By Melina Milazzo and Daphne Eviatar
Law and Security
On September 16, 2007, Blackwater Worldwide (now Xe) private security contractors working for the U.S. Department of State shot dead 17 unarmed civilians and wounded 24 more in an unprovoked incident in Baghdad's Nisoor Square. Amid the political firestorm that ensued, one thing became crystal clear: the United States lacked a coordinated, systematic policy for overseeing private contractors abroad and holding them accountable for serious violent crimes.
Three years later, we've seen some progress in U.S. law and policy. Congress has required greater agency oversight and coordination over contractors in Iraq and Afghanistan, and established a means of investigating and reviewing incidents of violence by private security contractors abroad.
But serious gaps in oversight and accountability continue, especially when it comes to holding contractors accountable for serious violent crimes like the ones that took place in Baghdad three years ago. And the U.S. has never created a mechanism for compensating the victims of private security contractors' crimes.
In a report issued today, Human Rights First provides a snapshot of the legal and regulatory progress made since the Nisoor Square shooting, and identifies key areas where we still need major improvement.
When it came to holding the Blackwater contractors accountable, the Bush administration claimed that the U.S. government had no authority to prosecute private security contractors working for the State Department, as the Blackwater guards were. Although the Obama administration takes a different view, the issue has never been resolved by Congress or the courts.
To date, it remains unclear whether the U.S. government can prosecute contractors who work for any agencies other than the Department of Defense for serious crimes committed abroad. And it's not clear that the Status of Forces Agreement between Iraq and the United States even allows the Iraqi government to prosecute all private security contractors in its own country for serious crimes committed there.
The Civilian Extraterritorial Jurisdiction Act, or CEJA, currently in both chambers of Congress, would clarif y and expand U.S. criminal jurisdiction over all private contractors working for the U.S. government abroad . The U.S. government also needs to review its agreements with Iraq and Afghanistan and ensure that local law in those countries adequately extends to civilian contractors, so that serious crimes committed do not go unpunished.
The problem isn't only with prosecuting violent crimes, however. U.S. government agencies don't even track how many contractors and subcontractors work for them abroad. And the U.S. government still lacks sufficient staff within agencies that rely on private contractors abroad to keep track of contractors' work and ensure they're obeying the law. In Iraq, a Special Inspector General for Iraq Reconstruction found that the Defense and State Departments still need to improve their investigations of serious incidents. And in Afghanistan, private security contractors for the State Department are not even required to report serious incidents (such as attacks, injuries, and death) involving contractors to the government.
Despite the troubling lack of oversight, the United States is dramatically increasing its reliance on private security contractors. With the U.S. drawdown in Iraq, the Department of State plans to more than double the number of private security contractors it employs, from 2,700 to 7,000. And an additional 50,000 contractors are expected to be needed to support the Afghan surge. Meanwhile, the jurisdictional gap over non-Defense contractors widens.
"We cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors," said Barack Obama, then a U.S. Senator, shortly after the Nisoor Square shootings. President Obama was right then. The U.S. has both a moral responsibility and a national security interest in ensuring that the contractors it fields abroad operate in an effective, safe and law-abiding manner.