The Independent Private Contractor Military is Now in Control

November 8, 2010

By Marti Hiken and Luke Hiken

A funny thing happened on the way to the wars in Iraq, Afghanistan, Pakistan, Yemen and Somalia. The U.S. military became privatized. Private contractors, i.e. mercenaries, are now the predominant military force comprising the armamentarium of the United States. In effect, private contractors supplanted the U.S. military as the primary decision-makers and fighting force of the U.S. government.

Military Overly Dependent on Private Sector

Private contractors were

the saving grace to the need for more troops to fight overseas in multiple countries as well as to staff the multitude of U.S. bases on foreign soil. Very comfortably and conveniently they eliminated the need for a draft and all the problems associated with the selective service. What the American people did not consider is the more-or-less secret, diminishing power of the U.S. government over its own fighting forces.

As law professor Steven Schooner was asked in an interview, “Is there any danger of the military becoming overly dependent on the private sector?” he answered, “There’s no question that the military has become overly dependent on the private sector. When I was a young Army officer, as I learned the military doctrine… the military relied on contractors on the battlefield only to the extent that they could fight without the contractors. That’s simply no longer the case in the United States military. The United States military can no longer fight effectively without contractors on the battlefield, and that has to be an item of great concern both to commanders and to the public. If we are faced with a legitimate foe that could in fact compete with us in terms of competence on the battlefield … this pervasive presence of contractors could be potentially disastrous.

Every year the federal government spends half a trillion dollars on contracts for goods and services from private companies. The total workforce of those companies — including workers not on federal contracts — accounts for 22 percent of American workers, according to David Madland, director of the American Worker Project at the Center for American Progress.

There is no way of knowing the total count of all private contractors. The estimate in June of this year is that there are around 200,000 service members in both Iraq and Afghanistan.

There were over 200,000 DOD private contractors alone in 2009, comprising 53% of the DOD’s workforce in Iraq and Afghanistan. In 3rd quarter FY 2010, USCENTCOM reported approximately 224,433 contractor personnel working for the DOD in the USCENTCOM AOR (Area of Responsibility). Even the casualty list for this year exceeds the deaths of military ones in Iraq and Afghanistan.

Soldiers Whose Allegiance is Not to the U.S.

By mercenaries, we mean hired soldiers outside of any military chain of command. They can act independently of the U.S. military under the direction of their employer, and their allegiance is not to the U.S. government. They are motivated by private gain. They are usually not citizens or residents where these conflicts take place.

There is a lack of public information on the terms regarding the contracts including their costs and the standards governing hiring and performance. Without this information, how can the corporations and the contracts be documented or evaluated?

In addition, there are factors that make it impossible to know how many contractors there are and how they are used. One is that the number of casualties of private contractors remains unknown. By contracting with private contractors who were former special operation forces and who end up working for corporations, the U.S. is able to deny any official “military” presence in a country, even though there might be as many as 100,000 hired mercenaries there.

Mercenary casualties should be reported more accurately. “It’s extremely likely that a generation ago, each one of these contractors deaths would have been a military death,” Schooner said. “As troop deaths have fallen, contractor deaths have risen. It’s not a pretty picture …. I’m not accusing either the Bush or the Obama administration of intentionally deceiving the public, but when a president applauds a reduction in military deaths but fails to acknowledge the contractor personnel now dying in their place, someone isn’t telling the whole story.”

Killers Who Are Above the Law

As to their role in Afghanistan, most recently, Mr. Karzai summed it up best when he lashed out in public, accusing U.S.-funded private security companies of killing people and looting homes and shops. “They violate the law, they kill people, the people get attacked and the civilians get killed by these private security companies,” he said.

Of grave concern, given the change to the military effort, is the question of who has control over the individual armed forces of all these troops operating under different U.S. agencies and corporations. Ultimately, it is possible the president has lost control as Commander-in-Chief of the military forces of the United States. Can the Commander-in-Chief fire privatized soldiers? Has the U.S. military itself lost control of troops engaged in armed combat and other maneuvers when privatized soldiers outnumber GIs and are beholden to the dictates of separate and independent corporations?

Who is in charge of operations involving independent contractors? Is the DOD, the Pentagon, other governmental departments or agencies, the president, or the corporations?  One thing is certain, the American people, the majority of whom are opposed to these wars, who are supposed to be in charge, are not. Likewise, the Karzai government is not. The fact is the Department of Defense (DOD), the Department of State, the CIA, and USAID, etc., all employ private contractors in foreign countries.

Corporations Have More Power than the U.S.

