No Comment, Six Questions — September 30, 2007, 12:02 am

“Can’t Win With ’Em, Can’t Go to War Without ’Em”: Six Questions for P.W. Singer

Peter Warren Singer is a senior fellow at the Brookings Institution, widely viewed as Washington’s premier thinktank. He has been writing about military contractors and particularly the transformational role of security contractors in U.S. military strategy long before this topic came in vogue. Indeed, among the small library of books on this subject, his _Corporate Warriors: The Rise of the Privatized Military Industry has emerged as the go-to work. Singer’s writing has been nuanced and detached—respecting the innovations, the flexibility, and the accomplishments of this new industry while at the same time carefully cataloging its problems. But a couple of days ago, Singer released a new Brookings report entitled “Can’t Win With ‘Em, Can’t Go to War Without ‘Em: Private Military Contractors and Counterinsurgency.”(PDF). It adopts a far more critical posture towards security contractors, concluding that they are actually undermining the American military’s achievement of its declared objectives in a counterinsurgency operation in Iraq. I put six questions to Singer based on his new paper._

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1. One of your first conclusions is that by using military contractors, policymakers “dodge key decisions that carry political costs, thus leading to operational choices that might not reflect the public interest.” Moving away from the operations in Iraq which are more immediately topical, security contractors have been pushed as surrogates for uniformed military as peacekeepers in Darfur, Liberia, Sierra Leone, and a variety of other circumstances. A Marine general recently told me that he was concerned that the heavy reliance on contractors might allow policymakers to ease into a foreign conflict in a way that avoided Congressional scrutiny and oversight. Do you agree that this is a realistic concern?

Yes, and I wouldn’t use the word “might,” as if it were a future scenario. Contractors have already been used in all sorts of operations, in both an overt (Iraq, Balkans) and covert (Colombia, Sudan), manner to get around certain political consequences or congressional restrictions.

When the U.S. military shifted to an all-volunteer, professional force in the wake of the Vietnam War, military leaders set up a series of organization “tripwires” to preserve the tie between the nation’s foreign policy decisions and local communities. Led by then-Army Chief of Staff General Creighton Abrams (1972-74), they wanted to ensure that the military would not go to war without the sufficient backing and involvement of the nation. Much like a call center moved to India, this “Abrams Doctrine” has been outsourced.

Instead, contractors offer the means for choices to be dodged at the onset of deployment, and for scrutiny and public concern to be lessened after deployment. Your home-front does not get as involved when its contractors are being called up and deployed, nor do the people there ask key questions when contractors are lost. Over 1,000 have been killed in Iraq and 13,000 wounded, but they are not counted on official Department of Defense reports. In turn, if you want to go to a non-Iraq example, where is the concern over the three American contractors still held captive by the FARC in Colombia today? Imagine if we had three soldiers as POWs instead.

In addition, your media also becomes less likely to cover the story when contractors are involved. One quarter of one percent of all news stories out of Iraq mention contractors. This new option is obviously greatly appealing to executive branch policymakers, but the underlying premise of the Abrams Doctrine was that, if a military operation could not garner public support of the level needed to involve the full nation, then maybe it shouldn’t happen in the first place.

2. You conclude that security contractors “participated in a series of abuses that have undermined efforts at winning ‘hearts and minds’ of the Iraqi people.” Can you describe the sorts of incidents that lead you to these conclusions?

For example, it was reported that 100% of the translators and up to 50% of the interrogators at the Abu Ghraib prison were private contractors from the Titan and CACI firms respectively. The U.S. Army found that contractors were involved in 36% of the proven abuse incidents from 2003-2004 and identified 6 particular employees as being culpable in the abuses.Major General George Fay and Lieutenant General Anthony Jones, “Investigation of Intelligence Activities at Abu Ghraib,”(PDF) (US Army, 2004). However, while the enlisted U.S. Army soldiers involved in the Abu Ghraib abuse were properly court martialed for their crimes, three years later, not one of the private contractors named in the U.S. Army investigation reports has been charged, prosecuted, or punished.

In another incident in 2005, armed contractors from the Zapata firm were detained by U.S. forces, who claimed they saw the private soldiers indiscriminately firing not only at Iraqi civilians, but also at U.S. Marines. Again, they were not charged.David Phinney, “Marines Jail Contractors in Iraq.” CorpWatch.com, June 7 (2005).

Other cases in 2006 included the Aegis “trophy video,” in which contractors set video of them shooting at civilians to Elvis’s song “Runaway Train,” and put it on the Internet, and the alleged joyride shootings of Iraqi civilians by a Triple Canopy supervisor (which became the subject of a lawsuit after the two employees, who claim to have witnessed the shootings, lost their jobs).Steve Fainaru and Alec Klein, “In Iraq, a Private Realm of Intelligence-Gathering,” Washington Post, July 1, 2007; Tom Jackman, “U.S. Contractor Fired On Iraqi Vehicles for Sport, Suit Alleges,” Washington Post, November 17, 2006; Robert Young Pelton, “Blackwater Contractor Kills Vice President’s Guard.” Iraqslugger.com, February 8 (2007), iraqslugger.com; Sean Raymont, “Trophy Video Exposes Private Security Contractors Shooting Up Iraqi Drivers,” Telegraph, November 26, 2005.

