No Comment — March 16, 2010, 12:51 pm

The Trouble with Contractors

Blackwater, International Media Ventures (IMV), and International Security Corporation are certainly not the only contractors engaged to perform sensitive missions inside the Afghanistan-Pakistan border zone. At least a half dozen others appear to be active there, and I suspect we’ll be learning more details about their efforts in the near future. As I noted yesterday, the questions about these operations go less to the need for the sort of work they are performing, which I take as a given, and more to the suitability of private contractors doing this work—which historically would have been a core-military or a core-intelligence function. Several readers have asked me to elaborate a bit on the legal side of this problem.

The legal issues can’t really be fully assessed without much more information than has been reported so far, but I see three separate problems—in ascending order of significance:

  • Appropriated funds. Specific rules govern the use of congressionally appropriated funds, requiring the money to be used for the purpose for which it was in fact approved. The report suggests that contracts were concluded for public-affairs work but that this was a cover for intelligence gathering—specifically reconnaissance connected with drone or bombing strikes. It is possible of course that the funds were provided under intelligence appropriations and the contracting process was a mere cover, but the facts reported by the Times at least suggest serious allocation of appropriated funds issues.

  • Domestic propaganda. James Madison raised the specter of a propagandizing military machine as a threat to democracy in the debates surrounding the ratification of the Constitution. Congress has repeatedly enacted specific restraints—found, for instance, in the Smith-Mundt Act and the Communications Act—that preclude the Pentagon from spending money to propagandize the U.S. public. Conversely, “information operations” (which is Pentagon-speak for propaganda) that target foreign audiences and particularly war zones like Afghanistan or Iraq are generally acceptable. In his 2003 Information Operations Roadmap, Secretary Rumsfeld appears to have okayed a dramatic ratcheting up of Pentagon Public Affairs operations as a part of war-making efforts, taking the view that the existing legal constraints affect only efforts that explicitly target the U.S. public. It seems clear at this point that the Rumsfeld Pentagon authorized and engaged in propaganda operations that violated U.S. law, and that Secretary Gates and President Obama both took steps to rein in some of these acts. It’s not clear whether the “information operations” discussed in the Times story raise issues under this legislation, but they might.

  • Laws of war. The laws of war as expressed in the Geneva Conventions and the two additional protocols take the view that uniformed military personnel alone are privileged belligerents. Civilians may of course become caught up in a military operation coincidentally, as when a civilian train conductor or pilot operates a vehicle that is being used to move troops. But civilians should not be in a continuous role associated with belligerent activities—what the Red Cross calls a “continuous combat function.” This is the distinction used by the Bush Administration, for instance, when it refers to prisoners held at Guantánamo as “unlawful combatants.” The problem is that, by the same reasoning, a civilian contractor engaged in continuous military activities is no less an “unlawful combatant.”

Gary Solis has offered an excellent discussion of the issues raised under this last point in an op-ed published on Friday in the Washington Post. Solis is focused on drone warfare in the Afghanistan-Pakistan border area, and specifically on that part of the program operated by the CIA, but his reasoning applies even more strongly to civilian contractors:

Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities. Before the 1863 Lieber Code condemned civilian participation in combat, it was contrary to customary law. Today, civilian participation in combat is still prohibited by two 1977 protocols to the 1949 Geneva Conventions. Although the United States has not ratified the protocols, we consider the prohibition to be customary law, binding on all nations. Whether in international or non-international armed conflict, we kill terrorists who take a direct part in hostilities because their doing so negates their protection as civilians and renders them lawful targets. If captured, the unlawful acts committed during their direct participation makes them subject to prosecution in civilian courts or military tribunals. They are not entitled to prisoner-of-war status.

If the CIA civilian personnel recently killed by a suicide bomber in Khost, Afghanistan, were directly involved in supplying targeting data, arming or flying drones in the combat zone, they were lawful targets of the enemy, although the enemy himself was not a lawful combatant. It makes no difference that CIA civilians are employed by, or in the service of, the U.S. government or its armed forces. They are civilians; they wear no distinguishing uniform or sign, and if they input target data or pilot armed drones in the combat zone, they directly participate in hostilities — which means they may be lawfully targeted.

As Solis points out, these personnel are not privileged under the Geneva Conventions, except for the essential protections of Common Article 3. But the greater point is that the United States government, which argues today in court proceedings that the conduct of unprivileged belligerents is criminal, is itself fielding civilians to engage in unprivileged belligerent activities. This means among other things that a military commission would have to consider a defense of tu quoque (“you do it too”) on behalf of the defendants. But it raises still more fundamental questions about U.S. fidelity to its own law of war traditions, and the absence of congressional oversight of this point.

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