The military is increasingly relying on private security contractors as President Obama ramps up the war in Afghanistan, with contractors now making up as much as 30% of the armed force in the country, a just-released congressional report shows.
In the period roughly tracking with President Obama’s first nine months in office, the number of Defense Department armed security contractors soared 236% — from 3,184 to 10,712 between December 2008 to September 2009. The number roughly doubled between June and September 2009 alone.
The new Congressional Research Service report also calculates that contractors in Afghanistan make up between 22% and 30% of the armed U.S. force in Afghanistan.
The news of the surge in private security contractors comes as the total number of contractors — including those who do construction, cook meals, etc — is also soaring, with over 100,000 already in Afghanistan.
It’s worth noting two points here to clarify the role and makeup of the contractor army: first, 90% of the DOD private security contractors in Afghanistan are Afghan nationals, according to the report. Second, contractors are barred by DOD regulations from taking part in “offensive” operations. However, the numbers in this report refers to armed contractors who may well be taking part in combat.
“Many analysts believe that armed security contractors are taking part in combat operations, arguing in part that international law makes no distinction between the offensive or defensive nature of participation in combat,” the report notes.
The congressional report discusses pros (e.g., ease of firing and hiring) and cons of using private security contractors. Some analysts say contractor abuses, allowed in part by lax oversight, can badly damage U.S. counterinsurgency efforts in Afghanistan. The report says:
U.S. efforts can also be undermined when DOD has ties with groups that kill civilians or government officials, even if the perpetrators were not working for DOD when the killings took place. In June 2009, the provincial police chief of Kandahar, Afghanistan, was killed by a group that worked as a private security contractor for DOD.
An Army Times story in December described how Afghan national security contractors were “wreaking havoc” along a convoy route in Kandahar, including “killing and wounding more than 30 innocent civilians.”
The numbers in this report do not account for security contractors working for agencies like the State Department and the CIA (for example the two Blackwater guards who were killed at a CIA base in Afghanistan earlier this month).
Meanwhile, the number of security contractors is decreasing in Iraq, from 13,232 in June 2009 to 11,162 in September.
Last fall an article was published last fall in Military Law Review by Maj. Chad Carter, an Air Force Judge Advocate.
The article “Halliburton Hears A Who? Political Question Doctrine Developments in the Global War on Terror and Their Impact on Government Contingency Contracting contests legal popular wisdom that the “political question doctrine” means that tort claim cases by military members and U.S. civilians injured in Iraq and Afghanistan must not proceed.
One can easily see why most defense contractors, including private military and security firms working under U.S. government contract, would like to prevent such suits from proceeding. The sheer number of injuries alone gives them reason to want to avoid possible suits. According to ProPublica as of last September 30 the number of private contractors injured in Iraq and Afghanistan totaled 37,652. Of course, not all those injuries are the result of something done wrong. But even a small fraction of them would entail considerable legal costs for a contractor so it is easy to understand why they would want to preventing such suits from being filed in the first place.
As I am not a lawyer the following is derived from Maj. Carter’s article.
Traditionally, the reason given for this is that such cases may involve “political questions” that the Judicial Branch is ill-equipped to decide. Thus defense contractor advocates claim these actions must be dismissed, else there be grim consequences for Government contingency contracting.
But according to Maj. Carter, “the recent developments in political question doctrine case law are significant to the future of Government contingency contracting. However, they are not catastrophic–although portrayed as such by some defense contractor advocates. There will not be an explosion of contracting costs passed on to the Government. There will not be a mass refusal of defense contractors to accept contingency contracts. There will not be chaos on the battlefield. Such predictions are nothing more than “bellowing bungle.”
What is the political question doctrine? According to Chief Justice John Marshall,
“[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in [the U.S. Supreme Court].” In 2004, the Court held “[s]ometimes .. . the law is that the judicial department has no business entertaining [a] claim of unlawfulness–because the question is entrusted to one of the political branches or involves no judicially enforceable rights. Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”
What this means is that traditionally courts have deferred to the political branches in matters of foreign policy and military affairs. Policy decisions regarding the employment of U.S.military forces in combat belong to the political branches, not the courts. The Supreme Court has held that, due to their “complex, subtle, and professional” nature, decisions as to the “composition, training, equipping, and control of a military force” are “subject always” to the control of the political branches.
