Vigilantism By Non-Governmental Actors: Addressing the Challenge of Private Contractors

A few years ago it seemed like stories about private contractors getting in trouble in Iraq were a dime a dozen.  Of course, one word tied most of those stories together – Blackwater.  By now everyone is familiar with Blackwater’s exploits in Iraq.  Despite reports that the number of contractors in Afghanistan could balloon to 160,000, the public’s concern over the actions of private contractors has taken a backseat as the war in Iraq winds down.  Although reports of contractor wrongdoing are becoming less prolific, or at least the press is paying less attention, a recent New York Times article revealed a new major contractor scandal.

This new scandal involves a Department of Defense official named Michael Furlong, and two private contracting companies.  The facts are as follows:

In 2008, the military tasked Furlong with gathering information about the culture in Afghanistan.  As part of this effort Furlong hired a small contracting company run by Eason Jordan, a former CNN executive, and author Robert Young Pelton to create a website which would essentially digest information about the cultural aspects of both Afghanistan and Pakistan.  Young and Pelton claim that they only received a small fraction of the money that they were promised.  Where did the rest of the money go?  Government officials now believe they know.

Instead of paying Young and Pelton to run their website, they believe that Furlong was diverting the lion’s share of the money to two other private contractors, American International Security Corporation and International Media Ventures.  These two companies employ, and are managed by, former military special operations forces such as Green Berets and Delta Force operators.  It is believed that Furlong was diverting the money to these contractors and paying them to conduct his own covert, unsanctioned intelligence gathering, and possible lethal action, against militants in both Pakistan and Afghanistan.

This story strikes me as a warning that contractor oversight and regulation (see previous article by Kevin Liu) is still an important issue that has gone relatively unaddressed.  Private contractors cannot be allowed to become so deeply involved that sensitive government activities become acts of private vigilantism by a non-governmental actor.  That seems to be exactly what happened here.  Furlong was able to divert millions of dollars of government money to conduct his own personal spy ring, and possibly used private contractors to kill militants.

Increased regulation is needed especially when the contractors being used employ former highly trained members of the military, such as special operations forces.  That is not to say that they cannot be trusted, or that it is only former members of the special operations community that pose a risk as private contractors.  However, a private contracting company that uses former special operators should probably merit more attention, and their activities should be closely monitored.  Special operators are trained to be experts in things that are often not legal when done outside the scope of government employment.  It appears that Furlong, a government official, was able to carry on his own personal little war using former members of the special operations community and paid for it using government money.  That is a clear sign that more oversight of private contractors is needed.

While oversight is important, it cannot stop there.  What happens when a contractor abuse is discovered?  How do we hold the wrongdoers responsible?  The New York Times article says that Furlong will most likely face criminal charges, such as fraud, here in the U.S., however, the question of how to hold Furlong accountable is much easier than the question of accountability as to the contractors who carried out the work. When private contractors perform their duties overseas it can be very difficult to punish them for crimes they may commit.

Take Blackwater for example.  In 2007, a group of Blackwater employees shot up Al Nisoor Square in Baghdad, killing 17 Iraqi civilians.  The evidence against these guards was substantial, and lead to federal prosecutions against them.  However, late last year a federal judge threw out all charges against the employees because actions taken by the government during the investigation of the shooting violated the contractors’ constitutional rights.

There is a sufficient legal basis for which to try contractors for their crimes in federal court.  The statute is called Military Extraterritorial Jurisdiction Act and it exposes most civilian contractors to federal criminal charges for crimes they commit while carrying out their duties.  While that statute exists it has proven to be very ineffective.  A very small number of people have been tried under the statute and it failed to produce a conviction in the aforementioned Blackwater case.  It shows that there needs to be a focus on making it easier to carry out prosecutions against contractors for their crimes overseas so that they are not allowed to operate with relative impunity.  That focus could come in the form of making it easier to carry out prosecutions using the MEJA, or in some cases, it may be effective to subject private contractors to the military justice system for crimes committed in a war zone.

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2 thoughts on “Vigilantism By Non-Governmental Actors: Addressing the Challenge of Private Contractors

  1. I think this article misses an important point. Contractors exist because the National Command Authority, whether for reasons of economy or political expediency (probably both), simply fills gaps left by an inadequately staffed military effort.

    It should be pointed out that during the post-WWII occupation of Germany and Japan, few contractors performing military duties were used. The reason was simple–troops were deployed in much larger ratios to both the population and the jobs that needed doing. In Afghanistan, and formerly in Iraq, (to borrow a phrase) contractors are “doing the jobs that American soldiers aren’t doing.” Abuses are inevitable–contractors aren’t part of the chain of command and the resulting discipline/oversight.

    One needs to ask what jobs contractors are doing. In my experience, Xe (formerly Blackwater) and Dyncorps (to name two) are involved in PRTs, police training, providing security, and so forth.

    Want to dispense with contractor abuse? Easy! Try properly staffing the Afghan nation building effort with US or Nato regulars.

    Don’t expect that to happen anytime soon. Western political establishments have yet to honestly confront the economic and political costs of their claimed mission. In a sense, the mission undertaken by the US and Nato in Afghanistan is equivalent to a huge unfunded liability. Contractors simply fill the gaps.

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