US Commission on Wartime Contracting: Correcting over-reliance on contractors in contingency operations

The Commission on Wartime Contracting concluded in its second interim report to Congress that the use of contractors has become a “default option,” pointing to the estimated $177 billion spent since 2001 on contractors in Afghanistan and Iraq. Yet vigorous oversight and management of contractors by the Pentagon, State Department and U.S. Agency for International Development is too often “an administrative after-thought.” 

The new report from the independent, bipartisan commission, titled “At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations,” concludes that the United States has wasted tens of billions of the nearly $200 billion that has been spent on contracts and grants since 2002 to support military, reconstruction, and other U.S. operations in Iraq and Afghanistan.

The bipartisan commission is urging Congress to provide the agencies with more people and authority to control this industrial army, which at times has nearly equaled the size of U.S. forces in Afghanistan and Iraq.

“Unless Congress provides resources to oversee and evaluate contractor performance, waste will continue and national objectives will suffer.”  The investment “will be amply repaid in reduced waste and increased effectiveness” of war-zone contracting, it said.

Created by Congress in 2008, the eight-member commission has broad authority to examine wartime spending, including military support contracts, reconstruction projects and private security companies. The new report is the panel’s second interim study. A final report to Congress with recommendations for improving government contracting in war zones is due this summer.

Blackwater Founder Is Said to Back African Mercenaries

The NY Times reports that Erik Prince, the founder of the international security giant Blackwater Worldwide, is backing an effort by Saracen International, a controversial South African mercenary firm to insert itself into Somalia’s bloody civil war by protecting government leaders, training Somali troops, and battling pirates and Islamic militants there, according to American and Western officials.

Details emerge on role of private contractors in CIA secret prison system and CIA’s indemnity promise

The CIA agreed to cover at least $5 million in legal fees for psychologists Jim Mitchell and Bruce Jessen, who were the architects of the agency’s interrogation program and personally conducted dozens of waterboarding sessions on at least three terror detainees, former U.S. officials said. The revelation of the contractors’ involvement is the first known
confirmation of any individuals who conducted waterboarding at the
so-called black sites, underscoring just how much the agency relied on
outside help in its most sensitive interrogations.

It has long been known that psychologists Jim Mitchell and Bruce Jessen created the CIA’s interrogation program. But former U.S. intelligence officials said Mitchell and Jessen also repeatedly subjected terror suspects inside CIA-run secret prisons to waterboarding, a simulated drowning tactic. Mitchell and Jessen flew for instance to a secret CIA prison in Thailand to oversee Zubaydah’s interrogation. The pair waterboarded Zubaydah 83 times, according to previously released records and former intelligence officials. Mitchell and Jessen did the bulk of the work, claiming they were the only ones who knew how to apply the techniques properly, the former officials said.

The psychologists also waterboarded USS Cole bombing plotter Abd
al-Nashiri (ahbd al-nuh-SHEE’-ree) twice in Thailand, according to
former intelligence officials.

The role of Mitchell and Jessen in the interrogation of confessed Sept. 11 mastermind Khalid Sheikh Mohammed is a bit murkier.

At least one other interrogator was involved in those sessions, with
the company providing support, a former official said. Mohammed was
waterboarded 183 times in Poland in 2003, according to documents and
former intelligence officials.

In at least two instances, Mitchell and Jessen pushed back. During
Zubaydah’s interrogation, the psychologists argued he had endured enough
waterboarding, believing they had reached the point of “diminishing
returns.” But CIA superiors told them to press forward, two former
officials said.

In another case, Mitchell and Jessen successfully argued against
waterboarding admitted terrorist Ramzi Binalshibh in Poland, the
official said.

Normally, CIA officers buy insurance to cover possible legal bills. It costs about $300 a year for $1 million in coverage.
The Mitchell and Jessen arrangement, known as an “indemnity promise,” was structured differently. Unlike CIA officers, whose identities are classified, Mitchell and Jessen were public citizens who received some of the earliest scrutiny by reporters and lawmakers. The two wanted more protection. On top of the waterboarding case, Mitchell and Jessen also needed lawyers to help navigate the Justice Department’s investigation into the destruction of CIA interrogation videos.

