Blackwaters Legal Netherworld

Private security contractors are subject to military justice — or are they?

By Mark Hemingway   NRO   Sept. 26, 2007
In the reams of media coverage surrounding the Blackwater incident last week one curious detail remains virtually unreported. The general theme of the coverage remains that private military contractors are somehow “above the law,? but almost no media sources have referred to the fact that, as of last fall, contractors are subject to the same to the same Uniform Code of Military Justice that governs U.S. soldiers.
In theory, Blackwater contractors could be court martialed for wrong doing, a prospect that should satisfy all critics who insist that private military companies remain unaccountable. However, even before the change there was no lack of applicable laws to which contractors were subject. The truth is that contractors are not above the law, but rather well within the reach of several different codes and regulations and nobody’s exactly sure how one would go about exacting legal remedies against them should they be needed.
The change regarding the UCMJ was inserted into the 2007 Defense Authorization Act by Senator Lindsay Graham who noted that the change would “give military commanders a more fair and efficient means of discipline on the battlefield. The provision clarifies the Uniform Code of Military Justice to place civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.? Graham is not coincidentally also a reserve Judge Advocate General (JAG) officer.

The amendment resulted in a small but highly significant change to article two of the UCMJ. Previously article two explained military legal jurisdiction over civilians as being conditional according to the following language: “in time of war, persons serving with or accompanying an armed force in the field.? That language has now been altered to read “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.? The amendment also defines “contingency operation? as “a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force? along with a host of other conditions where the military may be called into action. This is significant, as Congress is loathe to issue a declaration of war anymore. In the case of United States v. Averette, the Court of Military Appeals set aside the conviction of a contractor in Saigon because the conflict in Vietnam was not technically a “time of declared war.?

“It’s the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasize ‘potential’ here, to finally bring some legal status and accountability to a business that has expanded well past the laws,? said Brookings Insitute Fellow Peter W. Singer, who’s both an acknowledged expert on private security forces and a sharp critic of them, back in January

Potential is right, but no one in the military is ready to seize the day and exercise their authority over contractors. One JAG officer I spoke to — who emphasized he was not speaking on behalf of the whole military or offering any explicit legal opinions about the issue — said trying contractors in military courts is “pretty radioactive.?

“I have asked some senior Army prosecutors about it and they laughed and shook their heads about what the prosecution would look like,? he said. “I mean nobody wants to be the first to touch it or try to use it, [it’s] not expressly a criticism of the extension of jurisdiction itself.?

Further confounding the problem is that while the UCMJ was amended in late 2006, the 2007 update of the Manual for Courts Martial offers no clarification on how the new language should be implemented. According to Army Lawyer, an official Army publication, “Subjecting contractor personnel to the UCMJ during all contingency operations appears to constitute a significant change rather than a clarification. No legislative history explains this change. Further, as there is no published guidance, it is unclear how this change will be implemented and precisely what the ramifications will be.? Translation: We’ll let somebody way above our pay grade decide what this means before we start bringing contractors to court — particularly since there are far more legal precedents for protecting civilians from military trials (notably Reid v. Covert), rather than vice versa.

However, the recent Blackwater hubbub illustrates that we may be reaching critical mass within the political, legal and military realms for providing explicit guidelines for how private military contractors should be regulated. In fact, it’s so problematic I suspect Blackwater itself might welcome clarification on this important point, even if the company’s leaders aren’t overjoyed at the prospect of more scrutiny or being encumbered with excess regulation.

In fact, if you Google “Blackwater? and “Uniform Code of Military Justice,? the first link is to www.blackwaterblogger.com. The site just started up September 12 and its authorship is unclear. The site’s wannabe Hunter Thompson vibe is odd but it contains some of the better, if defensive, discussions of the legal issues surrounding the use of private contractors and, in particular, the new regulations regarding the UCMJ. The effect of which is described thusly: “Learning that the ‘totEal immunity’ tagline [for military contractors] doesn’t jibe with the facts is a real buzzkill for radicals from both ends of the political spectrum, but don’t worry guys, to paraphrase that insightful lyrical genius 50 Cent, ‘I still love you like a fat kid loves cake.’? Um, okay…

Still, in defending the company, Blackwaterblogger offers a pretty shrewd assessment of the limitations of having contractors fall under the UCMJ umbrella. Even with the change to article two, much of what would be considered dangerous private security work falls outside the comparatively narrow conditions outlined by UCMJ. “As things stand, we have the unique situation of having the contract cook and the janitor at Balad under the UCMJ, but the contractor piloting weaponized Predator drones from stateside and the armed security contractors conducting DEA operations in South America not under the Code,? Blackwaterblogger observes.

Interestingly enough, the blog repeatedly references Lafayette and von Steuben’s Revolutionary War involvement as being in the same tradition as today’s private military contractors. This is an unusual, though not altogether inapt, historical interpretation — and it happens to be exactly the same example Blackwater founder Erik Prince used in defense of using security contractors in the current war when I interviewed him last year.

Blackwater spokesperson Anne Tyrrell denied any corporate involvement in the site when I spoke to her, but whether or not the Blackwater-sympathetic blog is the work of a public relations turnspit doesn’t change the fact that it might be in the company’s best interests to shine a light on the regulatory problems of private security contractors.

Blackwater has spent hundreds of millions of dollars on infrastructure and training for their contractors; the company’s facilities and capabilities are staggering. As a company, they are highly adaptable to the contracts and missions they are supplied with. At this point, the onus might be on the government to give contractors clear directives and standards that necessary to properly hold private security contractors accountable.

Anyone who is familiar with private military contractors in Iraq knows that Blackwater is far and away one of the more professional outfits doing security work in the country out of dozens if not hundreds of private security companies now operating in the country. Last year Prince told me that there are a lot of “shortcomings that are allowed that go unpunished? regarding contractors. “Especially when you have a large surge in demand for those kinds of services, there’s a lot of two-guys-and-a-laptop competitors that enter the market and suddenly they’re a security company,? Prince said.

If more stringent and/or costly accountability requirements were placed upon contractors, Blackwater would certainly be in far better position to comply than the smaller security outfits. It might prove to be in everyone’s best interests to have clear rules governing contractor conduct — Blackwater included. But it’s almost certain that it would be in the interest of the private security industry to push for clear guidelines now than wait for mounting political pressure to force the courts — military or otherwise — to resolve the issue for them.

— Mark Hemingway is an NRO staff reporter.

 

                                                                                                                                           
                                                                                                                                           

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