By Raymond Kimball
A paper delivered to the NYMAS Fall Conference on October 13, 2007
Members, honored guests and friends of the New York Military Affairs Symposium, thank you very much for your kind invitation to address this distinguished group. It is my great privilege and pleasure to speak today on behalf of Iraq and Afghanistan Veterans of America (IAVA), the nation's first and largest group dedicated to the troops and veterans of the wars in Iraq and Afghanistan, and the civilian supporters of those same troops and veterans.
The name “Blackwater” has been inescapable in the popular media over the last month. Ever since the revelation of a September 16th incident in Iraq in which several civilians were allegedly targeted without provocation, the North Carolina private security company (PSC) has been under fire itself for allegations that include reckless actions by its members and a willful disregard for those same actions by the company's leadership. While these allegations are serious and deserving of scrutiny, they represent only a narrow view of a much larger problem. In today's talk, I hope to go “beyond Blackwater” to focus on the larger problem of contractors on the modern battlefield, their impacts, and what can be done about it.
I would be remiss if I did not acknowledge at the start of this talk the products of three researchers who have done outstanding work on this topic, and on whose background research I have relied upon for part of this talk. One of those researchers is Peter Singer of the Brookings Institution, whose work “Corporate Warriors: The Rise of the Privatized Military Industry” remains the best popular work on PSCs. The others are Dina Rasor and Bob Baumann of the Follow the Money Project, whose recent book “Betraying Our Troops: The Destructive Results of Privatizing War” is a searing look at corruption and malfeasance in the larger battlefield contracting industry. Anyone wishing to pursue this topic further would be well advised to read both of these works.
So as we struggle to define this problem, I wish to make it very clear from the start that the issue is much bigger than Blackwater, and in fact, is much bigger than the phenomenon of PSCs. Blackwater is not even the largest PSC in Iraq – that distinction appears to belong to either Triple Canopy or DynCorp, although given the current Byzantine nature of the contracting process, it is often difficult to tell who is subcontracting to whom.1 Nor are PSCs even the majority of firms currently providing contract services in Iraq – the current estimate of 30,000 persons conducting security operations puts them at approximately 1/6 of the total of all contractors in country, though it does make them the second-largest contributor of armed forces in Iraq, far ahead of the combined forces of the UK, South Korea and Australia.2 The total figure of 182,000 contractors working for the US in Iraq (currently cited in news reports from background sources) is also somewhat misleading – 118,000 are in fact Iraqis, and another 43,000 are third-country nationals, coming from double the number of countries currently formally providing troops to the coalition.3 The fact that well over half of the contractors are locals rather than imported labor suggests that contractor support can at least have the beneficial impact of growing local economic structures, although it raises the equivalent possibility of economic exploitation of these same people. If Iraqis are to be included in the total number of contractors, then it would seem reasonable to also include Iraqis working on Commander's Emergency Response Program (CERP) funded projects, a nigh-impossible task given the constantly shifting nature of such projects. In this particular case, the numbers simply don’t tell the full story.
It is also a mistake to believe that PSCs require more attention or regulation than other contractors on the battlefield simply because they have the capacity for the use of deadly force. Two examples are noteworthy here. On March 31st, 2004, four contractors working for Blackwater (who was a fourth-tier subcontractor to Regency Hotel Services of Kuwait, working for ESS, working for Kellogg Brown & Root, which held a prime contract with the U.S. Government) were ambushed outside of Fallujah and killed without their firing a shot. The subsequent images of these mens' bodies being burned and hung on a bridge outside Fallujah prompted an attack on the city that was completely opposite the original plan for the area, and that military and civilian leadership alike were unwilling to sustain as casualties mounted.4 The fact that these men were PSC employees was frankly less important than the fact that they were in the wrong place at the wrong time. The dubious distinction of the contractors who have done the most damage to the war effort, however, belongs to two men who worked for the Titan and CACI corporations as interpreters and interrogators respectively at the Abu Ghraib prison in 2003 and 2004. As the Taguba Report makes clear, these men had unsupervised free access to the detainee area and used that access to “instruct MPs ... to facilitate interrogations by 'setting conditions' which were neither authorized and [sic] in accordance with applicable regulations/policy.”5 While these men do not bear sole responsibility for the horrific activities that occurred in that place, their role in perpetrating them cannot be overlooked.
