Who's Guarding Whom? Private Security Contractors and the Need for Government Action

Coauthored by Nicole Vander Meulen

The Department of Defense spent about $160 billion on private security contractors (PSCs) for various services in Iraq and Afghanistan from 2007-2012, and contractor personnel made up over 50 percent of the U.S. presence in the Balkans, Iraq, and Afghanistan. This is a growing and major global industry, where rules aren't developing fast enough to cover the myriad of services provided by these companies.

Private security contractors employed by the U.S. government abroad, for example, have been implicated in serious human rights violations, ranging from destruction of property to torture and human trafficking. Two examples of this have been in the news again recently: the Blackwater shooting in Nisour Square and the torture of detainees at Abu Ghraib.

In the infamous Nisour Square shooting of 2007, Blackwater guards who were protecting U.S. embassy personnel in Iraq opened fire in a crowded traffic circle unprovoked. The results were devastating, leaving 17 civilians dead and 20 injured. To make matters worse, the Department of State was aware that Blackwater was out of control before this tragedy happened. For example, the Department of State received a memo detailing Blackwater's misconduct from Jean C. Richter, an investigator sent by the Department of State along with Donald Thomas Jr. to look into Blackwater's conduct in Iraq in August 2007.

The misconduct they found was troubling. Blackwater guards were keeping automatic weapons and ammunition in their rooms where they would also often drink, many of them were not certified to use the weapons they were carrying, and oversight was weak. The misconduct was not limited to lower level employees. According to Mr. Richter, Blackwater's project manager in Iraq, Daniel Carroll, threatened him when he brought up the unsanitary conditions at Blackwater's cafeteria. Instead of disciplining Mr. Carroll, embassy officials sided with him and kicked Mr. Richter out of the country, effectively ending the investigation. All of this was possible, according to Mr. Richter, because the embassy personnel these guards were hired to protect had gotten too close to Blackwater.

If Mr. Richter was hoping that bringing these issues to the attention of those higher up in the Department of State would have an impact, he was sorely mistaken. Despite having received this memo, dated 31 August 2007, the Department of State did not respond to it until after the Nisour Square shooting took place, when it was already too late. At that time, Mr. Richter and Mr. Thomas, were questioned about the allegations of Mr. Carroll's threat, but there was no further action taken. So who was protecting whom here?

Another incident of alleged private security contractor abuse occurred at Abu Ghraib. In Al-Shimari v. CACI Premier Technology Inc. four former detainees are alleging that employees of CACI Premier Technology Inc., the PSC hired by the Department of Defense to conduct interrogations at Abu Ghraib, were "directing or encouraging" their torture, and that the managers of CACI covered it up. The case was initially dismissed for lack of jurisdiction by a lower court, but has been revived by the 4th U.S. Circuit court of appeals in Richmond, Virginia, which found the lower court had erred. Perhaps justice is on its way.

We should be concerned about the lack of oversight and accountability that exists over PSCs and their personnel. In order to ensure that private security contractors are held accountable, the government needs to guarantee that contracts aren't flowing to companies without proper policies and procedures in place to ensure respect for human rights, and that remedies are open to those harmed when violations occur.

One way to move towards this end would be through supporting the International Code of Conduct for Private Security Service Providers (ICoC). The ICoC's purpose is to set industry principles that are in line with humanitarian law and that will ensure protection of human rights. In order to make sure that companies that voluntarily sign on to the Code actually comply with its principles, the ICoC Association (ICoCA) uses an independent oversight mechanism. This mechanism is tasked with certifying member companies, monitoring their compliance, dealing with individual complaints, and reviewing company reports. As of 1 September 2013, 708 companies have signed on to the ICoC. But governments now need to move forward and link their contracts with compliance to the ICoC. Only those companies that are engaging in these processes should be benefiting from lucrative government contracts.

In situations where harm does occur, governments need to build and enforce laws that provide a sanction and remedy. In the U.S., the Military Extraterritorial Jurisdiction Act (MEJA) brings Department of Defense civilian employees and contractors who work abroad under the criminal jurisdiction of U.S. courts. However, MEJA does not unambiguously bring private security contractors hired by other government agencies under that same jurisdiction. Instead, it only applies to civilian employees and contractors of other federal agencies "to the extent such employment relates to supporting the mission of the Department of Defense overseas."

This may seem like a technical point - but it's critical. We need laws to clearly cover the range of contractor activity and the spectrum of agencies that hire them.

Senator Leahy has been trying to close this gap for years. He has recently reaffirmed his commitment to this issue by introducing the Civilian Extraterritorial Jurisdiction Act of 2014 (CEJA). CEJA would clarify and expand criminal jurisdiction over employees and contractors hired by any federal department or agency other than the Department of Defense for certain offenses committed abroad listed in the act, such as arson, murder, and torture. In addition to clarifying jurisdiction, CEJA aims to make sure that jurisdiction is exercised because it requires the Attorney General to establish a task force with adequate personnel and resources that would be in charge of investigating allegations of offenses under the act.

By linking U.S. government contracts to compliance with the ICoC, the likelihood of abuses similar to Nisour Square and Abu Ghraib perpetrated by PSCs would decrease. However, no prevention scheme is air tight, and when abuses do occur there must be a way to hold those responsible to account. By passing CEJA, Congress would ensure that these channels are open, and would send the clear message that the U.S. government will no longer protect PSCs that violate the law.