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How to End Impunity for Private Security and Other Contractors, HRF, 2008

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How to End Impunity
for Private Security
and Other
Contractors
Blueprint for the Next Administration
November 2008

About Us
Human Rights First believes that building respect for
human rights and the rule of law will help ensure the
dignity to which every individual is entitled and will stem
tyranny, extremism, and violence.
Human Rights First protects people at risk: refugees who
flee persecution, victims of crimes against humanity or
other mass human rights violations, victims of
discrimination, those whose rights are eroded in the name
of national security, and human rights advocates who are
targeted for defending the rights of others. These groups
are often the first victims of societal instability and
breakdown; their treatment is a harbinger of wider-scale
repression. Human Rights First works to prevent violations
against these groups and to seek justice and
accountability for violations against them.
Human Rights First is practical and effective. We
advocate for change at the highest levels of national and
international policymaking. We seek justice through the
courts. We raise awareness and understanding through
the media. We build coalitions among those with divergent
views. And we mobilize people to act.
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© 2008 Human Rights First. All Rights Reserved.

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''This isn't just about broken laws or wasted tax
revenues. This is about our claims to moral
leadership in the world. We cannot win a fight for
hearts and minds when we outsource critical
missions to unaccountable contractors.''
Then-Senator Barack Obama, October 3, 2007

How to End Impunity
for Private Security and
Other Contractors
A Three-Stage Plan
Introduction
Since the American Revolution private contractors have
provided important support to U.S. military operations.
Contractors today support U.S. military and civilian
agency missions in Iraq, Afghanistan and elsewhere,
providing necessary and often courageous service.
Although contractor deaths and injuries are not widely
reported, by the middle of 2007 well over a thousand had
lost their lives in Iraq and Afghanistan alone.
But the U.S. government has dramatically expanded its
use of private security and other contractors in military
and intelligence operations since September 11, 2001, far
beyond levels seen before. The more than 200,000 U.S.
government contractors now working in Iraq far
outnumber total Coalition military personnel at its peak.
This increased reliance on contractors has allowed the
Executive Branch to skirt legal requirements and operate
without transparency, entrusting private contractors with
critical functions heretofore seen and regulated as
functions of the uniformed military or civilian public
servants—whose duty is owed to the U.S. Constitution
rather than to corporate shareholders or company bottom
lines. The government’s increased use of contractors
abroad has been accompanied by its broad failure to
effectively oversee these contractors and hold them
accountable for acts of violence and abuse.
In September 2007, Blackwater private security
contractors running an armed convoy through Baghdad’s
Nisoor Square killed 17 civilians and wounded 24 more.

Both Iraqi government and U.S. military officials
characterized the shootings as unjustified. But in the 14
months since then no one has been prosecuted. While 11
soldiers from Abu Ghraib were convicted on charges
related to detainee abuse and Army investigations
implicated at least five private contractors in similar
crimes, no civilian contractor was ever even charged. A
series of alleged rapes by government contractors abroad
have resulted in no prosecutions.
These incidents are the tip of the iceberg. Over the last
several years there have been scores of reports of serious
violent crime by private contractors abroad. But there has
been almost no accountability.
The culture of impunity that has been fostered by this
abdication of responsibility is wrong and inconsistent with
American values. The government’s failure to provide
even minimally adequate oversight or to ensure
accountability of contractors has alienated local
populations and undermined U.S. military efforts in Iraq
and Afghanistan; damaged U.S. counterterrorism efforts
throughout the world; and diminished the United States’
reputation as a world leader in human rights.
Restoring our nation’s commitment to protection of human
rights and to accountability for human rights violations by
all—including private contractors—sent to do the nation’s
business abroad must be a top priority for the next
administration. This is not a partisan issue; during the
2008 presidential campaign, both President-elect Barack
Obama and Senator John McCain acknowledged the
problems caused by the Bush Administration’s inadequate
control of contractors and the use of contractors to
perform functions that should be undertaken only by
public servants.
Establishing a meaningful system of accountability for
private contractors will require the vigorous enforcement
of laws already in place, and legal reforms to clarify and
enhance the criminal and civil accountability of
contractors. It also will require the commitment of
substantial law enforcement and other resources to more
effectively manage and control the contractor force.
This Blueprint offers a three-stage strategy for the United
States to ensure the forces it sends abroad—including
contractors—live up to American values, ideals, and
commitment to human rights, and strengthen rather than
undermine U.S. government counterterrorism efforts.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

1

How to End Impunity
for Private Security and
Other Contractors
A Three-Stage Plan
The problem of contractor impunity will not be solved or
even ameliorated by future troop drawdowns in Iraq. To
the contrary, in October 2008 the Special Inspector
General for Iraq Reconstruction (SIGIR) predicted that
reliance on private security contractors in Iraq is likely to
actually increase in the foreseeable future. 1 To close the
contractor accountability gap, we make the following
recommendations to the new administration:

„

•

Enforcing existing bans on torture and cruel
treatment by all U.S. personnel, including
contractors

•

Directing close scrutiny of contractor roles as part
of a larger, comprehensive review of U.S.
government rendition practices

•

Directing the Secretary of Defense and the
Director of National Intelligence to include a
comprehensive study of contracted services as
part of a larger review and reform of U.S.
government human-intelligence gathering

Direct the Attorney General to:
•

Lead a review of U.S. government diplomatic
arrangements and practices with Iraq and
Afghanistan regarding jurisdiction over contractors
accused of serious crimes there, and, if
necessary, develop recommendations for
changes to ensure effective and fair contractor
accountability mechanisms

•

Formally announce that prosecution of contractor
crime abroad is a Justice Department national
priority

Summary
FIRST MONTH IN OFFICE
„

Send a clear, unambiguous message that the U.S.
government will not send private contractors abroad to
do the nation’s business without ensuring that
adequate accountability mechanisms are in place, by
announcing:
•

•

„

1

A firm policy ensuring that contractors fielded
abroad by the U.S. government are expected to
comply with the highest standards of human rights
and will be held accountable for serious crimes

„

FIRST SIX MONTHS IN OFFICE
„

A moratorium on the employment by U.S.
government civilian agencies of additional private
contractors in Iraq and Afghanistan until criminal
jurisdiction issues are resolved

End private contractor involvement in abusive
detention, interrogation and rendition practices,
including by:

SIGIR, Agencies Need Improved Financial Data Reporting for Private
Security Contractors, Audit Report No. 09-005, October 31, 2008, p. ii,
http://www.sigir.mil/reports/pdf/audits/09-005-f.pdf. (“[T]o the extent U.S.
forces are withdrawn, and assuming that significant civilian technical
assistance missions remain, requirements for private security services
for [State Department] and USAID would likely increase to compensate
for support previously provided by the military. [Private security
contractor] requirements could also increase because the recent
reduction in violence enables more frequent personnel movements within
Iraq but with private security contractor support still being needed for all
trips outside of U.S. secured areas.”).

