Academic journal article Parameters

Immunity in Contingency Operations: A Proposal for US Contractors

Academic journal article Parameters

Immunity in Contingency Operations: A Proposal for US Contractors

Article excerpt

ABSTRACT: This article introduces the nuances of bilateral security agreements and status of force agreements in Afghanistan. Many contain legal restrictions that complicate the ability of Long War contractors to provide advice and security during international missions.

Department of Defense (DoD) contract employees have become a vital part of the force. Soon after Overseas Contingency Operations began in Afghanistan (2001) and Iraq (2003), a Government Accountability Office (GAO) report observed "limits on the number of military personnel allowed in an area, called 'force caps,' led DoD to use contractors to provide support to its deployed forces." (1) Many of these contractors play a "critical role in supporting US troops." (2) Most third-country and even US contract employees are generally systems contractors who provide basic life and information technology support; however, many US contractors provide direct and indirect command support such as advising and security. (3)

According to the Congressional Research Service, 28,189 of 45,592 Defense Department contractors working for US Central Command in the fourth quarter of fiscal year 2016 were in Afghanistan and Iraq. (4) Few know more than 3,000 contractors were killed and another 1,000 were wounded in these countries' wars; American contractors account for approximately 32 percent of these casualties. (5) There were even periods during these long wars in which more US contractors than US military personnel were killed. In 2014, for example, "private contractors accounted for 64 percent of all U.S. deaths in Afghanistan (56 service members and 101 contractors died)." (6) Given that contract personnel represent approximately 72 percent, nearly two-thirds, of the DoD manpower in Afghanistan, clear legal protections for these Americans while in theater would seem only reasonable. (7)

Under the US-Afghanistan Bilateral Security Agreement (BSA) signed in 2014, US contactors working in Afghanistan became subject to Afghan law. Since the agreement was fully implemented in January 2016, companies and individual workers must navigate complex and onerous procedures that are often arbitrarily interpreted and inconsistently enforced. This quandary often leaves many American contract personnel in untenable situations in which they may be subjected to fines, deportation, or even arrest by Afghan authorities. Contractors frequently face the dilemma of illicitly bribing Afghan officials or going without documents required by the BSA and Afghan law. To compound these problems, US government officials often view contractors with suspicion and even contempt, and are reticent to defend the contractors' cause with the Afghan government. These obstacles degrade the contractors' ability to support the mission for which they were hired fully and efficiently.

Therefore, the American position regarding its contractors in Afghanistan needs to be reevaluated. Specifically, the United States should consider renegotiating the current BSA with Afghanistan and any forthcoming status of forces agreements (SOFAs) for ongoing operations to ensure legal protections for this group of Americans.

Despite the dangers and sacrifices, contractor employees often feel marginalized and undervalued by both military and civilian government personnel, who may think of them as greedy, corrupt, and operating outside the law. (8) This negative perception is not imaginary. Despite the prevalence of contractors with previous military service, professional competition between the military and the contractor communities is fierce. (9) Scholars claim to be alarmed by the level of integration of contractors into military activities, and the bulk of the literature begins by assuming contractor motives are less than noble.

The pejoratively titled Patriots for Profit, by Naval Post Graduate School scholar Thomas C. Bruneau, for example, broadly challenges stereotypes regarding civilian-military relations; nonetheless, he identifies dependence on contractors as a strategic weakness. …

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