My note: As I am writing this, the House of Representatives just passed a bill that would subject ALL contractors to US law, so this is a big step in the right direction. Of course, the White House opposes this and my guess is that it will be vetoed if passed in the Senate. The House vote was passed with an overwhelming vote of 389-30.
With all of the news and the controversy surrounding Blackwater USA over the past few months (or years), I have been waiting for a couple of questions to be asked and answered. I can come up with a partial answer to some of them, but it still doesn’t sit well enough with me and I think it should be discussed a bit further.
First, the questions, and then a bit of analysis and “likely answer” to some of this, but still something that falls far short of something that is acceptable, especially given the events that have happened with Blackwater employees over the past few years.
- Why is Blackwater one of three private security firms with a State Department contract as opposed to a Defense Department contract? (more on this distinction later);
- Why has the State Department not taken the same steps as the Defense Department to ensure that its contractors have some form of accountability under the UCMJ, US law or Iraqi law?
- Was this distinction made and the contract provided under the State Department guidelines in order to specifically avoid any form of liability? (this one I don’t have any answer to, but I would be interested in seeing if there are any shady links here).
As far as the first question goes, there is a lot of detail here. For starters, the likely “on the surface” response will be that Blackwater’s contract is to protect State Department employees and other high level officials in Iraq and therefore, it should fall under the State Department. However, there are a number of things that I find wrong with that. First, in a diary I did a few months back, I reference this passage from Blackwater’s own web site:
We are not simply a "private security company." We are a professional military, law enforcement, security, peacekeeping, and stability operations firm who provides turnkey solutions. We assist with the development of national and global security policies and military transformation plans. We can train, equip and deploy public safety and military professionals, build live-fire indoor/outdoor ranges, MOUT facilities and shoot houses, create ground and aviation operations and logistics support packages, develop and execute canine solutions for patrol and explosive detection, and can design and build facilities both domestically and in austere environments abroad.
So they basically bill themselves out as a “professional military”, and many of their members are former military personnel. And while the goal of the contract is for its’ 1,000 employees who are in Iraq to protect high level officials, there are numerous instances where they are doing much more. According to a CNN article about a plane crash in Afghanistan in 2004 where the pilot (a Blackwater employee) was quoted as saying “this is fun” while doing what his co-pilot said were “X-Wing fighter” moves prior to a crash that killed 6 people, including three troops. Interestingly, the article notes that Blackwater was hired by the Defense Department in this instance.
There is also the 2006 killing of an Iraqi vice president’s aide by a Blackwater employee, and as noted in this post, there are many instances of Blackwater acting in more of a military capacity than in a “private security” capacity:
Yesterday's Congressional report, issued by the House Committee on Oversight and Government Reform, contended that employees of Blackwater USA have fired their deadly weapons in 195 incidents in Iraq since 2005.
The report found that in 163 of those 195 cases, the Blackwater contractors fired first, and more often than not they fired from moving vehicles without ever stopping to check for the dead or wounded. The report also contends that the U.S. State Department has tried to buy off the relatives of those Iraqi civilians killed by Blackwater personnel.
In other words, your tax dollars are being used to provide hush money to protect a for-profit mercenary corporation from embarrassment and also, presumably, from criminal charges and liability exposure.
All of this, in addition to many more bits of information that would be too long a list to include here, make me ask why they are at least not partially covered under the Defense Department. And here is why I ask that question. An excellent article by Sidney Blumenthal talks about Order 17, which basically exempted all foreign contractors within Iraq, including private military firms, from any Iraqi laws. This order was one of the final acts of L. Paul Bremer, and the Order was written by Lawrence Peter. Peter oversaw the Iraqi Ministry of the Interior (which was cited as “dysfunctional and sectarian” in a recent military report) before becoming Director of....wait for it... the “Private Security Company Association of Iraq”. Oh yeah, Lawrence Peter is also a $40-per-hour consultant on security issues to the Pentagon’s Defense Reconstruction Support Office, which issues contracts.
A recent McClatchy article discusses the contractor situation in Iraq:
In all, there are 137,000 contractors working for the Department of Defense in Iraq, compared with nearly 170,000 members of the U.S. military.
The Pentagon probe will deal only with contractors working for the Department of Defense. The Blackwater guards suspected in the Baghdad shooting were working under a State Department contract and couldn't be held accountable under military law.
"Commanders have UCMJ (Uniformed Code of Military Justice) authority to disarm, apprehend, and detain DoD contractors suspected of having committed a felony offense in violation of the RUF (Rules on the Use of Force)," Gordon wrote. The memo was dated Tuesday.
England said commanders should review contractors' standard operating procedures and make any necessary changes to the way they authorize force to "minimize the risk of innocent civilian causalities or unnecessary destruction of civilian property."
The State Department hasn't distributed a similar memo, and it is unclear what, if any, U.S. law applies to the actions of its contractors.
In Blumenthal’s article (linked above), there is this bit of testimony from Erik Prince (head of Blackwater) before Congress, which lends credence to Blackwater being under a Defense Department contract (and therefore UCMJ):
On Tuesday, the chairman of Blackwater, 38-year-old Erik Prince, heir to an auto-parts fortune and an evangelical right-wing former Navy SEAL, appeared before the House Oversight Committee. He presented himself as though he were a general of U.S. forces, deserving deference from lowly civilians. Indeed, he declared that Blackwater's mercenaries were part of the "total force" in Iraq. If they were, of course, they would be subject to the Uniform Code of Military Justice. When pressed, Prince retreated into his fortress of privatization. "We're a private company, and there's a key word there -- private," he said. (emphasis mine)
It should be noted that there was a law change in 2005 with respect to contractors working in Iraq for the Department of Defense. While there are currently around 15 private security companies under DoD contracts in Iraq, there were over 30 at one time. As noted above, Blackwater is one of three private security contractors that operates under the State Department, and has had contracts with the Defense Department as well – so it can’t claim that it wouldn’t have any reason to be under a Defense Department contract.
An MSNBC article gives some good background on the State Department/Defense Department issue:
Over the past year, the military has issued a series of “fragos,” or fragmentary orders, designed to impose greater accountability on security contractors operating under Defense Department contracts. Blackwater was not covered because it reported to the State Department.
The new rules included procedures for the registration of weapons and streamlined the reporting of shooting incidents. The U.S. military’s director of security for the Green Zone, where approximately three dozen private security firms are based, has conducted sweeps that netted hundreds of unauthorized weapons.
None of the new orders applied to Blackwater, which has received $678 million in State Department contracts since 2003 and operates under the department’s authority.
So, this is far from over – even with the House vote. But it does leave these other very important questions – how did Blackwater escape any form of accountability due to its State Department contract, and was this intentionally done? The House vote will cover State Department contracts, but it doesn’t answer the “why” part of the second question I posed above.
Hopefully, more information will come out, but these questions shouldn’t be overlooked.