The Law Catches Up To Private Militaries, Embeds

Since the start of the Iraq war, tens of thou­sands of heavily-​​armed mil­i­tary con­trac­tors have been roam­ing the coun­try — with­out any law, or any court to con­trol them. That may be about to change, Brookings Institution Senior Fellow P.W. Singer notes in a Defense Tech exclu­sive. Five words, slipped into a Pentagon bud­get bill, could make all the dif­fer­ence. With them, “con­trac­tors ‘get out of jail free’ cards may have been torn to shreds,” he writes. They’re now sub­ject to the Uniform Code of Military Justice, the same set of laws that gov­erns sol­diers. But here’s the catch: embed­ded reporters are now under those reg­u­la­tions, too.
Over the last few years, tales of pri­vate mil­i­tary con­trac­tors run amuck in Iraq — from the CACI inter­roga­tors at Abu Ghraib to the Aegis company’s Elvis-​​themed inter­net “tro­phy video” — have con­tin­u­ally popped up in the head­lines. Unfortunately, when it came to actu­ally doing some­thing about these episodes of Outsourcing Gone Wild, Hollywood took more action than Washington. The TV series Law and Order pun­ished fic­tional con­trac­tor crimes, while our courts ignored the actual ones. Leonardo Dicaprio acted in a movie fea­tur­ing the pri­vate mil­i­tary indus­try, while our gov­ern­ment enacted no actual pol­icy on it. But those care­free days of mil­i­tary con­trac­tors romp­ing across the hills and dales of the Iraqi coun­try­side, with­out legal sta­tus or account­abil­ity, may be over. The Congress has struck back.
Amidst all the add-​​ins, pork spend­ing, and excite­ment of the bud­get process, it has now come out that a tiny clause was slipped into the Pentagon’s fis­cal year 2007 bud­get leg­is­la­tion. The one sen­tence sec­tion (num­ber 552 of a total 3510 sec­tions) states that “Paragraph (10) of sec­tion 802(a) of title 10, United States Code (arti­cle 2(a) of the Uniform Code of Military Justice), is amended by strik­ing ‘war’ and insert­ing ‘declared war or a con­tin­gency oper­a­tion’.” The mea­sure passed with­out much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109–364).
The addi­tion of five lit­tle words to a mas­sive US legal code that fills entire shelves at law libraries wouldn’t nor­mally mat­ter for much. But with this change, con­trac­tors’ ‘get out of jail free’ card may have been torn to shreds. Previously, con­trac­tors would only fall under the Uniform Code of Military Justice, bet­ter known as the court mar­tial sys­tem, if Congress declared war. This is some­thing that has not hap­pened in over 65 years and out of sorts with the most likely oper­a­tions in the 21st cen­tury. The result is that when­ever our mil­i­tary offi­cers came across episodes of sus­pected con­trac­tor crimes in mis­sions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not for­mally declared war, civil­ians — even those work­ing for the US armed forces, car­ry­ing out mil­i­tary mis­sions in a con­flict zone — fell out­side their juris­dic­tion. The military’s rela­tion­ship with the con­trac­tor was, well, merely con­trac­tual. At most, the local offi­cer in charge could request to the employ­ing firm that the indi­vid­ual be demoted or fired. If he thought a felony occurred, the offi­cer might be able to report them on to civil­ian author­i­ties.
Getting tat­tled on to the boss is cer­tainly fine for some inci­dents. But, clearly, it’s not how one deals with sus­pected crimes. And it’s nowhere near the proper response to the amaz­ing, awful sto­ries that have made the head­lines (the most recent being the con­trac­tors who sprung a for­mer Iraqi gov­ern­ment min­is­ter, impris­oned on cor­rup­tion charges, from a Green Zone jail).
And for every story that has been deemed news­wor­thy, there are dozens that never see the spot­light. One US army offi­cer recently told me of an inci­dent he wit­nessed, where a con­trac­tor shot a young Iraqi who got too close to his vehi­cle while in line at the Green Zone entrance. The boy was wait­ing there to apply for a job. Not merely a tragedy, but one more nail in the cof­fin for any US effort at win­ning hearts and minds.
But when such inci­dents hap­pen, offi­cers like him have had no recourse other than to file reports that are sup­posed to be sent on either to the local gov­ern­ment or the US Department of Justice, nei­ther of which had tra­di­tion­ally done much. The local gov­ern­ment is often failed or too weak to act — the very rea­son we are still in Iraq. And our Department of Justice has treated con­trac­tor crimes in a more Shakespearean than Hollywood way, as in Much Ado About Nothing. Last month, DOJ reported to Congress that it has sat on over 20 inves­ti­ga­tions of sus­pected con­trac­tor crimes with­out action in the last year.
