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September 18, 2007

Contractors in Iraq - Another Black Eye for the US
Posted by Michael Cohen

In recent days the big story out of Iraq has been the deaths of nine Iraqi civilians at the hands of private contractors working for Blackwater. Now, the Iraqi government is threatening to revoke licenses for the Company and is calling for an overall review of all contractors working in the country.

Before delving deeper into this issue, it's important to get a little perspective here:

  • First, Blackwater doesn't even have a license to operate in Iraq so there is likely nothing for the Iraqi government to revoke. Since these contractors were working for the US diplomatic service I'm not sure that the Iraqis have any recourse at all.
  • Second, under CPA Order 17 signed by Paul Bremer, private military and security contractors (PMCs and PSCs) are basically immune from Iraqi law - and they can't be court-martialed either.
  • Third, considering the enormous reliance of the diplomatic corps in Baghdad on contractors and Blackwater in particular, these guys likely aren't going anywhere. Even if Blackwater is "forced" to leave, their employees are just going to go work for other contractors.
  • Fourth, it's really important to keep in mind that the lion's share of contractors in Iraq don't carry guns, aren't Americans and perform support services.
  • Finally, from everything I've read it sounds like the Blackwater folks were defending themselves while under attack and the Maliki is probably playing politics here - beating up on a group of individuals (private contractors) none too liked by the Iraqi people.

Indeed, the issue here should be less about Blackwater and instead the utterly incompetent Administration that sent them there in the first place!

Since the war started 4 1/2 years ago, military and security contractors have played a significant and growing role in Iraq. Yet, not a single one of them has been prosecuted for any crime. Unless we've sent over a contingent of choir boys something here is seriously wrong.

Is it any wonder that the Iraqis are so peeved at contractors like Blackwell? Is it any wonder that Maliki is using Blackwell as a punching bag? At least when an American soldier does something wrong there is legal recourse - for contractors, none whatsoever. It's not as if laws don't exist to deal with these folks; the question is one of enforcement and accountability, which of course has been sorely lacking.

Indeed, the Bush Administration has made virtually no effort to engage in meaningful oversight of PMC actions in Iraq. And as news reports indicate today, the lack of contracting oversight is endemic; with allegations today that officials at the State Department have been blocking inquiries into fraud and abuse by contractors in Iraq and Aghanistan.

Basically, the Bush Administration decided to send these guys to Iraq without any serious public debate about the appropriateness of sending private individuals into a war zone and then made little effort to ensure contractors were being held accountable for their actions.

The fact of the matter is that the vast majority of contractors do their jobs in a professional manner - but what about the loose cannons? There is no system in place to take care of these guys. Indeed in Dec 2006, a drunken Blackwater employee shot a bodyguard to the Iraqi Vice President and not only did he get out of Iraq (via the US Embassy) but he has yet to be charged in the incident.

There is certainly a role for private contractors in US security operations (the use of contractors pre-dates Iraq, to include operations in the Balkans and even in Vietnam). But the way the Bush Administration has gone about utilizing PMCs/PSCs in Iraq has not only undermined the case for contractors in general, but it's further undermined our efforts in Iraq. At a time when when we are trying to exert pressure on Maliki to push forward with larger political reforms we are dealing with this diplomatic row - which is largely the result of our own indifference and incompetence on dealing with PMCs. Heckuva job Brownie!

It really makes you wonder, can these guys do anything right?


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". . .and they can't be court-martialed either".


Jan 8 2007
U.S. Military Contractors operating in combat zones are now subject to the Uniform Code of Military Justice (UCMJ). Congress quietly made this change as part of the FY 2007 Military Authorization Act.

The provision makes a very small, but important change to Article 2 of the UCMJ. Under previous law, the UCMJ only applied to civilians in combat areas during periods of war declared by Congress.

The new provision changes this paragraph to read: "In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field."

The law also defines "contingency operation."

The term "contingency operation" means a military operation that--
(A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or

(B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

This means that civilian contractors in locations such as Iraq or Afghanistan can now be court-martialed or punished under the provisions of Article 15 if they violate any of the punitive articles of the UCMJ.

