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Home / 2008 / 01 / 16 / Department of Justice Continues to Ignore Violent Crimes Committed By Private Security Contractors in Iraq, Afghanistan
January 16, 2008

Department of Justice Continues to Ignore Violent Crimes Committed By Private Security Contractors in Iraq, Afghanistan

NEW YORK, Jan.16, 2008—The Department of Justice’s systematic failure to hold private security contractors operating in Iraq and Afghanistan criminally responsible for acts of excessive violence and abuse has created a dangerous “culture of impunity,” a new report finds.

Released today by Human Rights First, the report entitled “Private Security Contractors at War: Ending the Culture of Impunity,” offers the first comprehensive look at this growing crisis and includes a number of practical recommendations for addressing and correcting this increasingly dangerous situation. The report is based on interviews, court records, government reports, declassified documents and other documentary sources. It concludes that this lack of accountability has given rise to a principle of “shoot first, ask questions later—or never,” which threatens not only the safety of Iraqi and Afghan civilians, American troops and the contractors themselves, but also the U.S. military missions in those two countries.

The report concludes that existing laws indeed could and should be strengthened and expanded, but that the current legal framework already “covers most criminal misconduct by most contractors in Iraq and Afghanistan, and that arguments to the contrary merely rationalize inaction” by the Justice Department. The Justice Department’s failure to allocate sufficient investigative and prosecutorial resources have led private security contractors to feel that they operate in a law-free zone in which systems of criminal accountability are absent, unused or dysfunctional.

“While high profile incidents of contractor abuses like that which occurred at Nisoor Square deservedly draw public outrage at companies like Blackwater, we should also be focusing attention on the Department of Justice for its inaction in investigating and prosecuting these abuses,” says Maureen Byrnes, executive director of Human Rights First.

The report recommends a series of concrete, proactive steps for the U.S. government to take to address the problem of contractor accountability. These include:

Strengthening legal accountability mechanisms, with a primary focus on mandating Justice Department action in this area by recognizing the Justice Department already has adequate legal authority and, ensuring it has the resources to effectively prosecute these cases;

Working to implement Uniform Code of Military Justice (UCMJ) jurisdiction as an alternative, limited mechanism for holding contractors criminally accountable in special circumstances;

Enhancing operational coordination and control of contractors, and beginning to establish uniformity in contracting practices and procedures; and

Reviewing allowable spheres of private contractor activity in war – and, in particular, scrutinizing very skeptically direct participation by most private contractors in detainee interrogations and activities of private security contractors in zones of armed conflict likely to lead to their direct involvement in hostilities.

In contrast to the military—which has a “substantial criminal justice establishment deployed and present in-country” —the report finds that for contractors “there is no systematic hand-off to investigators and then to prosecutors, with the exception of the incidents of the highest political profile, which invariably result in late, uncoordinated and ad hoc responses by relevant agencies. Even in these cases, however, investigations by U.S. military or civilian authorities have practically never resulted in prosecutions.”

Over the last several years, scores of well-documented reports of serious abuse by private contractors in Iraq and Afghanistan—both in the context of interrogations and in the use of excessive and often lethal force in various security operations—have not been prosecuted. Through February 2006, only 20 cases of alleged detainee abuse by contractors are known to have been assigned within the DOJ for investigation; only two more cases involving abuse of local nationals are known to have been assigned for department investigation—the most recent of which is the September 2007 Blackwater Nisoor Square shooting in Baghdad. And since military operations in Afghanistan and Iraq began, only one contractor has been tried for violence or abuse towards local nationals. In contrast, to date more than 60 U.S. military personnel have been court-martialed in connection with the deaths of Iraqi citizens and more are under investigation.

Compounding the Department of Justice’s inaction, the system of self-reporting used to track civilian contractors is built primarily for coordination and contractor protection, and not for monitoring or investigation, and not all contractors have participated.

The report also reveals new details of the U.S. government’s failure to investigate or prosecute criminal acts by private security contractors in six case studies, including high-profile incidents at Abu Ghraib and Nisoor Square in Baghdad.

In the case of Abu Ghraib, 10 of the 44 reported instances of alleged detainee abuse involved private contractors, none of whom has been subsequently prosecuted. Although the high-profile nature of the recent shootings at Nisoor Square prompted a long overdue reckoning with the lack of contractor accountability by the Departments of Defense and State, ultimately the agreement reached between the two departments falls far short of establishing a legal basis for holding private contractors legally accountable for their actions. While the agreement sets some seemingly sound practices to improve training and tracking of the contractors, it makes no provision for any role of the Department of Justice, the FBI or the Army’s Criminal Investigation Division in early participation in criminal investigations or in enforcing existing criminal laws that pertain to the contractors.

“Nisoor Square should have taught the Department of Justice three months ago, what it should have learned three years ago at Abu Ghraib: it must be proactive in taking responsibility for these cases to protect the lives of troops, contractors, and nationals, as well as the military missions themselves,” added Byrnes.

The report estimates that there are now at least 35,000 private contractors employed by 181 different companies operating in Iraq alone, comprising the second largest armed security force in the U.S.-led coalition. Driven by the demands of fighting wars in both Afghanistan and Iraq with an all-volunteer military force, the U.S. government has come increasingly to rely on a record number of private contractors to undertake many assignments typically performed by soldiers.

In contravention of legal responsibilities under both international and domestic law, the report finds that often these contractors are not appropriately vetted for prior criminal records or human rights abuses before being employed, not adequately trained in their legal responsibilities or given clear guidance as to the rules that apply to them, not subjected to effective on-the-ground oversight, and not confronted with any real prospect of criminal sanctions when they engage in violence and abuse against local nationals.

While the report recognizes that most of the private security contractors are performing their jobs “conscientiously and courageously” and under extremely difficult circumstances, the dangers they face and the daily stresses caused by those dangers make it all the more important to keep those forces under control and to have effective means of enforcing discipline.

The findings in this report are based in part on interviews conducted by Human Rights First with security contractors, military officials, and representatives of other government agencies, as well as on court records, government reports, declassified documents and other documentary sources. Human Rights First examined over 600 classified Serious Incident Reports (SIRs) on incidents involving the use of force by or attacks upon private security contractors in Iraq over a 9-month period in 2004-2005.