Peter W. Singer, PhD, Director of 21st Century Defense Initiative, stated in a Jan. 3, 2007 Defense Tech.org article titled "The Law Catches Up to Private Military, Embeds":
"...[I]t has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation [John Warner National Defense Authorization Act for Fiscal Year 2007]. The one sentence section (number 552 of a total 3510 sections) states that 'Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking "war" and inserting 'declared war or a contingency operation'...
With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed...
The ultimate point is that the change gives the military and the civilians courts a new tool to use in better managing and overseeing contractors."
Does the US government provide adequate oversight for private contractors in Iraq?
Doug Brooks, MA, Founder and President of the International Peace Operations Association, stated in an Apr. 25, 2007 testimony titled "Security Sector Reform in Iraq: Enhancing the Role of the Private Sector" before the US House Armed Services Committee:
"Companies are much more controllable and accountable than portrayed in the press. Contracts can be and are sometimes modified, penalized or cancelled based on performance and changing conditions. Companies must answer to government Contract Officers providing guidance and oversight and contractors must obtain government licenses to do military or police training. All government contractors must abide by the Federal Acquisition Regulations (FAR) and if they are working for the Department of Defense, they must also follow the Defense Federal Acquisition Regulations Supplement (DFARS). This is a process than can always be improved and enhanced, but it is important to keep in mind that additional rules and regulations can also add costs and more importantly, risk.
Individual contractors themselves can be held accountable as well. The Military Extraterritorial Jurisdiction Act (MEJA) allows the U.S. government to try individuals of all nationalities (except host country nationals) in Federal courts for felonies. This law has been on the books for several years but the Department of Justice is only now beginning to exercise it appropriately. There have been changes made that may put contractors under the military’s Uniform Code of Military Justice (UCMJ). However the use of the UCMJ for civilians has been extremely controversial and is opposed by several human rights organizations. Similar rules have been struck down in the past by the Supreme Court as well."
William H. Reed, Director of Defense Contract Audit Agency, stated the following in a prepared statement for a Jan. 7, 2007 hearing before the House Committee on Oversight and Government Reform:
"DCAA [Defense Contract Audit Agency] has been an integral part of the oversight and management controls instituted by DoD [Department of Defense] to ensure integrity and regulatory compliance by contractors performing services in Iraq..
Since April 2003, DCAA has worked with all U.S. procurement organizations supporting Iraq Reconstruction to establish the resources and planning information needed to carry out required audits of contract costs as they are incurred and billed...
Through FY 2006 DCAA has issued more than 1,800 reports on Iraq-related contracts. We estimate issuing another 600 reports in FY 2007...
DCAA has been and will continue to be vigilant about contract audit oversight and protecting the taxpayers' interests."
Stan Soloway, President of the Professional Services Council, stated in a June 21, 2005 testimony before the House Subcommittee on National Security, Emerging Threats, and International Relations:
"A number of key steps have already been taken to address the issues of criminal jurisdiction, contrary to the claims of some people that civilians operate in Iraq with impunity. Last year, Congress enacted amendments to the Military Extraterritorial Jurisdiction Act to provide expanded criminal jurisdiction over civilians performing on any DoD [Department of Defense] contract.
The State Department has continued what is known as CPA [Coalition Provisional Authority] Order 17, essentially a surrogate Status of Forces Agreement, which declares that non-Iraqi civilians can be remanded to their home country and prosecuted under their home country criminal laws for acts committed in Iraq. Order 17 will, we hope and trust, be incorporated into a formal Status of Forces Agreement with the Iraqi government—an agreement that could not be entered into prior to June 28, 2004, because there was no sovereign government in the country."
The US Government Accountability Office (GAO) stated in its Dec. 2006 report to congressional committees titled "Military Operations: High Level DOD Action Needed to Address Long-standing Problems with Management and Oversight of Contractors Supporting Deployed Forces":
"Because of the broad congressional interest in U.S. military operations in Iraq and DOD’s [Department of Defense] increasing use of contractors to support U.S. forces in Iraq, GAO initiated this follow-on review under the Comptroller General’s statutory authority.
Specifically, GAO’s objective was to determine the extent to which DOD has improved its management and oversight of contractors supporting deployed forces since our 2003 report.DOD continues to face long-standing problems that hinder its management and oversight of contractors at deployed locations...
DOD has taken some steps to improve its guidance on the use of contractors to support deployed forces, addressing some of the problems GAO has raised since the mid-1990s.
However, while the Office of the Secretary of Defense is responsible for monitoring and managing the implementation of this guidance, it has not allocated the organizational resources and accountability to focus on issues regarding contractor support to deployed forces. Also, while DOD’s new guidance is a noteworthy step, a number of problems we have previously reported on continue to pose difficulties for military personnel in deployed locations."
The US House Committee on Oversight and Government Reform stated in a Feb. 7, 2007 memorandum titled "Additional Information for Hearing on Private Security Contractors":
"The Committee's investigation suggests that there is little federal oversight of the private security contractors. On November 30, 2004, then-Ranking Member Waxman wrote to the U.S. Army Field Support Command requesting basic information about private security services provided under KBR's LOGCAP [Kellog, Brown and Root Logistics Civilian Augmentation Program] contract, including 'how much the individuals providing the security services were paid and how much KBR and each of the subcontractors involved charged for overhead, profits, and other components.'
For over 18 months, the Defense Department refused to answer this inquiry. When a response was finally provided, it did not provide the requested accounting, but instead offered erroneous assertions about the contracting arrangement itself...
The more the staff has investigated private security contracts, the more questions and uncertainties arise. To this day, almost three years after the incident in Fallujah, there remains a dispute about the identity of the prime contract under which the four Blackwater personnel were conducting their mission at the time of their deaths...
The Fallujah incident was highly publicized and had a significant impact on the course of the war in Iraq. It would be reasonable to expect that nearly three years after the incident, the Defense Department would be able to answer basic questions about the existence of private security subcontracts, the contracts and contractors involved, and the costs to the taxpayer. The fact that the Defense Department is unable to answer even these simple questions suggests that federal oversight of private security contracts is unsatisfactory."
The families representing the four contractors killed in Fallujah on Mar. 31, 2004 stated the following in their opening testimony for a Feb. 2, 2007 Hearing on Reliance on Private Military Contractors in Iraq Reconstruction:
"There is no accountability for the tens of thousands of contractors working in Iraq and abroad. Private contractors like Blackwater work outside the scope of the military’s chain of command and can literally do whatever they please without any liability or accountability from the U.S. government. They also work in countries like Iraq, which are not currently capable of enforcing the law and prosecuting wrongful conduct, such as murder...
The inherent flaw in the manner in which private contractors are being used is that there is no accountability or oversight. If the U.S. military was performing the jobs that it now farms out to the private sector, there would always be someone to answer to—all the way up to the President of the United States."