The prob­lem is not merely one of a lack of polit­i­cal will on the part of the Administration to deal with such crimes. Contractors have also fallen through a gap in the law. The roles and num­bers of mil­i­tary con­trac­tors are far greater than in the past, but the legal sys­tem hasn’t caught up. Even in sit­u­a­tions when US civil­ian law could poten­tially have been applied to con­trac­tor crimes (through the Military Extraterritorial Jurisdiction Act), it wasn’t. Underlying the pre­vi­ous laws like MEJA was the assump­tion that civil­ian pros­e­cu­tors back in the US would be able to make deter­mi­na­tions of what is proper and improper behav­ior in con­flicts, go gather evi­dence, carry out depo­si­tions in the mid­dle of war­zones, and then be will­ing and able to pros­e­cute them to juries back home. The real­ity is that no US Attorney likes to waste lim­ited bud­gets on such messy, com­plex cases 9,000 miles out­side their dis­trict, even if they were for­tu­nate enough to have the evi­dence at hand. The only time MEJA has been suc­cess­fully applied was against the wife of a sol­dier, who stabbed him dur­ing a domes­tic dis­pute at a US base in Turkey. Not one con­trac­tor of the entire mil­i­tary indus­try in Iraq has been charged with any crime over the last 3 and a half years, let alone pros­e­cuted or pun­ished. Given the raw num­bers of con­trac­tors, let alone the inci­dents we know about, it bog­gles the mind.
The sit­u­a­tion per­haps hit its low-​​point this fall, when the Under Secretary of the Army tes­ti­fied to Congress that the Army had never autho­rized Halliburton or any of its sub­con­trac­tors (essen­tially the entire indus­try) to carry weapons or guard con­voys. He even denied the US had firms han­dling these jobs. Never mind the thou­sands of news­pa­per, mag­a­zine, and TV news sto­ries about the indus­try. Never mind Google’s 1,350,000 web men­tions. Never mind the offi­cial report from U.S. Central Command that there were over 100,000 con­trac­tors in Iraq car­ry­ing out these and other mil­i­tary roles. In a sense, the Bush Administration was using a cop-​​out that all but the worst Hollywood script writ­ers avoid. Just like the end of the TV series Dallas, Congress was some­how sup­posed to accept that the pri­vate mil­i­tary indus­try in Iraq and all that had hap­pened with it was some­how ‘just a dream.‘
But Congress didn’t bite, it now seems. With the addi­tion of just five words in the law, con­trac­tors now can fall under the purview of the mil­i­tary jus­tice sys­tem. This means that if con­trac­tors vio­late the rules of engage­ment in a war­zone or com­mit crimes dur­ing a con­tin­gency oper­a­tion like Iraq, they can now be court-​​martialed (as in, Corporate Warriors, meet A Few Good Men). On face value, this appears to be a step for­ward for real­is­tic account­abil­ity. Military con­trac­tor con­duct can now be checked by the mil­i­tary inves­ti­ga­tion and court sys­tem, which unlike civil­ian courts, is actu­ally ready and able both to under­stand the pecu­liar­i­ties of life and work in a war­zone and kick into action when things go wrong.

The amaz­ing thing is that the change in the legal code is so suc­cinct and easy to miss (one sen­tence in a 439-​​page bill, sand­wiched between a dis­cus­sion on timely notice of deploy­ments and a sec­tion order­ing that the next of kin of medal of honor win­ners get flags) that it has so far gone com­pletely unno­ticed in the few weeks since it became the law of the land. Not only has the media not yet reported on it. Neither have mil­i­tary offi­cers or even the lob­by­ists paid by the mil­i­tary indus­try to stay on top of these things.
So what hap­pens next? In all like­li­hood, many firms, who have so far thrived in the unreg­u­lated mar­ket­place, will now lobby hard to try to strike down the change. We will per­haps even soon enjoy the sight of CEOs of mil­i­tary firms, preen­ing about their loss of rights and how the new def­i­n­i­tion of war­zone will keep them from res­cu­ing kit­tens caught in trees.
But, iron­i­cally, the con­trac­tual nature of the mil­i­tary indus­try serves as an effec­tive mech­a­nism to pre­vent loss of rights. The legal change only applies to the sec­tion in the exist­ing law deal­ing with those civil­ians “serv­ing with or accom­pa­ny­ing an armed force in the field,” i.e. only those con­trac­tors on oper­a­tions in con­flict zones like Iraq or Afghanistan. It would apply not to the broader pub­lic in the US, not to local civil­ians, and not even to mil­i­tary con­trac­tors work­ing in places where civil­ian law is stood up. Indeed, it even wouldn’t apply to our foes, uphold­ing recent rul­ings on the scope of mil­i­tary law and the detainees at Gitmo.
In many ways, the new law is the 21st cen­tury busi­ness ver­sion of the rights con­tract: If a pri­vate indi­vid­ual wants to travel to a war­zone and do mil­i­tary jobs for profit, on behalf of the US gov­ern­ment, then that indi­vid­ual agrees to fall under the same codes of law and con­se­quence that American sol­diers, in the same zones, doing the same sorts of jobs, have to live and work by. If a con­trac­tor doesn’t agree to these reg­u­la­tions, that’s fine, don’t con­tract. Unlike sol­diers, they are still civil­ians with no oblig­a­tion to serve. The new reg­u­la­tion also seems to pass the fair­ness test. That is, a lance cor­po­ral or a spe­cial­ist earns less than $20,000 a year for ser­vice in Iraq, while a con­trac­tor can earn upwards of $100,000–200,000 a year (tax free) for doing the same job and can quit when­ever they want. It doesn’t seem that unrea­son­able then to expect the con­trac­tor to abide by the same laws as their mil­i­tary coun­ter­part while in the com­bat the­atre. Given that the vast major­ity of pri­vate mil­i­tary employ­ees are upstand­ing men and women — and mostly for­mer sol­diers, to boot — liv­ing under the new sys­tem will not mean much change at all. All it does is now give mil­i­tary inves­ti­ga­tors a way finally to stop the bad apples from fill­ing the head­lines and get­ting away free.