Support legislation to clarify and expand criminal
jurisdiction over U.S. government contractors

Direct the Attorney General to devote additional
Justice Department resources to:
•

Conclude pending investigations of allegations of
violent or abusive criminal conduct by contractors

•

Review and, where appropriate, reopen referrals
previously declined

•

Take prompt action on new cases, and ensure the
commitment of adequate funding for the
extraordinary costs of prosecuting these cases

„

Announce the new administration’s commitment to
supporting the Commission on Wartime Contracting,
and direct relevant agencies to provide proactive
assistance to the Commission

„

Direct the Secretary of Defense to:
•

Take effective action to substantially enhance
military control over U.S. government private

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

2

impede compensation to victims of contractor
misconduct

security contractors in areas of combat
operations, including by:
°

°

•

„

Implementing the clear congressional mandate
for robust regulations governing selection,
training, equipping and conduct of personnel
performing private security functions for all
U.S. government agencies in areas of combat
operations

„

Devising and implementing a regime for
Defense Department certification or licensing
of security contractors contracted by any U.S.
government agency to perform armed security
services abroad

„

FIRST YEAR IN OFFICE

Develop consistent, government-wide regulations
for private security contractor contracting and
acquisition

•

Revise private security contractor rules for the use
of force to better ensure that contractors do not
directly participate in combat

•

Develop recommendations for legal reform to
better safeguard the rights of civilian contractors
prosecuted by the U.S. military

°

Augment Justice Department resources for
investigating and prosecuting serious
contractor crime abroad
Bolster federal agency contracting, acquisition,
audit and inspector general operations, to
ensure effective management and oversight of
private security and other contractors

•

Extend Freedom of Information Act mandates to
U.S. government contractors performing armed
security functions abroad

•

Repeal the Detainee Treatment Act’s special trial
defense provision that impedes accountability for
contractors implicated in detainee abuse

„

Support legislative reform of the “state secrets”
privilege to ensure that victims of abuse have effective
remedies for human rights violations

„

Direct the Attorney General to review and develop
recommendations for reforming other civil litigation
privileges, immunities and exemptions that can

•

Develop force structure options that would allow
the U.S. government to reduce reliance on private
security and certain other contractors in future
conflicts, and to ensure that contractors it does
use can be effectively managed and controlled

•

Through the Quadrennial Defense Review,
comprehensively assess planned uses and roles
of contractors by the Defense Department over
the next twenty years, to include making adequate
provision for long-range requirements for control,
oversight and accountability

Direct the Secretary of State to lead an interagency
effort to implement the Montreux Document’s
internationally-recognized “good practices” for
regulating private security and other contractors, to
ensure respect for international humanitarian and
human rights law

„

Implement human intelligence-collection reform
recommendations, including reforms regarding the
use of contractors in interrogations, to enhance the
effectiveness of intelligence-collection practices and
their compliance with legal obligations

Provide substantial new resources to:
°

Direct the Secretary of Defense to:

„

Propose legislation to:
•

Direct the Attorney General, Secretary of Defense and
Secretary of State to report regularly to Congress and
the public on private contractor utilization, costs and
accountability

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

3

until criminal jurisdiction issues are resolved.
The U.S. government’s increased reliance on
contractors in Iraq and Afghanistan has shone a
spotlight on a gaping contractor accountability gap
that requires real change beyond mere rhetoric.
U.S. government military and civilian operations in
Iraq, Afghanistan and elsewhere that rely heavily
on contractors cannot realistically be shut down
pending implementation of these changes. The
new administration, however, should not
aggravate the situation. President-elect Obama
should announce an immediate moratorium on
the fielding of more contractors in Iraq or
Afghanistan by any agency other than the
Defense Department beyond the number provided
under existing contracts, until legislation is
enacted ensuring U.S. criminal jurisdiction over at
least all government contractors fielded in Iraq
and Afghanistan.

How to End Impunity
for Private Security and
Other Contractors
A Three-Stage Plan
Details
FIRST MONTH IN OFFICE
During the first month in office, the new administration
should take decisive steps to end the impunity with which
private security and other contractors have operated
under the Bush Administration.
We propose that President-elect Obama:
„

Send a clear, unambiguous message that the U.S.
government will not send private contractors
abroad to do the nation’s business without
ensuring that adequate accountability
mechanisms are in place. President-elect Obama
should announce:
•

•

„

A firm policy ensuring that contractors fielded
abroad are expected to comply with the
highest standards of human rights and will be
held accountable for serious crimes. The U.S.
government, like any government, is responsible
for the conduct of its forces, including civilians or
private contractors, fielded abroad. When
government contractors commit offenses that
amount to serious violations of the law of armed
conflict or human rights law, the government
likewise is responsible to ensure the availability of
effective mechanisms for investigating and
prosecuting offenders and compensating victims.
The Bush Administration has failed to fulfill these
responsibilities, or seemingly even to recognize
them. President-elect Obama should signal a
change from the current policy and announce that
contractors fielded abroad by the U.S.
government will be held accountable for violations
of the law.
A moratorium on the employment by U.S.
government civilian agencies of additional
private contractors in Iraq and Afghanistan

End private contractor involvement in abusive
detention, interrogation and rendition practices.
Since September 11, 2001, private contractors have
been increasingly employed to provide critical support
to U.S. government detention, interrogation and
rendition operations. The next administration must
take swift action to ensure that contractors who
remain involved in these operations treat all prisoners
humanely, and that U.S. government agencies do not
use contractors to evade their humane treatment
responsibilities. President-elect Obama should:
•

Enforce existing bans on torture and cruel
treatment by all U.S. personnel, including
contractors. All U.S. government agencies
should be directed to ensure strict compliance by
their contractors with domestic laws and
international treaty obligations prohibiting torture
and other inhumane treatment, including the AntiTorture Statute, the Detainee Treatment Act
(DTA), the Convention against Torture (CAT),
Common Article 3 of the Geneva Conventions, the
International Covenant on Civil and Political
Rights (ICCPR), and other applicable laws. 2 All
orders and memoranda authorizing or justifying
cruel treatment or secret detention should be
directed to be rescinded.

2

For a summary of these and other legal provisions noted in this
Blueprint, see Appendix A.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

4

•

•

3

Direct close scrutiny of contractor roles as
part of a larger, comprehensive review of U.S.
government rendition practices. The United
States has for several years used renditions,
involving the extrajudicial transfer of terrorism
suspects from U.S. government custody, to
“outsource” abusive interrogation and detention to
third countries. Private contractors reportedly
have provided important logistical and other
support to renditions. To protect against future
transfers to torture, President-elect Obama should
direct the National Security Advisor to undertake a
comprehensive 90-day interagency review to
assess rendition practices, and to develop new
regulations to ensure the United States complies
with its obligations under the Convention against
Torture. This review (to be conducted in
cooperation with the Attorney General, the
Secretary of Defense, the Secretary of State, the
Secretary of Homeland Security, and the Director
of the Central Intelligence Agency) should assess
the utilization of contractors in renditions and
consider appropriate bans or restrictions on their
use.
Direct the Secretary of Defense and the
Director of National Intelligence to include a
comprehensive study of contracted services
as part of a larger review and reform of U.S.
government human-intelligence gathering.
Intelligence experts agree that abusive
interrogation practices—including those reportedly
used by private contractor interrogators and
interpreters at Abu Ghraib—impede efforts to elicit
actionable intelligence, and that non-coercive
techniques provide the best opportunity to obtain
accurate information. To ensure more effective
intelligence-gathering efforts, President-elect
Obama should direct the Secretary of Defense
and the Director of National Intelligence to
undertake a review of military and civilian
intelligence programs and provide specific
recommendations for improving humanintelligence collection. With as much as seventy
percent of intelligence community budgets spent
on private contracts, 3 this review should examine,

See Tim Shorrock, “The Corporate Takeover of U.S. Intelligence,”
Salon, June 1, 2007, www.salon.com/news/feature/2007/06/01/
intel_contractors/.

among other things, the impact of increased
reliance on contractors by military and civilian
intelligence agencies on:

„

°

The effectiveness of intelligence-gathering
efforts.

