Accountability of Civilian Contractors in the U.S. Justice and Police Civilian Response Corps for International Crises
The U.S. Department of State seeks to establish a funding mechanism under its auspices for a permanent “Civilian Response Corps,” staffed by a core of federal employees and a reserve of civilian contractors. These specialists would deploy to the world’s hot spots of low-intensity armed conflicts and post-conflict situations to provide police, corrections, criminal justice, and rule of law functions. In theory, the State Department would harmonize the stabilization and reconstruction efforts of civilian and military actors across all agencies of the government.
A 600-person pilot project, costing $55 million, is scheduled to be deployed to Afghanistan and Iraq by November 2009, with the hiring of police and justice experts now in progress. These civilians will be provided at least two weeks of military training before deployment, according to Ambassador John Herbst, the coordinator of the project. The military training will prepare the civilian contractors for the risks of operating in situations of armed conflict and great danger. Amb. Herbst did not say whether employees and contractors would be trained in the law of war, humanitarian law, and international human rights standards. Open positions include police commanders, explosive specialists, criminal analysts, drug enforcement specialists, defense attorneys, judges, and corrections operations specialists. Currently, qualified federal employees from eight civilian agencies may volunteer for duty with the Corps. Additionally, civilian experts may be hired as federal employees or contractors.
Like the civilian contractors of private military and security companies, nonmilitary justice and police contractors with the Corps will be accountable to their contracts under U.S. law. Their accountability under U.S. criminal law, the domestic laws of the host state, and international law is far less clear. Yesterday, the U.S. Commission on Wartime Contracting in Iraq and Afghanistan held its first meeting to explore and possibly to recommend legislation to expand U.S. extraterritorial criminal jurisdiction over nonmilitary security contractors. The Commission will issue its first report on 1 May 2009 and its final report in Summer 2010.
Outsourcing of Police Functions: What Is the Difference Between the Civilian Response Corps and Private Security Companies?
The outsourcing of police and corrections functions in Afghanistan and Iraq is already a cottage industry for private military and security companies. In fact, two of the functions of the Civilian Response Corps, police and corrections, are already being provided by private security companies. In Iraq, an estimated 200,000 private contractors work for 180 or so companies. Civilian contractors outnumber roughly 159,000 troops in Iraq. Similarly, in Afghanistan, 40 private security companies have registered with local authorities. Experts suggest that about 3,000 security contractors currently work in Afghanistan and that private contractors will dramatically increase in Afghanistan in the next two years as the military shifts away from Iraq.
During the Q&A at a recent event at the American Society of International Law, I felt that Amb. Herbst did not adequately articulate how the Civilian Response Corps, particularly the civilian police contractors, will differ from the activities provided by private military and security companies. For example, Blackwater and DynCorp International currently have contracts with the State Department to provide law-enforcement, corrections, and other post-conflict experts in Afghanistan and Iraq. Amb. Herbst asserted that the Corps was created in response to the inadequacy of civilian contractors. He added that “the Civilian Response Corps would, if created in its full extent and then used in its full extent, would provide the civilian command structure for all civilian operations.” He didn’t address whether the pilot project duplicates the functional activities already in place.
Even though Amb. Herbst stated that the intent was to replace private security contractors, he noted that the Corps may “need some contractors for individual skills” or for future surges. Thus far, the recruitment has been within federal agencies for current government employees to volunteer to work in Afghanistan and Iraq. Yet, the recruitment effort seems to be a mixture of seeking volunteers from within government and signing up civilian contractors for the remaining positions. Because it is unknown how many government employees will volunteer and will have the necessary skills, it is difficult to say how many contractors will actually be hired out of the 600 positions for deployment by November 2009.
Further, Amb. Herbst was unable to describe why the additional $55 million for the Civilian Response Corps was needed outside existing funding mechanisms. For example, the Civilian Response Corps is providing the same police and justice activities that are separately funded in the Supplemental Appropriations Act, 2008 (Pub. L. No. 110-252, H.R. 2642). Specifically, in additional to the $55 million for the Corps, the Supplemental Act authorizes $140 million to support counterterrorism and law enforcement training in Afghanistan and Iraq; $20 million to reduce forensic backlogs in Afghanistan and Iraq; $4 million for technical support to identify and dismantle explosives in Afghanistan and Iraq; and $3.7 for increased court and witness security in Afghanistan. Thus, it is unclear why the Civilian Response Corps also needs funds to support counterterrorism, reduce forensic backlogs, assist with the dismantlement of explosives, and implement witness protection programs in Afghanistan.
