# US PMCs, Embed Reporters to be Subject to Military Justice



## The Bread Guy (4 Jan 2007)

Shared in accordance with the "fair dealing" provisions, Section 29, of the Copyright Act.

*The Law Catches Up To Private Militaries, Embeds*
P.W. Singer, Defense Tech web page, 3 Jan 07
Article Link - More

_Since the start of the Iraq war, tens of thousands of heavily-armed military contractors have been roaming the country -- without any law, or any court to control them. That may be about to change, Brookings Institution Senior Fellow P.W. Singer notes in a Defense Tech exclusive. Five words, slipped into a Pentagon budget bill, could make all the difference. With them, "contractors 'get out of jail free' cards may have been torn to shreds," he writes. They're now subject to the Uniform Code of Military Justice, the same set of laws that governs soldiers. But here's the catch: embedded reporters are now under those regulations, too._

Over the last few years, tales of private military contractors run amuck in Iraq -- from the CACI interrogators at Abu Ghraib to the Aegis company's Elvis-themed internet "trophy video" —- have continually popped up in the headlines. Unfortunately, when it came to actually doing something about these episodes of Outsourcing Gone Wild, Hollywood took more action than Washington. The TV series Law and Order punished fictional contractor crimes, while our courts ignored the actual ones. Leonardo Dicaprio acted in a movie featuring the private military industry, while our government enacted no actual policy on it. But those carefree days of military contractors romping across the hills and dales of the Iraqi countryside, without legal status or accountability, may be over. The Congress has struck back.

Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that "Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking `war' and inserting `declared war or a contingency operation'." The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).

The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn't normally matter for much. But with this change, contractors' 'get out of jail free' card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice[url=], better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not formally declared war, civilians -- even those working for the US armed forces, carrying out military missions in a conflict zone -- fell outside their jurisdiction. The military's relationship with the contractor was, well, merely contractual. At most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities.

Getting tattled on to the boss is certainly fine for some incidents. But, clearly, it's not how one deals with suspected crimes. And it's nowhere near the proper response to the amazing, awful stories that have made the headlines (the most recent being the contractors who sprung a former Iraqi government minister, imprisoned on corruption charges, from a Green Zone jail).

And for every story that has been deemed newsworthy, there are dozens that never see the spotlight. One US army officer recently told me of an incident he witnessed, where a contractor shot a young Iraqi who got too close to his vehicle while in line at the Green Zone entrance. The boy was waiting there to apply for a job. Not merely a tragedy, but one more nail in the coffin for any US effort at winning hearts and minds.

But when such incidents happen, officers like him have had no recourse other than to file reports that are supposed to be sent on either to the local government or the US Department of Justice, neither of which had traditionally done much. The local government is often failed or too weak to act - the very reason we are still in Iraq. And our Department of Justice has treated contractor crimes in a more Shakespearean than Hollywood way, as in Much Ado About Nothing. Last month, DOJ reported to Congress that it has sat on over 20 investigations of suspected contractor crimes without action in the last year.

The problem is not merely one of a lack of political will on the part of the Administration to deal with such crimes. Contractors have also fallen through a gap in the law. The roles and numbers of military contractors are far greater than in the past, but the legal system hasn't caught up. Even in situations when US civilian law could potentially have been applied to contractor crimes (through the [url=http://www.pubklaw.com/hi/pl106-523.pdf]Military Extraterritorial Jurisdiction Act), it wasn't. Underlying the previous laws like MEJA was the assumption that civilian prosecutors back in the US would be able to make determinations of what is proper and improper behavior in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. The reality is that no US Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence at hand. The only time MEJA has been successfully applied was against the wife of a soldier, who stabbed him during a domestic dispute at a US base in Turkey. Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished. Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind.

The situation perhaps hit its low-point this fall, when the Under Secretary of the Army testified to Congress that the Army had never authorized Halliburton or any of its subcontractors (essentially the entire industry) to carry weapons or guard convoys. He even denied the US had firms handling these jobs. Never mind the thousands of newspaper, magazine, and TV news stories about the industry. Never mind Google's 1,350,000 web mentions. Never mind the official report from U.S. Central Command that there were over 100,000 contractors in Iraq carrying out these and other military roles. In a sense, the Bush Administration was using a cop-out that all but the worst Hollywood script writers avoid. Just like the end of the TV series Dallas, Congress was somehow supposed to accept that the private military industry in Iraq and all that had happened with it was somehow 'just a dream.'

But Congress didn't bite, it now seems. With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed (as in, Corporate Warriors, meet A Few Good Men). On face value, this appears to be a step forward for realistic accountability. Military contractor conduct can now be checked by the military investigation and court system, which unlike civilian courts, is actually ready and able both to understand the peculiarities of life and work in a warzone and kick into action when things go wrong.