These are just a few of the many examples to have made the press. There are reportedly many others that did not. As these examples show, Blackwater is certainly not the only company to be accused of incidents that reverberate negatively on the efforts to win “hearts and minds” of the Iraqis.

However, Blackwater has earned a special reputation among Iraqis. Much of this stems from the highly visible role it has played in escorting U.S. officials, but Iraqi government officials claim that there have been at least seven incidents of civilian harm in which the company has been involved. The most notable that have been reported in the press was on Christmas Eve 2006, when a Blackwater employee allegedly got drunk while inside the Green Zone in Baghdad and got in an argument with a guard of the Iraqi Vice President. He then shot the Iraqi dead. The employee was quickly flown out of the country and, nine months later, has not been charged with any crime. Imagine the same thing happening in the U.S.–an Iraqi embassy guard, drunk at a Christmas party in D.C., shooting a Secret Service agent guarding Vice President Cheney–and you can see some potential for how the firm’s Christmas tidings were not a happy one for U.S. efforts at winning hearts and minds.

In May 2007, there was another two reported shootings of Iraqi civilians by the Blackwater contractors, including of an Interior Ministry employee, which led to an armed standoff between the firm and Iraqi police. Thus, many felt the great tension between the firm and the locals would soon erupt. In the weeks before the September killings, Matthew Degn, a senior American civilian adviser to the Interior Ministry’s intelligence directorate, described the ministry as “a powder keg” of anger at Blackwater.Fainaru, “Where Military Rules Don’t Apply.”

As a result of this pattern, U.S. military officers frequently expressed their frustrations with sharing the battlefield with such private forces operating under their own rules and agendas, and worry about the consequences for their own operations. As far back as 2005, for example, Brigadier General Karl Horst, deputy commander of the US 3rd Infantry Division (responsible for security in the Baghdad area at the time) tried to keep track of contractor shootings in his sector. Over the course of two months, he found twelve shootings that resulted in at least six Iraqi civilian deaths and three more wounded. Horst tellingly put it, “These guys run loose in this country and do stupid stuff. There’s no authority over them, so you can’t come down on them hard when they escalate force. They shoot people, and someone else has to deal with the aftermath.”As quoted in “Contractors in Spotlight as Shootings Add Up,” Charlotte Observer, September 11, 2005.

3. Afghanistan is also the scene of a major counterinsurgency operation, targeting the resurgent Taliban. Your report is largely focused on Iraq. Do you consider the role of private security forces to have played a similar negative role in Afghanistan? And can you cite any particular incidents?

It is not as extreme, but there have been reported abuses in Afghanistan. One CIA contractor beat a detainee to death with a flashlight, while another freelance contractor (who reportedly told everyone he was working for the Pentagon, but this didn’t seem to be the case) was jailed for running his own private prison. There have also been numerous reports of tensions even inside Kabul between local civilians and contractors working on the Karzai contract. Another interesting incident in Afghanistan was when a contractor and two U.S. Air Force officers had an armed standoff after the contractor was claimed (by the officers) to have tried to run them off the road in his SUV.

4. Under CPA Order No. 17, Jerry Bremer granted non-Iraqi contractors immunity from Iraqi law. That left law enforcement actions by the sending nation—essentially the United States—as the sole vehicle for law enforcement. At this time there is no completed prosecution involving a contractor in Iraq. Do you believe this atmosphere of immunity has fueled the abuses in Iraq?

Yes. Although private military firms and their employees are now integral parts of many military operations, they tend to fall through the cracks of legal codes, which sharply distinguish civilians from soldiers. Private military contractors are not exactly civilians, given that they often carry and use weapons, interrogate prisoners, load bombs, and fulfill other critical military roles. Yet, they are not quite soldiers, either, in that they are not part of the service or in the chain of command, and might not even be of the same nationality. A number of laws might be applied to them, ranging from local laws to extra-territorial application of civilian law (the Military Extra-territorial Jurisdiction Act or MEJA), to even the Uniform Code of Military Justice (with the definition of civilians falling under the jurisdiction of military law expanded from times of declared war to contingency operations in Fall 2006).Peter W. Singer, “Frequently Asked Questions on the UCMJ Change and its Applicability to Private Military Contractors.” January 12 (2007). The reality is that they are almost never actually used.

Within Iraq, this legal problem was further complicated by Order 17. In one of the many decisions that will lead history to judge the Coalition Provisional Authority (CPA) as the worst governing organization since Kid Nation, two days before the CPA dissolved itself, it issued an order that could be interpreted as giving foreign contractors immunity from Iraqi law. While the legal standing of this order is questionable now (akin to your dad giving you a curfew the day before you go to college–the CPA’s orders do not trump a sovereign state’s laws), the interpretation of it held. Contractors saw themselves as above the law and the record seemed to back them up. In the three years that followed that CPA order, not one contractor operating in Iraq was prosecuted or convicted for any crime involving an Iraqi victim or any kind of conduct in the battle space.

