This is taken from the introduction to the Human Rights First report on the lack of oversight of, and accountability for, private security firms in Iraq, whose personnel outnumber that of United States armed forces in Iraq.
Private Security Contractors At War: Introduction
“These guys run loose in this country and do stupid stuff. There's no authority over them, so you can't come down on them hard when they escalate force…. They shoot people, and someone else has to deal with the aftermath.”
Brig. Gen. Karl R. Horst, deputy commander of the 3rd Infantry Division, July 2005.
On September 16, 2007, private security contractors (PSCs) working for Blackwater Worldwide were running an armed convoy through Baghdad. Iraqi government officials charge that these Blackwater contractors, with no justification, killed 17 civilians and wounded 24 more in the Nisoor Square neighborhood of Baghdad. The incident created a political firestorm in Iraq, the United States and around the world. Although the facts are still under investigation, the incident brought intensive focus to the role of PSCs operating in Iraq.
The U.S. government’s reaction to the shootings at Nisoor Square has been characterized by confusion, defensiveness, a multiplicity of uncoordinated ad hoc investigations, and inter-agency finger pointing. These failures underscored the Justice Department’s (DoJ’s) unwillingness or inability to systematically investigate and prosecute allegations of serious violent crimes.
And these failures even extend to cases where U.S. citizens have been victims, such as the alleged 2005 gang rape of Jamie Leigh Jones by co-workers at a forward operating base in Iraq. Jones at the time worked for Kellogg, Brown & Root (KBR), Inc. (then a Halliburton subsidiary). She has now filed a civil law suit against KBR, the U.S. government and others. Justice Department officials in Iraq were briefed on the incident at the time, but DoJ declined even to open an investigation for more than two years, and they did so only when facing the prospect of embarrassing publicity relating to the case. There still has been no prosecution of her assailants. There has been a similar failure to investigate and prosecute private contractors involved in the abuses at Abu Ghraib prison during 2003. The images of Army Specialists Lynndie England and Charles Graner are imprinted in the public memory of that scandal–in large part because of their military court-martial prosecutions. By contrast, the roles of private contractors played at Abu Ghraib have received little public attention. Several contractors were there and participated in the interrogations at Abu Ghraib, including - Big Steve--Steven Stefanowicz, a private contractor interrogator employed by CACI International, Inc., on a Department of the Interior contract and several other CACI and L3 Communications Titan Group (then its own entity, Titan) contractors. But the role of these contractors has never been fully investigated by the Justice Department. While 11 soldiers from Abu Ghraib were convicted on charges related to detainee abuse there, not one CACI or Titan civilian contractor has ever even been charged with a crime. Formal Army investigative reports identified at least five private contractors as implicated in serious crimes at Abu Ghraib. These Army investigators found evidence that some private contractors even gave direction and orders to soldiers who were prosecuted. Cases examined by the Army’s Criminal Investigation Division (CID) were referred to DoJ within months after these revelations.6 Yet in the more than three years since then, the Justice Department specifically, the U.S. Attorney’s office for the Eastern District of Virginia has failed to prosecute any of these private contractors.
These incidents are the tip of the iceberg. Over the last several years there have been scores of reports of serious abuse by private contractors in Iraq and Afghanistan both in the context of interrogations and in the use of excessive and often lethal force in various security operations. Many of these incidents have been well documented. Through February 2006 only 20 cases of alleged detainee abuse involving contractors are known to have been referred to DoJ. Nisoor Square and the Christmas Eve Baghdad shooting are the only known cases of security contractor abuse against local nationals that have been referred to DoJ. And only one civilian contractor, David Passaro, has ever been prosecuted by the U.S. government for violence towards local nationals. Passaro was a Central Intelligence Agency (CIA) contractor at a U.S. Army base in Afghanistan. In June 2003 Passaro beat a local Afghani named Abdul Wali in the course of a two-day “interrogation” Wali died in custody the next day. Passaro was tried in August 2006, convicted of multiple assault charges and sentenced to more than eight years in prison.
Based on data reported by the Department of Defense (DoD) and Department of State (DoS), estimates show that there are now approximately 180,000 private contractors operating in Iraq today-more than the number of U.S. military forces there. The U.S. government has neither asserted sufficient control over the situation nor even provided comprehensive information on how many private security contractors work there. Officials at both DoD and DoS have stated they cannot provide the number private security and other contractors funded by the U.S. government are in Iraq today.
But we do know that significant numbers of these contractors--tens of thousands of them--are armed and carrying out military-style security functions, working for several U.S. government agencies. Human Rights First estimates there are at least 35,000 PSCs in Iraq today. Collectively, PSCs comprise the second largest armed security force in the ‘coalition of the willing’ in Iraq, second only to the U.S. military. They represent a larger force even than the combined forces of all of the Coalition nations in Iraq other than the United States.