The amazing thing is that the change in the legal code is so succinct and easy to miss (one sentence in a 439-page bill, sandwiched between a discussion on timely notice of deployments and a section ordering that the next of kin of medal of honor winners get flags) that it has so far gone completely unnoticed in the few weeks since it became the law of the land. Not only has the media not yet reported on it. Neither have military officers or even the lobbyists paid by the military industry to stay on top of these things.

So what happens next? In all likelihood, many firms, who have so far thrived in the unregulated marketplace, will now lobby hard to try to strike down the change. We will perhaps even soon enjoy the sight of CEOs of military firms, preening about their loss of rights and how the new definition of warzone will keep them from rescuing kittens caught in trees.

But, ironically, the contractual nature of the military industry serves as an effective mechanism to prevent loss of rights. The legal change only applies to the section in the existing law dealing with those civilians "serving with or accompanying an armed force in the field," i.e. only those contractors on operations in conflict zones like Iraq or Afghanistan. It would apply not to the broader public in the US, not to local civilians, and not even to military contractors working in places where civilian law is stood up. Indeed, it even wouldn't apply to our foes, upholding recent rulings on the scope of military law and the detainees at Gitmo.

In many ways, the new law is the 21st century business version of the rights contract: If a private individual wants to travel to a warzone and do military jobs for profit, on behalf of the US government, then that individual agrees to fall under the same codes of law and consequence that American soldiers, in the same zones, doing the same sorts of jobs, have to live and work by. If a contractor doesn't agree to these regulations, that's fine, don't contract. Unlike soldiers, they are still civilians with no obligation to serve. The new regulation also seems to pass the fairness test. That is, a lance corporal or a specialist earns less than $20,000 a year for service in Iraq, while a contractor can earn upwards of $100,000-200,000 a year (tax free) for doing the same job and can quit whenever they want. It doesn't seem that unreasonable then to expect the contractor to abide by the same laws as their military counterpart while in the combat theatre. Given that the vast majority of private military employees are upstanding men and women -- and mostly former soldiers, to boot -- living under the new system will not mean much change at all. All it does is now give military investigators a way finally to stop the bad apples from filling the headlines and getting away free.

The change in the law is long overdue. But in being so brief, it needs clarity on exactly how it will be realized. For example, how will it be applied to ongoing contracts and operations? Given that the firm executives and their lobbyists back in DC have completely dropped the ball, someone ought to tell the contractors in Iraq that they can now be court martialed.

Likewise, the scope of the new law could made more clear; it could be either too limited or too wide, depending on the interpretation. While it is apparent that any military contractor working directly or indirectly for the US military falls under the change, it is unclear whether those doing similar jobs for other US government agencies in the same warzone would fall under it as well (recalling that the contractors at Abu Ghraib were technically employed by the US Department of Interior, sublet out to DOD).

On the opposite side, what about civilians who have agreed to be embedded, but not contracted? The Iraq war is the first that journalists could formally embed in units, so there is not much experience with its legal side in contingency operations. The lack of any legal precedent, combined with the new law, could mean that an overly aggressive
interpretation might now also include journalists who have embedded.

Given that journalists are not armed, not contracted (so not paid directly or indirectly from public monies) and most important, not there to serve the mission objectives, this would probably be too extensive an interpretation. It would also likely mean less embeds. But given the current lack of satisfaction with the embed program in the media, any effect here may be a tempest in a tea pot. As of Fall 2006, there were only nine embedded reporters in all of Iraq. Of the nine, four were from military media (three from Stars and Stripes, one from Armed Forces Network), two not even with US units (one Polish radio reporter with Polish troops, one Italian reporter with Italian troops), and one was an American writing a book. Moreover, we should remember that embeds already make a rights tradeoff when they agree to the military's reporting rules. That is, they have already given up some of their 1st Amendment protections (something at the heart of their professional ethic) in exchange for access, so agreeing to potentially fall under UCMJ when deployed may not be a deal breaker.

The ultimate point is that the change gives the military and the civilians courts a new tool to use in better managing and overseeing contractors, but leaves it to the Pentagon and DOJ to decide when and where to use it. Given their recent track record on legal issues in the context of Iraq and the war on terror, many won't be that reassured.

Congress is to be applauded for finally taking action to reign in the industry and aid military officers in their duties, but the job is not done. While there may be an inclination to let such questions of scope and implementation be figured out through test cases in the courts, our elected public representatives should request DoD to answer the questions above in a report to Congress. Moreover, while the change may help close one accountability loophole, in no way should it be read as a panacea for the rest of the private military industry's ills. The new Congress still has much to deal with when it comes to the still unregulated industry, including getting enough eyes and ears to actually oversee and manage our contracts effectively, create reporting structures, and forcing the Pentagon to develop better fiscal controls and market sanctions, to actually save money than spend it out.