°

The compliance of these efforts with domestic
and international legal obligations. 4

Direct the Attorney General to:
•

Lead a review of U.S. government diplomatic
arrangements and practices with Iraq and
Afghanistan regarding jurisdiction over
contractors accused of serious crimes there,
and, if necessary, develop recommendations
for changes to ensure effective and fair
contractor accountability mechanisms. In
2004, the U.S. government-led Coalition
Provisional Authority (CPA) in Iraq promulgated
CPA Order No. 17, conferring presumptive, but
waivable, immunity from Iraqi legal jurisdiction
upon non-Iraqi private contractors working in Iraq
for the U.S and other Coalition governments, and
international organizations. At this writing, this
immunity remains Iraqi law, and the Bush
Administration has never waived it. 5 The resulting
inability of the Iraqi government to prosecute
private security contractors—in light of the chronic
failure of U.S. officials to initiate prosecutions—
has fostered great hostility among the Iraqi
population toward the United States. This
endangers U.S. military personnel and
contractors, and undermines the military mission.
In 2008, the Bush Administration began

4

Participation of private contractors in the interrogation of detainees in
Defense Department custody is currently regulated in part by Department
of Army Field Manual (FM) 2-22.3 (FM 34-52), Human Intelligence
Collector Operations, September 2006, http://www.army.mil/
institution/armypublicaffairs/pdf/fm2-22-3.pdf, and recently-revised
Defense Directive No. 3115.09, SUBJECT: DoD Intelligence
Interrogations, Detainee Briefings, and Tactical Questioning, October 9,
2008, http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf.
5

In Afghanistan the legal status of contractors under Afghan law is
addressed ambiguously in a vague 2003 exchange of diplomatic notes
between the U.S. and Afghan governments. Although U.S. government
representatives have stated that this exchange of notes does not confer
immunity from Afghan criminal law on non-Afghan U.S. government
contractors accused of committing serious crimes in Afghanistan, since
U.S. military operations began in Afghanistan in October 2001, no U.S.
government contractors are known ever to have been turned over to
Afghan authorities for prosecution.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

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negotiating a status of forces agreement (SOFA)
with the Iraqi government. On November 17,
2008, representatives of the U.S. and Iraqi
governments signed a SOFA that reportedly
expands the scope of Iraqi jurisdiction over U.S.
government personnel, including contractors. This
agreement is not yet effective: Although the Bush
administration has stated that from the U.S.
perspective it requires no congressional action,
the Iraqi government has long stated that the
agreement must be ratified by the Council of
Representatives (the Iraqi parliament) and the
Presidency Council. Whether or not a new legal
regime is in place before the new administration
takes office, President-elect Obama should direct
the Attorney General, in consultation with the
Secretary of State and Secretary of Defense, to:

•

6

°

Review the adequacy of existing or proposed
agreements and legal regimes, and actual
practice, governing the susceptibility of private
security and other contractors fielded in Iraq
and Afghanistan to criminal prosecution.

°

Develop recommendations for changes in the
status of contractors under Iraqi and Afghan
law, and/or under U.S. law or practice, as
necessary to ensure effective accountability. 6

Formally announce that prosecution of
contractor crime abroad is a Justice
Department national priority. During the Bush
Administration, the Justice Department has
announced many law enforcement priorities. At no
time, however—not after Abu Ghraib, nor after
Nisoor Square—has the Justice Department ever
made the prosecution of contractor crime abroad
a stated departmental priority. The dearth of
actual prosecutions also proves it has not been an
unstated priority. President-elect Obama should
direct the Attorney General to formally announce,
and instruct all U.S. Attorneys, that prosecution of
contractor crime abroad is a Justice Department

Even if a new SOFA is put in place ending CPA Order No. 17’s
contractor immunity, this will not lessen the need to reform U.S. law and
practice to close the accountability gap. Lifting the technical immunity of
contractors in Iraq would not ensure that contractors would actually be
turned over to the Iraqi authorities. Moreover, at this time there are
serious and legitimate concerns whether the Iraqi justice system can be
expected to afford effective or fair accountability for U.S. government and
other international contractors.

national priority, and that U.S. Attorneys and other
relevant Justice Departments offices will be
expected to implement and support this priority,
and to report regularly on their efforts.
„

Support legislation to clarify and expand criminal
jurisdiction over U.S. government contractors. The
current Attorney General and other Bush
Administration officials have asserted that U.S. law
does not provide sufficient jurisdiction over
government contractors for violent crimes committed
overseas. In October 2007—a few weeks after
Blackwater security contractors working for the State
Department killed 17 Iraqi civilians in a shooting in
Baghdad’s Nisoor Square—the House
overwhelmingly passed legislation to clarify and
expand contractor jurisdiction under the Military
Extraterritorial Jurisdiction Act (MEJA). There is also
substantial bipartisan support in the Senate for such
legislation. As his top legislative priority for ending
contractor impunity, President-elect Obama should
urge Congress to clarify and expand the reach of U.S.
criminal jurisdiction over contractors abroad, either by
amending MEJA or by enacting new legislation
specific to U.S. government private contractors
abroad.

FIRST SIX MONTHS IN OFFICE
During his first six months in office, President-elect
Obama should demonstrate his longer-term commitment
to ending contractor impunity by requiring the Attorney
General to proceed with meritorious contractor
prosecutions, by supporting legislation to further bolster
contractor oversight and accountability, and by giving his
strong support to the new bipartisan Commission on
Wartime Contracting in its mission to comprehensively
review and assess the government’s increased reliance
on private contractors since September 11, 2001.
We propose that President-elect Obama:
„

Direct the Attorney General to allocate enhanced
Justice Department resources to the prosecution
of contractor crime abroad. President-elect Obama
should direct the Attorney General to allocate
additional resources to energize the Justice
Department’s investigations of allegations of serious
violence or abuse by private contractors, including the
abuse of prisoners, the unprovoked or unwarranted
use of force by security contractors against civilians,

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

6

a critical opportunity to take a fresh look at key
contractor issues on a bipartisan, professional basis.
President-elect Obama should declare his support for
the Commission, and his administration’s intention to
look to it for critical policy direction in its spheres of
activity. He should also direct the Secretary of
Defense, the Secretary of State and other relevant
agency heads to be promptly and fully responsive to
requests for support, information and documents from
the Commission.

and violent offenses by private contractors against
U.S. military personnel, other contractors, or others. In
particular, the Attorney General should:

„

•

Conclude the ongoing investigation into the
September 2007 killing of 17 Iraqi civilians (and
the wounding of many others) by Blackwater
operatives in Baghdad’s Nisoor Square, and
proceed with prosecutions where warranted.

•

Conclude pending investigations of allegations of
sexual assault by private contractors abroad, and
proceed with prosecutions where warranted.

•

Re-evaluate for potential prosecution all detainee
abuse cases—including contractor cases—
referred formally or informally since September
11, 2001, by the Defense Department and the CIA
Inspector General that the Justice Department
has declined for prosecution, including the 22
cases reported to have been declined by letter,
dated February 8, 2008, to Senator Richard
Durbin. Provide additional investigative and
prosecutorial resources to expedite review of
pending detainee abuse cases.

•

Augment Justice Department resources devoted
to investigation and prosecution of contractor
crime abroad, ensuring adequate funding for the
extraordinary costs of prosecuting these cases.

