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...CONTRACTOR COMPANY LIABILITY REGARDING EMPLOYEES ON THE BATTLEFIELD VI. PERSONNEL RECOVERY VII. CONCLUSION
I. INTRODUCTION
Personnel recovery is no longer limited to high-risk, specialized troops as was the case in the past.... Isolated personnel now include U.S. military, contractors and other government civilians, as well as coalition partners. (1)
LTG Norton Schwartz
Providing adequate protection, antiterrorism (AT) (2) training and, if necessary, personnel recovery (3) for civilian contractors deployed to support U.S. military operations presents significant legal and policy challenges that both the military and civilian contractor companies have yet to fully appreciate, let alone properly institutionalize. (4) Although many Americans still visualize the U.S. military as a monolithic force of uniformed personnel only, the reality is far different. Due to federally imposed personnel limitations for the armed forces and the need for specialized skills in the modern high-tech military, (5) hundreds of activities once performed by the military are now privatized and outsourced to thousands of civilian contractors. (6) These civilian contractors routinely provide a wide array of important and essential activities in support of the full range of military operations to include infrastructure improvements and rebuilding. (7) In other words, civilian contractors now work shoulder-to-shoulder with military personnel during both armed conflict and in Military Operations Other Than War (MOOTW). (8) While armed conflict refers to traditional combat operations associated with internationally recognized warfare, MOOTWs are contingency (9) missions that include activities such as combating terrorism, counter-narcotic operations, peacekeeping operations, and other high-risk missions around the globe. (10)
One of the consequences of the global War on Terror (11) is that American and coalition contractors--particularly in Iraq (12) and Afghanistan (13)--are increasingly subjected to kidnappings, torture, (14) and murder by terrorists, criminal elements, and other insurgency forces. (15) Without question, civilian contractors will continue to be integral participants in the ongoing War on Terror. (16) Therefore, it is imperative that issues of force protection, (17) AT training, and personnel recovery (18) be fully delineated and the related legal contours be more clearly defined. (19) This is particularly important in light of the ever evolving nature of terrorism (20) and the attendant responses.
Both the Department of Defense (DOD) (21) and the companies that provide civilian contractors have core moral and legal responsibilities to provide contract personnel with adequate security, AT training, (22) and, in certain circumstances, rescue from capture. (23) In tandem with identifying the legal and policy considerations associated with these issues, this Article will also address the matter of civil liability to the parent contracting company should it fail to provide adequate protection, or appropriate AT training, or both, to their civilian employees serving overseas in hostile environments. (24)
II. HISTORY AND STATUS OF CONTRACTORS ON THE BATTLEFIELD
No one knows better than I the tremendous work that Brown and Root (25) has done in Somalia. The flexibility and competence demonstrated by your employees were key factors in allowing U.S. forces to transition logistical support to the U.N.... (26)
General John M. Shalikashvili Chairman, Joint Chiefs of Staff
The military's use of civilian defense contractors certainly did not begin with the military campaigns and counter-terror operations (27) in Afghanistan and Iraq. (28) Since the inception of the American republic over 200 years ago, civilian contractors have provided a wide array of essential goods and services to military personnel operating both in garrison and in the field. (29) The role of and need for contractor support began to expand greatly during the war in Vietnam (30) and has dramatically increased in the War on Terror. (31) With the accelerated use of civilian contractors who accompany the military, the issue of status looms as a central matter of concern. Are they combatants, noncombatants, or a hybrid? (32)
A. Scope of Contractor Support
Civilians accompanying military forces, (33) also known in the DOD lexicon as contractors deploying with the force (CDF), (34) fall into three broad categories, each governed by somewhat different legal and regulatory guidance. These three categories are: DOD civilian employees, (35) civilian contractor personnel, and other nonaffiliated civilians. (36) As the primary topic of interest of these three categories, civilian contractor personnel includes: "Any individual, firm, corporation, partnership, association, or other legal nonfederal entity that enters into a contract directly with the [DOD] to furnish services, supplies, or both, including construction." (37) In addition, many of the civilian contractors who accompany the military on contingency operations are designated as "mission-essential" (M-E) personnel (38) (similar to the designation of DOD civilian employees as "emergency-essential" personnel). (39) In essence, an M-E contractor is someone who works in a position in an overseas contingency operation that is required to ensure the success of the operation.
