Civilian Contractors under Military Law

Abstract

Over the course of its efforts to stabilize Iraq and Afghanistan, the United States has increasingly relied upon the work of civilian contractors. By the US Central Command's count at the end of 2006, there were nearly 100,000 contractors operating in Iraq alone. (1) An estimated 30,000--more than the number of non-US Coalition forces in Iraq--provide armed military services such as personal and site security. (2) The insertion of five words into Congress's fiscal year 2007 defense authorization act may now subject every civilian contractor operating in a combat zone to the discipline of the Uniform Code of Military Justice (UCMJ). This legislation ostensibly brings long-overdue regulation to contractor behavior, but it also raises a number of questions regarding interpretation and enforcement. By drawing on the lessons of past efforts to control contractors, the military should be able to craft a workable standard for the exercise of its expanded UCMJ jurisdiction. Expertise for a Price Civilian contractors frequently played an important role in American military operations. George Washington hired civilians to haul the Continental Army's equipment; supply vendors followed the Union and Confederate armies during the Civil War. Indeed, today's military recognizes the use of civilian contractors as a force multiplier in stabilization efforts. (3) Although sometimes expensive, contractors are capable of supplying immediate expertise and manpower much more rapidly than the military can grow subject matter experts. In the second half of the twentieth century, a combination of technology, budget constraints, and personnel shortages forced the military to rely heavily on contractors for support services and even low-intensity combat skills. Technological innovation increasingly required the presence of contractors on the battlefield to maintain and repair their companies' sophisticated equipment, leading Business Week to label Vietnam a war by contract in March 1965. (4) The contractor facilities that exist on military installations today are legacies of that development. Even greater reliance on contractors came as a direct result of downsizing following the Cold War. This was a period when the military outsourced many of its basic support operations to civilian contractors. Even as the military turned over its support services to civilians, companies such as Blackwater USA began to offer more combat-related specialties. Brookings Institution fellow P. W. Singer has ably chronicled the rise of private military firms (PMFs), private-sector organizations that provide military services to people, corporations, and governments. Singer notes that although PMFs fiercely fight the label of mercenaries, they also advertise themselves as being capable of supplying an alternative means of furthering US interests abroad. In recent years, PMFs grown in size and power. At a conference in Jordan last year, Blackwater USA Vice Chairman J. Cofer Black announced that his firm can have a small, nimble, brigade-size force ready to move into a troubled region on short notice. (5) Recent scholarship on the privatization of military force has emphasized the distinction between PMFs, such as Blackwater USA, and more logistics-oriented organizations, such as Kellogg, Brown, & Root (KBR). (6) Yet just as the difference between service support and combat arms can vanish on the asymmetric battlefield, the gap between PMFs and logistical contractors has narrowed. Given the current operational environment, military support personnel and their civilian counterparts are as vulnerable, if not more so, to attacks than combat units on patrol. The Geneva Conventions characterize contractors who accompany forces as noncombatants, but contractor tasks in today's combat zones bring these civilians into situations that force them to act in self defense. From the onset of the Coalition's presence in Iraq, the United States has depended on PMFs and their logistics-oriented brethren to supplement the force of uniformed service members. …