Announce the new administration’s commitment
to supporting the Commission on Wartime
Contracting, and direct relevant agencies to
provide proactive assistance to the Commission.
Through section 841 of the 2008 National Defense
Authorization Act (NDAA), Congress required an
independent Commission on Wartime Contracting to
conduct a two-year study of U.S. government
contracting for logistics support, reconstruction and
security functions in Iraq and Afghanistan. The
Commission is also tasked with assessing (among
other things) which functions, including providing
security in areas of combat operations, may be
“inherently governmental” and thus inappropriate for
private contractors. Designed to be staffed
substantially by detailees from the Defense and State
departments and other U.S. government agencies, the
Commission has been slow in forming, although all
commissioners now have been appointed, offices
have been established, and staff and detailees are
being brought on board. The Commission represents

„

Direct the Secretary of Defense to take effective
action to substantially enhance military control
over U.S. government private security contractors
in areas of combat operations. Over the last several
years the Defense Department has taken important
steps to more effectively control its own security
contractors. However, even in the face of
congressional invitations—or mandates—it has failed
to assert control over, or accept responsibility for,
security contractors engaged by other agencies. In
areas of U.S. combat operations, however, it is
essential that the Defense Department and U.S.
military commanders have more effective control and
influence over contractors performing armed security
functions in the military “battlespace.” President-elect
Obama should direct the Secretary of Defense to:
•

Implement the clear congressional mandate
for robust regulations governing selection,
training, equipping and conduct of personnel
performing private security functions for all
U.S. government agencies in areas of combat
operations. In section 862(a) of the 2008 NDAA,
Congress directed the Secretary of Defense, in
coordination with Secretary of State, to prescribe
by May 2008 regulations governing the selection,
training, equipping and conduct of personnel
performing private security functions under
covered contracts with any U.S. government
agency in “area[s] of combat operations.” Such
regulations, if sufficiently rigorous and if enforced,
would provide a key foundation for more effective
Defense Department control over all U.S.
government security contractors abroad,
contributing greatly to prevention of many of the
sorts of contractor abuses seen over the last
several years. The Defense Department
reportedly is working on a draft regulation in
response to Congress’ mandate, but at this

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

7

writing—six months after the 2008 NDAA’s
deadline for the regulations—the department has
yet to publish either proposed or interim
regulations. Depending upon the status of this
effort when he takes office, President-elect
Obama should direct the Secretary of Defense to
comply with the original congressional mandate,
and prepare and enforce rigorous regulations that
will have government-wide application and
impose direct legal responsibilities on both
contractors and their contracting agencies.
•

„

Devise a regime for Defense Department
certification or licensing of U.S. government
security contractors to perform armed security
services abroad. The congressional mandate
discussed above stresses that its specific
prescriptions represent the minimum the Defense
Department is required to do to regulate the
“selection, training, equipping, and conduct of
personnel performing private security functions . .
. .” President-elect Obama should direct the
Secretary of Defense to take a further step within
the scope of Congress’ 2008 NDAA mandate, to
bring U.S. government security contractors
abroad under more effective military control—i.e.,
devise, implement and resource a Defense
Department-managed licensing regime for
security contractors providing armed security
services for any U.S. government agency
abroad. 7

7

Substantive elements of this certification/licensing regime should
include rigorous assessment of private security companies’:

Direct the Secretary of Defense to develop
consistent, government-wide regulations for
private security contractor contracting and
acquisition. The Federal Acquisition Regulation
(FAR) provides detailed requirements governing U.S.
government agency contracts. 8 However, the
regulations lack specificity regarding contractual
requirements for training, vetting, treatment and
oversight of security and other contractor personnel,
and does not ensure sufficient uniformity in U.S.
government contracting for such services across
agencies. The Defense Federal Acquisition
Regulation Supplement (DFARS) provides additional
regulations through which the Defense Department
has generally developed more rigorous contracting
and acquisition standards for its security contracts. 9 In
light of the increasing trend for many U.S. government
agencies to employ security contractors abroad, and
for U.S. intelligence agencies to rely increasingly on
contractors, President-elect Obama should direct the
Secretary of Defense to develop regulations that will:
•

Set out in the FAR consistent, government-wide
standards for contracting, acquisition and
management of private security and certain other
contractors that will ensure that more detailed
standards developed by the Defense Department
will provide a regulatory floor for all U.S.
government agencies.

•

Prescribe provisions applicable to all U.S.
government private security contracts abroad
mandating contract requirements for appropriate
contract sanctions and for compensation of
victims in the event of serious contractor crime.

° Financial capacity, including for liabilities they may incur.
° Past performance and conduct.
° Internal organization and regulations, including relating to
investigations of and sanctions for misconduct, and mandating
cooperation with law enforcement agencies.
° Respect for the welfare of their personnel, as protected by labor and
other relevant law.
° Accuracy and currency of personnel and property records—in
particular, weapons and ammunition.
° Training of personnel, both pre-deployment and ongoing, including
to respect relevant national law, international humanitarian and
human rights law, and the Voluntary Principles on Security and
Human Rights.
° Mission-specific equipment, in particular weapons, ensuring such
equipment has been acquired lawfully and that its use is not
prohibited by international law.
To ensure the effectiveness of such a certification/licensing regime, the
Defense Department should be required to build an adequate capacity

for effective compliance monitoring, for investigation of non-compliance,
and for imposition of sanctions, to include de-certification (or license
revocation) which would disqualify companies from contracting with any
U.S. government agency to provide armed security services abroad.
8

FAR Subpart 52.225-19 (Contractor Personnel in a Designated
Operational Area or Supporting a Diplomatic or Consular Mission outside
the United States), March 2008, http://www.acquisition.gov/far/
current/html/52_223_226.html, has particularly significance for security
contractors supporting civilian U.S. government agencies.
9

DFARS Subparts 225.74 (Defense Contractors Outside the United
States), March 31, 2008, http://www.acq.osd.mil/dpap/dars/dfars/
html/current/225_74.htm, and 237.171 (Training for Contractor Personnel
Interacting with Detainees), September 15, 2008,
http://www.acq.osd.mil/dpap/dars/dfars/html/current/237_1.htm, are
particularly significant for Defense Department security and other
contractors.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

8

„

MoA 10 that increases the Defense Department’s
role in coordinating non-Defense Department U.S.
government security contractors in Iraq. However,
the MoA has significant gaps and flaws: It does
little to address the issue of contractor impunity
and through its flawed rules for the use of force
perpetuates a consistent and dangerous
conflation of civilian security contractor missions
with core military missions. The MoA’s rules for
the use of force should be revised—in this
instance by the Defense Department in concert
with the State Department—to better ensure that
security contractors are not employed to perform
core military missions, to include “direct
participation in hostilities” in areas of combat
operations that may be defensive in nature.

