Holding Contractors Accountable

MountainRunner's friend David Isenberg, writing for the UPI, strives to put some rational thought into the emotional knee-jerking in response to the Blackwater shooting on September 16th:

Even though the commission investigating the alleged indiscriminate shooting by Blackwater employees over the weekend has only just been stood up, some voices are already rushing to judgment, condemning the contractors as cold-blooded “mercenaries.”

All of this is entirely predictable, though not necessarily unwarranted. It goes to show that four years after private security contractors first started to assume a major role in Iraq, the way they operate is still poorly understood.

Much of this is due to the industry itself. Companies, when not contractually bound by the clients they protect not to discuss their activities, tend to be distrusting of the news media.

As David points out, on the one hand defensive disclosures by companies (i.e. public relations, or as it is increasingly referenced today, reputation management) are often limited, especially for contracts with protective details for people, or because their clients simply want a low key company whose name isn't well known. Companies are also loathe to get out in front of the media because of visceral reactions to "mercenaries" that equates US use of contractors with Tim Spicer's adventures in Papua New Guinea, understandably a distinction made more complex by the head-scratching award of the largest US contract to another company Spicer is heavily involved with, Aegis.

Speaking of Aegis,

But this time, unlike certain past incidents -- such as the probe of the 2005 Aegis Defense trophy video, showing contractors supposedly firing indiscriminately at Iraqi civilians -- the results must be made public, and not kept secret.

This case was one where the contract and oversight of the contract was such that the contractor investigated itself. The report that it shared with DOD was evidently around 200 pages, half of which was appendices. However, requests to see the report were denied. Why? The Pentagon said it wasn't there report to share. Aegis said it was corporate data and therefore not public. The Pentagon agreed with Aegis's public statement that they could not identify the Elvis-listening shooters, which is odd considering the Blue Force trackers each of their contractors wears. While the US didn't push, South Africa know who sat where and moved to prosecute one of their own who was shooting in violation of that country's stringent anti-mercenary laws (if you wondering about what an anti-mercenary law is like, think of UK's Foreign Military Enlistment Act of 1870 and updated is often, seemingly yearly).

And then there are...  

...those who claim that the June 2003 Coalition Provisional Authority Order 17, which states contractors “shall be immune from any form of arrest or detention,” grants the firms blanket immunity from any and all crimes. Such thinking ignores section 5 of the order, stating that the contractors' immunity from prosecution "may be waived" by the "sending state" -- in this case the U.S. government.

Generally speaking there are five legal options available: Iraqi justice; civil suits; Alien Tort Claims Act; War Crimes Act; and the Military Extraterritorial Jurisdiction Act [MEJA].

These last points make for great story telling. Iraqi justice assumes their police trumps our military, something we don't see often in Korea or Okinawa, or Italy. Civil suits like ATCA and others are expensive and challenging and require Iraqis bring suit in the United States.

Now MEJA and the recent revision to the Uniform Code of Military Justice (UCMJ), those have promise in many peoples eyes.  

Earlier this year U.S. Rep. David Price, D-N.C., introduced a bill to clarify that all contractors working for the U.S. government in Iraq can be prosecuted under MEJA.

Among other provisions, it authorizes the FBI director to establish a Theater Investigative Unit, responsible for investigating allegations of criminal misconduct by contract personnel. It will be able to investigate reports of fatalities resulting from the use of force by contract personnel, and upon conclusion of any investigation, refer the case to the U.S. attorney general for further action.

As far as UCMJ, how do you subject a civilian to military judicial processes and punishments? That hasn't been worked out which is one reason nothing's moved forward on that much ballyhooed front. Now MEJA and the FBI, that's a humorous. If JAGs have trouble getting battlefield information, how do you think the FBI will fare?

My recommendation is an extension of JAG into the civilian realm instead of the civilian into the military realm. Either put it under the IG, alongside the IG, or create a unit under OSD with deputy rank so s/he can have at least one senior flag under him. This will immediately create more access than either an FBI exclusive or FBI-centric that snaps onto the IG. This position would be appointed by the President and approved by the Congress.

But more importantly, Congress must assert its role in demanding contracts are written and managed properly. Remember under Reagan how pissed off the Congress and public were when paying too much for hammers and toilet seats? And those didn't threaten our national security, our public image, and potentially undermine the struggle for minds and wills in modern warfare over perceptions.