Tort suits that challenge the internal operations of these areas of the military are likely to be dismissed as political questions. Yet, notwithstanding the foregoing prohibitions on judicial conduct, the Supreme Court has cautioned, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” As mentioned earlier, vast precedent exists for judicial involvement in foreign and military affairs. Case law establishes that military decisions are reviewable by federal courts. An assertion of military necessity, standing alone, is not a bar to judicial action. Merely because a dispute can be tied in some way to combat activities does not prevent a court from reviewing it. Although an action arises in a contingency environment, if a case is essentially “an ordinary tort suit” it is well within the competence of the courts to entertain. Courts have underscored the point: no litmus test exists that prohibits judicial action merely because an issue involves the military in some fashion.
Where plaintiffs seek only damages and not injunctive relief, such cases are “particularly judicially manageable.” When such a damages-only lawsuit concerns only a defense contractor (as opposed to the Federal Government), courts have held that such actions do not involve “overseeing the conduct of foreign policy or the use and disposition of military power.” Thus, those actions are less likely to raise political questions than suits against the Government, suits seeking injunctive relief, or both.
Given the enormous amount of money involved in Government contingency contracting and the correspondingly large number of contractors and contractor employees performing GWOT (Global War on Terror) contingency contracts, the number of plaintiffs seeking redress for tortious conduct was certain to rise–and it did. Universally, defendant defense contractors invoked the political question doctrine in order to shield themselves from liability in their performance of GWOT contracts, some with more success than others. The first significant case centered around the tragic events at the Abu Ghraib prison in Iraq.
In Ibrahim v. Titan Corp., Iraqi plaintiffs alleged they were tortured, raped, humiliated, beaten, and starved while in U.S. custody. Apparently fearing a dismissal on sovereign immunity grounds if they sued the U.S. Government, the plaintiffs instead chose to name as defendants the contractors who provided interpreters and interrogators for the prison. The defendants filed a motion to dismiss, alleging the matter involved political questions. The court held the case should not be dismissed at such an early stage on political question grounds, especially because the United States was not a party to the case. Ibrahim is significant because it was the first GWOT case to underscore the need for full factual development of a case prior to an assessment of justiciability.
One particularly interesting point in Carter’s article is this:
Judges and scholars openly speculate about the possible consequences of defense contractor tort liability on the federal procurement process. In Boyle, the Supreme Court warned that “[t]he financial burden of judgments against  contractors would ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability . . . .”
Since private military contracting advocates claim that their firms are more cost effective than the government one might reasonably believe that they can be so only by preventing tort suits against them. If the cost of such suits were factored in, the presumed cost effectiveness could conceivably be significantly less, or perhaps not exist at all.
Carter asks “is the situation really this dire? Are contractors at a point where, because of
increased litigation risks, they will be forced to charge the Government more for their
services or elect to not provide services altogether?”
The answers may not be far away. In November 2008, Joshua Eller filed suit in the U.S. District Court for the Southern District of Texas, as a result of injuries he suffered at Balad Air Base, Iraq, while deployed as a contractor employee of KBR from February to November of 2006. The complaint alleges defendants KBR and Halliburton “intentionally and negligently exposed thousands of soldiers, contract employees and other persons to unsafe water, unsafe food, and contamination due to faulty waste disposal systems . . . .” The complaint also includes allegations of injury from toxic smoke which emanated from an open air burn pit at Balad. The complaint alleges approximately 1,000 other individuals suffered similar injuries and it seeks to combine all of those actions into a single class action lawsuit. More significantly, this action is only one of several suits currently pending that relate to similar KBR activities in Iraq.
The political question doctrine will be a major factor in this coming storm of litigation. With the large number of potential plaintiffs compounded by the seriousness of the conduct and injuries alleged, these suits have the potential to dwarf the damages awards previously sought in earlier GWOT cases. Undoubtedly, KBR will seek to raise the political question doctrine as an absolute bar to these and any similar suits.
Defense contractor advocates warn of “deleterious effects” to the mission and the contractor–military relationship if tort suits against war zone defense contractors are allowed to proceed. They argue such tort claims “frustrate” and “conflict with” the Government’s ability to control contingency operations and would result in compromised logistical support and mission jeopardy. Furthermore, many companies, especially smaller ones, could be deterred from seeking contingency contracts. For those contractors who do elect to proceed, they will seek to insulate themselves from liability by either self-insuring or obtaining insurance coverage, if it is available. The argument continues that such costs will then be passed onto the Government in the form of higher contract prices. But, most alarmingly, some defense contractor advocates claim the impact of such suits “would be far more profound than financial” and defense contractors may, out of a fear of being sued, refuse to follow the military’s instructions altogether.
