whether we ought to have [private contractors].
They are inevitable right now. The real question is, How do you make sure their overall activities are part of the overall strategy?" says Kathleen Hicks, a senior fellow in the international security program at the Center for Strategic and International Studies in Washington.
On Tuesday, the Pentagon and the State Department reached a general agreement that US military commanders in Baghdad will have more oversight of the private security contractors, which include Blackwater, Triple Canopy, and DynCorp International.
Earlier in the week, Secretary of State Condoleezza Rice had announced a series of changes, including assigning agents from the Bureau of Diplomatic Security to accompany Blackwater convoys, the use of video cameras in convoy vehicles to record guard actions, and more restrictive rules for the use of force.
More control over convoys
Pentagon spokesman Geoff Morrell said the military, for its part, would now exercise some control over contractor training, as well as rules of engagement and – perhaps most crucial – the movement of contractor-guarded convoys in and around Baghdad.
In the past, the military has complained that it does not know what the guards are doing, raising the possibility that privately run convoys inadvertently could interfere with planned US military operations.
Knowing the schedule of Blackwater runs for the State Department and other agencies might also allow the military to be prepared in case trouble erupts.
"The Department of Defense's moves here are partly defensive and partly to get on top of the issue," says William Martel, an associate professor of international security at the Fletcher School at Tufts University in Medford, Mass. "They're a good thing."
Meanwhile, the Iraqi cabinet approved legislation that would end the immunity from prosecution that foreign private security firms now enjoy. It would overturn an immunity order that dates to the first days of the US occupation of Iraq.
The order must still be approved by the Iraqi Parliament before it can take effect.
The Blackwater shooting incident on Sept. 16 inflamed Iraqi public opinion. In some ways, the question is not why the Iraqi government is acting now, but why it did not move to end the immunity sooner.
It is possible that the law could have a chilling effect on the activities of the contractors, but given the current disorganized state of Iraqi ministries and the level of violence, it is unclear how some provisions – such as a requirement for the registration of private weapons – could be carried out.
The law would not be retroactive. Iraqi officials said that any punishment for the September shootings would have to be left to the United States.
But it is unclear what US civilian laws would cover shootings in a war zone, say legal experts. Nor can civilians be tried in military courts.
Congress is considering legislation that would cover these gaps in law. But the real problem is not one of statutes, says one legal expert, but of political will and bureaucratic shortcomings.
Federal US attorneys would be charged with mounting these cases, and right now they have little incentive to devote their limited time and money to difficult foreign-based cases, says Laura Dickinson, a professor at the University of Connecticut School of Law in Hartford who has written about the issue.
Perhaps the Department of Justice should create a Washington-based headquarters unit dedicated to oversight of contractor activities in Iraq, says Professor Dickinson.
"We need to have the right incentives for prosecutors to bring these cases," she says.
Limited immunity for guards
Meanwhile, the State Department acknowledged on Tuesday that its investigators had granted limited immunity to Blackwater guards in exchange for their statements on what happened in the Baghdad shootings.
Democrats in Congress expressed outrage over the immunity grants, which preclude the statements from being used in a court of law.
The move was "an egregious misjudgment," said Rep. Henry Waxman (D) of California, chairman of the House Committee on Oversight and Government Reform.
The immunity grants do not preclude any US prosecution of the guards, says Dickinson. But prosecutors would have to prove that any evidence they presented was obtained from other sources.
"It certainly throws a monkey wrench into things," she says.