Direct the Secretary of Defense to revise private
security contractor rules for the use of force to
better ensure that contractors do not directly
participate in combat. Although U.S. government
policy bars security contractors from engaging in
“combat” or in “offensive” military operations, various
guiding U.S. government documents setting out rules
for the use of force by security contractors conflict with
this guiding principle. While the government claims
that security contractors in conflict zones are primarily
needed to protect civilian personnel and missions,
both the substance and structure of current U.S.
government rules for the use of force by security
contractors closely track military rules of engagement.
Under these rules, contractors are authorized to use
deadly force to protect lawful military targets including
military facilities, property and personnel from even
non-imminent threats. By tasking contractors to
protect military targets in environments such as Iraq,
the U.S. government renders them targetable under
the laws of war, makes security contractor operations
more likely to result in innocent civilian casualties, and
virtually ensures that they will engage in combat—
without the protections under the law of war to which
uniformed military personnel are entitled as
combatants. Because contractors are civilians and
(unlike combatants) do not have a legal privilege to
participate in hostilities in armed conflict, critical
distinctions between civilians and combatants under
the law of war are eroded, thus jeopardizing other
civilians performing important roles in theater.
President-elect Obama should direct the Secretary of
Defense—where necessary in coordination with the
Secretary of State—to prescribe binding rules for the
use of force modeled on appropriate civilian principles
of self-defense and defense of others, rather than on
military rules of engagement. The rules should be
specifically crafted to minimize the risk that private
security contractors will be drawn into direct
participation in combat. Among current directives
requiring revision are:
•

December 2007 Memorandum of Agreement
(MoA) between the Defense and State
Departments regarding private security
contractors in Iraq. On December 5, 2007—ten
weeks after Nisoor Square—the State
Department and Defense Department signed an

•

Department of Defense Instruction No. 3020.41
(Contractor Personnel Authorized to
Accompany the U.S. Armed Forces). Instruction
No. 3020.41 prescribes policies and procedures
concerning Defense Department contractors
authorized to accompany the U.S. military.
Among other things, the instruction authorizes
private security contractors to use deadly force
beyond self-defense when necessary to execute
their contract security missions to protect assets
and/or persons. The instruction prohibits security
contractors from performing “inherently
governmental military functions,” but defines this
term far too narrowly, limiting the restriction to
“offensive” military operations such as conducting
preemptive or other types of “attacks.” The
instruction thereby dangerously invites direct
security contractor participation in many types of
non-offensive combat operations.

•

DFARS and FAR. In 2006 the DFARS was
amended to require Defense Department private
security and other contracts to incorporate
substantive requirements of Instruction No.
3020.41. As this instruction is modified, so also
must corresponding DFARS provisions be
revised, and incorporated as well into the FAR in
order to apply to all government agencies.

10

Memorandum of Agreement between the Department of Defense and
the Department of State on USG Private Security Contractors December
5, 2007, www.defenselink.mil/pubs/pdfs/Signed%20MOA%20
Dec%205%202007.pdf.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

9

„

„

Direct the Secretary of Defense to develop
recommendations for legal reform to better
safeguard the rights of civilian contractors
prosecuted by the U.S. military. In 2006, Congress
amended the Uniform Code of Military Justice (UCMJ)
to extend the U.S. military’s already-existing authority
to prosecute crimes committed by civilians “serving
with or accompanying” the armed forces. 11 In March
2008, the Defense Department issued internal
implementing guidance for its expanded criminal
jurisdiction over certain private contractors and other
civilians. Weeks later, Alaa Mohammed Ali, a dual
Canadian-Iraqi citizen employed in Iraq as a
contractor interpreter, became the first civilian
contractor court-martialed since the Vietnam War. 12
While courts-martial can promote contractor
accountability, the prosecution of civilians in military
courts raises constitutional and human rights
concerns. 13 President-elect Obama should direct the
Secretary of Defense to develop recommendations for
revisions to the UCMJ and/or the Manual for CourtsMartial to safeguard the rights of civilian contractors
prosecuted by the U.S. military—including, for
example, by requiring clear notice to contractors
covered by the UCMJ, as well as further delimiting the
punitive articles chargeable against contractors—
including to better ensure that this court-martial
authority can be defended on appeal.

contractor force in order to check and deter
misconduct, or to be able to investigate and prosecute
misconduct when serious crimes are committed.
President-elect Obama should propose legislation to:
•

Augment the Justice Department’s
institutional support for investigating and
prosecuting serious contractor crime abroad.
The Domestic Security Section (DSS) of the
Justice Department’s Criminal Division is
described by the Department as its “central point
of contact” regarding MEJA investigations and
prosecutions. DSS, however is under-resourced
and has other substantial responsibilities that
compete for its limited resources. With respect to
crimes committed by contractors abroad, it has a
limited mandate, operating primarily as a technical
assistance office providing support in MEJA cases
to U.S. Attorney’s offices. It is these U.S.
Attorney’s offices that must take lead
responsibility for MEJA prosecutions, committing
their own limited resources to these invariably
very expensive prosecutions. Thus, in addition to
directing the Attorney General to allocate
additional Justice Department resources to
investigating and prosecuting contractor crime,
Congress must also appropriate additional
resources to investigating and prosecuting
contractor crime.

Propose legislation to enhance the commitment of
resources to contractor accountability and to
promote contractor transparency and
accountability. Through the 1990s the federal
government’s contracting and acquisition force was
substantially reduced, and the Bush Administration
has done little to ensure that adequate resources are
in place to effectively manage and control the growing

•

Provide substantial new resources to federal
agency contracting, acquisition, audit and
inspector general operations to ensure
effective management and oversight of private
security and other contractors. In October 2007
the Gansler Commission 14 found that the U.S.
Army, during a period in which it had substantially
increased its contracting, actually had a reduced
capability to effectively manage contracts for
materiel, supplies and services in support of
expeditionary operations. The experience of other
U.S. government agencies since September 11,
2001, has been similar. Close and rigorous
management of private security and other
contractors fielded abroad by the U.S.

11

Prior to this amendment, such jurisdiction existed only “in time of war.”
The 2006 UCMJ amendment extended jurisdiction to civilians serving in
a “contingency operation,” the current doctrinal term for U.S. military
operations such as those in which the United States is currently engaged
in Iraq and Afghanistan.
12

Charged with stabbing a fellow contractor at a remote U.S. military
base in Iraq, Ali pled guilty in June 2008 and was sentenced to five
months in prison.
13

See, e.g., Kara M. Sacilotto, Jumping the (Un)Constitutional Gun?:
Constitutional Questions in the Application of the UCMJ to Contractors,
37 J. PUB. CONTRACT L. 179, 192-94 (2008); Jonathan Finer, Holstering
the Hired Guns: New Accountability Measures for Private Security
Contractors, 33 YALE J. INT’L L. 259, 262 (2008).

14

See Commission on Army Acquisition and Program Management in
Expeditionary Operations (“Gansler Commission”), Urgent Reform
Required: Army Expeditionary Contracting, October 31, 2007,
http://www.army.mil/docs/Gansler_Commission_Report_Final_
071031.pdf.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

10

government is essential to ending contractor
impunity. While some interim half-measures have
been taken to increase the U.S. government’s
contracting and acquisition workforce, 15 many
private security and other contractors still are
managed only ineffectively, or by other
contractors. Building the U.S. government’s
uniformed and civilian contracting, acquisition,
audit and inspector general forces to levels
necessary to effectively manage, control and
oversee these contractors likely will require
additional resources to be appropriated by
Congress.
•

15

Extend Freedom of Information Act (FOIA)
mandates to U.S. government contractors
performing armed security functions abroad.
FOIA provides a mechanism for the public to seek
disclosure of unclassified U.S. government
documents and information. Private companies
are not subject to FOIA, and private security
companies often try to persuade their contracting
agencies to classify company documents in their
possession to shield them from disclosure, or to
not disclose them on grounds that they reflect
“trade secrets and commercial or financial
information” exempt from FOIA disclosure.
Transparency, however, is a critical foundation for
accountability, and extending FOIA to private
security contractors would give the American
public access to the same sort of critical
information FOIA reaches in the possession of the
military: training programs; incident reports; and
internal regulations, including regarding
investigations and disciplinary procedures, and
safety and health policies. FOIA thus should be
amended to directly subject private security
companies that contract with the U.S. government
to perform armed security functions—thus
employing force abroad at the behest of the U.S.