The legal change is the work of Sen. Lindsey Graham, R-S.C., who said it would “give military commanders a more fair and efficient means of discipline on the battlefield” by placing “civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.”

I think I agree with the purpose of your post, but I have to take a stab at the part I disagree with, so here it goes.
Your point 4 is irrelevant, no-one cares about the plumbers in Iraq. But also misleading, none of the security contractors in Iraq, so far as I know, are non-American. There is a reason for this, if they were not American, then they would be classified as mercenaries, something which has a specific definition in international law, and which the US military wants to avoid.
I know nothing about Don's comment's about them being eligible for a court-martial, but I think we can all agree that whether or not it is possible, that path has not yet been followed up on.

This relates to your fifth point, mainly: you say Maliki is playing politics, but if that is true, then he is picking a good target. Plenty of people, here and there, object to these quasi-mercenaries, and from what I've heard, the main reason they are hated over there is because they have an itchy trigger finger.

Think of it this way: you're a paid security contractors whose main goal is to live, and get your job done. You are exempt from Iraqi law, and (possibly?) not subject to military rules of engagement or punishment. In a frightening situation: would you ask questions first, or shoot first?

Like I said, I agree in spirit with your post, but this is where I disagree. PS - you called it Blackwell at one point; small typo.

The Haditha Marines were recently exonerated because, as Tim suggests, in a frightening situation you shoot first. Innocents, women, infants--it matters not. In a resisted occupation, with the resistors melting in and out of the general population, the occupiers can kill anyone in the vicinity of a hostile act without fear of retribution. Anyone. The occupiers in a hostile situation justify it thusly: (1) Their own safety comes first so potential threats must be eliminated. Example: As soon as someone answers the door (as at Haditha) you shoot them in the face and then throw a live grenade into the room. Example #2: In an urban situation you kill everyone on the street. (2) The locals have to understand that they can be punished for the company they keep. It's one of the "niceties" of war, and a good reason (among many) why elective war (and the ensuing brutal occupation) is a crime.

Courts-martial are rare in these situations. The troops don't take kindly to a lack of command support when they're putting their lives on the line, and they are armed and can be dangerous.

Would these Baghdad victims be less dead if they had been killed by guys in official uniforms? People, this sort of thing has been going on for over four years. Why do you think they hate the occupiers and want to kill them? Why are there are more attacks against coalition troops than against other Iraqis?

So who is going to stand up and say that CPA order 17 means Iraq has no recourse? Rice? Gates? Petraeus? Bush? Cheney?

(Whoever it is the real voice is W's.)

Be sure to read foreign (British, Canadian) accounts of this, too.

Good point Don, I have forgotten about this change - now let's see if it's actually enforced!

Mr. Cohen should do his homework before he goes spouting off. Not only is he wrong regarding private contractors 'immunity' from prosecution under the court marital system, as Mr. Bacon noted, but he is also wrong about Blackwater not having a license. They are licensed by the Interior Ministry, which has now exercised its prerogative to revoke same, although it apparently has not to date followed up with a direct order to Blackwater to suspend its activities. Here is the law regarding licensing:

CPA Order Number 3, as revised on December 31,
2003, 67 governs the use of
weapons. It restricts the authority to carry weapons
to members of Iraqi security
forces and Coalition forces, and “groups and
individuals who have been authorized
to carry weapons in the course of their duties by the
CPA or Commander, Coalition
Forces or their duly authorized delegates,” (section
3). It further provides that
“private security firms may be licensed by the
Ministry of the Interior to possess and
use licensed Firearms and Military Weapons,
excluding Special Category Weapons,
in the course of their duties, including in public
places.” Id. All others must apply
to the Iraqi Ministry of the Interior for a license in
order to possess a weapon. The
unauthorized use or possession of weapons is
subject to penalty.

Congressional Research Report for Congress:
Private Security Contractors in Iraq:
Background, Legal Status, and Other Issues
Updated July 11, 2007
Courtesy of:

CPA? Iraq has been sovereign since June 28, 2004.