To this Carter writes:
the consequences predicted by defense contractor advocates vastly overstate the actual impact these GWOT tort suits will have on Government contingency contracting. Several reasons exist for this contention. First, the Government currently pays far too much money to defense contractors overseas for them to now decline performance of contingency contracts. The alleged dramatic price increases in U.S. Government contracts due to the increased litigation risk are unlikely as well. Contract prices may rise to some degree, but the Government can ill afford to refuse to pay them. Second, the U.S. military does not own the internal means to provide the goods and perform the services contracted for in a contingency environment–such goods and services are necessary for mission accomplishment. Finally, as discussed earlier, apart from the political question doctrine, defense contractors who face allegations of tortious conduct in a contingency environment have several legal defenses and other alternatives to limit or avoid liability, including insurance. Viewed together, these points counter forecasts of the impending ruin of Government contingency contracting. With their recent activity involving the political question doctrine, courts have hardly thrust open the floodgates to litigation. Rather, they have properly focused their attention on protecting military decision-making and policy from judicial intrusion, and limited their rulings accordingly. For those suits that do not question military decisions or policy, they will move forward (at least without political question problems). This may or may not cause an increase in contractor costs due to higher insurance premiums related to tort damages, which could then be conveyed to the U.S. Government in the form of higher prices. However, the political question doctrine’s purpose is not to inhibit the principles of accountability inherent in the American tort law system. For those who wish to change this system, they should look instead toward the political branches or state governments for relief. These entities have in their arsenals statutes, regulations, and other mechanisms more appropriate for change. Such methods are much more apt for this purpose than reliance on a mutation of the political question doctrine into a form beyond its established limits.
To argue that Government contingency contracting will break down unless the political question doctrine extends to all tort suits brought against combat zone defense contractors is disingenuous. Alarming predictions of compromised logistics and mission failure grossly exaggerate the effect of these GWOT tort suits on combat zone contractors and Government contingency contracting. Such hyperbole ignores the reality and degree of the U.S. Government’s financial commitment to and dependency on contingency contracting in Iraq and Afghanistan. Finally, even if the consequences to the DoD procurement system are as dire as defense contractor advocates have alleged, the political branches are in a much more appropriate position to remedy them and can do so much more immediately and effectively.
This is a joint posting with Julia Barmeier.
A British private security firm, Sabre International, is sponsoring the employment of Sierra Leoneans for security jobs in Iraq. According to its own website, the company holds multiple aviation security contracts for three airports in Iraq (Baghdad International Airport, Mosul Airport, and Najaf International Airport).
Having undergone two weeks of preparation training, 400 to 1,000 Sierra Leoneans have already been sent to Iraq (and possibly Afghanistan) with a waiting list of over 10,000 who are interested in participating in the program. According to reports, the West African workers will receive $250 a month, $200 of which will be directly deposited into a bank account in Freetown. Compare this to the per capita Gross National Income in Sierra Leone in 2008, which was $320 a year. (Meanwhile, Sierra Leone Members of Parliament are petitioning for monthly salaries of $4,000-$6,000!) It’s no wonder thousands of people have signed up for this program: they are receiving a little less than 10x the amount they would earn in their own country! (Sierra Leone currently ranks 201 out of 210 countries in terms of its GNI per capita). Their salaries will not be taxed and they will be given free accommodation, free medical facility, free transportation, and free insurance. While a fabulous salary in Sierra Leone, their U.S. citizen contractor counterparts are averaging $100,000 a year, possibly in similar roles. In this regard, Sabre might be saving a tidy sum.
Post-conflict recovery researchers like Paul Collier and former CGD post-doc Chris Blattman emphasize the need to engage ex-combatants in productive activity, in other words, create an economic incentive to cease violence or prevent a relapse into conflict. This program is fulfilling this purpose. For example, news reports say the agreement welcomed by Youth for Middle East Overseas Group, which has apparently pressured the government of Sierra Leone to allow youths to seek work in Iraq. Said Secretary-General Akim Bangura, “Finally, we are breathing a sigh of relief over the positive outcome. We have fought a successful battle and I have been arrested a couple of times for leading campaigns for jobless youths to find jobs in Iraq. I am happy it all ended this way.”
On the other hand, the program perpetuates the environment of violence that surrounded these youth in Sierra Leone. While the country officially ended its decade-long civil war in 2001, it is still ranked among the most fragile countries. Of blood diamond and child soldier fame, the conflict in Sierra Leone was severely brutal and bloody, where rebel activity was characterized by hacking off the hands and feet of victims. It is unclear what kind of effect employment in a similar-but-different conflict region will have on these program participants.
