In the midst of the investigations into a shooting involving Blackwater U.S.A. guards in Iraq, members of Congress are looking for ways to control private security contractors in war zones.
Legislation making its way through Congress would put contractors within reach of American law, and force their companies to disclose details of their operations.
Right now, it's not clear who, if anyone, had legal jurisdiction over the Blackwater team that was involved in the shooting that killed at least nine Iraqis in Baghdad over the weekend.
The Iraqi government claims the power to license foreign security contractors and register their weapons. Contractors say the Iraqi process is corrupt and dysfunctional. Security companies claim exemption from Iraqi law under a decree issued by former U.S. administrator Paul Bremer, but they don't clearly fit under U.S. military or civil law, either.
The Debate Over Fault
As debate over fault continues, Blackwater says it was defending a State Department convoy that was ambushed in Baghdad's Mansour district. The Iraqi government says Blackwater's gunmen were the first to shoot, opening fire on a car that failed to heed a policeman's signal to stop while the convoy passed. The Iraqi account says the shots killed the driver, his wife and their infant, and that subsequent gunfire left, not nine, but at least 20 people dead.
At first, Prime Minister Nouri al-Maliki's office said it was revoking Blackwater's license, but it appears the company doesn't currently have one. People in the security industry say the Iraqi licensing process has gotten more Byzantine and corrupt with every change of government, and that many companies are mired in the process of getting licenses. One, who asked not to be identified because of concerns that Iraq's Ministry of Interior might retaliate by making the process even harder, said that Iraqi regulations require contractors to apply nine months in advance for a license that's good for six months, "meaning that you have to apply for a renewal before you even get your original license."
Proposals in Congress
Sen. Lindsey Graham (R-SC) inserted a provision into this year's Defense Appropriations Bill that would place private security contractors under the Uniform Code of Military Justice. That's a move supported by P.W. Singer, an expert on private military groups at the Brookings Institution. But Singer says the Pentagon has given its military attorneys no encouragement and no guidance on how the military code should apply to armed civilian contractors working for the U.S. government in Iraq.
Singer says the situation could be much clearer if lawmakers pass legislation that's making its way through Congress. Sen. Barack Obama (D-IL) is sponsoring a measure that would define the legal status of private security contractors, putting them under federal civilian law. It would require private security contractors working in a conflict zone to give the Pentagon details about their personnel, including their numbers, nationalities, training and disciplinary records.
Obama's legislation includes elements of bills that are also making their way through the House. It would require FBI teams in the conflict zones to investigate any allegations of criminal behavior by the contractors, and it calls on the chairman of the military's Joint Chiefs of Staff to issue rules of engagement for civilian security teams.
Singer also lauds Obama's legislation for addressing the question of what duties are appropriate for hired paramilitaries. It says they shouldn't perform what are inherently governmental functions or missions that are directly linked to the success or failure of American military units in combat.
It's not clear how Obama's bill might affect the armed fighters that the U.S. military is recruiting from tribal groups in Iraq. The U.S. currently pays such groups under ad hoc security contracts.
Doug Brooks, president of the security industry's International Peace Operations Association, says the industry would support clarified and expanded regulations on its legal status and on how its members can operate in war zones. He insists though, that most armed civilian guards in places like Iraq and Afghanistan can already be held to account under the terms of their contracts with the government.
Singer says it's a question of political will. He acknowledges that security companies do have rules of engagement written into their contracts, "but if there are no consequences for violating them, that's meaningless."