How did we get here? It is tempting to point the finger at the current administration, but the roots go far deeper. In the first Gulf War, the Department of Defense employed 9,200 contractor personnel, who performed tasks as varied as aircraft maintenance and food service.6 The use of contractors to provide additional support functions exploded in the mid-90s during peacekeeping operations in Bosnia and Kosovo. Because the executive branch was limited by a force cap imposed by Congress on the number of soldiers that could be deployed in the Balkans at any one time, the DoD chose to use contractors to cover a widening array of functions, including intelligence analysis, management and control of government property, and security guards for US and coalition installations. In responses to GAO queries, the Army plainly stated that they had chosen to replace soldiers with contractors in Bosnia to meet the requirements for steady reduction of force levels – one result was that by October 2002, seven years after the start of the Implementation Force mission in Bosnia, contractors outnumbered military members by 2 to 1.7 The State Department learned how to contract for such functions too during the 1990s, employing contractors such as DynCorp in places like Colombia to conduct advisory operations for local law enforcement agencies and dangerous counter-narcotics missions. 8 A June 2003 GAO report which warned that “DoD agencywide and servicewide guidance and policies for using and overseeing contractors that support deployed US forces overseas are inconsistent and sometimes incomplete” met with the following reply from Deirdre Lee, Director for Defense Procurement and Acquisition Policy:
While in general better Department-wide guidance needs to be provided addressing various issues related to contractor employees on the battlefield, I note that the lack of such guidance has not jeopardized the operation of any DoD mission in recent memory. Therefore, the benefits of any steps that provide greater guidance and obtain more information to ensure combatant commanders have a better picture of contractors on the battlefield must be weighed against the burdens and costs of such measures.9
Beyond the sheer blitheness of this statement, what is most infuriating about it is that at the very moment it was provided in response to the GAO report, soldiers stationed at least one forward operating base in Iraq were cannibalizing vehicles and rationing food and water because their assigned contract support was failing at its mission.10
So how do we fix what has now become a systemic problem for not only the DoD, but the Department of State and other governmental agencies as well? The obvious answer is to increase force structure in the DoD and other agencies to compensate for the shortfall in capabilities, but this is not necessarily the panacea it would appear. The DoD estimates that it costs at least $100,000 per year to pay, feed, clothe, house and provide medical care for the average American soldier. This figure does not include the money required to equip and train those same individuals, nor does it include the costs incurred by taxpayers for retirements and other veterans' benefits. State would run into similar problems with its Bureau of Diplomatic Security. It is also not clear that the current environment will permit the kind of recruiting needed to increase both the Armed Forces and the Diplomatic Security Corps by the number of personnel required. The Army met its recruiting goals this year, but just barely, and only by raising its maximum enlistment age, accepting more troops with “moral waivers,” accepting recruits with lesser educational qualifications, and offering unprecedented “quick-ship” bonuses of up to $20,000 for recruits willing to come in before the end of the fiscal year.11 This goal included the numbers the Army needed to grow by 70,000 soldiers over the next five years – even larger incentives and further concessions to lowered standards would be needed to bring in more soldiers at the pace needed to rapidly replace contractor manpower. Barring a major change in how the US government chooses to fund and equip overseas operations like the war in Iraq, battlefield contractors will likely be a permanent fixture of modern battlefields for some time to come.
Better enforcement of existing rules would seem to be a better course of action. Shortly after the signing of the FY2007 National Defense Authorization Act, sharp-eyed observers noted a change in wording to the Uniform Code of Military Justice (UCMJ). This change altered the jurisdiction of military commanders over civilian contractors to include “times of declared war or contingency operations.” The last three words are key, for they open the door to the military prosecution of civilians on the battlefield, something previously restricted by military courts and the U.S. Supreme Court to times of declared war only. 12 As of yet, the DoD has not issued guidance to its Judge Advocates General on how or when this new authority should be used in the field.13 The new authorization may also open up a host of new problems, not the least of which are issues in civil-military authority. As one Army lawyer writing in a professional journal noted recently, the UCMJ expansion applies to “all persons accompanying the Armed Forces in the field.” If the DoD chose to take an expansive view of this power, it could potentially make an argument to apply UCMJ authority to all US civilians accompanying US forces, including embedded media and NGO representatives.14 It is highly questionable whether or not such an approach is constitutional, absent the kind of oath taken by military personnel to subject themselves to the UCMJ. 15 This approach would also raise troubling questions about the professional military ethos of the Armed Forces – if contractors are performing exactly the same tasks as US forces, and are equally subject to the strictures of the UCMJ, then what, exactly, is the difference between them? In addition to raising questions about the traditional identity of servicemembers, this erasing of distinctions would also raise the practical question of why military members get benefits such as free medical care, education, and housing benefits, while contractors get simple (albeit much higher) salaries.