Are agreements like these providing legitimate employment alternatives for ex-combatants? Or are they perpetuating reliance on conflict-related activity? Also, with unemployment rates at 18% to 30% in Iraq itself, why doesn’t Sabre seek local workers to fill these spots?
BAGHDAD (Reuters) - Security forces confiscated hundreds of rifles, thousands of rounds of ammunition and other military gear in a crackdown on private security contractors in Iraq, officials said on Saturday.
Police raided three locations in Baghdad on Friday, a week after Iraqi authorities were incensed by a U.S. judge’s decision to throw out charges against five Blackwater Worldwide security guards accused of killing over a dozen Iraqi civilians in 2007.
Officials said they are targeting private security companies that are no longer legally licensed to operate in Iraq.
“All those companies with their work permits expired are not allowed to move one meter inside Baghdad, or own one piece of weaponry,” Baghdad security spokesman Qassim al-Moussawi said.
He would not reveal how many unlicensed contractors were on the target list, or their names.
Authorities raided the headquarters of a foreign security contractor, whose name could not be immediately confirmed, on Friday night and confiscated 20,000 rounds of ammunition and more than 300 armored shields.
In another location they found 400 rifles, helmets, radio devices and more than 35 vehicles believed to belong to the same company, officials said. No one was arrested.
Private foreign security contractors played a major role in Iraq following the U.S. invasion in 2003, in many cases hired by the United States to guard diplomats and other officials. Iraqis accused them of running roughshod over locals.
For a time, the foreign guards enjoyed immunity from prosecution. That ended with a bilateral agreement that took effect in 2009.
The Iraqi government called unacceptable the U.S. court’s December 31 dismissal of charges against five Blackwater guards accused of shooting indiscriminately in a Baghdad traffic circle, and said it is taking its own legal steps against the company, now known as Xe Services.
Major General Hussein Kamal, Iraq’s deputy interior minister, denied that the Baghdad crackdown was a reprisal for the Blackwater case. He said the ministry had given a group of security firms ample warning to renew their permits.
“We have closed some of the companies and confiscated their weapons and vehicles,” he said, adding, “We are not reacting to the (Blackwater) judge’s decision.”
A leading member of the House Permanent Select Committee on Intelligence has told The Nation that she will launch an investigation into why two Blackwater contractors were among the dead in the December 30 suicide bombing at the CIA station at Forward Operating Base Chapman in Khost, Afghanistan. “The Intelligence Committees and the public were led to believe that the CIA was phasing out its contracts with Blackwater and now we find out that there is this ongoing presence,” said Illinois Democrat Jan Schakowsky, chair of the Subcommittee on Oversight and Investigations, in an interview. “Is the CIA once again deceiving us about the relationship with Blackwater?”
In December, the CIA announced that the agency had canceled its contract with Blackwater to work on the agency’s drone bombing campaign in Afghanistan and Pakistan and said Director Leon Panetta ordered a review of all existing CIA contracts with Blackwater. “At this time, Blackwater is not involved in any CIA operations other than in a security or support role,” CIA spokesman George Little said December 11.
But Schakowsky said the fact that two Blackwater personnel were in such close proximity to the December 30 suicide bomber–an alleged double agent, who was reportedly meeting with CIA agents including the agency’s second-ranking officer in Afghanistan when he blew himself up–shows how “deeply enmeshed” Blackwater remains in sensitive CIA operations, including those CIA officials claim it no longer participates in, such as intelligence gathering and briefings with valuable agency assets. The two Blackwater men were reportedly in the room for the expected briefing by the double agent, Humam Khalil Muhammed Abu Mulal al-Balawi, who claimed to have recently met with Al Qaeda leader Ayman al Zawahiri.
“It’s just astonishing that given the track record of Blackwater, which is a repeat offender endangering our mission repeatedly, endangering the lives of our military and costing the lives of innocent civilians, that there would be any relationship,” Schakowsky said. “That we would continue to contract with them or any of Blackwater’s subsidiaries is completely unacceptable.”
Under the Obama administration, Blackwater continues to work for the Department of Defense, the State Department and, as evidenced by the December 30 bombing, the CIA in Afghanistan. The company even maintains its own forward operating bases in Afghanistan, including one along the Afghanistan-Pakistan border. “This is the closest base to the [Pakistani] border,” Blackwater’s owner Erik Prince recently bragged to Vanity Fair. “Who else has built a fob along the main infiltration route for the Taliban and the last known location for Osama bin Laden?”