Indeed, the only application of MEJA in the last four years in Iraq was against a KBR contractor, who had attempted to rape an American reservist while she was sleeping inside a trailer in the Green Zone. In turn, while the UCMJ [Uniform Code of Military Justice] legal change happened in Fall 2006, the Pentagon is yet to issue a guidance on how JAG officers should use it in the field. Its effect has been like a tree falling in the forest with no one there. Is real or not if no one hears it fall?

That the only time the law kicked in was when Americans were the victims certainly has not helped the counterinsurgency effort. Not only did this vacuum help impel contractors towards more aggressive actions, but it completely invalidated the message that American political advisors were trying to push to their Iraqi counterparts on the necessity of establishing “rule of law” as a way of ending the insurgency. Finally, the contractors’ seeming freedom from justice was considered a particular affront. “The Iraqis despised them, because they were untouchable,” said Matthew Degn, former senior American adviser to the Interior Ministry. “They were above the law.”Fainaru, “Where Military Rules Don’t Apply.”

5. Why has the United States failed to prosecute contractors guilty of serious crimes in Iraq? Is it a problem with legal tools, a failure of political will, or is there some other reason?

It is a combination of the two. The above explains a bit of why. That is, there are all sorts of instances in which the law “could” have been applied, but was chosen not to, because it was either difficult to do so in terms of workability, or politically unpalatable (that is, we have an atmosphere in which any bad news coming out of Iraq was seen as something to be stifled, not solved). Indeed, there are reportedly as many as 20 MEJA cases that have been handed off to the Department of Justice the last few years related to Iraq and we have not yet seen prosecutions on them except for one. That 20, though, seems an incredibly low count considering we are talking about a community of 160,000 over 4 years, in a relatively zone of impunity. I joke that we must have found the Stepford Village of Iraq. Or we have to admit we have a major problem.

6. You have been an advocate of courts-martial under the UCMJ as a means of holding private military contractors accountable for serious crimes committed in a theater of conflict. What advantages does a court-martial offer as compared with a prosecution in a federal court by the Department of Justice?

The basic reason is not merely the failure of MEJA to be used so far, but also because it was never designed for such an atmosphere. That is, the origins of MEJA are in a family abuse case at a base in Germany. It is designed for U.S. citizen-on-U.S. citizen crimes, inside U.S. facilities overseas, of a civilian criminal nature (such as that one use of MEJA in Iraq for the attempted rape). It was never planned to be used for conflict zones and or to manage behavior in the battlespace. So, for an incident like the Backwater one, you would not only have some U.S. attorney trying to track down and depose witnesses thousands of miles away (as well as trying to convince Iraqi witnesses to the shooting to come to the United States and testify), but you would also be asking some civilian jury, in say, Peoria, to try and tease out exactly what happened in a battle thousands of miles away, and to determine whether this thing they just heard of that day called “rules of engagement” were violated or not. Its just not in their scope and civilian law is just not equipped to handle these kind of issues.

By contrast, the UCMJ system is set up for just these sort of questions (“did you violate the rules of war or not?”). The problem with UCMJ, however, is that contractors are still civilians and there are all sorts of things that might break military law that are still a civilian’s right to do (being openly gay, for example, or calling your president a “knucklehead”) and you wouldn’t want a JAG officer having to court martial people for. So, the ideal is to clarify the scope of the 2 laws. That is, MEJA could be mandated to be applied to criminal behavior outside the battlespace, and UCMJ within it. Steal money or try to rape someone in your off time, meet Mr. MEJA. Shoot civilians while on mission, say hello to Colonel UCMJ. In either case, however, you have to have leaders with the will not to continue looking the other way. Laws and rules without action become mere guidelines.

More broadly, however, there is the underlying findings of the report, which I need to bring up. Even if there was perfect oversight and legal accountability for the Blackwater contractors in this latest incident, there is still a crucial problem. The data on eight different parameters in the report shows that the use of private military contractors appears to have harmed, rather than helped, the counterinsurgency efforts of the U.S. mission in Iraq. Even worse, government can no longer carry out one of its core missions: to fight and win the nation’s wars. If we judge by what has happened in Iraq, when it comes to private military contractors and counterinsurgency, the U.S. has locked its national security endevaors into a vicious cycle. It can’t win with them, but can’t go to war without them.

corporate-warriors
As you know, I was in this camp for several years, trying to analyze and suggesting policy ideas for finding our way out of the issues of outsourcing–through better oversight procedures, improved laws, etc. But I have simply come to the conclusion that it just keeps sending us further down the rabbit hole. The emperor has no clothes on, and the solution is not to say, “well, let’s put a scarf on him.”

Order a copy of P.W. Singer’s ‘Corporate Warriors: The Rise of the Privatized Military Industry’ here

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