Given the scope and pace of the modern military, military planners no longer consider civilian contractors a luxury or a "nice to have" addition to the force structure. (40) Indeed, contractors accompanying the military on operations are a necessity without which the modern military could not conduct combat or engage in MOOTW. Because contractors now provide a wide range of technical, logistical, maintenance, and security support services to DOD missions, (41) America's unparalleled military superiority now requires contractor support to maintain military readiness and operational capabilities. (42) As noted, governmental limits on the number of DOD personnel authorized in a particular area, (43) the increasing sophistication of military technologies, (44) and the ever-present need to conserve DOD resources for other potential activities makes contractor personnel support vital. (45) Working for American contractor companies under DOD contracts, thousands of engineers, technicians, construction workers, food service providers, and weapon specialists make up a "privatized Army." (46) This privatized Army is currently deployed closer than ever before to imminently dangerous areas, including the actual battlefield. (47) To be sure, this fact has resulted in untoward consequences. Tragically, as of January 2005, over 200 civilian contractors working in Iraq (many of them Americans) have been killed, with hundreds more wounded. (48)
Furthermore, relative to the size of the uniformed armed forces during the Cold War, today's active duty military is a significantly smaller force. (49) This increases the importance of contractor support to maintain the overall flexibility of the active and reserve forces. (50) While no one really knows exactly how many civilian contractors are currently supporting DOD contingency operations overseas, (51) low ranging estimates reveal that in Iraq alone there is approximately one civilian contractor for every ten active duty military personnel. (52) This amounts to over 20,000 civilian contractors, (53) a number sure to increase over the next few years as the pace of infrastructure support in Iraq (and Afghanistan) increases. (54)
All civilian contractors operate under the terms of a specific contract, (55) either directly with the DOD or as subcontracted with another contractor who is under contract with the DOD. The duties of all contractors are "established solely by the terms of their contract." (56) Usually, the military contract will fall into one of three general categories. (57) First, Theater Support Contracts (58) are contracts associated with providing support (59) to the regional combatant command, (60) for instance, in Colombia, the combatant command is United States Southern Command. These contracts are typically for day-to-day recurring services at the deployed site, to include minor construction projects, repair parts, and equipment rental. (61) The second type of contracts are called External Support Contracts and are awarded by commands outside the pertinent combatant command, (62) such as the Defense Logistics Agency. (63) Again, under these contracts civilian contractors are expected to provide services at the deployed locations. (64) Finally, Systems Contracts--the third category of contracts--provide the required logistics support to maintain and operate weapons systems and various mechanical systems used in the field. (65) Regardless of the type of contract, the realities of military exigencies necessitate that civilian contract personnel "shall be prepared to respond rapidly, efficiently, and effectively to meet mission requirements for all contingencies and emergencies." (66)
Furthermore, some contracts may require contractor personnel to be U.S. citizens, reflecting a security consideration associated with intelligence concerns or other sensitive issues. (67) In fact, vetting contractors who might have access to particular DOD military sites is a necessary force-protection measure. (68) For example, the threat posed by in-country contractors with regular access to coalition military facilities was vividly demonstrated in December 2004, at Forward Operating Base (FOB) Marez in Mosul, Iraq. In this tragic incident a suicide bomber penetrated base security measures and killed twenty-two people, (69) including several civilian contractors. (70) While the suicide bomber was not a civilian contractor--he was most likely a terrorist who disguised himself in an Iraqi military uniform (71)--the event illustrated the fact that a non-American civilian who falsely gained employment under the pretense of an in-country contractor could accomplish the same act of terrorism.