The General Accounting Office (GAO), for example, has questioned
whether recent, short-term Defense Department increases in contracting
staff in Iraq are sustainable, and concluded that the Secretary of Defense
needs to develop and implement a long-term strategy to fill authorized
positions for both the Joint Contracting Command–Iraq/Afghanistan and
the Defense Contract Management Agency. GAO, Rebuilding Iraq: DoD
and State Department Have Improved Oversight and Coordination of
Private Security Contractors in Iraq, but Further Actions Are Needed to
Sustain Improvements, Report No. 08-966, July 2008,
http://www.gao.gov/new.items/d08966.pdf.

government—to the same FOIA requirements
regarding their security contract work that govern
federal agencies.
•

Repeal the DTA’s special trial defense
provisions. Section 1004 of the DTA (amended
by the Military Commissions Act of 2006) makes it
easier for defendants—including private
contractors involved in detainee interrogations—to
claim reliance on legal authority like the notorious
“torture memos” 16 to justify detainee abuse.
These special defense provisions, enacted by
Congress in 2005, make it more difficult both for
victims to obtain relief for torture and cruelty
committed by U.S. government private
contractors, and for prosecutors to hold contractor
abusers criminally accountable. Section 1004 of
the DTA should be repealed.

„

Support legislative reform of the “state secrets”
privilege to ensure that victims of abuse have
effective remedies for human rights violations.
Over the last several years, the U.S. government has
invoked the state secrets privilege in cases
challenging torture and rendition to torture, and courts
have accepted government claims of risk to national
security without independently reviewing the
information. This practice has impinged upon the right
of individuals to seek and obtain redress for human
rights violations, including those resulting from
misconduct by U.S. government contractors. 17
President-elect Obama should support legislative
reform of the state secrets privilege to better ensure
that victims of abuse have effective remedies for
human rights violations.

„

Direct the Attorney General to review and develop
recommendations for reforming other civil

16

“Torture memos” is a term commonly applied to a series of
memoranda—some released, many not—written by various Bush
Administration lawyers in the White House, the Justice Department and
the Defense Department, setting out arguments calculated to avoid legal
constraints against torture and mistreatment of detainees.
17

th

See, e.g., El-Masri v. United States, 479 F.3d 296 (4 Cir.), cert.
denied, __ U.S. __, 128 S. Ct. 373, 169 L. Ed. 2d 258 (2007) (affirming
dismissal—on state secrets privilege grounds, after intervention in the
case by the U.S. government and its assertion of the privilege—of a civil
action against former Director of Central Intelligence George Tenet and
unnamed CIA employees, several former U.S. diplomats, and three
contractor defendants and unnamed employees, for their roles in ElMasri’s arbitrary detention and torture, and cruel, inhuman, or degrading
treatment, in violation of federal and international law).

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

11

litigation privileges, immunities and exemptions
that can impede compensation to victims of
contractor misconduct. Other defenses to civil
liability typically advanced by private security and
other contractors when sued for alleged violence or
abuse include derivative immunity under the
“combatant activities” exception to the Federal Tort
Claims Act, 18 the “political question” doctrine, 19 the
“government contractor” defense, 20 and (in suits by
contractor personnel or their survivors against their
own companies for injury or death) the “liability as
exclusive” provision of the workmen’s compensationtype insurance program provided in the Defense Base
Act for U.S. government contractors fielded abroad.
President-elect Obama should direct the Attorney
General to undertake a review of the impact of these
defenses in contractor litigation, and develop reform
recommendations to ensure they do not interfere with
the United States’ legal obligations under the Geneva
Conventions, the International Covenant on Civil and
Political Rights or other international legal obligations
to provide effective remedies to victims of serious
crimes committed by contractors fielded abroad.
„

much information—still are required to operate with
substantial openness and transparency. In contrast,
private security and other contractors the U.S.
government increasingly utilizes to perform many of
the same functions the military used to perform—or
may still perform—operate without transparency.
During the last two years, Congress has imposed
some additional reporting responsibilities regarding
contractor activities on Executive Branch agencies. 21
But many other proposed reporting requirements have
not been enacted, and experience has shown that
data not required to be reported often is not collected.
For instance, as recently as October 2008, the Special
Inspector General for Iraq Reconstruction found that
even at this late date no major U.S. government
agency utilizing private security contractors in Iraq
even has a financial management system that
routinely captures data showing how much has been
obligated and spent for these services. 22 The
unavailability of such data impedes federal agencies’
ability to perform basic cost-benefit analyses of
proposed reconstruction projects, and Congress’
ability to perform its oversight function. Rather than
waiting for additional reporting mandates to be
imposed by Congress, President-elect Obama should
direct the Attorney General, Secretary of Defense and
Secretary of State to regularly disclose detailed and
comprehensive data and documents relating to the
use of private security and other contractors; public
expenditures on these contractors; and accountability
for violence and abuse by contractors abroad. 23

Direct the Attorney General, Secretary of Defense
and Secretary of State to report regularly to
Congress and the public on private contractor
utilization, costs and accountability. U.S. military
and civilian agencies are subject to intensive
congressional oversight and—even though involved in
sensitive activities requiring confidential treatment of

18

See, e.g., Ibrahim v. Titan Corp., Civil Action No. 04-1248 (JR), and
Saleh v. Titan Corp., Civil Action No. 05-1165 (JR), Memorandum Order
(D.D.C. Nov. 6, 2007) (applying by analogy to state law tort claims the
FTCA’s combatant activities exception to dismiss suit against private
contractor interpreters and their corporate employer implicated in
detainee abuse at Abu Ghraib, on grounds that the interpreters were
under the “direct command” and “exclusive operational control” of a U.S.
military chain of command).
19

See, e.g., Whittaker v. Kellogg Brown & Root, 444 F. Supp. 2d 1277
(M.D. Ga. 2006) (granting KBR’s motion to dismiss a suit by parents of a
U.S. Army soldier who died after a KBR convoy struck his vehicle
traversing a Tigris River bridge in Iraq, on grounds that a soldier injured
at the hands of a contractor performing military functions under military
orders “raises the same political questions” as soldiers injured by other
soldiers).

20

See, e.g., Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1436 (C.D.
Cal. 1993) (granting motion to dismiss a suit by parents of six Marines
killed during Operation Desert Storm by friendly fire, by a missile
manufactured by defendant Hughes Aircraft the plaintiffs claimed to be
defective; the court found plaintiffs’ state law tort claims to be preempted
by a federal common law defense for government contractors).

21

For example, through the 2008 NDAA, Congress directed the Defense
Department, State Department and USAID to develop a common
database of contracts and contractors in Iraq and Afghanistan, and to
make it available to relevant congressional committees and the
Comptroller General. Defense Department officials report that such
information will indeed be made available to Congress by January 1,
2009, through the Defense Department’s Synchronized Pre-Deployment
And Operational Tracker (SPOT) database.
22

SIGIR, Agencies Need Improved Financial Data Reporting for Private
Security Contractors, p. i. The Congressional Research Service (CRS)
recently reported that, “As oversight hearings have demonstrated, the
executive branch either has not kept sufficient records to produce or has
been unwilling to present basic, accurate information on the companies
employed under U.S. government contracts and subcontracts in Iraq.”
CRS, Private Security Contractors in Iraq: Background, Legal Status and
Other Issues, updated August 25, 2008, p. 42, http://www.fas.org/sgp/
crs/natsec/RL32419.pdf.
23

For a table detailing recommended data and information the Justice,
State and Defense departments and the Central Intelligence Agency
should be directed to report, see Appendix B.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

12

contractors in future conflicts, in areas
including the performance of security missions
by armed private contractors in areas of
combat operations; in circumstances creating
an unwarranted risk of drawing them into
direct participation in combat; and in the direct
participation of private contractors in the
interrogation of detainees.