A far more practical approach would be the one currently underway in Congress, which is the expansion of the Military Extraterritorial Jurisdiction Act of 2000, known as MEJA for short. This act was created in response to several scandals in which US contractors in the Balkans were caught running prostitution rings and other sordid activities overseas, but could not be prosecuted by either the host country or the US military. MEJA provides for the prosecution of contractors accompanying the Armed Forces for any offense that would be a felony under US law. Originally hailed as a breakthrough, the limitations of the original MEJA statute became apparent during the Abu Ghraib scandal, when it could not be applied to the contractors working at that prison because they were technically employed on a contract with the Department of the Interior.16 Congress amended the MEJA statute once in 2005 to extend its reach to cover contractors supporting a DoD mission, but this language too may not cover contractors like Blackwater, who are working for the State Department, arguably the lead agency in Iraq and not “supporting a DoD mission.” In response to the 16 Sept incident, the House moved to broaden MEJA even more, extending its provisions to cover contractors working with any federal agency. Even more significantly, the International Peace Operations Association, a trade association of private security companies, recently endorsed the House bill and is urging its passage. Extension of MEJA would go a long way towards correcting the excesses of the worst offenders in the contracting realm.
Three other legal options deserve note because they have been the primary mechanisms for contractor discipline over the past five years in Iraq.
In 2004, Congress created the office of the Special Inspector General for Iraq Reconstruction (SIGIR) and tasked him with investigating all fraud, waste and abuse associated with expenditures of U.S. funds in Iraq. Since then, the SIGIR has completed hundreds of audit investigations of DoD and State Department projects in Iraq and compiled “lessons learned” reports for Congress. SIGIR has also begun 57 ongoing investigations into fraud, waste, and abuse in Iraq reconstruction, 28 of which are at the Department of Justice for prosecution. As of July 30, 2007, SIGIR investigations have resulted in 5 convictions, 13 arrests, and 8 pending trials. SIGIR’s actions show what is possible when the political will exists to exercise proper oversight over battlefield contractors, even in an environment as chaotic as Iraq.
In addition, the federal government has deployed its contract auditing agencies to Iraq to review the costs incurred by contractors on the battlefield. These agencies developed and matured as part of the Cold War procurements of the mid-20th Century, and they are charged with implementing and overseeing contractors’ adherence to the Federal Acquisition Regulation and Cost Accounting Standards, among other rules. These agencies, including the Defense Contract Audit Agency and Defense Contract Management Agency have the power to declare contractors’ costs as “not allowable,” and to direct audits of contractors. For profit-seeking actors like PSCs, these options can be quite severe indeed.
Finally, the U.S. government can pursue other legal options against contractors where it identifies fraud, waste, abuse, or other improper behavior. The U.S. government has authorized suits to go forward under the False Claims Act against contractors it believes may have falsely billed the government for costs incurred. Similarly, government agencies have pursued “suspension” or “debarment” of contractors from pursuit of future government contracts – these are draconian remedies in the world of government contracting.
No legal changes will be meaningful without an accompanying readiness to investigate and actually prosecute misconduct. This means that the very officials who are supervising and interacting with contractors will need to be willing to report such misconduct to the proper authorities. This appears to be part of the thinking behind the recent State Department announcement that it would send dozens more Diplomatic Security Service personnel to Iraq to “ride along” on Blackwater convoys. One recent example shows some of the problems that can crop up with this approach. In a recent op-ed piece for the LA Times, a former State Department official wrote about how she was the “beneficiary” of Blackwater's desire to protect their charges at any cost. As she put it, “we would careen around corners, jump road dividers, reach speeds in excess of 100 mph and often cross over to the wrong side of the street, oncoming traffic be damned.”17 Notably absent from her narrative is any time when she actually reported such misconduct to her superiors or refused to be the beneficiary of these actions – as she admits partway through her essay, she couldn't even bring herself to address it with her drivers until one particularly egregious episode. Expecting government officials to monitor their protectors may seem in some respects like expecting the sheep to rat out the sheepdog for bad behavior – who, then, will guard the sheep? It will be necessary to make clear to US officials of all stripes that personal safety sometimes must take a back seat to mission accomplishment. It is also worth noting that if that same official witnessed misconduct on the part of the government employee and failed to report it, he/she could be subject to disciplinary action. It may be worth exploring the possibility of including a similar “non-toleration” clause to contractor oversight.