While the United States clearly adopts international law (72) prohibiting contractors from engaging in hostilities, (73) the reality is that contractors can be deployed throughout the battlefield, including forward-deployed positions (relative to enemy forces) to support operations during armed conflict or in other hostile environments associated with contingency operations. (74) As evidenced by contractor casualties at the FOB Mosul attack, (75) civilian contractors are regularly exposed to the risks of physical harm similar to that of military personnel. (76) An enemy that blends in with the civilian population is far more able to employ violence against support and civilian contract personnel. To prepare for the physical dangers inherent in such asymmetrical conflicts, contractors must be properly informed, trained, and equipped (77) not only to understand their own rights and obligations, but also to understand those of the U.S. military and the parent contractor company. (78)
B. Status of Contractors
Unlike military personnel, civilian contractors accompanying the armed forces in the field do not fit neatly into well-defined arenas of military law and procedure. While the military has always carefully outlined its own command structure for its uniformed personnel, for civilians accompanying the forces the picture is far less certain. In fact, except in a Congressional declaration of war (which last occurred in 1941 during World War II), civilian contractors are not subject to the provisions of the Uniformed Code of Military Justice (UCMJ), that is, military law. (79) Not only do military commanders have extremely limited authority to take any type of direct disciplinary action against contractors to make them perform their duties, (80) contractors are generally not required to do anything outside of the terms of their specific contract. (81) Simply stated, commanders must look to the contracting officer (82) for enforcement of the terms of the contract. (83) DOD Instruction 3020.41 in paragraph 6.1.1 entitled, "International Law and Contractor Legal Status" states:
Under applicable law, contractors may support military operations as civilians accompanying the force, so long as such personnel have been designated as such by the force they accompany and are provided with an appropriate identification card under the provisions of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.... If captured during armed conflict, contingency contractor personnel accompanying the force are entitled to prisoner of war status. (84)
The reason for this dilemma revolves around the exact nature of the civilian contractor vis-a-vis the concept of armed conflict. To begin with, traditional international law has focused sharply on the distinction between international and internal armed conflict with most of the concern to the former. Even under the international laws of war, the precise status of contractors is still the subject of some debate. (85) The current corpus of the law of war, (86) which consists of all laws created by treaty and customary principles (87) that are applicable to international warfare, is largely encompassed by the 1949 Geneva Conventions. (88) The Geneva Conventions serve as the primary source of law in the event of an international armed conflict. (89) While the Geneva Conventions require all militaries to distinguish between combatants (armed forces) and noncombatants (civilians), (90) civilian contractors are neither combatants nor noncombatants in the traditional sense of the terms. Contractors are simply civilians that are authorized to accompany regular military forces on assorted military operations, including in times of international armed conflict (the United States' policy is to handle all hostile adversaries consistent with the spirit and terms of the Geneva Conventions irrespective of the nature of the conflict). (91)
When taking a broader meaning of the term "noncombatant", that is, the general civilian population, the concept actually embraces "certain categories of persons who, although members of or accompanying the armed forces, enjoy special protected status, such as medical officers, corpsmen, chaplains, technical (i.e., contractor) representatives, and civilian war correspondents." (92) In fact, the Geneva Conventions provide that prisoner of war (POW) protected status is given to "[p]ersons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces...." (93) Thus, contractors are viewed as separate from the general civilian population, and must be treated as POTs if captured by enemy forces during an international armed conflict. (94)
As long as the civilian contractor takes no direct part in hostilities, he must be given POT status. (95) Still, this noncombatant status does not insulate contractors from the exigencies of the battlefield, including the possibility of capture, injury, or death. (96) This fact should always be stressed to civilian contractors before they are assigned to work in hostile environments outside of the United States.
