COLUMBUS, Ohio - Civilian contractors do not enjoy the best pedigree. In the 1980s, an international treaty was adopted against mercenaries because governments could use them for things it might be embarrassing to have their own forces doing. South Africa used mercenaries to attack South Africans outside the country who were organizing to overthrow apartheid.
Our own experience has not been rosy. The U.S. Constitution, adopted in 1787, authorized Congress to issue "letters of marque and reprisal" to ship captains to go after anyone who attacked American shipping on the high seas.
They were called privateers, and we used them because at the time we had no navy. Problem was that many of these ship captains were one step away from being pirates. They often attacked for their own gain. It got so bad that Congress passed a law in 1789 to let foreigners harmed by privateers sue in our federal courts. In 1856, by the Declaration of Paris, the major powers banned the practice of privateering.
Despite this history, the United States has used civilians, both for support activity like supplying meals to troops and for more direct military work. Our use of contractors drew attention in Iraq when it turned out that some of the torture at the Abu Ghraib prison in Baghdad was done by civilians. The torture at Abu Ghraib set back U.S. efforts in Iraq. These civilians had not been trained in interrogation. They were not subject to court-martial.
Contractors have become a critical component in both Iraq and Afghanistan. In Iraq, Kellogg Brown and Root, one of the major firms, has 17,000 employees doing security-related work. In 2007, we had more civilian contractors than soldiers in Iraq: 180,000 civilian contractors vs. 160,000 soldiers.
Another major player is Blackwater, which has earned over a billion dollars in military-related contracting.
Blackwater, a North Carolina-based firm, caused an international incident in 2007 when its personnel, performing security for the U.S. embassy, killed 17 Iraqi civilians at a traffic circle in central Baghdad. An additional 27 Iraqis were injured, which gives an idea of how much shooting the Blackwater agents did.
The Blackwater agents said they thought they were firing at insurgents, but no evidence surfaced of the presence of insurgents. Federal criminal charges were filed in the United States by a U.S. attorney.
A judge threw out the charges against five of the agents because prosecutors had used statements the agents made under a promise of immunity. The Iraqi government was furious over the dismissals. After the incident, Blackwater changed its name to Xe but still has government contracts.
The Obama administration has escalated assassination attacks against suspected terrorists. Dennis Blair, director of National Intelligence, confirmed to Congress recently that even U.S. citizens can be targeted. Civilian contractors are reportedly helping identify persons to assassinate.
Even though civilian contractors carry out highly delicate operations, they are not subject to a chain of command. They do not answer to the commander in chief. They are not subject to military discipline.
The most recent flap is that Blackwater-related contractors in Afghanistan have somehow gotten weapons from U.S. depots without proper permission. The Senate Armed Services Committee is investigating.
Sen. Carl Levin, D-Mich., who heads the committee, fears that the work of these contractors is counter-productive. "If we don't fix the problems of oversight and make sure contractors like Blackwater play by the rules and live up to their commitments," he recently noted, "we'll be doing a disservice to our troops by making their already difficult and dangerous job even more so."
The Department of Defense just unveiled its proposed 2011 defense budget. Substantial funding for civilian contractors is included. Congress should just say no. Anyone who is abroad on our behalf with capacity to kill should be under public control.
John B. Quigley is a professor of international law at Ohio State University. Readers may write to him at The Michael E. Moritz College of Law, Ohio State University, 55 West 12th Avenue, Columbus, Ohio 43210; e-mail: Quigley.2osu.edu.