A change of a few words in a legislative bill certainly isn't the stuff of a blockbuster movie. So don't expect to see Angelina Jolie starring in "Paragraph (10) of Section 802(a)" in a theatre near you anytime soon. But the legal changes in it are a sign that Congress is finally catching up to Hollywood on the private military industry. And that is the stuff of good governance.

_-- P.W. Singer is Senior Fellow and Director of the 21st Century Defense Initiative at The Brookings Institution. He is the author of Corporate Warriors: The Rise of the Privatized Military Industry (Cornell University Press) and the upcoming book Wired for War (Houghton Mifflin)._


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## armyvern (4 Jan 2007)

Very interesting development indeed. It will be interesting to see how this pans out.


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## gaspasser (4 Jan 2007)

Ethical Protection for one and all.
"Somehow though, the private contractors might try to argue it.  Are they strictly contractors providing a specified service to the Iragis or just plain armed "mercenaries?


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## KevinB (4 Jan 2007)

We've been under UCMJ for a while.
  CPA 19 Allows us to use Lethal Force in Accordance with ROE.
However the morons that setup the CPA basically made contractors "law proof", worst that happened when some elements shot up a US checkpoint -- is they got sent home.
However a number of contractors have been dealt with in Mitliary Tribunals - how many -- no idea, but a few have disappeared to be reloacted in Ft Leavenworth...bject to 

Quite frankly the ISF and MNF have WAY more use of force misuse than contractors.

Secondly - High profile comvoys here enforce a 100m bubble -- enter it and die.  Thats the way things work, PMC, ISF, Army etc -- you dont enter the bubble enless you want to take fire, unless you've been waved forward [even then becareful] and then join your bubbles.

Working Low Pro - dont enter a bubble -- sicne you will take fire.

DOD card -- Department of Defence contractor -- subject to Mil Law, same with MNF-I's etc.
  Think of the 10's of thousands of contractors and realtively few incidents -- this is not the wild west, and we don't act like Butch Cassidy


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## Big Red (4 Jan 2007)

"US PMCs...to be Subject to Military Justice "

They've got to catch me first!  

Seriously though, there are bigger issues to worry about than contractors shooting people.  If the government wants to investigate contractors, deal with the BILLIONS of dollars in fraud first.  I've seen first hand a 1/2 Billion dollar contract walked out on without completion.  The vast majority of the contracted reconstruction projects were total failures.


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## dapaterson (9 Jan 2007)

> Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation.
> ...
> With the addition of just five words in the law, contractors now can fall under the purview of the military justice system. This means that if contractors violate the rules of engagement in a warzone or commit crimes during a contingency operation like Iraq, they can now be court-martialed...



http://www.defensetech.org/archives/003123.html

Another interesting article on the usse of military contractors is at:

http://www.army.mil/professionalwriting/volumes/volume3/september_2005/9_05_1_pf.html


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## CougarKing (9 Jan 2007)

It's about time. I'd rather not have another Abu Ghraib or Haditha accident happen again even if these are civilian mercenaries that are in question in this new thread, not soldiers serving out an enlistment term (even if some contractors are ex-military). Even mercenaries need to be subject to the Rule of Law.

Edit: BTW, I am well aware those previous incidents involved a US Army MP Company (Abu Ghraib) and Marines (Haditha). 

I don't see I6's problem with what I said. Attrocities should never be tolerated, no matter whether they are soldiers who are swear an oath or mercenaries in it for the cash.


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## geo (9 Jan 2007)

There is already another thread on the subject of contractors being under the UCMJ

Per I6, this is not something new..... stand by, do not adjust your sets....BRB


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## Screw (9 Jan 2007)

CougarKing said:
			
		

> It's about time. I'd rather not have another Abu Ghraib or Haditha accident happen again even these are civilian mercenaries that are in question, like those from Halliburton, Blackwater or even MPRI. Even mercenaries need to be subject to the Rule of Law.



both those incidents involved uniformed members already under the service code of conduct. Fat lot it did then. What is your point?

Screw


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## geo (9 Jan 2007)

Screw...
Intel types in the Abu Ghraib "scandal" were contractors....


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## KevinB (9 Jan 2007)

CougarKing said:
			
		

> It's about time. I'd rather not have another Abu Ghraib or Haditha accident happen again even these are civilian mercenaries that are in question, like those from Halliburton, Blackwater or even MPRI. Even mercenaries need to be subject to the Rule of Law.



