The ambush and gruesome killing of four U.S. contractors in Fallujah, Iraq, has sparked some of the most intense combat since the fall of Saddam Hussein's regime last spring. It has also brought the actions of private military contractors—hired by the U.S. government to provide extra manpower and firepower in Iraq—into sharp focus, with reports that they are fighting their own battles with their own weapons, helicopters, and intelligence networks.
Military contracting in wartime is nothing new. The military depends on a vast support network of civilians to feed, clothe, equip, and train the forces. Indeed, today's U.S. military couldn't function without civilian contractors to troubleshoot its high-tech equipment. What is new is the extent to which these contractors are conducting combat operations in Iraq; rather than the purely support functions they have performed during recent missions in Bosnia, Kosovo, and Afghanistan. This shift raises a number of problems for the U.S. government, with which the Pentagon is only now beginning to wrestle—principally, how to control these contractors and ensure that their actions under fire further the national interest.
The first set of problems arises from the legal status of contractors. Armed contractors—like the four men ambushed in Fallujah last week—fall into an international legal gray zone. They aren't "noncombatants" (as unarmed contractors are) under the 4th Geneva Convention, because they carry weapons and act on behalf of the U.S. government. However, they're also not "lawful combatants" under the 3rd Geneva Convention, because they don't wear uniforms or answer to a military command hierarchy. These armed contractors don't even fit the legal definition of mercenaries, because that definition requires that they work for a foreign government in a war zone, in which their own country isn't part of the fight. Legally speaking, they actually fall into the same gray area as the unlawful combatants detained at Guantanamo Bay, Cuba.
Practically speaking, this legal murkiness creates real problems in Iraq. The law of armed conflict requires soldiers on both sides to distinguish between combatants and noncombatants. Armed U.S. contractors wearing quasimilitary outfits and body armor blur these distinctions, making it very hard for our enemies to play by the rules of war (assuming they wanted to in the first place). It also leaves these armed contractors open to treatment by foreign governments as unlawful combatants, U.S. citizenship notwithstanding. Should a group of armed contractors stray into Syria or Iran because of a GPS malfunction, it is entirely possible that they'd be locked up on these grounds.
The second major problem with the use of private military contractors is the lack of formal rules for them to follow. Soldiers fight according to rules of engagement, which in theory, are vetted to align with national-level goals and strategies. In a place like Iraq, a lot of attention is paid to the calibration of force, because too much or too little could result in disastrous consequences. If an actual soldier breaks the rules, say, by using an unwarranted amount of force, he or she may be disciplined for doing so. Private military contractors, on the other hand, do not fight according to the same rules of engagement as their military brethren, if they operate under any rules at all. Many of the explicitly military contractors who perform security functions, such as Blackwater Consulting, have use-of-force rules built into their contracts. They train their personnel on how to follow them. But these rules are often not vetted by Defense Department lawyers nor are they designed to match the levels of force desired by American commanders on the ground.
Private military contractors generally don't have to listen to these rules and orders, in any event, and they have historically not been prosecuted for disobeying military rules. The Uniform Code of Military Justice's jurisdictional article (10 U.S.C. Section 802) provides that "In time of war, persons serving with or accompanying an armed force in the field" may be tried by a military court, but there's little precedent for military trials of civilian contractors who behave badly in a war zone—even assuming Iraq can legally be called a "war."
Moreover, while the Justice Department has jurisdiction to prosecute military contractors for actions overseas under a 2000 law, it may decline to do so as a result of limited resources and the fact that there is no U.S. attorney's office (yet) established in Iraq to govern U.S. civilian activities there.
The legal murkiness helps shield the contractors from effective discipline. The Coalition Provisional Authority has decreed that contractors and other foreign personnel will not be subject to Iraqi criminal processes. Yet, there's also no clear mandate for American jurisdiction. And in the absence of any specific mandate telling military officials to clamp down on contractors, American prosecutors can simply decline to do so as a matter of discretion—precisely what has happened on U.S. military deployments in the Balkans, as pointed out by Peter W. Singer in a Salon article on contractor transgressions during that deployment.
The third set of problems with military contractors exists because they are not part of the regular military hierarchy. Contractors often live separately, drive nonmilitary vehicles, use nonmilitary radios, and report to their corporate bosses. When their contracts require it, these contractors will establish relationships with local military units and other governmental agencies, but these relationships rarely include important details like precise routes and times for contractor convoys or frequencies and call-signs for contractor personnel. That creates problems when soldiers and contractors work—or fight—in close proximity to each other.
At their core, military command centers deal with the planning, synchronization, and management of violence. The destructive capacity of the average American military unit is staggering. It takes an enormous effort to focus that destructive power on the right objectives without killing civilians ("collateral damage") or each other ("fratricide"). Armed contractors operate outside of this military command structure for the most part, and thus their operations are not coordinated with military operations in most circumstances. When a contractor convoy drives from Baghdad to Fallujah, it's under no legal obligation to tell military commanders it's on the way. Nor are contractors required to call in reports to the military command in Iraq, leading to absurd situations like last week's battle in Najaf in which private contractors fought off attacks on the CPA headquarters that military officials learned of only hours later.
Some of these problems can be alleviated through legal mechanisms. The easiest fix? Amend these government contracts to solve the discipline and coordination problems. Current (and future) agreements should be modified to require better coordination in the field or to require government contractors to fight from the same rules of engagement as their uniformed brethren. Similarly, the president could direct his Defense Department or Justice Department lawyers to immediately exercise jurisdiction in cases where contractors behave badly. Thankfully, there has been a dearth of such incidents in Iraq, but the large number of contractors there makes it likely that some criminal conduct will occur in the future. A clear message from the administration that it's serious about exercising criminal jurisdiction might deter some of that criminal conduct—or at least ensure systems are in place to adjudicate any incidents that do occur.
The hardest problem to solve is that of armed contractors and their international legal status. Short of convening a new Geneva Convention to rewrite the laws of war, there is no way to fix the ambiguous status of these hired guns. And even if we could, it's doubtful that the international legal community would support legal protection for armed contractors conducting military operations. That's why, in the meantime, our government must do what it can to oversee the actions of these contractors and ensure they comport with our national policies and objectives for Iraq. As rational actors, we can assume that American private military corporations will pursue their profits above all else while operating abroad. The Pentagon must write contracts and develop control measures to make sure those profit motives and our national interests align.