I noted in my last column that for the private security industry things like oversight and accountability have to be more than mere concepts. The have to be concrete, institutional norms, backed up with specific procedures and resources for implementing them.
For example, on Jan. 30 Bush administration officials outlined stricter rules for private security contractors during a meeting with 20 companies at the Pentagon. Top executives from the largest security firms working in Iraq attended the meeting. Senior representatives from such 800 pound gorilla firms as Blackwater, DynCorp, Triple Canopy and Aegis Defence attended.
This should not be hard. After all, nowadays "oversight and accountability" as well as prosecuting the guilty, are virtually sacred cows, right up there with patriotism, motherhood and apple pie. Who could possibly be against it?
Well, judging by the events of recent weeks Uncle Sam for one.
In a private briefing in mid-December Justice Department officials told Congress that they face serious legal obstacles that might prevent any prosecution of Blackwater security guards involved in the September shooting that left at least 17 Iraqis dead.
On Jan. 24 U.S. government officials told Congress that the Bush administration is not prepared to manage the contractors' critical involvement in the American war effort in Afghanistan and Iraq.
As of last September, there were more than 196,000 contractor personnel working for the Pentagon in those countries. But Jack Bell, deputy undersecretary of defense for logistics and materiel readiness, testified before Congress on Jan. 24, "we were not adequately prepared to address" what he termed "this unprecedented scale of our dependence on contractors."
Then, The New York Times reported Jan. 25 that the Bush administration will insist that the government in Baghdad guarantee civilian contractors specific legal protections from Iraqi law. This would be in lieu of a traditional status-of-forces agreement, an accord that has historically been negotiated by the executive branch and signed by the executive branch without a Senate vote.
That helps explain why on Feb. 5 the Iraqi Cabinet approved a draft bill that would subject foreign security contractors to Iraqi law; a position affirmed by Samir Sumaidaie, Iraqi ambassador to the United States. He said the future of PSC "is one of the prime concerns that the Iraqis will put on the table."
What will actually happen is, of course, anyone's guess. At the U.S. State Department briefing in Washington that day spokesman Sean McCormack said:
"Where we want to arrive is at a place where both sides are comfortable in that everybody operating in Iraq follows the laws, is accountable under the law, and is able to operate in such a way that we're able to do our jobs. We need contractors to do our jobs in Iraq under the current circumstances. There may come a day in the future where we don't need the kind of security contractor assistance that we do need right now. ... It'll be a much-discussed topic and, of course, we're going to engage the Iraqi Government in a serious discussion on the topic. I can't tell you what the outcome will be. I'm not going to try to predict that."
PSC working in Iraq don't need to make a rush for the airport quite yet. Typically, a law is generated by the Presidency Council, then goes to the Council of Representatives and goes through several readings and then back to the Presidency Council, and finally to be published in the national register, at which point the law will take effect.
Of course, in a sense Iraqi law already applies, insofar as the vast numbers of PSC employees are, in fact, Iraqi, and are thus already accountable under Iraqi law.
But for the American and other foreign security contractors the prospect of a new Iraqi law makes them uneasy. Reached by phone Doug Brooks, head of the International Peace Operations Association, a leading advocacy group for the private military industry, said they would want to know that safeguards are in place to ensure due process, that are not subject to interpretation. He said that private contractors already are working under local law in various African countries.
He said, "Nobody is convinced that the entire Iraqi legal system is yet at the point where Western companies feel comfortable with their employees being put through the process."
It is possible that Iraqi officials are motivated to pass this law because they see so little action by the United States on the subject. That just may be lack of good public relations on the part of the U.S. government.
According to one well-connected member of the PSC community, most of the estimated 60 MEJA (Military Extraterritorial Jurisdiction Act) cases, most of which are in Iraq and Afghanistan, are currently being processed by the Department of Justice. The Justice Department, for reasons known only to it, is not talking about it.
Ironically, that is exactly what it is supposed to be doing. The bill introduced last year by Rep. David Price, D-N.C., to strengthen MEJA, which since became law, had a section that directs the Justice Department inspector general to report to Congress on the number of incidents of alleged misconduct reported to the department, the number of investigations undertaken by the department, and the number of criminal cases opened and closed by the department. The report must also include findings and recommendations about the number of criminal cases prosecuted by the department under MEJA.
A similar provision was in a bill sponsored by Sen. Barack Obama.
Iraqi officials may also be motivated by the fact that the new agreement the United States is trying to negotiate with Iraq, unlike traditional status of forces agreements with other countries, has no compromises in it in terms of allowing for Iraqi sovereignty in terms of allowing jurisdiction of Iraqi law.