FIRST YEAR IN OFFICE
By the end of his first year in office, President-elect
Obama should have substantial long-range efforts well
underway to strengthen the nation’s commitment to
contractor accountability and humane treatment, and to
invest in strengthening the U.S. government’s intelligencegathering capabilities, thus developing a more effective
counterterrorism strategy.

°

We propose that President-elect Obama:
„

Direct the Secretary of Defense to:
•

Develop force structure options that would
allow the U.S. government to reduce its
reliance on private security and other
contractors in future conflicts, and to ensure
that contractors it does use can be effectively
managed and controlled. The U.S.
government’s extraordinary reliance on private
contractors in Afghanistan and especially Iraq
since September 11, 2001, has been driven in
large part by necessity, because of U.S. military
force structure decisions made and implemented
during the 1990s. Concern also has been
expressed in many quarters—including by
Secretary Gates and other senior Defense
Department officials 24 —that the U.S.
government’s use of private security contractors
has itself undermined retention of highly skilled
U.S. military personnel, as well as military morale.
President-elect Obama should direct the
Secretary of Defense to assess, by the end of his
first year in office, the impact on military retention
and morale of the U.S. government’s increased
reliance on private security and other contractors,
and to develop viable military force structure
options that would:
°

24

•

Allow the United States to avoid or at least
substantially reduce its dependence on private

On September 26, 2007, in testimony before the Senate
Appropriations Committee, Secretary of Defense Robert Gates stated,
“My personal concern about some of these security contracts is that I
worry that sometimes the salaries they are able to pay in fact lures some
of our soldiers out of the service to go to work for them.” Senate
Appropriations Committee, Hearing on the Fiscal 2008 War
th
st
Supplemental, 110 Cong., 1 sess., September 26, 2007. See also
“Army Chief Notes ‘Problematic’ Potential of Armed Contractors on the
Battlefield,” Defense Daily, August 26, 2005, http://findarticles.com/p/
articles/mi_6712/is_2005_August_26/ai_n29207485 (quoting then-Army
Chief of Staff General Peter Schoomaker).

„

25

Ensure the Defense Department has an
adequate uniformed and civilian workforce to
perform contracting, acquisition, audit and
inspector general functions to the level
necessary to exercise effective control and
oversight of contractors that continue to be
used.

Through the Quadrennial Defense Review
(QDR), comprehensively assess planned uses
and roles of contractors by the Defense
Department over the next twenty years, to
include making adequate provision for longrange requirements for control, oversight and
accountability. By congressional mandate, the
Secretary of Defense must conduct during 2009 a
“comprehensive examination . . . of the national
defense strategy, force structure, force
modernization plans, infrastructure, budget plan,
and other elements of the defense program and
policies of the United States[,]” 25 to be published
early in 2010. President-elect Obama should
direct the Secretary of Defense to ensure that the
2010 QDR is built upon a comprehensive,
rigorous assessment of the contractor component
of the “Total Force,” to minimize chances that
contractors will be needed to perform functions
that should be performed by uniformed personnel
or Defense Department civilians, and to make
adequate provision for long-range requirements
for control, oversight and accountability of
contractors that are used.

Direct the Secretary of State to lead an
interagency effort to implement the Montreux
Document’s internationally-recognized “good
practices” for regulating private security and
other contractors, to ensure respect for
international humanitarian and human rights law.

10 U.S.C. § 118.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

13

In September 2008, the United States was one of
seventeen nations—Iraq and Afghanistan were two
others—agreeing to the Montreux Document on
Pertinent International Legal Obligations and Good
Practices for States related to Operations of Private
Military and Security Companies during Armed
Conflict. The Montreux Document reaffirms the
obligation of nations to ensure that private security
and other contractors operating in armed conflicts
comply with international humanitarian and human
rights law. It also details more than seventy good
practices for improving regulation and control of
contractors, including taking concrete steps to ensure
prosecution when serious crimes occur. Presidentelect Obama should direct the Secretary of State, in
consultation with the Secretary of Defense and the
Attorney General, to:

„

•

Conclusion

•

•

By the end of the first year of the new
administration, complete a comprehensive
comparative analysis of current U.S. law, and U.S.
government policy and practice, against the
Montreux Document, and develop
recommendations for reform to more thoroughly
incorporate Montreux Document good practices
into U.S. law, policy and practice.
Through the State Department’s Bureau of
International Narcotics and Law Enforcement
Affairs (INL), 26 provide technical assistance to
Iraq and Afghanistan to assist those governments
to develop reforms—appropriate to their
respective legal systems and levels of legal
development—to implement Montreux Document
good practices into their own law, policy and
practice.
With the United States thus demonstrating its own
commitment to Montreux Document principles,
vigorously promote endorsement of the Montreux
Document by other nations and incorporation of
its good practices into their own national legal
frameworks, including in order to advance the
development of positive, consistent and
predictable legal regulation of the private military
and security company industry.

Implement human intelligence-collection reform
recommendations, including reforms regarding
the use of contractors in interrogations. Presidentelect Obama should implement recommended
reforms emerging from the interagency review led by
the Secretary of Defense and the Director of National
Intelligence to enhance both the effectiveness of U.S.
human intelligence-collection activities, including
interrogations, as well as their compliance with
domestic and international legal obligations. The
interagency review should carefully study the use of
contractors in interrogations and consider all options,
including banning contractor use in interrogations or
alternatively developing additional measures to
strengthen contractor oversight and accountability.

The challenge of ensuring the accountability of private
security and other contractors employed by the U.S.
government in military and intelligence operations abroad
now lies largely with the next administration, and
President-elect Obama has said that he recognizes this
challenge. The objective is clear: the U.S. government
must take just as seriously its responsibility to effectively
control, investigate and prosecute private contractors it
fields abroad as it does the military forces it deploys
abroad.
Human Rights First’s three-stage plan for ending
contractor impunity will support the missions of the U.S.
military in Iraq and Afghanistan, strengthen U.S.
government counterterrorism efforts, and help re-establish
the United States’ moral authority as a nation devoted to
human rights.

26

INL has lead responsibility for coordinating U.S. government
assistance and support to rule of law development and reform in Iraq and
Afghanistan.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

14

Appendix A
Sources: Key ContractorRelated Laws and Other
Authority 27
U.S. Statutes
Federal Tort Claims Act (FTCA) (28 U.S.C. § 1346(b)): First
enacted in 1946, the FTCA permits private parties to sue the United
States in federal court for torts committed by persons acting on
behalf of the U.S. government.
Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 801-946):
In 2006 Congress amended the UCMJ (first enacted in 1950) to
extend U.S. military authority to court-martial contractors and other
civilians “serving with or accompanying” the armed forces to apply in
“contingency operations,” such as those in Iraq and Afghanistan.
Defense Base Act (DBA) (42 U.S.C. § 1651): First enacted in 1941,
the DBA extends federal workers’ compensation and medical
treatment coverage to persons employed (including as contractors)
at U.S. military bases overseas.
Freedom of Information Act (FOIA) (5 U.S.C. § 552): First enacted
in 1966, FOIA provides a mechanism for members of the public and
media to seek public disclosure of unclassified U.S. government
documents and information.
Torture Convention Implementation Act (18 U.S.C. §§ 2340,
2340A): The Anti-Torture Act was enacted in 1994 to comply with
the United States’ obligation under the Convention against Torture to
criminalize acts of torture. The law covers conduct by U.S. nationals
(including contractors) and those found in the United States for acts
committed outside the United States.
War Crimes Act (WCA) (18 U.S.C. § 2441(a)): The 1997 WCA
authorizes prosecution of war crimes committed “inside or outside
the United States” by or against U.S. nationals (including
contractors) or members of the U.S. armed forces. The Military
Commissions Act (Pub. L. 109-366), enacted in 2006, narrowed
the scope of the WCA to cover only specified so-called “grave
breaches” of Common Article 3, such as “torture” and “cruel or
inhuman treatment.”
Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §§
3261-67): First enacted in 2000, MEJA permits the prosecution in
U.S. federal court of certain persons (including certain contractors)
who commit acts that would be crimes under the Special Maritime
and Territorial Jurisdiction (18 U.S.C. § 7) that are punishable by
imprisonment for more than a year, had the conduct occurred within
the United States.
Detainee Treatment Act (DTA) (42 U.S.C. § 2000dd): Enacted as
part of the Department of Defense Appropriations Act of 2006 (Title
X, H.R. 2863), the DTA prohibits “cruel, inhuman, or degrading