Mitchell and Jessen were recorded interrogating Zubaydah and al-Nashiri and were eager to see those tapes destroyed, fearing their release would jeopardize their safety, former officials and others close to the matter said.

They often contacted senior CIA officials, urging them to destroy the tapes and asking what was taking so long, said a person familiar with the Durham investigation who insisted on anonymity because the case’s details remain sensitive. Finally the CIA’s top clandestine officer, Jose Rodriguez, made the decision to destroy the tapes in November 2005.

Durham investigated whether that was a crime. He subpoenaed Mitchell, Jessen & Associates last year, looking for calendars, e-mails and phone records showing contact between the contractors and Rodriguez or his chief of staff, according to a federal subpoena. They were ordered to appear before a grand jury in northern Virginia in August 2009.

Last month, Durham closed the tapes destruction investigation without filing charges.

International Code of Conduct for Private Security Service Providers

Fifty-eight private security companies (PCSs) have already signed the International Code of Conduct for Private Security Service Providers, committing to adhere to numerous international human rights principles and support the rule of law while also protecting the interests of their clients.

Although signing the code is the “first step in the process towards full compliance,” signatories are expected to implement several specific measures, including:

(1) establish and/or demonstrate internal processes to meet the requirements of the Code’s principles and the standards derived from the Code; and (2) once the governance and oversight mechanism is established, become certified by and submit to ongoing independent Auditing and verification by that mechanism.

Private security companies, contracted by governments and non-governmental organization, have recently been criticized for alleged wrongdoing and sometimes even faced criminal charges (i.e., Blackwater incident in Iraq). The Code provides guidance on how to ensure that fundamental human rights are protected in conflict situations, as well as general guidance on transparency and accountability.

Efforts to Prosecute Blackwater Are Collapsing

The NY Times reports that nearly four years after the federal government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government’s own making.

In the most recent and closely watched case, the Justice Department on Monday said that it would not seek murder charges against Andrew J. Moonen, a Blackwater armorer accused of killing a guard assigned to an Iraqi vice president on Dec. 24, 2006. Justice officials said that they were abandoning the case after an investigation that began in early 2007, and included trips to Baghdad by federal prosecutors and F.B.I. agents to interview Iraqi witnesses.

The government’s decision to drop the Moonen case follows a series of failures by prosecutors around the country in cases aimed at former personnel of Blackwater, which is now known as Xe Services. In September, a Virginia jury was unable to reach a verdict in the murder trial of two former Blackwater guards accused of killing two Afghan civilians. Late last year, charges were dismissed against five former Blackwater guards who had been indicted on manslaughter and related weapons charges in a September 2007 shooting incident in Nisour Square in Baghdad, in which 17 Iraqi civilians were killed.

Interviews with lawyers involved in the cases, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in American civilian courts, and of overcoming immunity deals given to defendants by American officials on the scene.

Public Private Cooperation: Challenges and Opportunities in Security Governance

DCAF has a new report on Public Private Cooperation: Challenges and Opportunities in Security Governance. Abstract:

When faced with both traditional and non-traditional security challenges, states, acting alone, are poorly equipped. Ad hoc security governance networks have increasingly been the response. Such networks involve cooperation between governments, the private sector, non-governmental and international organisations and enable actors to take advantage of geographical, technological, and knowledge resources they would be unable to muster alone. However, there are many as yet unanswered questions about the oversight and accountability of new governance networks, as well as about ways in which, on the positive side, they can better contribute to improved security. This paper looks at both the challenges and some potential solutions to the democratic governance challenges posed by public private cooperation in the security domain.

Scholarschip: Democratic Governance Challenges of Cyber Security

This new DCAF publication adresses democratic governance challenges of cyber security.