Most private security contractors in Iraq are Iraqi nationals, but thousands--perhaps tens of thousands -- are U.S. and -- third country -- nationals. These contractors work for as many as 180 companies, including Aegis Defense Services, DynCorp International, the Centurion Group, Control Risks Group, Erinys, MPRI, Triple Canopy and Blackwater Worldwide, to cite a few of the major players. While most individual contractors providing security services undoubtedly abide by the law and carry out their functions in a professional manner, there is a widespread and disturbing pattern of illegality and misconduct by private security contractors in these operations.
Consider these cases:
- Zapata: On May 28, 2005, U.S. Marines detained contractors from the American company Zapata Engineering, accusing the contractors of “repeatedly firing weapons at civilians and Marines, erratic driving, and possession of illegal weapons,” and posing a “direct threat to Marine personnel.” Although 16 American contractors lost their jobs with Zapata and were banned from working in the Marine sector of Iraq, none of them were ever prosecuted.
- Triple Canopy: On July 8, 2006, Triple Canopy security contractors reportedly fired upon Iraqi civilian vehicles, damaging two vehicles and possibly causing casualties. Three members of the team described at least one of the incidents as unwarranted and admitted there was no threat, and the fourth team member -- the alleged shooter -- was accused by his teammates of saying he wanted “to kill somebody today” before starting the mission. But these shootings came to public attention only through a wrongful termination suit later filed by two of the fired Triple Canopy guards; the U.S. government seems never to have conducted a criminal investigation into the incidents. Triple Canopy fired the three American members of the team, two of which claim they were fired in retaliation for their reporting of the incident.
- Blackwater 2006: On Christmas Eve 2006 Andrew Moonen, a Blackwater contractor, allegedly shot and killed Raheem Khalif Hulaichi in Baghdad’s International Zone. Hulaichi was a member of Iraqi Vice-President Adil Abdul-Mahdi’s security detail. According to a CID report, after drinking heavily at a Christmas party, Moonen passed through a gate near the Iraqi Prime Minister’s compound and, when confronted by Hulaichi, fired repeatedly with his Glock 9mm pistol, hitting the guard three times, then fled the scene. Hulaichi died soon after. With State Department facilitation, Blackwater hurried Moonen out of Iraq. Now more than a year later, the FBI and the Justice Department’s U.S. Attorney’s Office for the Western District of Washington reportedly are still investigating the case, although the office declined to confirm this to Human Rights First. Shortly after the incident, Mr. Moonen found work with another contractor, Combat Support Associates (CSA), which provides logistics support to U.S. troops in Kuwait under a DoD contract. A CSA spokesman stated that nothing “untoward” was found in Moonen’s record during the standard background review conducted of all prospective employees. To date no one has been charged or prosecuted in Hulaichi’s killing.
Human Rights First estimates that there are thousands of occasions in Iraq in which PSCs have discharged their weapons, hundreds of times toward civilians. But because of lax reporting requirements, inadequate supervision and the near-complete failure -- primarily of DoJ -- to investigate incidents, it is impossible to determine how many civilians were killed or wounded in these incidents. Clearly much more must be done to ensure this unacceptable situation does not continue.
The existing legal framework for holding private security contractors criminally accountable is based on a patchwork of federal statutes that provide a piecemeal approach to criminal jurisdiction. But together these laws do provide extensive -- although imperfect -- coverage. If used these laws would cover most of the serious violent crimes committed by contractors in Iraq and Afghanistan. By law, authority to prosecute these cases is shared by the Justice and Defense departments. In practice, however, neither of these federal agencies is aggressively investigating nor prosecuting contractors. The U.S. government has not devoted adequate effort or resources to carry out the necessary criminal investigations or prosecutions.
The Justice Department bears primary responsibility for this inaction. Today most private security contractors operate in an environment where systems of criminal accountability are rarely used. This has created a culture of impunity.
Operating in an atmosphere of constant tension and threat and without clear standards, oversight, or discipline, and without the ultimate sanction of criminal liability, abuses by private security contractors are inevitable.
The handling of allegations of excessive violence by these contractors stands in sharp contrast to the handling of similar cases involving the U.S. military. The military has clear authority to prosecute cases involving abuse by military personnel and in fact exercises this authority routinely. Though far from perfect, the military has established and devoted resources to build a comprehensive system of discipline and military justice by which soldiers, sailors, airmen and Marines are subject to discipline or punished for their illegal actions. And while Human Rights First has been critical of DoD failures to hold senior officers accountable in cases involving abusive interrogation practices in Iraq and Afghanistan, we recognize that in general a regular and credible military criminal justice system in fact exists and is applied with some regularity to military personnel.
