A diverse panel of industry players, legal experts, and one former government official last night at the Georgetown Legal Center found surprising consensus on the topic of private security contractors' (PSCs) accountability: they must be regulated by the government because they're here to stay.
PSCs are private contract employees, typically former military or police, hired by governments, businesses, and nongovernmental organizations to protect their assets and personnel in conflict zones. There are currently enough PSCs in Iraq under federal contract to form three battalions, according to Defense Department estimates referenced in a new GAO report.
"They're there because we want them there, because there's a demand," said James Brooks, president of the International Peace Operations Association (IPOA), an industry trade association.
Controversy has plagued PSCs working for the U.S. military in Iraq and Afghanistan, due in part to civilian deaths blamed on contractors. Last September, employees of Blackwater Worldwide protecting a Department of State convoy fired into a crowd in Baghdad, killing 17 Iraqi civilians and wounding another 42.
Since that incident, legal experts and government lawyers have debated whether crimes committed by contractors when employed by the U.S. government overseas can be tried in military or civilian courts or are even prosecutable under U.S. laws.
The panel's industry representatives expressed strong support for government regulation, specifically criminal prosecution in civilian—but not military—courts. While they are armed, PSCs are still civilians, Brooks noted.
IPOA members, said Brooks, welcome government regulation because it weeds out the weaker links throughout the industry.
The IPOA has developed a code of conduct each member must adhere to to remain in the association, but says government must still provide further oversight of all contractors, and hold them accountable should they violate the law or their contracts.
Without government direction, PSCs operate in a murky legal environment, says James Bond, senior counsel for foreign and international law at the private security firm, DynCorp International, LLC.
PSCs, Bond said, constantly face legal problems without easy answers. For instance, if a company knows one of its American employees committed a criminal offense, should the company detain that employee to prevent him or her from fleeing the country? If the company did, that may well face litigation in an American court for illegal detention. There are no clear rules governing the company's legal responsibility, and they will not expose themselves to such liabilities, Bond argues.
At the same time, most contractors employed by the U.S. government in conflict zones are indigenous, and thus fall under the jurisdiction of local courts, Brooks says. Thus, most reforms would have limited effect.
The government can also hold PSCs accountable financially. This, according to the panel, is as easy as writing financial penalties into PSC contracts. "You can't underemphasize the importance of the contractual terms," says Jeffrey A. Green, president of J.A. Green and Company, LLC, which represents the Private Security Company Association of Iraq. "This is a for-profit industry .... If it's in the contract terms, the contractors will comply because the last thing they want to do is violate the terms of the contract."
U.S. officials can also require that PSCs directly compensate victims of crime or negligence, says Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch. This has the advantage of bolstering U.S. credibility with local populations.
Congress, meanwhile, may legislate higher standards of accountability, the panelists note. The MEJA Expansion and Enforcement Act of 2007 passed the House overwhelmingly in October and is currently before the Senate.
If passed, "MEJA [would bring] a necessary legal regime to bear on contractors in support of the U.S. government," says Green.
The departments of Defense and State have also moved on the PSC issue, signing a memorandum of agreement (MOA) that requires PSCs to abide by the rules on the use of force. The MOA also states when there is evidence of PSC criminal misconduct, the departments "will make referrals to the appropriate prosecutorial authority."
Gary Solis, adjunct professor at Georgetown University Law Center, said government regulation must happen sooner rather than later as PSCs organize themselves into a powerful lobbying force on Capitol HIll.
"If we don't control them, they will control us," he told the panel.