The Blackwater Hearings

Congressman Issa's recent interview on CSPAN (1 Oct 2007) focused on the upcoming Blackwater hearings. His view was that the impetus behind these hearings was purely political and that contractors in Iraq are performing essential functions. While it is an unfortunate reality that nearly all debates by politicians in an election period are political, that should not prevent us from taking advantage of opportunities to conduct substantive debate about national policy and on-going operations. An important part of that debate should be the role of private contractors in war and the government oversight and controls which are or should be in place in regards to these operations.

In regards to the role of private contractors in war, one of the basic issues which must be addressed is the definition and categorization of functions which are inherently governmental in war. Such a discussion must also be conducted within the context of the current GWOT as the rules of war are being debated and re-written.

The basic consideration is that we, in a democratic society composed of equals, have given to our government, and only to our government, the authority to execute certain actions either affecting us or affecting others in our name which impact basic human rights, particularly rights to life and liberty. We have adopted rules about how our government must proceed when taking such actions. The execution of these functions is inherently governmental. That is not to say, necessarily, that our government cannot contract for support services in carrying out these functions if we, as a people, agree to that. It does mean, however, that the responsibility and accountability for carrying out these functions in accordance with the rules we have collectively agreed to remains with the government. Current law, however, bars contracting out inherently governmental functions. The basic question remains, then; are private contractors performing functions which are, in the most basic sense, inherently governmental – depriving others of life or liberty?

One of the proscriptions on private security organizations (PSOs) in Iraq is that they be restricted from taking part in offensive operations. Their roles are supposedly purely defensive and, as such, rest on the legal premise that all persons retain the inherent right of self defense. This sounds reasonable enough but must be looked at more broadly. First, what measures are in place to ensure this is the only circumstance in which PSOs are utilizing lethal force, and what recourse does the government have when it is determined this rule has been violated? The recent defense appropriations bill contained language which made PSOs who accompany the military in the field subject to the UCMJ. This has long been the case for primary contractors, and now appears inclusive of sub-contractors as well, but it does not include PSOs operating in support of other governmental organizations, the State Department for example. Second, it should be asked what operations on the modern battlefield and especially in counterinsurgency operations are truly purely defensive and how does participation in military defensive operations relate to the individual's right to self defense? If PSOs are tasked with providing security for logistics trains, can it not be reasonably assumed that this critical war fighting capability will be attacked by the enemy? It is reasonable to expect that it would be and that PSOs involved with its protection would be placed in the position of using lethal force, and not only in self defense but in the defense of the capability they are tasked with protecting. The same can be said of any other critical enabler which PSOs are tasked with defending. This goes beyond pure self defense and puts PSOs in the position of defending a military capability. But lines much less vague than this have been reported to have been crossed, with PSOs participating in both the planning and execution of raids. Do preventative strikes in self defense apply to PSOs? (For a review of the legal arguments, click here.)

Apart from lethal force and the taking of life, PSOs have also been widely used in issues of restrictions of individual liberty. This is not to insinuate in any way that the use of lethal force or detention is either illegal or immoral in war so long as that war is just, but that these issues go to the heart of matters which have heretofore been considered inherently governmental.

PSOs have been extensively used in such roles as intelligence, prison duty, and interrogations both with DOD as well as with other agencies or departments. To what degree are these or should these operations be considered inherently governmental?

It is undoubtedly true that the Blackwater hearings will be used by some for political gain. This does not mean that they should not also be taken advantage of for discussing and potentially resolving some of these basic related issues and additional ones such as the size and capabilities of our governmental forces. If these operations are, in fact, inherently governmental and therefore found to be not subject to contracting out, what does that say in regards to the size and capabilities of our governmental forces? The inability of governmental forces to carry out their essential and inherent functions is not sufficient reason to justify paying private contractors to do them and, in fact, if they are inherently governmental, we are restricted by law from doing so. It would, however, suggest some important considerations in regards to force structure, budgets, and government department roles and missions.