Because it is by far the largest consumer of contractor support, the Department of Defense will have the toughest job to tackle – it will have to get serious about its “tooth-to-tail” ratio and the level of creature comforts it provides deployed soldiers. Some of the contract support is providing crucial life support and maintenance capability to soldiers in harm's way, but far too much of it is providing “gold-plated” creature comforts at overstuffed bases. Burger Kings, Baskin-Robbins, swimming pools, softball fields – all of these can be found on the “super-bases” in Iraq, and none of them would be possible without contractors. Civilian and military officials alike defend these items as necessary for the morale of a volunteer force, while conveniently ignoring the fact that these items were already paid for in blood. As T.X. Hammes, noted counterinsurgency thinker and author put it recently:
It's misguided luxury...Somebody's risking their life [in a convoy] to deliver that luxury. Maybe you could tone down the luxury, put fewer vehicles on the road. Again, fewer vehicles on the road creates less tension with the locals, because they get tired of these high-speed convoys running them off the road.17
It’s also worth noting that a large proportion of these creature comforts are concentrated around major logistics depots and senior headquarters – eliminating them could help reduce inevitable tensions that arise between front-line soldiers and support troops. The long-standing mantra of our military has always been “nothing's too good for the troops.” It may be time to replace that maxim with another, older one: “the best form of welfare for the troops is first-class training, for it saves unnecessary casualties.”19 Leaders at all levels will have to make the tough decisions about what troops need versus what they want.
None of these changes will come easily or quickly. Nor is this list a final or even complete one – many details remain that would need to be hammered out, argued over, compromised, and finally negotiated. The alternative, though, is the status quo, which is currently failing three separate and distinct constituencies: the “clients” (that is, the US government and its agencies), the American taxpayer, and the locals of other countries. This is simply too expensive in both monetary and human terms, and it's time to apply some “cost-cutting measures” of our own.
Raymond Kimball is a Major in the United States Army and a Founding Member of Iraq and Afghanistan Veterans of America (www.iava.org). He would like to thank Dina Rasor of the Follow the Money Project (www.followthemoneyproject.org) and Phil Carter of Intel Dump (www.inteldump.com) for their invaluable assistance with this paper. Any errors of fact or analysis remain those of the author.
1 Jennifer K. Elsea and Nina Serafino, CRS Report for Congress: Private Security Contractors in Iraq (Washington, D.C.: Congressional Research Service, July 11th, 2007) 7-8.
2 Elsea and Serafino, 3; coalition troop levels as of February 2007 from www.globalsecurity.org. (full URL: http://www.globalsecurity.org/military/ops/iraq_orbat_coalition.htm)
3 Elsea and Serafino, 4.
4 Dina Rasor and Robert Baumann, Betraying our Troops: The Destructive Results of Privatizing War (New York: Palgrave MacMillan, 2007), 109-110.
6 GAO-07-145, High Level DOD Action Needed to Address Long-Standing Problems with Management and Oversight of Contractors Supporting Deployed Forces, Government Accountability Office (Washington: GPO, December 2006) 1.
7 GAO-03-695, Contractors Provide Vital Services to Deployed Forces but are not Adequately Addressed in DOD Plans, Government Accountability Office (Washington: GPO, June 2003) 8.
8 GAO-98-60, Drug Control: U.S. Counternarcotics Efforts in Columbia Face Continuing Challenges, Government Accountability Office (Washington: GPO, February 1998) 33-35.
9 GAO-03-695, 47.
10 Rasor and Baumann, 51-53.
11 Michelle Tan, “Army Reaches Recruiting Goals for 2007”, Army Times, 3 October 2007.
12 Client Alert, McKenna Long and Aldridge, 29 January 2007.
13 Peter Singer, Can't Win with Them, Can't Go to War Without Them: Private Military Contractors and Counterinsurgency, Brookings Institution Policy Paper #4, September 2007, available on the internet at www.brookings.org.
14 Marc Lindemann, “Civilian Contractors Under Military Law”, Parameters: US Army War College Quarterly 37, no. 3, 89-90.
15 Rasor and Baumann, 233.
16 Lindemann, 87.
 Special Inspector General for Iraq Reconstruction, “July 30th, 2007 Quarterly Report and Semiannual Report to Congress” (Washington: GPO, July 2007).
 John Broder, “State Department Plans Tighter Control of Security Firm”, The New York Times, 6 October 2007.
17 Janessa Gans, “I Survived Blackwater”, The Los Angeles Times, 6 October 2007.
18 Quotes in Singer, 5.
19 Erwin Rommel, Attacks (New York: Athena Press, 1979)