Ever since the Vietnam War, the US has increasingly relied on private contractors to support overseas military efforts. Private contractors are hired by a variety of military and federal agencies to assist with logistics, military personnel services, and security operations and are seen by many, especially the populations of the countries they are operating in, as a proxy for the US government and military. As the size and presence of American forces shrink, the use of contractors is expected to grow.
With the increased reliance on contractors for security operations, in roles that make the contractors almost completely interchangeable with military personnel, the need for an efficient and robust legal framework to establish contractor liability is becoming ever more important. The lack of contractor oversight and accountability may disrupt American military operations, undermine security policy and weaken the efforts of establishing a strong ally in the post-war transition government of the foreign nation.
There is no doubt that contractors play an important role in US defense operations overseas. The military uses contractors, often foreign firms, in a variety of roles that the military simply cannot fulfill. One reason is simple enough: in today’s wars that are characterized by full-scale invasions and a military and government presence over long durations, there are simply not enough soldiers to do the job. In the wake of overseas military operations, contractors offer the military an efficient alternative to the relatively slow overseas deployment of traditional troops.
Private contractors also provide the US with flexibility in implementing security policy where an American military or government presence is not an option. This is the case in Somalia, where the US has made it clear that addressing the threat of the Shabab, an Al-Qaeda linked militant group, is a priority but using the US military is out of the question. The policy stems largely in part from the 1993 tragic attack on American soldiers in the now famous “Black Hawk Down” episode and in the belief that official American presence would provoke increasing numbers of locals to join the Shabab in fighting a foreign power. Instead, the US has turned to private contractors such as Washington DC-based Bancroft to train African Union troops to fight the Shabab in what has been described by the UN as a largely successful effort in fighting the militant group and minimizing civilian casualties. With the Shabab pulling out of Mogadishu for the first time in years, the US has been able to successfully maintain its security policy without the ground presence on an official American force.
For all the strategic benefit the widespread use of contractors provides, there is also a dark side. There have been many cases where contractors have been found to act recklessly, with some cases consisting of criminal behavior, costing the lives of colleagues, soldiers, and civilians. In the much-publicized account of Raymond Davis, a CIA contractor operating in Pakistan, two men were shot dead in a mysterious set of events, leading to a murder charge against Davis and imprisonment in Pakistan. Since Davis was holding a diplomatic passport, not only did the story set off an international controversy over the limitations of diplomatic immunity, but it also severely undermined American security policy in Pakistan which often consists of clandestine operations against militant and terror groups. In Iraq, Blackwater Worldwide (now renamed Xe) was responsible for the infamous Nisour Square shootings, where a staggering 17 Iraqi civilians were killed and 24 wounded in what apparently seems to be an unprovoked use of force by the security company.
There is no doubt that in times of hostilities where areas are unstable and armed forced (both official and private) are unnerved, such events are common. However, when there is a lack of legal mechanisms to hold accountable those responsible, contractors may not be fully deterred from acting recklessly, the local population and government may direct their outrage towards official American forces and the credibility of American security and foreign policy may be challenged.
There is a long and checkered history of attempts to lay down a legal framework to establish oversight and hold contractors accountable. In 1950, the Articles of War (the precursor to the Uniform Code of Military Justice, “UCMJ”) extended military law to contractors. However, the Articles where phrased very strictly and where interpreted by the US Supreme Court as only applicable during times of officially declared war. There was a void in accountability for contractors until 2000, when Congress passed the Military Extraterritorial Jurisdiction Act (MEJA), which proved to be highly ineffective, with no significant cases being tried under the law. In 2007, the UCMJ was extended by Congress to include contractors acting during times of declared war as well as “contingency operations”, which technically describes the current operations in Iraq and Afghanistan, and allows the military to regulate contractor behavior and prosecute cases in military courts.
Although the current extension of the UCMJ provides a greater structure to regulate contractor behavior and establish liability for reckless and criminal behavior, there are many aspects of the law that are not adequately defined as well as potential obstacles to its enforcement. The 2007 version of the UCMJ does not clearly define which contractors fall under jurisdiction, simply referring to any contractor “accompanying” American troops. This can include strictly the DOD and military or can be extended to include other government agencies such the State Department and CIA which employ large amount numbers of contractors. At times, it is debatable if a person should even be defined as a contractor, such as retired military personnel serving in a security capacity, a highly common arrangement.
Additionally, the UCMJ is primarily meant to establish a military code of behavior, one that will not necessarily translate well for civilian contractors’ expectations of conduct and the legal system that governs such conduct. This leads to a vague classification of offenses that a contractor may be prosecuted for.
There are also theoretical obstacles that may prevent the UCMJ from providing an adequate remedy for holding contractors accountable. Several human rights courts as well as the UN have expressed their disagreement with military law and jurisdiction being applied to civilians. Furthermore, since military courts and tribunals do not provide the same constitutional rights to those tried, the application of the UCMJ may face judicial opposition as did its predecessor in the 1950s. The fact that so many military contractors are foreign nationals is also a serious obstacle, with the concept of American military courts having jurisdiction over foreign citizens leading to potential international disputes over the accused’s rights.
It is clear that the extension of the UCMJ is well-intentioned, but in today’s environment with an increased reliance on contractors for security operations it may not be adequate. The sheer scope of contractor activity, the variety in government agencies that employ them and the practical and conceptual limitations of applying military law may significantly limit the UCMJ’s impact. Whatever the solution, the need for an efficient and robust framework for holding contractors accountable and establish a code of behavior remains necessary. Both American forces and the nations they operate in must know that the largely beneficial service of contractors will not undermine the intentions that justified an American security presence in the first place.