9-14-2011By Melina Milazzo
Pennoyer Fellow, Law and Security
Four years ago this Friday, September 16, Blackwater private security contractors working for the State Department in Iraq killed 17 unarmed civilians and wounded dozens more in Baghdad’s Nisoor Square. The incident drew international attention and sparked a national conversation about the United States’ increasing reliance on private security contractors in conflict zones.
This year’s anniversary comes on the heels of the bi-partisan Commission on Wartime Contracting in Iraq and Afghanistan’s final report, a document that revealed that at least $31 billion U.S. taxpayer dollars have been lost to contract waste and fraud in Iraq and Afghanistan. That same report brought to light that the United States is unable to effectively oversee and hold accountable private security and other contractors it fields abroad, a problem that has a multi-billion dollar price tag. In addition to a hefty financial cost, this lack of oversight and accountability paves the way for immeasurable human and national security costs – a lesson made clear by the Nisoor Square tragedy.
Nisoor Square not only created a political firestorm in Iraq, the United States and around the world, but it also alienated local populations and undermined the United States’ ongoing efforts to “win hearts and minds” of those in Iraq and Afghanistan. The incident exposed to the world what had been clear to some for several years: The United States was relying on private contractors in war zones at an unprecedented level in size and scope, but did not have a commensurate policy for effectively overseeing them and holding them accountable for serious violent crimes. In fact, the nation was dangerously ill-equipped to handle these challenges.
In the four years since Nisoor Square, a number of reforms were made in U.S. law and policy, but many oversight and accountability gaps remain. With the military drawdown in Iraq and the eventual drawdown in Afghanistan, the United States’ reliance on private security contractors will increase, as will the urgent need for effective contractor oversight and accountability. For example, the State Department plans to more than double to 7,000 the number of private security contractors it employs in Iraq once the military leaves to perform critical security-related functions. In Afghanistan, it is estimated that tens of thousands of civilian contractors will be required to perform everything from filing paperwork to using deadly force once U.S. troops leave there. At the same time, it remains unclear whether State Department or other civilian contractors can be held criminally liable in U.S. federal courts.
Right now, the U.S. government has a rare opportunity to immediately close a significant portion of the contractor accountability and oversight gap by enacting the Civilian Extraterritorial Jurisdiction Act (CEJA) of 2011 into law. Though CEJA will not solve all the issues surrounding contractor oversight and accountability, it will address a significant deficiency by extending U.S. criminal jurisdiction over contractors for serious crimes and establishing investigative task forces for contractor oversight.
In the past year, CEJA has gained steam and now has support from U.S. agencies, independent oversight commissions, industry, and civil society. In today’s polarized political climate, this is no small feat. The United States should not squander this critical moment, a decision that would result in more than wasted dollars.
As the Commission noted in its final report, “Perceptions of improper or illegal behavior by contractors who suffer few or no consequences generate intense enmity and damage U.S. credibility.” The Commission is right. That is why Congress should pass CEJA now, ahead of the expansion of private security contractors in Iraq. If Nisoor Square taught us anything, it’s that oversight and accountability gaps must be filled prior to increasing our private contractor force in conflict zones.