Thanks Don. Vargold, as far I'm aware Blackwater never renewed their license and doesnt have one now. Or at least that's according to Robert Young Pelton who is more knowledgable on this subject then likely you and I combined. Also, it's not clear that BW even needed a license since they are working for the US diplomatic corps.

news report: Iraqi government restrictions on security contractor Blackwater USA could mean a range of complications for US involvement in the country--potentially even undermining current plans to remove some troops on the ground, reports the Wall Street Journal.

This nation-building and democracy-spreading sure gets complicated when just because you kill a bunch of people who have been freed from the yoke of tyranny their government gets all in a huff. The US might have to stick around awhile to support that upset government, and to safeguard US diplomats from the people that have been liberated. That makes sense, doesn't it? It will when the new oil law is passed.

Even if Blackwater is working for the US Diplomatic corps, why wouldn't they need a license with the Iraqi government? Diplomatic immunity doesn't mean a complete free reign to do whatever you want, and it certainly doesn't extend to contractors working for diplomats. If they're not diplomats, and they're not US military forces, then I'm pretty sure the Iraqi government has the authority to regulate their activity.

Blackwater did need a license from the CPA to operate back in 2003-04, but when sovereignty transferred to the new Iraqi gov, they never renewed the license. Maybe I'm just missing something here, but from what I know about the legal situation in Iraq, everything done by the CPA was done as the acting Iraqi government at the time. So if BW needed a license from the CPA, why wouldn't they need one from the real Iraqi government?

Maybe you (Michael) could clear this part up, or get Robert Young Pelton to help us out.

Tim, this is from today's NYT. It's the basic gist of how I understood the issue - when the Iraqis took over in 2005 the rules on licensing were unclear so many companies didn't even bother to renew. Also, for the companies that did try to, there have been long delays. Hope this helps!

"The Iraqi government said it had revoked Blackwater’s license. But it appeared that the company had not possessed one in many months, according to a security official in Baghdad, but had begun work on getting one in spring of 2007.

The Iraqi government has changed hands several times, throwing up new hurdles for companies to register, and by the fall of 2006, when the process changed again, many simply stopped trying, the official said. Currently, about 25 companies are formally licensed, the official said. Blackwater is not among them.

One private security official said Blackwater had been at odds with the Ministry of Interior over licensing, and drew more ill will when a guard killed a ministry bodyguard some time ago."

Thanks Michael, that does clear things up quite a bit.

This doesn't really bode well considering some of the babble we all heard about how smooth the transfer of power was, and how well the CPA had supposedly handled the process of starting the nation re-building.

Be sure and read yesterday's article in (See link below) "What happens to private contractors who kill Iraqis? Maybe nothing." It's two pages of good info. Now that I've read more on this, I see no real possibility of any prosecution of Blackwater's murderers under existing law, which has loopholes big enough to drive a truck through. Even MEJA applies only to civilian employees of DOD and conractors working for it, so Blackwater isn't covered since they work for State. As noted in the article, a bill sponsored by Rep. David Price, D-N.C. attempts to deal with this loophole. (See link below).

Thanks, Don and Michael, for your input.

1. "What happens to private contractors who kill Iraqis? Maybe nothing."
2. Transparency and Accountability in Security Contracting Act of 2007

Vargold, I think the problem here is less one of existing law and more one of enforcement. If DOJ or DOD wanted to find a way to prosecute I imagine they could - they choose not to.

Also, it's important to acknowledge that most of the contractors are professional and do their job well. The problem is that there is no system in place to deal with folks who break the law and that's why the Iraqis are so pissed about it -- and rightfully so I would argue.

Finally, to clarify an earlier comment from Tim, there are plenty of non-American security contractors (Fiji, South Africa, UK). They may even outnumber the US contractors. Also, you should care about the "plumbers" as you call them - they make up the lion's share of the contractors and that is the future of US security operations: US soldiers being supported largely by civilians.

Why do you think "most contractors are professional and do their job well"? What does professional even mean in the context of armed men careening around in SUVs? Why is it different from any other militia? They don't answer to anyone at all, they do as they please, kind of like Hunt Oil.

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