U.S.A.: Military Contractors Overseas Still In 'Gray Area' Despite New Rules

Recent revisions to Defense Department regulations covering private contractors who support the U.S. military overseas have raised fresh questions over the legal status of contractor personnel.

Among other things, rules reaffirm that it is permissible for contractors--at the discretion of the combatant commander--to carry weapons in war zones such as Iraq. Such provisions are bound to please some headed for work in hostile environments, but they have some companies worried about their legal liabilities.

"If these guys are issued weapons, then they need to be careful that they aren't considered combatants in a legal sense, because then they lose their protected status under international law," said Paul Forage, a military analyst at Florida Atlantic University. "It's a real gray area."

Last year, the Defense Department received public comment on proposed changes to the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the rules governing contractor personnel who deploy with or provide support to the U.S. military overseas. Among other things, the proposed DFARS amendments addressed whether contractors should be armed, whether they can wear military uniforms, and who would be responsible for repatriation of remains, among many other things.

Cheryl Irwin, a Pentagon spokeswoman, said the revisions were meant to insure that contractors are compliant with both host-nation and U.S. laws, including the Military Extraterritorial Jurisdiction Act, or MEJA, which allows for prosecution of private contractors employed by the military in other countries.

"We require it and it is their responsibility to comply," Irwin said. "In fact, it [DFARS] references the MEJA, which was modified recently--yes, it applies to contractors overseas."

A total of 26 individuals and companies submitted comments on the proposed rules. Noelle Slifka of Pratt & Whitney, a unit of United Technologies [UTX], said her company was "reticent to accept" a provision allowing contractors to carry weapons issued by the military.

"This may create unmitigated liability for contractors in the event of injury or loss
of life resulting from intentional use or accidental discharge of such weapons," she
wrote. "Most contractor employees are not armed in the regular course of business,
and employers may not have adequate insurance to cover the risks associated with the
arming of its employees."

What's more, Slifka added, "issuance of weapons to contractor personnel may alter their status as non-combatants. Therefore, unless the government has and exercises authority to indemnify contractors and their employees against all claims for damage or injury and to ensure immunity from criminal prosecution associated with the use of weapons during deployment operations, the proposed clause should be modified to prohibit the issuance of weapons to contractor personnel."

Other comments took an opposite view.

Spec. Rebecca Burt, for instance, served along side civilian contractors in Iraq. She submitted the following comment last April from an Army e-mail address.

"As a soldier I went NOWHERE without a weapon--not even across the street and I felt at danger even in large groups of fellow soldiers. I can't imagine going out alone into the city with only one or two other people even with weapons--without weapons is a death sentence for these guys. The enemy isn't just gunning for soldiers--they're gunning for Americans at large and contractors are already an easy target. We've already lost many contractors over there--PLEASE, PLEASE don't allow us to lose even more."

Chuck Rose, a construction quality control manager with the Army Corps of Engineers, submitted a comment in May 2004, as he prepared to head to Baghdad.

"While I have not made a decision yet regarding if I will carry a weapon...I feel that as an American subject to American laws, I should still have the choice...especially since I am going over to secure America's best interests by winning 'hearts and minds' through civil operations," he wrote.

Adding to the complexity of the matter, the U.S. government now relies extensively on private firms to provide a range of paramilitary services, from convoy security to pipeline protection.

Last week, Agence France Presse reported that NATO would hire a private security firm to protect its military training center outside Baghdad when the facility opens in September.

Doug Brooks, the head of the International Peace Operations Association, an advocacy group that represents private security firms, said it was important to make correct distinctions between companies like Halliburton [HAL] unit KBR, which provide logistical support, and firms like Blackwater, which provide armed security. The recent DFARS changes, he said, have helped clarify the rules.

"Within DoD, there are so many regulations and rules that you keep coming across, ones that conflict with each other," he said. What DFARS seems to do, in general it really just seems to solidify a lot of things that were already being done."

Forage, however, said the Pentagon has been careful about what legal precedents it may establish, especially when it comes to definition of combatants. In a notice issued last week on the DFARS amendments, the Defense Department said, "the clause has been amended to caution that contractor personnel are not combatants and shall not undertake any role that would jeopardize that status. The clause already requires the contractor to ensure that its personnel who are authorized to carry weapons are adequately trained. That should include training not only on how to use a weapon, but when to use a weapon."

Not all contractors see eye-to-eye with the department.

Describing an exchange on a listserv devoted to private contractors, Forage said, "I actually put it out there, I said, 'Look, are these guys combatants or not?' And the response I got from several of them in-country was, 'Well, we think we're combatants.' And DoD's telling them that they are not."

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