The State Department has steadily increased its use of private contractors over the last 23 years to provide protection overseas, i.e. providing perimeter security to U.S. diplomatic and consular posts; providing worldwide personal protective services, providing bodyguards and static guards for buildings and other infrastructure; deterring visa and passport fraud, overseeing worldwide training and assistance programs in anti-terrorism; providing a courier service for the Department; and, providing a wide range of protective services for the Secretary of State, the U.S. Ambassador to the UN and foreign dignitaries visiting the U.S.[10]

One wonders if full transparency were revealed concerning the number and role of State Department forces involved in the war effort stateside and overseas wouldn’t by itself show that the U.S. State Department has under its command an army operating independently from the U.S. military and Commander-in-Chief.

The breadth of the private contractor problem boils down to this: Take the example of a United States corporation that still operates on U.S. soil and manufactures tanks for the DOD to use in Pakistan. On the floor of the factory, a worker, who works on building the tanks, rapes a fellow worker, a woman. In fact, there’s a long history in this corporation of sexual harassment, including rape. There is no doubt that the corporation can fire the individual responsible for the crime. However, can the DOD or president of the United States fire the worker? The president, furious because of the illicit activity and the fact that the corporation does nothing to quell the abuse, marches into the factory headquarters and tells the CEOs that they must fire the worker. The corporation owners and bosses say no, letting the president know in no uncertain terms that he has no jurisdiction over the workers in their plant. So, the president marches over to the Pentagon and orders his Secretary of Defense to end the contract with the corporation. The Secretary informs the president that it and the State Department have a contract with Pakistan to build the tanks and can’t break it. Besides, without this corporation manufacturing this type of tank, there would be no tanks in Afghanistan or Pakistan.

U.S. Has No Jurisdiction Over Internal Problems

One thing is certain and that is that an employee can be fired by the corporation (s)he works for — and there will be no striking, picketing, collective bargaining or disrupting production.

The problems that arise with using contractors rather than the U.S. military forces have been well documented: “[the] shortcomings with this new system [are]: how a failure to coordinate among contractors, coalition forces and Iraqi troops, as well as a failure to enforce rules of engagement that bind the military, endangered civilians as well as the contractors themselves. The military was often outright hostile to contractors, for being amateurish, overpaid and, often, trigger-happy.”

There are significant jurisdictional questions that remain:

· What happens when commanders in the field have no control over the private contractors working in various countries?

· Who controls the drone battlefield when special operation forces and independent corporations run their own ops?

· What happens when the communications during a battle or at any time bypass the members of the U.S. military and instead pass to another department under the Executive Branch, such as the State Department?

· What happens when individual heads of governmental departments and agencies issue orders to commanders on the field? This would include the private, individual armed forces of the Department of Defense, State Department, CIA and other agencies.

Who, exactly, maintains the jurisdiction within the U.S. government to fire individual private contractors when hired by corporations? When the use of private contractors is under no single government department or branch of government, the jurisdictional questions remain ambiguous, untested, undefined, unregulated, and unlawful. The following is a partial list of the military’s assertion of authority over mercenaries/private contractors. It ranges from the Extraterritorial Jurisdiction Act of 2000 (MEJA) or the SMTJ – Special Maritime and Territorial Jurisdiction of the U.S. (Title 18 U.S.C., Section 7), to the Coalition Provisional Authority Orders (CPAs) and their own judicial systems, to DOD Instructions (e.g. DOD 5525.11 — Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members), to the UCMJ and Inspectors General and the Defense Acquisition Regulation Supplement (DFARS) http://www.acq.osd.mil/dpap/dars/dfars/index.htm , to U.S federal courts, to international laws of armed conflict, to Memoranda of Understanding – agreements between the DOD and State Department that coordinate the movement of PSCs (private security contractors) throughout a foreign country.

No Accountability

Have there been prosecutions? Peter Singer, the author of Corporate Warriors: The Rise of the Privatized Military Industry, states that no contractor has been prosecuted for misbehavior in Iraq. There have been some civil lawsuits, for example, the families of the four Blackwater guards killed in Fallujah are suing for wrongful death.

Human Rights First reports, “Over the last several years, scores of well-documented reports of serious abuse by private contractors in Iraq and Afghanistan, both in the context of interrogations and in the use of excessive and often lethal force in various security operations, have not been prosecuted. Through February 2006, only 20 cases of alleged detainee abuse by contractors are known to have been assigned within the DOJ for investigation; only two more cases involving abuse of local nationals are known to have been assigned for department investigation, the most recent of which is the September 2007 Blackwater Nisoor Square shooting in Baghdad. And since military operations in Afghanistan and Iraq began, only one contractor has been tried for violence or abuse towards local nationals. In contrast, to date more than 60 U.S. military personnel have been court-martialed in connection with the deaths of Iraqi citizens and more are under investigation.”