Although building a more permanent pool of post-conflict experts for rapid deployment conceptually is a good idea, the proliferation of funding mechanisms for post-conflict stabilization activities fosters fragmentation across policy planning. This fragmentation makes it more difficult to track how much is actually spent on stability projects and could lead to duplicative efforts across government agencies, rather than coordination. One lingering question is whether the State Department is looking for an additional funding mechanism to hire contractors directly in order to have greater flexibility as compared to contracting through private security companies, such as Blackwater and DynCorp. Moreover, with private security companies under greater scrutiny, will direct contracting of civilians favor a legal loophole if anticipated legislation cracks down on the criminal liability of contractors hired by contracting companies? Will direct contracting by civilian government agencies with individuals pose a legal loophole?
U.S. Criminal Liability for Fraud, Crimes, and Abuses Committed Oversees
Civilian contractors providing stability activities enjoy a greater veil of immunity than our military or public servants sent abroad. Yesterday, on February 2, the U.S. Senate Commission on Wartime Contracting held its first meeting to explore and possibly expand U.S. extraterritorial criminal jurisdiction over nonmilitary security contractors. The following discusses three loopholes in the current legal regime.
(1) Unlike military members, these civilian contractors are not subject to the U.S. Uniform Code of Military Justice. Military members would be subject to discipline and prosecution for criminal activities.
(2) Moreover, in 2007, the Pentagon issued a written statement to a Congressional member asserting that civilian contractors working overseas cannot be prosecuted for crimes committed outside the country, even when the crimes occur within the official scope of duty, unless the contractor’s activities support the Department of Defense. Thus, according to the Pentagon, contractors working for the nonmilitary civilian agencies of the U.S. government are immune from prosecution for crimes and abuses committed extraterritorially. To my knowledge, the Department of Justice did not comment publicly on the legality of the Pentagon’s position. The Pentagon’s argument, however, is premised on the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) and its 2005 amendment. The Act extends criminal culpability under U.S. law to civilian military contractors “accompanying the Armed Forces outside the United States.” The Act only applies to crimes that would be unlawful if committed on federal property in the United States and grants jurisdiction to federal courts. The immunity loophole for contractors working for agencies other than the Department of Defense became evident with the abuses at Abu Ghraib and the question of criminal culpability for contractors of the Central Intelligence Agency (CIA), a non-DOJ agency. In 2005, Congress passed the 2005 DOD Authorization Act to amend the MEJA to include other federal agencies and their contractors that are “supporting the mission of the Department of Defense.” Congress did not define the terms “supporting” or “mission.”
(3) For nonmilitary civilian activities, there also is a presumption that U.S. laws do not apply extraterritorially. Although fraud or abuses by contractors in Iraq and Afghanistan may constitute a breach of contract, depending on the provisions of the contract, such criminal violations likely would have de facto immunity from prosecution in U.S. courts.
In November 2008, Human Rights Watch released a three-stage blueprint, “How to End Impunity for Private Security and Other Contractors A Three-Stage Plan” for the incoming Obama administration to consider. The plan calls for a moratorium on additional contractors until the adequacy of criminal liability can be addressed and potentially new legislation enacted to require greater transparency and criminal accountability by civilian contractors operating in post-conflict situations through U.S. military and civilian agencies.
Civil and Criminal Liability Under the Domestic Laws of the Host State
The liability of contractors under the domestic laws of Iraq and Afghanistan remains a contentious issue. Frequently, post-conflict states are wary to prosecute the civilian contractors from foreign countries that are providing security, economic development, financial, and rule of law support. Foreign aid could be decreased and physical and political support could be withdrawn from fragile political domestic actors responsible for authorizing or allowing the prosecutions. In Afghanistan, the United States has given diplomatic assurances that non-Afghan U.S. government contractors could be held liable under Afghan criminal law. To date, however, no cases have been pursued.
Also, bi-lateral engagement agreements may offer immunity for contractors. For example, Coalition Provisional Authority Order 17 of 2003 granted contractors immunity “from any form of arrest or detention.” Although parties to the agreement, such as the United States, may waive the immunity, such waivers would constitute the extraordinary exception rather than the norm.
Criminal Liability Under International Law
Civilian liability under international law raises a few questions. Does the law of armed conflict apply to contractors? Does humanitarian law apply to contractors? What is the role of human rights law? Which courts should have jurisdiction?
