Jonathan Herman

Closing a legal loophole around private contractor accountability

Jonathan Herman

The use of private security contractors has blossomed in recent years as the U.S. remains engaged in activities in Afghanistan and Iraq that include the ever present use of non-military security personnel. These private employees operate at the behest of the U.S. military and other agencies, including the State Department and the U.S. Agency for International Development (USAID), often operating with little oversight of their operations or legal accountability for actions they commit abroad. This is a huge problem and an area ripe for action to close this gap.

This past Monday, the Commission on Wartime Contracting, an independent bipartisan commission created to study wartime contracting in Iraq and Afghanistan, held a hearing entitled “Ensuring contractor accountability: Past performance and suspensions and debarmements”.

The Commission heard testimony from a number of speakers, including Scott Amey, General Counsel of the Project on Government Oversight, who amplified the concerns of many about the detrimental effects of lacking oversight over contractors. Mr. Amey stated that the “government should be concerned when contracts are awarded to risky contractors…Continuing to award contracts to such contractors undermines the public’s confidence in the fair-play process and exacerbates distrust in our government. It also results in bad deals for the government and hinders mission accomplishment.”

Such revelations are not new.  In fact, both the Special Inspector General for Afghanistan Reconstruction and the Special Inspector General for Iraq Reconstruction have found massive waste associated with contractors, estimating that between $3 billion to $5 billion in U.S.-funded infrastructure contracting had been wasted in Iraq and warning that the entire $11.4 billion for constructing and maintaining nearly 900 Afghan National Security Forces facilities is at risk due to inadequate planning.

But lacking financial oversight is not the only problem with our current system of contracting out functions once reserved to governmental actors. Accountability over human rights abuses committed by contractors is another pervasive issue. Although there is a law covering military contractors called the Military Extraterritorial Jurisdiction Act (“MEJA”), it only applies to contractors and their employees employed by the Department of Defense or from other agencies as long as their employment was related to supporting the activities of the Department of Defense in its overseas missions. However, for the contractors supporting peace-building operations -- which will be the vast majority of contractors in Iraq and Afghanistan going forward -- there exists a serious U.S. jurisdictional gap.

As the wartime operations in Iraq shift to peace-building missions, the use of private security contractors by the State Department and the US Agency for International Development is expected to increase substantially, all within this legal black hole.

A proposed law, the Civilian Extraterritorial Jurisdiction Act (“CEJA”) introduced in previous sessions of Congress, would provide just such a fix, creating legal accountability for the criminal acts of all Federal contractors and employees outside of the United States for a list of enumerated federal offenses.  Thus, CEJA would close the loophole and cover the contractors employed outside of the Department of Defense, including those used by the State Department and the USAID.

The testimony heard at Monday’s Commission hearing only serves to underscore the need to review the U.S.’ use of private contractors.  Increased transparency, oversight, and accountability in the form of legally binding mechanisms like CEJA are critical to ensuring that contractors remain accountable and liable for their actions while protecting legitimate security concerns.