OP-ED: Outsourcing interrogation: the legal vacuum —Peter W Singer
The US Army has responded swiftly, surely, and correctly. But there is a catch. Not all the reported perpetrators were actually members of our military and thus not all wore the uniform. This is the critical dilemma facing the US. Should functions such as interrogating the prisoners have been outsourced without due consideration and debate
Following reports of abuse of Iraqi prisoners by US soldiers, the army has taken prompt action against those accused of committing the outrage. Seventeen soldiers were removed from duty while six face court martial.
But there is another aspect of this sordid business that has largely gone unnoticed: the hiring of private contractors to interrogate prisoners. This takes the US army’s experiment with outsourcing to a new level. And the results are deeply disturbing.
The number of US troops may have been sufficient for fighting a swift war against the Iraqi army but the army now faces a shortage of personnel. The insurgency is growing and it has to perform a number of other tasks for which it needs to fill the gap between the demand for professional forces and the limited number deployed. It has, therefore, outsourced an array of traditional military and intelligence roles to private contractors who now number up to 20,000. The Pentagon has done this outsourcing without any public discussion or debate.
Employees of these private firms come from over 25 different countries, including from South Asia. It almost looks like President Bush has achieved his international coalition through sub-contracting — a coalition of ‘billing’ rather than ‘willing’ as the administration claimed at the time of going to war.
The tasks sub-contracted to private companies range from logistics and local army training to guarding CPA installations and escorting convoys. But the most stunning is handing over the interrogation of prisoners of war to private firms. Employees from the CACI and Titan firms now fill such roles as interrogators and translators.
The work is lucrative, both for the firms and the individuals. Titan just won a deal to supply ‘analytical support’ to US military operations and associated services worth up to $172 million, and the employees can make over $100,000 a year. The private contractors are carrying out these roles not just in Iraq, but also in Afghanistan and Guantanamo Bay, Cuba.
A recent US Army investigation has revealed deep problems with this joint contractor-military system interrogation system. The interrogators and the guards are found to have crossed several red-lines of acceptable legal and humane behaviour. These go well beyond the good-cop-bad-cop routine, or the scare tactics that sometimes have to be used in the heat of war to save lives.
The investigation has found that, in trying to ‘fear up’ the prisoners, beatings and assaults have regularly occurred. The interrogators have also indulged in depraved behaviour such as making prisoners perform simulated sex-acts and putting ‘glowsticks’ in bodily orifices. A civilian contractor is also accused of raping a male juvenile.
Indeed, the perpetrators of these outrages took hundreds of pictures of themselves abusing the prisoners and of the abused prisoners. It is those pictures that have blown the lid on this sordid business. As Defence Secretary Donald Rumsfeld warned during his testimony, more such evidence is likely to surface in the coming days and weeks.
The US Army has responded swiftly, surely, and correctly. But there is a catch. Not all the reported perpetrators were actually members of our military and thus not all wore the uniform. This is the critical dilemma facing the US. Should functions such as interrogating the prisoners have been outsourced without due consideration and debate?
The US military has established structures to investigate, prosecute, and punish soldiers if they commit crimes. But the legal status of contractors in warzones is murky, to say the least. Whereas soldiers are accountable to the military code of justice wherever they are located, contractors are civilians and not formally part of the US military. Hence they are not part of the chain of command.
Normally, an individual’s crimes in such a case would under the host or occupied nation’s laws. But there are currently no established Iraqi legal institutions — that is why the US is running prisons in Iraq in the first place. These contractors, some of whom are also not US citizens, cannot be penalised under US domestic law since the crimes have not been perpetrated on US soil. As one military lawyer said about the situation: “...There is a dearth of doctrine, procedure, and policy.”
This leaves an incredible legal vacuum. Indeed, as Phillip Carter, a former US Army officer now at UCLA Law School, notes “...Legally speaking, they [military contractors in Iraq] actually fall into the same grey area as the unlawful combatants detained at Guantanamo Bay.”
It remains to be seen how the individuals involved will be dealt with, but it is clear that US policies on military contractors must be updated. If found guilty by investigators, the individuals should not escape with just the loss of their jobs (as happened with a similar case of contractor crimes in the Balkans). Felony crimes merit harsher punishment than just the end of a good paycheck.
This may require breaking new legal ground, such as testing the extra-territorial standards for civilian prosecution, detention until the Iraqi legal system takes strength, or even handover to the international court or states with universal jurisdiction. The stakes for US credibility are too high for this vacuum to persist for too long. To not only pay contractors more than our soldiers, but also give them a legal free pass is unconscionable.
Finally, the US must re-examine what military and intelligence roles are appropriate for outsourcing and which are not. For the roles we do choose to outsource, we must close the gap in the law.
Peter W. Singer is National Security Fellow at the Foreign Policy Studies Programme at the Brookings Institution. He is the author of ‘Corporate Warriors: The Rise of the Privatized Military Industry’ (Cornell University Press, 2003). He wrote this comment for Daily Times