Revisiting the use of Private Security Contractors for Military Training and Public Protection in Active Combat Zones

Recent events in Iraq involving armed intervention by American security contractor has resulted in the death of an estimated twenty-eight civilians killed by employees of the American private security contractor, Black Water USA. It has been reported that the security personnel employed to protect U.S. Government personnel and installations became engaged in a firefight with Iraqi nationals after the Blackwater personnel fired on a vehicle that failed to stop when ordered to do so by an Iraqi police officer.

The circumstances surrounding this latest outbreak of violence between Iraqi nationals and U.S. private security personnel has once again brought to light the important question of the status of U.S. civilians working in an armed security capacity for the United States Government as contract workers. Currently these workers operate with the same degree of immunity as do our military personnel but are not managed, supervised or disciplined under the Uniform Code of Military Justice governing the conduct of members of the armed forces.

In 2004, the Foreseeable Risk Analysis Center printed a commentary on its website examining the political and legal implications of the use of civilian personnel working in a quasi-military capacity on foreign soil in a combat zone. As the questions regarding how these personnel were to be controlled, their legal status while in engaged in armed conflict in a combat zone and related topics have yet to be answered by our government, we are re-printing our commentary entitled “Bridging the Military/Civilian Gap” in the hope that it might lead to further action on regulating private security companies employed by government for duty in combat zones.

Bridging the Military/Civilian Gap

When, two years ago, a group of former law enforcement and military personnel came forward offering to provide screening and other security operations to fill the gap created in our airports by the change over from private security companies to a federal worker program, the idea was met with resistance from the federal bureaucracy.

The concept was to draw upon the training and experience of personnel who were already expert in many of the disciplines that needed their expertise; they were more than qualified to immediately take up the jobs required for bomb and weapons identification, search techniques, interrogation skills, foreign language capabilities, and a host of other duties that needed to be assigned. Some critics of the concept argue that law enforcement and military training and experience, when transferred to private sector security, often results in conflicts for personnel who are accustomed to operating with special authority and who sometimes do not adjust well in circumstances where they can only request rather than demand cooperation.

Additionally, with the mission of private sector security focusing on prevention of prohibited activity rather than reaction to it, attitude adjustments, philosophical reorientation, and learning of new techniques for enforcing organizational rules rather than general law enforcement would need to be undertaken. Because the application of the skills that former law enforcement/military personnel working in private sector security need to employ occur in a different context from that which they are accustomed to, special training would be needed before they could be put into the field. In staffing our airports, the view that former law enforcement/military personnel selected for their training and experience would not be effective has prevailed.

Currently, there are approximately 15,000 private security personnel serving both the military and private corporations in Iraq. The demand for security contractors in Iraq and elsewhere in the world has resulted in the rapid creation of new security service companies seeking contracts for the security needs of American and other companies rebuilding infrastructure in the midst of hostilities. The dangers and complexities, legal and political, of the need for contract security consultants are underscored by the recent killings and mutilation of four American security officers in Falluja, Iraq.

With rapid growth of the private security industry in America, there came the need to define and identify the authority under which un-sworn civilian security personnel could carry out what often is best described as a quasi-law-enforcement role. Most states in the United States have laws governing who can offer private security services, minimum training requirements for personnel carrying out such services, restrictions on the use of weapons by such personnel, and a number of other rules and statutory proscriptions, down to the type and description of badges and identification cards, and the wearing of uniforms. As a general rule, when private security personnel are employed to perform law enforcement activities for government, such as in public buildings or to enforce special legislation (such as that which protects department stores from shoplifters), those individuals are given limited temporary peace officer powers to facilitate the performance of their duties. All in all, local and federal rules have evolved over the years for the performance of private sector security services to protect both the provider of the services, third parties who may employ them, and the public with whom security personnel come into contact.

Consultants In Iraq
The current use of private security “consultants” (who are for the most part former, and in some instances current law enforcement officers) and former military personnel for service in Iraq, raises anew many of the questions of authority and supervision resolved by the states years ago. Working side by side with military units engaged in hostilities with irregular forces in a war zone by necessity places these consultants in a classification different from that which would apply within the United States or if they were employed to protect personnel and property under private control in a foreign country. Under the circumstances in which these security consultants are now employed, they can have no expectation of protection from a sovereign authority operating a uniform criminal code with uniform criminal procedures.

