10/01/2007 12:48 pm ET | Updated May 25, 2011

Blackwater Illustrates the Achilles' Heel of Using Contractors in Hostile Zones

Tomorrow, Representative Henry Waxman, chairman of the House Committee on Oversight and Governmental Reform, will hold hearings on Blackwater, the largest of the private security firms in Iraq. There will be many issues discussed and debated. The committee recently issued a report on the failures of the company when they sent out four of the employees on that ill-fated trip to Fallujah which ended with parts of those employees hanging from a bridge in 2004. As I illustrate in my book, this incident, which was shown on national television, forced a strong response from the Army and they stormed Fallujah, killing many of our troops, many civilians and forced the town to empty, causing the suffering of refugees.

Now we have the current situation where the State Department is reliant on Blackwater for their security to moving around the country and even in Baghdad but the Iraq government wants Blackwater out because of the most recent, alleged trigger-happy incident in a Baghdad intersection. The U.S. has kept Blackwater working for them despite the strained relationship with the Iraq government who had ordered the company out of their country.

Blackwater may stay or even be replaced by another company, but their American employees may not. If these private security companies are put under Iraqi law, many of the employees, mainly American employees may quit rather than face the possibility of an Iraqi jail. Their Wild West days may be over and the prospect of being arrested by the angry Iraq justice system could drive them out of the country. The military personnel, who used to do this protection work of diplomats around the world, are under strict rules of engagement and cannot quit. The Uniform Code of Military Justice (UCMJ) prevents them from doing so. Since the U.S. decided to outsource much of this war without a lot of thought and study of the consequences, they have put themselves in a very vulnerable position in a war zone; the contractors and their employees, have a constitutional right to quit and walk out of a bad situation. This leaves the Pentagon and the State Department in a tight spot.

The Congress has tried to put a Band-Aid on this problem but saying that contractors are under UCMJ by law, but many military legal experts will tell you that it won't pass a constitutional test. Unless you take the oath of the Armed Services and voluntarily give up some of your constitutional rights under the UCMJ, you have the right as an American citizen, to quit any job that you want. There may be some civil contract consequences but is it not a crime like a dereliction of duty or refusing a direct order is for a U.S. soldier. The industry is pushing the Military Extraterritorial Jurisdiction Act (MEJA) law as a remedy but that applies to criminal acts, not quitting a job, and only to contractors with the Department of Defense.

So what does the State Department do for protection in this situation? These private security companies may be able to get some foreign nationals hired to guard our diplomats but do we really want to turn the delicate protection of our diplomats over to foreigners with little American oversight in this day of terrorist infiltration? I'm not sure that Condi Rice wants to put her diplomats and even herself in that situation in volatile Iraq. Erik Prince, the head of Blackwater, will be testifying at this hearing. I would like to see his answer to this daunting question.

Many issues have been raised in the media and Congress about the problems with contractors in Iraq, a group I call the war service industry. But with all the research and interviews I have done for my book and my Follow the Money Project over the past three years, I have yet found anyone who can seriously address the Achilles' heel of private contractors. What do you do if the contractors and/or their employees just say no and quit? We have seen it in Iraq and it has hurt our military mission and our troops. Now it threatens our diplomatic mission as well. This unintended consequence of using contractors in a hostile zone needs to be explored by Waxman's committee and others in Congress. Perhaps he should ask Dr. Rice about this dilemma if she will show up to testify.