Furthermore, with the defeat of the radical Taliban regime (97) and the dictatorship of Saddam Hussein, a state of international armed conflict no longer exists between the United States (and its allies), and Afghanistan or Iraq. In this environment, MOOTW, the protections of the Geneva Conventions are not applicable. (98) In fact, the ongoing terrorist activities in Iraq and Afghanistan would probably not even qualify as an internal armed conflict. (99) Although one could argue that the basic protections associated with basic humanitarian law and human rights law (100) would protect the captured contractor from abuse or torture, the sad reality of the War on Terror is that civilian contractors are often specifically targeted by terrorists who recognize no law whatsoever and provide no distinction between civilians and the military. (101) Humanitarian law has no value to terrorists. Thus, self-defense, AT training, and personnel recovery policy are best viewed from the perspective of the adversary. In other words, will the hostile forces abide by the applicable legal norms and standards of civilized behavior? (102)
During MOOTW, either the normative law (103) of the host nation or any applicable Status of Forces Agreements (SOFAs) will determine the rights and privileges bestowed on civilian contractors while they are present in the host nation (special diplomatic arrangements may also exist for particular deployments). (104) Unless a state of international armed conflict exists or some other set of special circumstances exist (for example, the United States serving in an occupation role as it did in Iraq and Afghanistan), the use of civilian contractors will be strictly limited by these parameters. (105) Again, as stated in the June 2005 Defense Federal Acquisition Regulation Supplement (DFARS): "Contractor personnel are not combatants and shall not undertake any role that would jeopardize their status." (106)
III. FORCE PROTECTION
The responsibility for assuring that contractors receive adequate force protection starts with the combatant commander, extends downward, and includes the contractor. (107)
Department of the Army Field Manual 100-21
Force protection (108) does not consist of simply providing armed military escorts to civilian contractors; instead, it is a process of events that begins long before the civilian contractor is deployed. (109) In recognition of this fact, force protection is defined as "actions taken to prevent or mitigate hostile actions against DOD personnel, resources, facilities, and critical information." (110) Thus, the process of force protection clearly encompasses AT training to include such things as ensuring that civilian contractors have "an understanding of [the] threat and the development of a system of indications and warnings that will facilitate a proactive, predictive response to enemy and terrorist action." (111)
Force protection is a shared obligation by the military and the contractor company, tempered by the restriction that while accompanying the forces during an armed international conflict, civilian contractors cannot conduct force protection measures that would be tantamount to engaging in hostilities. (112) Further, if armed contractors are used to provide security (113) during a MOOTW, such activities must be spelled out in the contract and
[r]equests for permission to arm contingency contractor personnel to provide security services shall be reviewed on a case-by-case basis by the appropriate Staff Judge Advocate to the geographic Combatant Commander to ensure there is a legal basis for approval. The request will then be approved or denied by the geographic Combatant Commander.... (114)
Although the responsibility for force protection "starts with the combatant commander, extends downward, and includes the contractor," (115) the exact extent of force protection afforded to the contractors as a general class is not entirely clear. (116) Even the recently adopted June 2005 DFARS on contractors deployed on contingency operations offers only general guidance for the Combatant Commander. (117) Of course, as a practical matter, the military's failure to adequately protect the civilian contractor may compromise the contractor's ability to perform the tasks (or terms) of the contract, thereby hampering the ability of the deployed military force to conduct operations. With the continuing cycle of violence in Iraq, some contracting companies have decided that the atmosphere is simply too dangerous and have pulled out. (118) For instance, in December 2004, American contracting company Contrack International abandoned a $325 million contract in which they supervised a consortium that rebuilt transportation infrastructure in Iraq. (119) In making their announcement to withdraw, a Contrack spokesman confided that "work [in Iraq] was too dangerous and costly." (120)
A. Contractor's Use of Firearms
As stated, if the contract allows, the military may position civilian contractors anywhere in the theater of operations. While they can never be used in "direct support" of hostile operations, (121) the dangers of the battlefield and the limitations of the military to provide adequate force protection may subject contractors to bodily harm, necessitating the contractors' possession of firearms for self-defense. (122)
DOD policy (123) discourages contractor personnel from possessing firearms for self-defense (124) (U.S. law does not preclude the possession of firearms for DOD employees under certain conditions (125)). If weapons are authorized, (126) they must be a military specification sidearm (the 9mm automatic pistol) utilizing military specification ammunition. (127) A new draft DOD Instruction provides that the Combatant Commander may "authorize issuance of standard military side arms or appropriate weapons to selected contractor personnel for individual self-defense" (128) but only on those "rare occasions when military force protection is deemed unavailable." (129) The June 2005 DEFARS states that the "Combatant Commander will determine whether to authorize in-theater contractor personnel to carry weapons and what weapons will be allowed." (130)