David Isenberg, author of “Shadow Force: Private Security Contractors in Iraq,” argues that all civilian contractors operating in “combat areas” should receive training on international treaty obligations and implementing legislation under U.S. law. At minimum, he argues, contractors should be trained on the Anti-Torture Statute, the Detainee Treatment Act, the Convention against Torture, Common Article Three of the Geneva Conventions, and the International Covenant on Civil and Political Rights. Further, in order to have accountability, he contends that Congress should direct the Department of Defense to enforce these obligations through disciplinary action or prosecution, as permissible by U.S. law.
Advantages of a Permanent Civilian Response Corps
A permanent Civilian Response Corps comprised of a small group of active experts ready for immediate deployment and a larger group of standby experts who can be called upon for deployment within 180 days as necessary will promote the ability of the United States to respond more effectively to future conflicts. The structure leverages full-time positions dedicated to preparing for how to respond effectively when crisis does occur. This promotes ongoing knowledge transfer and can help maximize the power of lessons learned from prior crisis responses. Too frequently, each crisis situation is treated in isolation, with each new situation authorizing a new crew of experts. When the crisis is over, the team is disbanded, and the institutional mechanisms are shut down. As a result, the institutional strengths of infrastructure, knowledge, and skills requisite to immediate response are lost. Full-time active experts could ensure that proper mechanisms are in place in advance, rather than in retroactive response, to facilitate the functional activities of the military, civilian agencies, and NGOs.
Standby experts will allow the government to leverage the expertise and skills of a greater pool of specialized experts without the ongoing financial impact of having the experts as full-time employees. Augmentation by private industry civilian experts also could help facilitate communication with non-government actors and widen the ability to reach civil society. Further, maintaining a list of available experts will assist with a rapid deployment when crisis occurs.
Recruitment for Afghanistan and Iraq
The Office of the Coordinator for Reconstruction and Stabilization (S/CRS) at the State Department is responsible for the strategy development, training, equipping, deployment, and coordination of the Civilian Response Corps (CRC). At an event on January 22, 2009, Amb. Herbst was recruiting civilians in the room and referred attendees to the S/CRS website for more information on vacancies. The website, however, does not provide information on any of the 31 positions described at the event. He did say that most of the positions will be located at USAID, with additional positions through the State Department and the Department of Justice. The website offers the ability to join the job announcement mailing list for upcoming positions. As stated earlier, it is not clear how many positions will be direct-hire federal employee positions versus contractors.
Please note that all Department of State employees and contractors must be U.S. citizens in current possession of a SECRET security clearance or have the ability to obtain a secret security clearance.
The long-term vision for the Corps is to employ 250 active, full-time employees (or possibly contractors), to create 2,000 standby positions, and to maintain a list of 2,000 reserve members who commit to a four-year potential deployment obligation. This vision has not received Congressional authorization or funding.
In a January 2009 report entitled, “Recruitment of Rule of Law Specialists for the Civilian Response Corps,” Scott Carlson and Michael Dziedzic argue for a “guaranteed right of return” to their former employment for police or rule of law experts who join the Corps for a tour of duty. They identify that retired police officers and international law professors may be the ideal recruiting candidates because they offer both experience and flexibility. For rule of law, they recommend recruiting former government contractors. They point out that former State Department and USAID Foreign Service officers may lack the necessary legal skills.
Background on Establishing the Civilian Response Corps
For fiscal year 2009, the Bush administration requested $249 million to provide what was called “Civilian Response Capability.” The proposed goal was “to enhance the capability of non-military government agencies to respond to crises and to create a rapidly deployable civilian reserve corp.” Such non-military agencies include USAID, the Department of Justice, Department of Agriculture, the Commerce Department, the Treasury Department, Health and Human Service, Homeland Security, and the State Department.
The $249 million was in addition to the $2.55 billion requested by the Bush Administration for stabilization and rule of law funds in Afghanistan, Iraq, Lebanon and Pakistan in fiscal year 2009. As a breakdown of the $2.55 billion, the Bush Administration requested $1.1 billion to stabilize Afghanistan; $400 million to support democracy in Iraq; $75 million for the Palestinian people to promote good governance; $830 million to stabilize Pakistan, and $142 million to support the Lebanon’s democratic government.
Congress authorized $55 million for a 600-person pilot project, currently scheduled to be deployed to Afghanistan and Iraq by November 2009. The State Department is hiring of police and justice contractors.
The United States has already spent $30 billion for rebuilding Afghanistan and $51 billion on reconstruction in Iraq.
Without additional funding by Congress, the Civilian Response Corps will dissolve upon completion of spending the $55 million for the 600-person pilot project.