All of these questions are up for grabs and as Jeremy Scahill writes, “The use of private companies like Blackwater for sensitive operations such as drone strikes or other covert work undoubtedly comes with the benefit of plausible deniability that places an additional barrier in an already deeply flawed system of accountability. When things go wrong, it’s the contractors’ fault, not the government’s. But the widespread use of contractors also raises serious legal questions, particularly when they are a part of lethal, covert actions. ‘We are using contractors for things that in the past might have been considered to be a violation of the Geneva Convention,’ said Lt. Col. Addicott, who now runs the Center for Terrorism Law at St. Mary’s University School of Law in San Antonio, Texas. ‘In my opinion, we have pressed the envelope to the breaking limit, and it’s almost a fiction that these guys are not in offensive military operations.’ Addicott added, ‘If we were subjected to the International Criminal Court, some of these guys could easily be picked up, charged with war crimes and put on trial. That’s one of the reasons we’re not members of the International Criminal Court.’” [Emphasis added.]

As Scahill summarizes the situation:

“During the Bush era, Special Forces turned into a virtual stand-alone operation that acted outside the military chain of command and in direct coordination with the White House. Throughout the Bush years, it was largely General McChrystal who ran JSOC [Joint Special Operations Command]. ‘What I was seeing was the development of what I would later see in Iraq and Afghanistan, where Special Operations forces would operate in both theaters without the conventional commander even knowing what they were doing,’ said Colonel Wilkerson. ‘That’s dangerous, that’s very dangerous. You have all kinds of mess when you don’t tell the theater commander what you’re doing.’”

“He saw this begin, he said, after his first Delta Force briefing at Fort Bragg. ‘I think Cheney and Rumsfeld went directly into JSOC. I think they went into JSOC at times, perhaps most frequently, without the SOCOM [Special Operations] commander at the time even knowing it.

“At that point you had JSOC operating as an extension of the [administration] doing things the executive branch–read: Cheney and Rumsfeld–wanted it to do. This would be more or less carte blanche. You need to do it, do it. It was very alarming for me as a conventional soldier.”

“Wilkerson said the JSOC teams caused diplomatic problems for the United States across the globe. ‘When these teams started hitting capital cities and other places all around the world, [Rumsfeld] didn’t tell the State Department either. The only way we found out about it is our ambassadors started to call us and say, ‘Who the hell are these six-foot-four white males with eighteen-inch biceps walking around our capital cities?’”

The Congressional Research Service (8-25-20) reports:

“Contractors working with the Department of State or the U.S. military (or with any of the coalition forces) in Iraq are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States. Section 552 of the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed Forces in Iraq subject to court-martial, but due to constitutional concerns, it seems more likely that contractors who commit crimes in Iraq would be prosecuted under criminal statutes that apply extraterritorially or within the special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial Jurisdiction Act (MEJA). Generally, Iraqi courts do not have jurisdiction to prosecute contractors without the permission of the relevant member country of the Multi-National Forces in Iraq. Some contractors, including those with the State Department, may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq.”

Ambiguity Serves a Purpose

Certainly, the ambiguity can serve a political purpose when the U.S. government needs justification for a war effort: “This arrangement, the former executive [at Blackwater] said, allows the Pakistani government to utilize former U.S. Special Operations forces who now work for Blackwater while denying an official U.S. military presence in the country.”

It also can serve the purpose of increasing military funding, increasing the coffers of the many U.S. corporations involved in these wars, and surrendering the decision-making concerning who dies and how in Afghanistan and Pakistan. Nevertheless, the ambiguity surrounding the relationship among the different players involved in making war, i.e. the U.S. military, the executive and judicial branches of government, corporations and their private independent contractors/mercenaries, is bad and illegal policy and practice.

Neither the executive branch of government nor the Pentagon wishes to acknowledge the political independence of the massive number of mercenaries fighting abroad under our name, but when push comes to shove, these private contractors constitute an “army” beholden only to the CEOs who hire them. Φ


Marti Hiken is the director of Progressive Avenues (415-702-9682). She is the former associate director of the Institute for Public Accuracy and former chair of the National Lawyers Guild Military Law Task Force. She can be contacted at info@progressiveavenues.org, 415-702-9682. Luke Hiken is a former supervising attorney at the California Appellate Project, and has handled many courts-martial over the years. The references for this article may be found at http://www.progressiveavenues.org/Ind_Con_Art_M%26L_H.html.

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