Blackwater has been working for the CIA since at least April 2002. Prince recently claimed he was personally a CIA asset, conducting clandestine black operations around the globe. In June, Leon Panetta reportedly told Congress he had canceled the CIA assassination program involving Blackwater.
While the CIA said in December that Blackwater only continues its security and support role for the CIA, NBC News reported that the Blackwater men were not doing security at the time of the blast. The two Blackwater operatives killed in the bombing have been identified as Jeremy Wise, a 35-year old ex-Navy SEAL, and 46-year-old Dane Clark Paresi.
DuPont resident and former Fort Lewis soldier was one of seven U.S. intelligence agents killed by a suicide bomber who infiltrated a base in Afghanistan last week, his widow said Tuesday.
Dane Clark Paresi, a retired Army master sergeant, died Dec. 30 in the blast at a forward military base in Khost province, on the restive Afghanistan-Pakistan border. Paresi, 46, retired from 1st Special Forces Group at Fort Lewis in 2008, capping 27 years in the Army, and was working as a contractor alongside CIA employees when he was killed, according to family and friends.
Paresi’s family has made its home in DuPont since 2005. The Portland native is survived by his wife, MindyLou, and daughters Alexandra, 24, and Santina, 9, as well as his parents and five siblings.
MindyLou Paresi was at Dover Air Force Base in Delaware Tuesday after meeting the flag-draped coffins of her husband and the other fallen operatives. A small private ceremony Monday was attended by CIA Director Leon Panetta, other agency and national security officials, and friends and family.
“We are devastated, we are broken, but we are also very proud of him,” MindyLou Paresi said in a phone interview. “All of the agents are national heroes because they were there to do a job, a very large job. What it was I do not know exactly, but they were heroes fighting the war against terror.”
Official details of the suicide attack are sketchy, and the incident is under investigation. But counterterrorism officials in the Middle East said Tuesday the bomber, a Jordanian, was a suspected double agent.
Jordan’s intelligence directorate, which also lost an operative in the attack, reportedly believed it had recruited the physician-turned-militant to help track down al-Qaida’s No. 2 leader, Ayman al-Zawahri. The would-be informant came to the base Dec. 30 on urgent business, according to wire service reports.
It was the deadliest single attack on U.S. intelligence personnel in decades.
MindyLou Paresi said she was told her husband was at the meeting inside the military compound and suspected something was wrong. When he approached, the informant detonated his explosives. She said her husband was right next to the bomber, the closest person to the blast.
“He saved many people, unfortunately seven of them did die,” she said, noting that others were wounded. “It could have been worse.”
She credited her husband’s employer, Xe Services (formerly Blackwater), for keeping her informed and taking care of the family’s emotional, financial and other needs over the last several days.
In a 90-page opinion, Judge Ricardo M. Urbina of Federal District Court in Washington dismissed charges against five Blackwater Guards who had been charged in a 2007 shooting in Baghdad that left 17 dead, writing that the government’s mishandling of the case “requires dismissal of the indictment against all the defendants.” Related Article »
“He always told us that if something happened, he would have no regrets. He was where he wanted to be,” Messner said. “He said the people he served with were the finest he ever met.”
Roberson was born in Manchester, just south of Akron, and lived there until his family moved to Connecticut for work, Messner said. Roberson returned to Ohio as a teen and graduated from a Cincinnati-area high school before graduating with a degree in criminology from Florida State University.
Messner speculated that so much travel in his youth may have led to her brother’s globetrotting later on.
Although Roberson he spent much the 1990s anchored at the Atlanta Police Department — where he rose to the rank of detective, working undercover in the narcotics unit — he began the next decade abroad, Messner said. Roberson first worked as a contractor with the United Nations’ security forces in Kosovo and went on to protect high-risk officials in Iraq.
He only recently joined the CIA, Messner said.
Roberson last visited Ohio at Thanksgiving when his mom and Messner threw a baby shower for he and wife, Molly. The couple’s only child, a girl named Piper, in due in February.
Neighbors of Jeremy Wise say he was among the Americans killed Wednesday by a suicide bomber targeting CIA members.
A picture of Wise was posted on a Facebook page set up in his honor.
The Facebook page states that Wise is a former Navy SEAL who was working as a security contractor in Khost, Afghanistan.
The suicide bomber struck the CIA’s operation at Camp Chaman in eastern Khost Province Wednesday.
Today the Pakistani Taliban claim they used a turncoat CIA operative to carry out the suicide bombing. They say it was revenge for a top militant eader’s death in a US missile strike.