The Armed Forces of the United States are designed to be supported by capabilities provided by civilians. The Army, for example, depends not only on Reserve and National Guard components for warfighting elements, but also on private contractors for numerous roles no longer performed by military personnel. Originally working in small contingents focused on logistical functions, private contractors now rival military personnel in number in the battlespace. In addition to providing direct logistical support to the military, contractors perform equipment maintenance and reconstruction work, train military and police, and work as civil affairs staff, interpreters, and even interrogators. They also provide private armed security services. The issues arising from new roles are exacerbated by the growth of the contractor population in conflict zones at a pace that defies effective recordkeeping.
This rapid increase in the number of contractors has outstripped procedures meant more for acquisition of tangible objects than services. It has also placed private contractors in harm's way in a manner not envisaged in previous conflicts. Legal and regulatory schemes have been challenged and perhaps stretched beyond limits. The laws of war divide the world neatly into combatants and civilians, but on today's battlefields, the distinctions blur. Moreover, there are neither recognized nor logical rules of engagement for private individuals. The laws of armed conflict not only fail to accommodate armed private citizens, but also, in some instances, may treat them as unlawful combatants. Put simply, the requirements of the contemporary battlespace do not mesh well with procedures, regulations, and laws devised for a different era.
Growth of Privatization
The end of the Cold War exposed ethnic tensions and intra- and interstate rivalries that destabilized broad regions of the world. Neither the extent nor the nature of the resulting conflicts had been anticipated. In these conflicts, the battlespace is cluttered with large numbers of personnel and entities not previously seen as major players in conflict arenas. These include the United Nations and its many components, foreign governments, nongovernmental organizations (NGOs), a plethora of news media, and even private entrepreneurs who arrive without benefit of government sponsorship. The main driver of new entries in the battlespace is privatization of activities formerly performed by uniformed personnel.
In the United States, privatization means any shift of activities or functions from the state to the private sector and, more specifically, any shift of the production of goods and services from public to private. Especially where the privatized functions are military, this process has been contentious, as many argue that national security itself is being privatized. (1) However, it is beyond cavil that private military firms must provide the military with certain professional services intrinsically linked to warfare, which begs the question of what is and is not inherently governmental. The services to be provided often are ill defined until events unfold or technology changes. Although regulations for contracting these services are detailed, they leave significant issues to be resolved as they arise because the regulations were devised in another time and for purposes that do not always suit today's threat environment.
Probably the most significant change comes as a result of outsourcing some logistical needs previously provided by uniformed personnel. That outsourcing may be accomplished through NGOs, other governments, international organizations, or private contractors and may include outsourcing within the continental United States. This paper deals exclusively with the issues that have arisen from using private companies to support the U.S. military in a foreign conflict. For that purpose, Iraq will be the backdrop that illustrates the speed with which earlier practices of outsourcing have been overtaken by threats not contemplated only a few years ago. In this analysis, it will become apparent that the threat environment, at least partially transnational in nature, has created a security problem that confounds administration of privatized activities. The purpose of this paper is to illustrate how the number and activities of private contractors have grown well beyond what had ever been contemplated, thereby leading to regulatory and legal issues that have yet to be addressed.
Since the end of the Cold War, millions who once would have worn a uniform are instead employed by private industry. Private corporations have penetrated Western warfare so deeply that they are now the second largest contributor to coalition forces in Iraq after the U.S. military. (2) To accommodate this dramatic change, defense transformation must contemplate more than modernization, network-centricity, and allied partnerships.
From Bosnia to Iraq, the United States has been learning to fight differently. In the process, the distinction between the contributions of soldier and civilian has blurred. Increasingly, military needs are met by private contractors whose employees are not far separated in function, and sometimes in appearance, from the military warrior. There are many reasons for this transformation of responsibility, ranging from the need to improve efficiency to sharply reduced force levels.
On June 6, 2005, the Department of Defense (DOD) issued its final rule addressing the treatment of contractor personnel supporting U.S. military forces outside the United States. (3) Experiences in Afghanistan and Iraq drove some of the revisions to the older rule. The new rule applies when contractor personnel deploy with, or otherwise provide support in the theater of operations to, U.S. military forces deployed outside the United States in contingency operations, humanitarian or peacekeeping operations, or "other military operations or exercises designated by the combatant commander." A significant change to the rule was to replace the term combat operations with military operations or exercises to enhance flexibility. The rule also specifies that work may be required in "dangerous or austere conditions" and stipulates that the contractor "accepts the risks associated with required contract performance in such operations." It further states that contractor personnel are not combatants and are to take no role that would jeopardize their status.
Civilian support to the military is nothing new, even within a combat zone. Military forces have always depended on a support network of civilians to perform such necessary functions as feeding, clothing, and even equipping and training. Dependence on civilians has become ever more critical as increasingly high-tech equipment requires maintenance skills beyond military competence. Civilian support has been evident in Panama, Bosnia, Kosovo, Afghanistan, and, most notably, Iraq, where, in 2005, more than 60 firms employed some 20,000 non-Iraqi civilians in direct support of the military. (4) Firms providing support for the contractors employ many thousands more. What has changed in recent years is the scale of privatization.
The changing nature of warfare drives much of the need for privatization. The United States is one of the few nations left with the capacity to wage conventional warfare on a large scale, but for that reason, unconventional and asymmetric warfare is the threat most likely to be faced simply because adversaries do not have a conventional capacity that can challenge U.S. forces. Increasingly, transnational threats of all types arise from nonstate actors, and standing military forces are primarily designed to engage state actors. Among the most pressing considerations are:
Surge Capacity. With post-Cold War military forces greatly reduced, the ability to respond quickly through civilian augmentation can help meet national security needs.
In 1991, the U.S. Army complement, designed for a two-front war, was around 700,000, and Iraq was the only contingency in sight. Moreover, …