Their situation may be akin to that which prevailed in the untamed West before our national government established territories with penal codes and lawfully appointed personnel for enforcement of the laws. Indeed, after the murder of four consultants, American officials, including military commanders, spoke of retaliation for their deaths more in terms of an eye for an eye rather than pursuant to the kind of authority that would take over in a civilized nation state. This observation is not offered as a criticism of the response, but rather as an attempt to define the status quo in which civilians find themselves while employed today for private companies rebuilding Iraq, and to point out the need to protect American civilians working as consultants for private companies and the U.S. government, including the Department of Defense, in combat zones around the world.

Among the issues that need to be addressed are the legal questions concerning potential conflicts with international laws of war that may arise from the use of civilian personnel in offensive operations against irregular indigenous forces against whom elements of the American military are deployed. Chief among the concerns would be the authority and status of such consultants when engaged in fire fights with such an enemy, and the employer liability, if any, for injuries and deaths sustained by consultant employees operating in combat zones under contract with or on behalf of companies who are under contract with the United States military. In the event of capture, are they protected under the Geneva Convention? Does the fact that they are carrying military weapons with at least the implied consent of the United States in a foreign land raise the question of their possible status as mercenaries for the United States, and invite attack against them as agents of the United States Government?

The complex issues with which the United States Government must deal when its troops are involved in “nation building” activities requiring the use of deadly force against an unorganized resistance become further complicated when American civilians become part of the mix of hostile actions that need to be sorted out by their government. At the end of the day, American troops in all aspects of their performance are governed by a uniform code of military justice. In the absence of a civilian justice structure or a declaration of martial law, how does the United States govern the activities of heavily armed, combat-trained American civilians operating as security personnel in combat zones, and how are their rights protected?

A Definable Mission
In the rush to provide adequately trained personnel to meet the demand for private security consultants abroad, American companies and the American government need to carefully define the mission for their consultants, the limits to their involvement with local indigenous people, the scope of their authority to use force, and the circumstances and extent to which it is authorized. The duties of private employers and the government for the training, supervision, equipping, and protection of security consultants on the ground in Iraq, Afghanistan, and similar dangerous foreign locals must also be made clear, so that even within the chaos prevailing in these zones, consultants are at least as well protected — with their status as clearly defined — as the military forces with whom they often interface.

The assault and murder committed upon the four civilian contractors employed in Iraq serves notice upon the United States of the need for a clear policy regarding the performance of private security personnel serving alongside our combat troops, and the extent to which the United States is willing to go to protect such personnel. It also raises similar issues for American employers who send civilians into harm’s way for commercial purposes, and for the individuals who accept such assignments.

In this instance, America grieves for the loss of our citizens and condemns the atrocities performed by their killers and the unruly mob that participated in the crime. It raises, however, the potential for international condemnation against us in circumstances where our consultants, even in self defense, find themselves firing into an angry mob and killing non-combatants of all ages while serving in a civilian capacity. Without the establishment of rules of engagement for American civilians, and the existence of appropriate supervision, neither side will have the protection against abuse that a civilized nation requires.

In an effort to better control security consultant activities in places such as Iraq, perhaps the introduction of a “special status” for such personnel, where they are given certain immunities not normally granted to civilians in return for some standardization in their training, performance, and rules of engagement. Such an initiative could serve both the purpose of setting them apart from military personnel and holding them in compliance with a U.S. code of conduct for their performance, similar to that created for civilian deputized law enforcement personnel in the U.S.

Despite the caveats to using former law enforcement/military personnel in high profile security assignments, their use in such assignments is a superb choice when the force is trained and disciplined with care, and supervised by personnel who can maintain the respect of their subordinates while carrying out difficult missions. Such personnel, if selected carefully, offer a readily available pool from which to draw individuals prepared to accept high-profile, dangerous, and long-term security assignments abroad. The need for such personnel is becoming increasingly evident — not only abroad but also at home as our communities continue to be called upon to be prepared for and respond to acts of terrorism and the potential for large scale violence against our homeland.

The duty to protect against foreseeable crime and terrorism risks has been acknowledged by our government; the duty to provide security against those risks is falling with increased momentum to private companies.

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