27

Several of these summaries are adapted from Human Rights First &
Physicians for Human Rights, Leave No Marks: Enhanced Interrogation
Techniques and the Risk of Criminality, August 2007,
http://www.humanrightsfirst.info/pdf/07801-etn-leave-no-marks.pdf.

treatment or punishment” (acts that violate the 5th, 8th and 14th
Amendments) of detainees, and provides for “uniform standards” for
interrogation, limiting the U.S. military (and its contractors) to
interrogation techniques authorized by the Army Field Manual
(currently FM 2-22.3, Human Intelligence Collector Operations).
Section 1004 of the DTA provides extraordinary defenses and
protections in criminal prosecutions and civil litigation to persons
accused of detainee abuse.
2008 National Defense Authorization Act (NDAA) (Pub. L. 110181): The 2008 NDAA requires, among many other things, that the
Defense Department, in coordination with the State Department,
prescribe regulations for selecting, training and equipping private
security contractors in areas of combat operations; and that an
independent Commission on Wartime Contracting be established to
study U.S. government contracting for logistics support,
reconstruction and security functions in Iraq and Afghanistan.

U.S. Treaties and Related Materials
Common Article 3 of the Geneva Conventions: Found in all four
Geneva Conventions, Common Article 3 defines core obligations
that must be respected by nations in armed conflicts of any kind. It
prohibits violence—by armed forces, government civilians or
government contractors—against persons in detention (among
others), including murder, mutilation, cruel treatment and torture,
outrages upon personal dignity, and humiliating and degrading
treatment.
International Covenant on Civil and Political Rights (ICCPR):
The ICCPR, ratified by the United States in 1992, elaborates on the
Universal Declaration of Human Rights’ civil and political rights and
freedoms. Article 7 guarantees an individual’s right to be free from
torture and cruel, inhuman or degrading treatment or punishment.
Article 2 obligates state parties to provide effective (including
judicial) remedies to victims of human rights violations.
UN Convention against Torture (CAT): The CAT, ratified by the
United States in 1994, prohibits torture and cruel, inhuman or
degrading treatment by state actors or those acting with state
acquiescence. The treaty also prohibits the transfer of a person to
country “where there are substantial grounds for believing” that the
person “would be in danger of being subjected to torture.”
Montreux Document on Pertinent International Legal
Obligations and Good Practices for States related to Operations
of Private Military and Security Companies during Armed
Conflict: The Montreux Document, agreed by the United States and
sixteen other nations in September 2008, reaffirms state obligations
to ensure that contractors operating in armed conflicts comply with
international humanitarian and human rights law, detailing more than
seventy good practices for improving contractor regulation and
control.

Foreign Law
Coalition Provisional Authority (CPA) Order No. 17: In Iraq in
2004, the U.S. government-led Coalition Provisional Authority (CPA)
promulgated Order No. 17, conferring presumptive immunity from
Iraqi legal jurisdiction upon international (non-Iraqi) contractors
working in Iraq for Coalition governments or international
organizations. At this writing, CPA Order No. 17’s contractor
immunity remains Iraqi law.

HUMAN RIGHTS FIRST BLUEPRINT—HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS

15

Appendix B
Recommended Public Reporting regarding Private Security and Other Contractors
Human Rights First recommends that President-elect Obama direct the Attorney General, Secretary of Defense, Secretary of State (the latter
also on behalf of USAID and all U.S. government civilian agencies falling under Chief of Mission authority in missions abroad) and Director of
Central Intelligence to regularly—i.e., at least annually—report to Congress and the American people the following information regarding private
security and other contractors fielded abroad:

Department of Defense
Department of State
Central Intelligence
Agency

ƒ Census of private contractors utilized abroad, with numbers broken down by contracting agency, country of
assignment, contract, contractor nationality and basic contractor function (security, interrogation, interpreter,
construction, base support, transportation, etc.), 28 and making all contracts publicly available
ƒ Number of contractor casualties, by country, contracting agency, contract and contractor nationality
ƒ Total funding obligations for private security contractors abroad, by contracting agency and contract
ƒ Number of serious incidents reported (to include all reports of possible death or serious injury as a result of
private contractor conduct, all weapons discharges, and all complaints regarding contractor conduct),
specifying the contracting agency, date, nature, locale and victim category of each incident; the company
affiliation of individual(s) involved in the incident; and the description, status and outcome of any resulting
company, U.S. government agency or local national investigation, or other action
ƒ Referrals to DoJ for investigation of alleged private contractor crime abroad, specifying for each referral:
contracting agency, date of referral; date, nature, locale and victim category of alleged offense; and company
affiliation of individual(s) suspected of criminal conduct

Department of Defense
(additional requirements)

ƒ Status of UCMJ actions regarding private contractors, specifying for each matter:
ƒ Date, nature, locale and victim category (contractor, local civilian, U.S. soldier, etc.) of alleged offense
ƒ Company affiliation of individual suspected of criminal conduct
ƒ Identity of relevant general court-martial convening authority
ƒ Status of investigation and/or prosecution (if ongoing) 29

Department of Justice

ƒ Referrals for investigation of alleged private contractor crime abroad, specifying for each referral:
ƒ Referring agency
ƒ Date of referral
ƒ Date, nature, locale and victim category of alleged offense
ƒ Company affiliation of individual suspected of criminal conduct
ƒ Status of DoJ action regarding referrals, specifying for each referral:
ƒ Date and reason for DoJ declination
ƒ Date of assignment to specified U.S. Attorney’s (or other) office for further action
ƒ Status of investigation and/or prosecution (if ongoing) 30

28

For U.S. government contractors fielded in Iraq and Afghanistan, much of this information already is being collected for most if not all U.S. government
agencies through the Defense Department’s Synchronized Pre-Deployment and Operational Tracker (SPOT) database, as required by the 2008 NDAA.
However, as recently as October 2008 GAO reported, “Complete and reliable data were not available for us to determine the total number of contractor
personnel, including those performing security functions, who worked on DOD, State, and USAID contracts in Iraq and Afghanistan during fiscal year
2007 and the first half of fiscal year 2008.” GAO, Contingency Contracting: DoD, State and USAID Contracts and Contractor Personnel in Iraq and
Afghanistan, Report No. 09-19, October 2008, http://www.gao.gov/new.items/d0919.pdf.
29

Except in cases where charges are filed and names are thus in the public domain, this information should be reported without personally-identifying
information regarding individuals suspected of criminal offenses.

30

See note 19.

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