The release of the CIA Torture Report last December re-opened the debate about using contractors to perform national security functions. Indeed, when Saturday Night Live mocks contractors for their role in waterboarding, you know that a national conversation has been unleashed.
This country now spends millions of taxpayer dollars on such contractors, and while sometimes that money delivers important improvements in our capacity and expertise, we have also seen that contractors can run amok. But we are now poised to increase the role of contractors to combat ISIS in Iraq and Syria.
So we must ask: what did we learn from the last round of wars that can inform the next?
A Toxic Combination
Over the past decade, I have analyzed the conditions under which contractors are most likely to cause problems and the variety of ways that our legal and administrative infrastructure should best respond to a world of privatized military activity.
Based on this research, it is clear that in Iraq, Afghanistan, and the so-called “War on Terror,” a toxic combination of weak governmental oversight, inter-agency squabbling and deception, and a culture of impunity made possible the incidents of detainee abuse and torture that we have seen.
It was not only contract interrogators that caused problems.
Security and logistics contractors were also implicated in abuses.
In Baghdad’s Nisour Square in 2007, for example, guards working for the firm then-named Blackwater fired into a crowd, killing 17. The incident sparked an international outcry and, at the same time, highlighted the poor training of contractors as well as the lack of coordination among multiple US agencies overseeing them in conflict zones.
The use of military contractors over the course of US history is not new, but the numbers of such contractors, and their expanded roles – including everything from building military bases to conducting interrogations – reflect an enormous shift in the exercise of US power abroad.
In 2010, more than 260,000 contractors worked for the Department of Defence (DOD), State, and the US Agency for International Development (USAID) in Iraq and Afghanistan. And that number doesn’t even include contractors employed by the CIA.
During the high points of the conflicts in Iraq and Afghanistan, the ratio of contractors to troops hovered around one to one, and at times exceeded that number. The Senate Report on the CIA, for example, reveals that a whopping 85% of the interrogators were contractors.
The bipartisan legislative Commission on Wartime Contracting concluded in 2011 that the massive outsourcing of the wars in Iraq and Afghanistan cost the taxpayers more than $31 billion in waste, fraud, and abuse.
To be sure, not all contractors commit abuses, and indeed many have risked their lives or even died serving US interests. Yet there can be little doubt that we have widespread problems.
Since I and others first began to point out these issues over a decade ago, many changes have been enacted by Congress, the CIA and industry.
But have reform efforts gone far enough? Here is my assessment of progress in three areas: oversight, inter-agency coordination, and accountability.
Oversight - Grade: B
Congress and federal agencies have improved oversight of contractors substantially.
In the wake of Abu Ghraib, Congress enacted legislation in 2009 limiting the circumstances under which the DOD can use contract interrogators.
Several weeks ago, DOD announced that it will require security firms to meet new, rigorous standards before awarding contracts.
Meanwhile, at the international level, a multi-stakeholder group of governmental officials, human rights organizations, and security firms has drafted a code of conduct for the security contractor industry, now signed by more than 700 companies around the world.
Despite these reforms, yawning oversight gaps remain. For example, when US troops returned home from Iraq, we allowed the mandate of the Special Inspector General for Iraq Reconstruction (SIGIR) to lapse.
SIGIR had provided critical public reporting that consistently exposed problems in the contracting process. These reports frequently prompted reform.
Now, as we appear poised to ramp up our use of contractors to combat ISIS, this absence leaves a big hole in our oversight regime. That hole is made even larger by the fact that the agencies still have trouble adequately staffing contract monitoring positions with well-trained personnel.
Inter-agency Coordination – Grade: C+
Poor coordination among agencies deploying contractors to conflict zones has, by the government’s own assessment, contributed to abuses.
For example, security contractors hired by the State Department were subject to different training regimens than contractors hired by DOD. And as my work has shown, many military lawyers have expressed frustration that military commanders in Iraq and Afghanistan often had no advance warning when security contractors working for the State Department were moving into their areas.
Following the Nisour Square incident, State and DOD opened new lines of communication and attempted to improve coordination, yet the agencies still take different approaches to contractor oversight.
State, for example, has not yet affirmed that it will require security firms to meet the new standards that DOD has embraced. And while State has indicated that it will consider membership in the new International Code of Conduct for security companies when it awards contracts, DOD has not.
In addition to all these issues, agencies still struggle to provide a comprehensive tally of all contractors working in conflict zones.
Accountability: Grade: C-
Perhaps the biggest problem in the arena of contractor abuse is that the mechanisms of legal accountability remain inadequate.
While the US military punished uniformed soldiers for their misdeeds at Abu Ghraib, so far the contractors implicated in the abuses there have not been held accountable.
The Justice Department did recently secure convictions of four Blackwater guards involved in the Nisour Square shootings, but the case is riddled with legal problems that may well arise on appeal.
Part of the difficulty is that the Military Extraterritorial Jurisdiction Act only clearly confers power on federal courts to hear cases of crimes committed by DOD contractors or those supporting a DOD mission.
But the Blackwater contractors were hired by the State Department, not DOD, and so the jurisdiction of US courts to consider such cases at all is at best ambiguous. Legislation to close this loophole has been languishing on Capitol Hill for years.
Although the tort system could also play an important role, courts have applied overly broad grants of immunity to shield contractors from liability, and significant legislative reform is therefore necessary.
We Clearly Have A Long Way To Go.
As we enter a new round of wartime contracting, immediate action to improve monitoring and legal accountability is crucial.
Specifically, the agencies should step up their coordination efforts.
Congress should revive SIGIR – or establish a permanent oversight entity – and should finally enact the Civilian Extraterritorial Jurisdiction Act to supplement the Military Extraterritorial Jurisdiction Act and close legal accountability loopholes.
Without further reforms, ten years from now we may be dealing with the fallout from another horrific torture report like the one we face today.
About The Author
Laura A Dickinson is the Oswald Symister Colclough Research Professor of Law, George Washington University Future of War Fellow, New America Foundation International Security Program at George Washington University. Her work focuses on human rights, national security, foreign affairs privatization, and qualitative empirical approaches to international law.