Abstract:

Cyber security encompasses borderless challenges, while responses remain overwhelmingly national in scope and even these are insufficient. There are enormous gaps in both our understanding of the issue, as well as in the technical and governance capabilities required to confront it. Furthermore, democratic governance concerns – particularly regarding control, oversight and transparency – have been almost entirely absent from the debate. These concerns are exacerbated by the enormous role played by private actors (both alone and in cooperation with governments) in online security of all types. Given the pace at which states and private companies are reinforcing online security and preparing for cyber war, addressing democratic governance concerns has never been more pressing. They are the primary subject of this paper.

UN panel calls for more oversight of contractors

A U.N. panel has called for greater oversight and regulation of private military contractors working in war zones such as Afghanistan.

The U.N. working group on the use of mercenaries says there is a lack of effective vetting procedures with some companies employing individuals who may have been involved in human rights abuses.

The panel wants the U.S. government and others who use such groups to establish “a strong system of regulation and oversight of private military and security companies.”

Panel chairman Alexander Nikitin said in a statement Tuesday that voluntary codes of conduct for private contractors are not sufficient.

Nikitin says efforts at self-regulation in the past ten years have failed to establish effective accountability.

Supreme Court asks US government to offer views in Saleh et al v CACI International

The Supreme Court opened a new Term on Monday by asking the federal government to offer its views on  lawsuits against private contractors who work overseas for the U.S. military.  The new case involves former Iraqi civilian detainees who had been held at the notorious Abu Ghraib prison that the U.S. military operated in Baghdad during combat operations there. Scotus blog reports:

The petition in the case — Saleh, et al., v. CACI International and Titan Corp  — argued, with the support of international law scholars, retired military officers, and human rights activitists, that there is a sharp split among federal appeals courts on whether the U.S. Alien Tort Statute applied to private, non-state actors.  The former Abu Ghraib prisoners also argued that the D.C. Circuit Court has created an entirely unprecedented “battlefield preemption” doctrine that effectively insulates more than 200,000 employees of military contractors in Iraq from any form of legal accountability for wrongdoing.

The detainees’ lawsuit targeted CACI because it provided interrogators to the U.S. military, and Titan because it provided interpreters.   Two groups initially filed the lawsuit — seven Iraqis who claimed that they or their late husbands had been tortured at Abu Ghraib, and 12 Iraqis, the estate of one other, and 1,050 “John Does” representing other former detainees.  All of those still living remain residents of Iraq.

There is no deadline for the Solicitor General to response to any of Monday’s invitations for its views.

Title: Saleh v. Titan Corp.
Docket: 09-1313
Issue(s): 1)
Whether the court of appeals erred by finding that claims for torture
and other war crimes cannot be brought against private actors under the
Alien Tort Statute; and 2) whether the court of appeals erred by
creating a “battle-field preemption” doctrine that extends derivative
sovereign immunity to contractors.

Certiorari-Stage Documents:

• Opinion below (DC Circuit)
• Petition for certiorari
• Amicus brief for Professors of Federal Courts, International Law, and U.S. Foreign Relations Law
• Amicus brief for Retired Military Officers
• Amicus brief for Human Rights First et al.
• Brief of CACI International in opposition
• Brief of Titan Corp. in opposition
• Petitioners’ reply

UN report urges heightened regulation of US military contractors

A report presented Tuesday by the UN Working Group on the Use of Mercenaries urges the US to increase regulation of military contractors employed worldwide, citing alleged human rights abuses and the contractors’ lack of transparency and accountability. The UN Working Group met with US officials last summer to discuss the actions of US private military and security companies (PMSCs) and to make recommendations on its findings. The report proposes that the US amend the Military Extraterritorial Jurisdiction Act to extend the country’s criminal jurisdiction to PMSCs abroad, eliminate judicial immunity for PMSCs, pursue investigations into possible human rights abuses and enact the Stop Outsourcing Security (SOS) Act currently before Congress, which would gradually discontinue the use of PMSCs.