State of Affairs: Three Years After Nisoor Square

On September 16, 2007, Blackwater Worldwide (now Xe) private security contractors working for the U.S. Department of State killed 17 unarmed civilians and wounded 24 more in an unprovoked incident in Baghdad’s Nisoor Square.  A political firestorm immediately ensued in Iraq, the United States and around the world.  The incident exposed what had been clear for several years: The United States lacked a coordinated, systematic policy for overseeing private contractors abroad and holding them accountable for serious violent crimes.

Now, the United States’ reliance on private security contractors in zones of armed conflict is increasing as is the urgent need for effective contractor oversight and accountability.  Private contractors continue to outnumber U.S. military forces in Iraq and Afghanistan, and both the surge in Afghanistan and the drawdown in Iraq require additional support from private security and other contractors.  It is estimated that up to 50,000 contractors will be required to support the Afghan surge and, with the military drawdown in Iraq, the Department of State plans to more than double the number of private security contractors it employs from 2,700 to 7,000.  As Iraq and eventually Afghanistan move from military to civilian control and private contractors replace military forces there, the so-called jurisdictional gap over non-Defense contractors widens. If we learned anything from Nisoor Square it is that oversight and accountability gaps must be filled prior to increasing our private contractor force in conflict zones.

As it revealed serious gaps, Nisoor Square triggered several positive reforms in U.S. law and policy concerning private security contractors. In the three years since the incident, Congress has mandated greater agency oversight and coordination over private security and other contractors in Iraq and Afghanistan, and agencies have, among other things, defined their responsibility for contractor oversight, increased their coordination over contractors, and established common principles governing contractor conduct.

Yet many oversight and accountability gaps continue.  There remain significant gaps in jurisdiction over contractors who commit serious violent crimes.  Congress and independent bodies have found serious deficiencies in U.S. agencies’ reporting, investigation, prosecution and oversight of serious contractor incidents. Agencies do not even accurately track the number of contractors and subcontractors fielded abroad.  By tasking contractors with functions that draw them into hostilities, U.S. policy may increase the risk to civilians and contractors from prosecution.

The U.S.’s inadequate oversight and inability to hold Blackwater and other contractors accountable for serious crimes has alienated local populations and undermined U.S. military efforts in Iraq and Afghanistan.  Then-Senator Barack Obama stated, “We cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors.”  The U.S. has a responsibility and a national security interest to ensure that when it fields contractors abroad it provides effective oversight and accountability to protect civilians as well as minimize and remedy potential contractor harm.

This report provides a snapshot of the legal and regulatory gaps in contractor oversight and accountability, notwithstanding the progress made since Nisoor Square.  It also offers specific recommendations to strengthen U.S. criminal accountability, control and oversight of contractor functions, remedies for victims of contractor abuse and international standards covering private security providers.  These recommendations will help ensure that U.S. law and policy on private security and other contractors fielded abroad advance U.S. national security interests and help prevent another tragic incident such as Nisoor Square from happening again.

SUMMARY OF RECOMMENDATIONS TO IMPROVE CONTRACTOR OVERSIGHT AND ACCOUNTABILITY

• Criminal Accountability For Contractor Violent Crimes
• Congress should enact the Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010 (H.R. 4567, S. 2979) to expand criminal jurisdiction over and increase investigative resources for serious crimes committed by U.S. contractors.
• The U.S. government should review the adequacy of existing agreements governing the susceptibility of private contractors in Iraq and Afghanistan to effective and fair criminal prosecution and develop recommended changes.
• DoD and DoS should establish a standard definition of serious incidents, incorporate that definition in PSC guidance and establish independent audit mechanisms to ensure incident reporting compliance.
• Agencies should task contract audit organizations to periodically review the prime contractors’ oversight of subcontractor PSCs’ compliance with incident reporting requirements.
• DoS and USAID should implement a formal process for receiving and processing reports of serious incidents in Afghanistan.
• Agencies should require oversight bodies to track all serious incidents reported, investigate and remediate when necessary, and maintain all supporting documentation relating to such actions taken.
• DoJ should commit additional resources to investigate and prosecute contractor crime and formally announce that prosecution of contractor crime abroad is a Justice Department national priority.
• DoJ should review and, where appropriate, reopen referrals previously declined, and take prompt action on new cases
• Control And Oversight Over Contractors.
• DoD, DoS, and USAID should develop an effective system to track the number of contractors and subcontractors employed by each agency, and report regularly to Congress and the public.
• The U.S. government should provide substantial new resources to federal agency contracting, acquisition, audit and inspector general operations to ensure effective private security contractor management and oversight.
• The U.S. government should ensure federal agencies have adequate uniformed and civilian workforce to perform contracting, acquisition, audit and inspector general functions.
• Agencies should draft contracts to include provisions that ensure transparency and oversight between agencies and relevant subcontractors including agency inspection and audit rights and enforce such provisions.
• The U.S. government should reduce the layers of subcontractors where adequate oversight is not possible.
• III.  Ensuring Contractors Are Not Drawn Into Hostilities
• The U.S. government should stop tasking contractors with functions that are likely to draw them into hostilities.
• DoD – where necessary and in coordination with DoS – should revise private security contractor RUFs to better track appropriate civilian principles of self-defense.