While a hostile environment and the limits of force protection may favor the possession of weapons by civilian contract personnel, other factors may weigh against it. (131) First, arming contractors may distort their battlefield status as civilians accompanying the force. (132) Second, contractors--especially those with prior military experience--may use the weapon in an unauthorized manner, further blurring the line between combatant and noncombatant. (133) Furthermore, possession of a sidearm may cause the enemy to mistake a contractor for a soldier, thereby having the unintended effect of increasing the risk of physical harm to the contractor. (134) To prevent accidents and misuse, contractors must be properly trained (135) in use of firearms for self-defense only and must comply with all applicable local laws. (136)
Even if the contractor gains approval from the Combatant Commander to carry a sidearm in theater, the terms of the contract or parent-company policy may forbid it. (137) In reality, contractors who wish to possess a firearm for self-defense must not only gain approval of the Combatant Commander but must also be authorized (or not expressly forbidden) by the terms of the contract under which they are employed. (138) In the majority of cases, civilian contractors may be provided with protective clothing such as bulletproof vests (139) and helmets, (140) but few are ever allowed to carry firearms. (141) Additionally, in some circumstances, host-nation law may also prohibit contractors from possessing firearms. (142) The exception, of course, would be those civilian contractors who are specifically hired to provide armed security protection to other civilians. (143) Depending on t e agreement with the host nation, in times of noninternational armed conflict, these individuals may be armed with firearms other than pistols. (144)
B. Protecting Contractors
Army doctrine clearly provides that civilian contractors accompanying the force must be protected. "[T]he Army's policy has become that when contractors are deployed in support of Army operations/weapons systems, they [contractors] will be provided force protection commensurate with that provided to DAC (145) personnel." (146) Still, force protection measures necessary to safeguard contract personnel will vary depending on the circumstances, taking into account known and perceived risks. (147) This is a directly proportional relationship; a more direct threat requires greater force protection to safeguard contractor personnel. (148) For instance, during military operations in Somalia in 1993, the risks to contract personnel supporting DOD operations in theater were acute--armed gangs hostile to the American presence and the humanitarian mission presented a serious threat to the safety of civilian contract personnel. (149) As a result, some contract personnel required an armed military escort at all times. Conversely, other military operations present lower levels of threat. In the late 1990s, civilian contract personnel traveled "nearly 1 million miles a month on the open roads of Bosnia, Croatia, and Hungary ... for the most part without the benefit of any force protection." (150)
In the War on Terror, ample evidence demonstrates that contractors, particularly those who have not received training on the rudimentary aspects of battlefield risks and how to manage them, (151) are more likely the targets of kidnapping or other acts of violence. (152) Within the general class of contractors, it is apparent that those without prior military experience or those who operate without the benefit of weapons for self-defense are at the greatest risk. Nevertheless, even if the contractor is former military, "the currency of their conditioning, both mental and physical, must be taken into account." (153)
Army policy regarding contractor force protection must be juxtaposed more generally against Joint DOD doctrine, which relates to all the military services. (154) Interestingly, Joint Publication (JP) 4-0, issued by the Chairman of the Joint Chiefs of Staff in 2000, provides that "[f]orce protection responsibility for DOD contractor employees is a contractor responsibility, unless valid contract terms place that responsibility with another party...." (155) Consistent with JP 4-0, DOD force protection makes it clear that contractors are private American citizens and, accordingly, "[t]he Commanders do not have the same legal responsibility to provide security for [DOD] contractors as that provided for military forces or direct-hire employees." (156) Thus, while commanders may feel a moral or practical obligation to provide active and comprehensive force protection, in the sphere of legality, "[c]ontractors working within a U.S. military facility or in close proximity of U.S. Forces shall receive incidentally the benefits of measures undertaken to protect U.S. Forces." (157)
The Draft DOD Instruction entitled Management of Contractor Personnel During Contingency Operations provides that contractors shall "receive incidentally the benefits of measures undertaken to protect U.S. forces...." (158) However, the draft also mandates a higher level of responsibility in certain instances: "[C]ommanders shall provide force protection, commensurate with the level of force protection provided to military forces, when contractor personnel are integral to the military forces...
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