Commentary

The Future of Contractor Accountability: Immunity or Impunity?

One of the commonly voiced complaints about private security contractors is that they operate with complete impunity. This always has been somewhat overstated. For example, the June 2003 Coalition Provisional Authority Order 17, which states that contractors “shall be immune from any form of arrest or detention,” is said to grant them blanket immunity from any and all crimes. That ignores Section 5 of the order, which states contractors’ immunity from prosecution “may be waived” by the “sending state” — which, in the case of U.S. contractors, is the U.S. government.

Still, critics have a point. It wasn’t until the past few years that the U.S. government, both executive and legislative branches, created new laws and began to seriously implement existing ones to ensure the investigation and prosecution of crimes by contractors.

And, as everybody knows, a law’s effectiveness is undermined if it contains loopholes. So it is worth looking at a report released last month by the advocacy group Human Rights First. It offers a strategy for creating a comprehensive system of accountability for U.S. government contractors working abroad.

Consider the status of contractor immunity in Afghanistan. HRF reports the legal status of contractors under Afghan law is addressed ambiguously in a 2003 exchange of diplomatic notes between the U.S. and Afghan governments. U.S. government representatives have stated this does not confer immunity from Afghan criminal law on non-Afghan U.S. government contractors accused of committing serious crimes in Afghanistan. But since U.S. military operations began in Afghanistan in October 2001, no U.S. government contractors are known ever to have been turned over to Afghan authorities for prosecution.

Considering that Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, said Dec. 20 that the Pentagon could double the number of American forces in Afghanistan by summer to 60,000, that would mean a big increase in work for contractors there.

That explains a solicitation released recently by the coalition headquarters at Bagram Airfield in Afghanistan, in which the military details that it is looking for a contractor to run something called the “Armed Contractor Oversight Directorate.” The work statement says the new office will be responsible for tracking private security contractors and checking on how often they resort to force.

Among other tasks, the new office must “identify all PSC incidents to include the use of graduated force procedures and weapons discharges”; “track the status of all ongoing investigations involving PSC weapons discharges”; and “maintain regular contact with Government of the Islamic Republic of Afghanistan, Ministry of Interior or their representative to identify issues concerning Department of Defense contracted PSCs’ actions, incidents and procedures.”

The report finds that since Sept. 11, 2001, private contractors have been increasingly employed to provide critical support to U.S. government detention, interrogation and rendition operations. The next administration must take swift action to ensure that contractors who remain involved in these operations treat all prisoners humanely, and that U.S. government agencies do not use contractors to evade their humane treatment responsibilities.

Thus all U.S. government agencies should be directed to ensure strict compliance by their contractors with domestic laws and international treaty obligations prohibiting torture and other inhumane treatment, including the Anti-Torture Statute, the Detainee Treatment Act, the Convention against Torture, Common Article Three of the Geneva Conventions, the International Covenant on Civil and Political Rights, and other applicable laws.

While the Defense Department gets good marks for its current oversight of contractors, HRF notes that in 2008 Congress directed the secretary of defense to prescribe, by May 2008, regulations governing the selection, training, equipping and conduct of personnel performing private security functions under covered contracts with any U.S. government agency in “area(s) of combat operations.” Such regulations, if sufficiently rigorous and if enforced, would provide a key foundation for more effective Defense Department control over all U.S. government security contractors abroad, contributing greatly to prevention of many of the sorts of contractor abuses seen over the last several years.

The Defense Department reportedly is working on a draft regulation in response to Congress’ mandate, but seven months after the deadline for the regulations the department has yet to publish either proposed or interim regulations.

And, since the devil is always in the details, HRF noted that the Federal Acquisition Regulations provide detailed requirements governing U.S. government agency contracts.

However, the regulations lack specificity regarding contractual requirements for training, vetting, treatment and oversight of security and other contractor personnel, and do not ensure sufficient uniformity in U.S. government contracting for such services across agencies.

But the Defense Federal Acquisition Regulations Supplement provides additional regulations through which the Defense Department generally has developed more rigorous contracting and acquisition standards for its security contracts.

Human Rights First says that in light of the increasing trend for many U.S. government agencies to employ security contractors abroad, and for U.S. intelligence agencies also to rely increasingly on contractors, President Barack Obama should direct the secretary of defense to develop regulations that will set out in the Federal Acquisition Regulations consistent, government-wide standards for contracting, acquisition and management of private security and other contractors that will ensure that more detailed standards developed by the Defense Department will provide a regulatory floor for all U.S. government agencies.

Among the more useful parts of the report is its grading of various parts of the government with respect to their response to contractors since the shootings at Nisoor Square, Baghdad, in September 2007. Congress and the Pentagon get a B, the State Department a C — which is probably overly generous to the State Department — the White House a D, and the Justice Department an F.

Among other recommendations, the report calls for:

  • Directing the attorney general to make prosecution of contractor crime a priority, including by conducting appropriate judicial reviews and allocating necessary resources for pending and future investigations and prosecutions;
  • Placing legal obligations on companies for vetting, training, controlling and managing their personnel;
  • Working with Congress, the secretary of defense and the secretary of state to establish and mandate compensation mechanisms for victims of contractor abuse.
U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute and the author of a new book, Shadow Force: Private Security Contractors in Iraq