Beyond the Law

This opinion first appeared in the Los Angeles Times, 5/2/04.

The reports of American soldiers abusing Iraqi prisoners during interrogations are horrifying. Fortunately, there is a clear and proper legal response. Those accused will be court-martialled and, if found guilty, they will be punished.

But the story, sadly, does not end there. Also playing a role in this deeply disturbing episode—in which Iraqi prisoners were beaten, raped and forced to perform simulated sexual acts—were private contractors, hired to serve as interrogators.

That private contractors are serving in US military prison camps should be surprising enough. This takes our experiment with the boundaries of military outsourcing to levels never anticipated. That a loophole in the law has given a free pass to the contractors alleged to have been involved is outrageous.

In an attempt to fill the gap between the demand for professional forces and the limited number deployed, an array of traditional military and intelligence roles have been outsourced in Iraq, all without public discussion or debate. There are up to 20,000 private contractors operating in Iraq, carrying out military roles from logistics and local army training to guarding installations and convoys.

Some readers will be familiar with the resultant stories of Halliburton’s overbilling scandals and the deaths of British and American private military personnel in battles in Falluja, Najaf and Kut. The industry has been deployed to such an extent that a number of executives have called it the “Iraqi gold mine”.

Among the most stunning decisions taken is the handover of the interrogation of prisoners of war to private firms. Employees from the firms CACI and Titan now reportedly fill such roles as interrogators and translators. The work can be quite lucrative. Titan just won a $172m deal to supply “analytical support” for US military operations; its employees can make over $100,000 a year.

The lack of rules and regulations for the industry has serious ramifications. A US army investigation found behaviour that went well beyond accepted interrogation tactics, including making prisoners perform simulated sex acts and putting glowsticks in bodily orifices. The perpetrators even took over 60 pictures, including the infamous shot of an Iraqi prisoner standing on a box with his head covered and wires attached to his hands. He was told if he fell off the box he would be electrocuted. One civilian contractor is accused of raping a young man.

The US army has responded swiftly and correctly—but only to an extent. Seventeen soldiers were removed from duty and six face court martial. Brigadier General Mark Kimmitt said: “We’re appalled. These are our fellow soldiers…they wear the same uniform as us…these acts may reflect the actions of individuals, but, by God, it doesn’t reflect my army.”

But the problem is that not all those involved were US soldiers. While the military has established structures to investigate, prosecute and punish soldiers who commit crimes, the legal status of contractors in war zones is murky. Soldiers are accountable to the military code of justice wherever they are located, but contractors are civilians—not part of the chain of command.

Normally, an individual’s crimes would then fall under the local nation’s laws. But there are no established Iraqi legal institutions—that is why we are running their prisons in the first place—and, in any case, coalition regulations explicitly state that contractors don’t fall under them. In turn, because the acts were committed abroad, and also reportedly involve some contractors who are not US citizens, the application of US law is problematic. As one military lawyer said: “There is a dearth of doctrine, procedure, and policy.”

This leaves a vacuum. Phillip Carter, a former US army officer now at UCLA Law School, notes: “Legally speaking, they [military contractors] fall into the same grey area as the unlawful combatants detained at Guantánamo Bay.”

If found to be involved, the individuals should not escape prosecution. Such crimes merit harsher punishment than simply the end of a good paycheque. This may require breaking new legal ground, such as testing extra-territorial standards for civilian prosecution, detention until the Iraqi legal system is well established, or even handover to the international court—but the stakes for US credibility are too high to do nothing. To pay contractors more than our soldiers, and to give them a legal free pass on top of that is unconscionable.

The US and other clients of the industry, including the UK, must re-examine which roles are appropriate for outsourcing and which are not. The private military services industry has boomed in the past decade to about $100bn in revenue, but little thought has been given to this question.

For the roles we do choose as appropriate to outsource, we must close the gap in the law. The overwhelming number of contractors are probably just as sickened by this behaviour as the public. That is why we have laws: to govern for the worst of human behaviour, not hope for the best. The private military field should be no different.