12/12/2007 11:59 am ET Updated May 25, 2011

Contractors Say They Will Stay Despite Lack of Immunity: Want to Bet Our Soldiers' Lives On It?

Right now, Iraq's parliament is considering removing immunity from U.S. security contractors or possibly all U.S. contractor personnel. Some contractor employees have told the Los Angeles Times that they would stay and work anyway. Want to bet our troops lives on it? After the Iraqi police throw the first U.S. contractor employee into the lovely Iraqi prison system, there could be an employee flight out of Iraq.

How do I know this? Contractor employees have left vital posts before when danger loomed. Consider this incident, which is explored in my book, Betraying Our Troops: The Destructive Result of Privatizing War. KBR and other contractor truck drivers quit their job or refused to cross the border from Kuwait into Iraq when one of the KBR convoys was ambushed in April 2004. Employees were killed and KBR truck driver, Tommy Hamill, was kidnapped and showed up on the nightly news with a gun in his face. This incident ground the truck convoys, carrying vital supplies for the troops, to a virtual halt and lasted long enough that even government people in the Green Zone had to start rationing food.

If Iraq does eliminate immunity and a contactor employee does get thrown in Iraqi jail, there could be a crippling flight of employee personnel out of the country in rapid order. The companies will tell you that they can get foreign nationals to stay and do the work. There are a larger number of them than Americans in many of these jobs. But the supervisory management people, who are mostly American, could leave and the logistics and security of the U.S. forces could be put a great risk, right when people think that we may have turned a corner in Iraq.

Why would this happen? Because the employees have the constitutional right to quit their job and go home. Even though Congress passed a law to put the DOD contractors under the military's Uniform Code of Military Justice, many military attorneys believe that it won't pass a constitutional test. They believe that because the contractors have not taken the same oath as the armed service personnel, they have not voluntarily given up their constitutional right to quit a job. Is the DOD realistically going to criminally go after American citizens that quit their job in Iraq and go home? It is unlikely, legally or politically, that the government would go that far.

So this has been the Achilles' heel in using contractors to such a large extent in Iraq. If this American worker flight home grew big enough, the troops face lack of all logistics and no one to feed them. The Army would have to scramble to find enough military people to get the trucks through, and the personnel are just not there. The bigger problem is that the insurgency could see this as a weakness and an opening for them to attack the troops and the bases.

The contractors will tell you that they would find the personnel to do the job. But KBR is advertising for 942 job openings in Iraq today on their website. Do you really think that they could replace all the people who would decide that that they don't want to risk an Iraqi jail experience?

The Army was warned about this for years. A 1991 DOD Inspector General Report warned about the problems that the services could have if the contractors would leave or not work in emergency situations. This report says that the problem was exposed in a 1988 DOD Inspector General report but firm plans had not been established. The report also warned that a DOD instruction written in 1990 (updated in 1996) was not being followed. Section 4.4 of that instruction states:

For situations where the cognizant DoD Component Commander has a reasonable doubt about the continuation of essential services during crisis situations by the incumbent contractor, the Commander shall prepare a contingency plan for obtaining the essential service from alternate sources (military, DOD civilian, host-nation, other contractor(s)).

At the beginning of the war, in June 2003, the Government Accountability Office warned in a report that the commanders did not have back up plans, as required in the instruction above, on what to do if the contractors did not stay in a hostile area.

This could be a ticking time bomb for the military in Iraq. Now that a KBR employee alleges that she has been raped and the U.S. government has not prosecuted anyone and the Iraq parliament is posed to strip the immunity for contractors and expose them to Iraqi jails, there may be more and more employee flight out of Iraq.

If the situation in Iraq would turn sour (there was a new triple car bombing this morning) and contractors start to get killed in large groups, the military is ill prepared to replace the contractors that could come streaming home. Since the Army has contracted out so much of its logistics, their own logistics arm has atrophied. Not a good place to be in a volatile place such as Iraq.