Hey fuckstick -- why dont you stay the hell in YOUR lane -- and dont try to drive you car down ours.

1) Neither of the incidents you mention where DoD contractors.
2) DoD contractors are already subject to UCMJ issues and US Federal Law for Felonies etc.
3) No one really know how to address other issues in the UCMJ -- I.E. If I have a substative rank higher than most .mil ranks - what is it if I make a comment than someone does not like?
4) Security Contractors are NOT Mercenaries - we have a very specific ROE and U/A'd Use of Force issues do get dealt with.
5) BlackWater is 99% a Department of State contractor, their actions fall under DoS -- and EPD details have US Diplomatic Passports - so they get done for issues by the US Fed for irregularities.

6) MPRI -- dude - they are STRATEGIC advisory, unless your planning on charging them for the Croatian spring offensive  :

In short your a MORON


P.S. there was a thread on this earlier that BigRed and I already comment on...

Edit -- I see this has been mentioned


GEO -- the CF has "Intel" contractors too.  However the majority of the issues came out of the illiterates from the National Guard Military Police


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## Screw (9 Jan 2007)

Infidel-6 said:
			
		

> Hey fuckstick -- why dont you stay the hell in YOUR lane -- and dont try to drive you car down ours.
> 
> 1) Neither of the incidents you mention where DoD contractors.
> 2) DoD contractors are already subject to UCMJ issues and US Federal Law for Felonies etc.
> ...



There's polite and then there is the Infidel-6 way........  ;D


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## CougarKing (9 Jan 2007)

Infidel6

Read my post again. NEVER did I say that Abu Ghraib or Haditha had DOD contractors involved. The former had US Army/Guard MPs while the latter had Marines. READ first before going all crazy on me. Now take a deep breath and calm down...


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## geo (9 Jan 2007)

I6, you are correct, as usual, the ignorant photogenic types were Guardsmen... but they did some"softening up preparations" for same said intel types - some of whom were Contractors


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## KevinB (11 Jan 2007)

Sorry for missing the rest of this -- I thought the thread got deleted.

GEO -- there are contractors and "contractors".
  OGA contract work does make one a contractor -- your a part time or short term employee of Christians In Action.


What I will say on an open thread is I'm not going to agree with that happened -- but I will state that the issue was the Command.  I'm glad Rumsfeld is gone as I think he was an asshat, a dinosaur from a bygone age - (course I'd drown Dick Chenney given a chance too).
When you have a legal determination that states that PUC's are not EPW's -- then they dont have Geneva Rights.  We may chose to give them those rights - but it is not their entitlement.  Since we (the coalition counties etc) have decided to give the PUC's effective EPW status -- the soldiers @ had a duty of care to ensure that their confered rights where not violated -- no matter who suggested that they be.
  Same rationale for Nazi Germany is that just following orders is NOT a valid excuse -- my sympathies for Pvt England and co. all the way to that dizzy bitch Janis Karpinski are somewhat less than for the rat BigRed found in one of the villas today...

Having seen coaltion forces in Iraq and Afghanistan -- I would suggest that one would be HARD pressed to make any case against contractor missues of the ROE before a LOT of CF, US, UK and other people where brought up on charges -- charges which 99% of the time I would feel where unfounded, but a case could be made either way.

I know a guy who used to shoot people who had shovels and/or cell phones on route Irish in 2004.  He never lost ONE of his teammates to an IED or SAF the entire year he did that run.  He ID'd threats and took action that he felt was appropriate -- the Mil was doing vey similar work.

  

CougarKing 
What irritates me to no end is someone beleiving that contractors are driving all over Iraq shooting up innocents.  does it happen - YES, is it rampant -- no.
The term Mercenary is also offensive -- We are security contractors, we dont fight for foreign governments, nor are active combatants - we protect People (PSD, what BigRed and I do), others protect Places (static security) or Convoys (convoy escort "IED hunter" :blotto: stuff )  Nowhere do you see Kevin's band of motley Euphrates River pirates beseigning towns, raping a nunery, etc.
  Are stricter control necessary IMHO - YES, on the .mil too -- since many dont understand (inc most of the coaltion brass) that their is no such thing as a tactical action in COIN.  Every action taken by your forces are like a ripple in the Strategic pool and can have very serious negative (or positive)  fallout.

I will point out that certain contracts for the US DOS or DOD - do require High Profile PSD -- this envolves ENFORCING a bubble around the package as it moves -- you bump, shove and shoot people to ensure that your bubble is not breached.  Is it wise - sometimes yes - sometime no.  But just because contractors are shooting vehicles up in video - does not mean they are criminal -- since they have the authority to do so.

In short I think the UCMJ should be enforced for Felonies -- the the chicken shit Army stuff is unenforceable.


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