The change in the law is long over­due. But in being so brief, it needs clar­ity on exactly how it will be real­ized. For exam­ple, how will it be applied to ongo­ing con­tracts and oper­a­tions? Given that the firm exec­u­tives and their lob­by­ists back in DC have com­pletely dropped the ball, some­one ought to tell the con­trac­tors in Iraq that they can now be court mar­tialed.
Likewise, the scope of the new law could made more clear; it could be either too lim­ited or too wide, depend­ing on the inter­pre­ta­tion. While it is appar­ent that any mil­i­tary con­trac­tor work­ing directly or indi­rectly for the US mil­i­tary falls under the change, it is unclear whether those doing sim­i­lar jobs for other US gov­ern­ment agen­cies in the same war­zone would fall under it as well (recall­ing that the con­trac­tors at Abu Ghraib were tech­ni­cally employed by the US Department of Interior, sub­let out to DOD).
On the oppo­site side, what about civil­ians who have agreed to be embed­ded, but not con­tracted? The Iraq war is the first that jour­nal­ists could for­mally embed in units, so there is not much expe­ri­ence with its legal side in con­tin­gency oper­a­tions. The lack of any legal prece­dent, com­bined with the new law, could mean that an overly aggres­sive
inter­pre­ta­tion might now also include jour­nal­ists who have embed­ded.
Given that jour­nal­ists are not armed, not con­tracted (so not paid directly or indi­rectly from pub­lic monies) and most impor­tant, not there to serve the mis­sion objec­tives, this would prob­a­bly be too exten­sive an inter­pre­ta­tion. It would also likely mean less embeds. But given the cur­rent lack of sat­is­fac­tion with the embed pro­gram in the media, any effect here may be a tem­pest in a tea pot. As of Fall 2006, there were only nine embed­ded reporters in all of Iraq. Of the nine, four were from mil­i­tary media (three from Stars and Stripes, one from Armed Forces Network), two not even with US units (one Polish radio reporter with Polish troops, one Italian reporter with Italian troops), and one was an American writ­ing a book. Moreover, we should remem­ber that embeds already make a rights trade­off when they agree to the military’s report­ing rules. That is, they have already given up some of their 1st Amendment pro­tec­tions (some­thing at the heart of their pro­fes­sional ethic) in exchange for access, so agree­ing to poten­tially fall under UCMJ when deployed may not be a deal breaker.
The ulti­mate point is that the change gives the mil­i­tary and the civil­ians courts a new tool to use in bet­ter man­ag­ing and over­see­ing con­trac­tors, but leaves it to the Pentagon and DOJ to decide when and where to use it. Given their recent track record on legal issues in the con­text of Iraq and the war on ter­ror, many won’t be that reas­sured.
Congress is to be applauded for finally tak­ing action to reign in the indus­try and aid mil­i­tary offi­cers in their duties, but the job is not done. While there may be an incli­na­tion to let such ques­tions of scope and imple­men­ta­tion be fig­ured out through test cases in the courts, our elected pub­lic rep­re­sen­ta­tives should request DoD to answer the ques­tions above in a report to Congress. Moreover, while the change may help close one account­abil­ity loop­hole, in no way should it be read as a panacea for the rest of the pri­vate mil­i­tary industry’s ills. The new Congress still has much to deal with when it comes to the still unreg­u­lated indus­try, includ­ing get­ting enough eyes and ears to actu­ally over­see and man­age our con­tracts effec­tively, cre­ate report­ing struc­tures, and forc­ing the Pentagon to develop bet­ter fis­cal con­trols and mar­ket sanc­tions, to actu­ally save money than spend it out.
A change of a few words in a leg­isla­tive bill cer­tainly isn’t the stuff of a block­buster movie. So don’t expect to see Angelina Jolie star­ring in “Paragraph (10) of Section 802(a)” in a the­atre near you any­time soon. But the legal changes in it are a sign that Congress is finally catch­ing up to Hollywood on the pri­vate mil­i­tary indus­try. And that is the stuff of good gov­er­nance.
– P.W. Singer is Senior Fellow and Director of the 21st Century Defense Initiative at The Brookings Institution. He is the author of Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press) and the upcom­ing book Wired for War (Houghton Mifflin).

January 3rd, 2007 | Mercs, War Update | 3339401 Comments »http://defensetech.org/2007/01/03/the-law-catches-up-to-private-militaries-embeds/The+Law+Catches+Up+To+Private+Militaries%2C+Embeds2007-01-03+22%3A37%3A28hambling You can skip to the end and leave a response. Pinging is currently not allowed.