Another False Ending: Contracting Out the Iraq Occupation

Another false ending to the Iraq war is being declared. Nearly seven years after George Bush’s infamous “Mission Accomplished” speech on the USS Abraham Lincoln, President Obama has just given a major address to mark the withdrawal of all but 50,000 combat troops from Iraq. But while thousands of US troops are marching out, thousands of additional private military contractors (PMCs) are marching in. The number of armed security contractors in Iraq will more than double in the coming months.

While the mainstream media is debating whether Iraq can be declared a victory or not, there is virtually no discussion regarding this surge in contractors. Meanwhile, serious questions about the accountability of private military contractors remain.

In the past decade, the United States has dramatically shifted the way in which it wages war – fewer soldiers and more contractors.

Last month, the Congressional Research Service reported that the Department of Defense (DoD) workforce has 19 percent more contractors (207,600) than uniformed personnel (175,000) in Iraq and Afghanistan, making the wars in these two countries the most outsourced and privatized in US history.

According to a recent State Department briefing to Congress’ Commission on Wartime Contracting, from now on, instead of soldiers, private military contractors will be disposing of improvised explosive devices, recovering killed and wounded personnel, downed aircraft and damaged vehicles, policing Baghdad’s International Zone, providing convoy security and clearing travel routes, among other security-related duties.

Worse, the oversight of contractors will rest with other contractors. As has been the case in Afghanistan, contractors will be sought to provide “operations-center monitoring of private security contractors (PSCs)” as well as “PSC inspection and accountability services.”

The Commission on Wartime Contracting, a body established by Congress to study the trends in war contracting, raised fundamental questions in a July 12, 2010, “special report” about the troop drawdown and the increased use of contractors:

“An additional concern is presented by the nature of the functions that contractors might be supplying in place of US military personnel. What if an aircraft-recovery team or a supply convoy comes under fire? Who determines whether contract guards engage the assailants and whether a quick-reaction force is sent to assist them? What if the assailants are firing from an inhabited village or a hospital? Who weighs the risks of innocent casualties, directs the action and applies the rules for the use of force?

“Apart from raising questions about inherently governmental functions, such scenarios could require decisions related to the risk of innocent casualties, frayed relations with the Iraqi government and populace and broad undermining of US objectives.”

We’d like to pose an additional question to the ones listed above: when human rights abuses by private military contractors occur in the next phase of the occupation of Iraq, which certainly will happen, what is the plan for justice and accountability?

This massive buildup of contractors in Iraq takes place at a time when the question of contractor immunity – or impunity – is at a critical point.

In one example, since 2004 our organization, the Center for Constitutional Rights (CCR), has been demanding – in US courts and through advocacy – that private military contractors who commit grave human rights abuses be held accountable. Contractors have responded by claiming something known as the “government contractor defense,” arguing that because they were contracted by the US government to perform a duty, they shouldn’t be able to be held liable for any alleged violations that occurred while purportedly performing those duties – even when the alleged violations are war crimes. Contractors also argue that the cases CCR has brought raise “political questions” that are inappropriate for the courts to consider. These technical legal arguments have been the focus of human rights lawsuits for years – and, so far, the question of the contractors’ actual actions have not been reviewed by the federal courts.

One case that should be watched closely this fall is Saleh v. Titan, a case brought by CCR and private attorneys against CACI and L-3 Services (formerly Titan), two private military contractors, which military investigations implicated as having played a part in the torture at Abu Ghraib and other detention centers throughout Iraq.

Saleh v. Titan was filed six years ago on behalf of Iraqis, who were tortured and otherwise seriously abused while detained, and currently includes hundreds of plaintiffs, including many individuals who were detained at the notorious “hard site” at Abu Ghraib. The plaintiffs in Saleh v. Titan, many of whom still suffer from physical and psychological harm, are simply seeking their day in court, to tell an American jury what happened to them.

The Court of Appeals for the District of Columbia dismissed the case last September, and the Supreme Court will be deciding whether or not to take the case this fall. This and a handful of other cases will signal how civil lawsuits on behalf of those injured or killed by contractors will be handled in US courts – and decide whether victims of egregious human rights violations will obtain some form of redress, and whether contractors who violate the law will be held accountable or be granted impunity.

And how will human rights abuse by contractors be handled by criminal prosecutors in the coming years? Given its track record, it is safe to say that Iraqi civilians cannot count on the Department of Justice (DOJ) to prosecute many contractor abuse cases. The DOJ was given an “F” by Human Rights First in their 2008 report “Ending Private Contractor Impunity: Report Cards on the US Government Response since Nisoor Square.” The DOJ has never pursued criminal prosecutions for contractor involvement in the crimes of Abu Ghraib, something CCR still demands today.

Iraq’s Parliament signed the Status of Forces Agreement (SOFA) in 2008, which gave it the power to prosecute some US contractors who commit crimes against Iraqi civilians. We can all hope Iraq’s justice system will be able to overcome the political challenges involved in prosecuting US companies or US contractors and other foreigners in Iraq’s courts. But even that will not stop the common practice of contractor companies simply pulling their employees out of the country when a crime happens.

With these fundamental questions left unanswered and legal loopholes left open, thousands more armed contractors will soon be filing into Iraq, onto the streets where Iraqis work, study and go about their everyday lives.

As a senator, Obama called for less dependence on private military contractors and for accountability when they committed human rights abuses. He told Defense News in 2008 that he was “troubled by the use of private contractors when it comes to potential armed engagements.” Senator Clinton co-sponsored legislation to phase out the use of security contractors in war zones.

As president, Obama pretends the occupation of Iraq is ending with the withdrawal of combat troops while he and Secretary of State Clinton quietly hire a shadow Army to replace them.

For more information about Saleh v. Titan, please click here.