To date more than 60 U.S. military personnel have been court-martialed in the deaths of Iraqi citizens, and more are under investigation. In contrast not one private contractor implicated in similar crimes in Iraq has been prosecuted. Human Rights First believes that the Justice Department’s neglect has created a “shoot first, ask questions later -- or never” attitude among some contractors. This endangers the local population amongst whom they operate. It also makes the job of the U.S. military harder by stoking animosities among the communities where they operate. This pattern of official disregard of contractor violence and abuse thus seriously undermines U.S. efforts to promote the rule of law in Iraq and Afghanistan and is in turn further endangering U.S. military personnel.
The U.S. government has engaged the services of these private contractors and has made itself increasingly dependent on them. As a result, private contractors today perform many functions that even a decade ago would have been undertaken by the uniformed military. But when the United States or any nation deploys armed forces in conflicts abroad -- even private armed forces -- it has the responsibility to ensure that those forces comply with the law. Specifically, governments using private security forces in armed conflicts have the obligation to ensure that these forces are adequately vetted, trained, supervised and held accountable. Individuals with histories of abusive or serious criminal conduct should not be put in a position to victimize others. They must be trained in the law of war and human rights, including how those laws are enforced through applicable domestic law. Private contractors also must be subject to effective oversight and supervision to ensure that such laws are observed. And finally when abuses do occur contractors must be investigated and held accountable under the law.
Human Rights First finds that:
- PSCs and other private contractors working for U.S. government agencies have committed and are committing serious crimes, with virtually no criminal accountability;
- Existing U.S. federal criminal law could be used in most cases to prosecute private contractors who use excessive violence, including contractors involved in abusive interrogations;
- The U.S. government has made no serious, systematic effort to investigate contractor abuse at Abu Ghraib; and
- Although some U.S. government officials assert there are major “holes” in the statutory framework, these assertions merely rationalize Justice Department inaction and Executive Branch indifference. Current federal law provides a substantial basis to try most private contractors involved in cases of abuse. Proposed legislation pending in Congress would clarify some ambiguities and enhance this authority.
In this report Human Rights First makes a number of practical recommendations for addressing and correcting this problem, which fall into three broad areas:
- Action by Congress to strengthen federal criminal accountability mechanisms, and require more vigorous Justice Department investigation and prosecution of these cases;
- Implementation by the Defense Department of its Uniform Code of Military Justice (UCMJ) jurisdiction as a limited and secondary mechanism for holding contractors criminally accountable in special circumstances; and
- Development by the Executive Branch of uniform contract practices and procedures and effective mechanisms for enhanced operational coordination and control of contractors.
Congress also should:
- Expand the list of serious felonies for which private contractors may be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA);
- Mandate comprehensive public Executive Branch reports to Congress on the employment and activities of PSCs, and on Justice and Defense Department efforts to hold PSCs accountable for crimes committed abroad, in order to enable Congress to perform effective oversight in this sphere; and
- Direct a thorough, comprehensive study of the roles of private contractors employed by the U.S. government in conflict settings, with a view specifically to identifying whether there are areas of “core government” functions that should not be performed by private contractors. Based on our preliminary review, Human Rights First urges a presumption against private contractors being directly involved in conducting interrogations.
In June 2004, just weeks after revelations from Abu Ghraib had so embarrassed the Bush administration, Attorney General John Ashcroft announced the Passaro indictment concerning a killing that occurred a full year earlier - in terms that suggested that thenceforth no private contractor implicated in serious law of war or human rights violations would ever again escape the long arm of the Justice Department:
In the reports of abuse of detainees by United States personnel in Iraq and Afghanistan over the past two months, the world has witnessed a betrayal of America’s most basic values by a small group of individuals. Their actions call us to the defense of our values, -- our belief in decency and respect for human life -- through the enforcement of the law.
President Bush has made clear that the United States will not tolerate criminal acts of brutality such as those alleged in this indictment. The types of illegal abuse detailed run counter to our values and our policies and are not representative of our men and women in the military and associated personnel serving honorably and admirably for the cause of freedom.
Those who are responsible for such criminal acts will be investigated, prosecuted and, if found guilty, punished.
But in the three-and-a-half years since Passaro’s indictment, no other private contractors working in Iraq or Afghanistan have been indicted or prosecuted by the Justice Department for criminal violence or abuse toward local nationals.
The consequences of continued delay in closing this accountability gap are immense: given the population of security and other contractors in Iraq, a simmering problem may boil into a crisis that could shape the eventual outcome of America’s efforts in Iraq and reputation throughout the world. Perhaps it already has.
