THE nagging question of who controls U.S. contractors in Iraq surfaced once again when employees of Blackwater USA, a firm providing security services to the U.S. government, were involved in a Baghdad shootout that killed Iraqi civilians.
The question of who fired first - Iraqis attacking a U.S. convoy or Blackwater employees defending it - remains unclear, although it is perhaps significant that Secretary of State Condoleezza Rice telephoned Iraqi Prime Minister Nouri al-Maliki almost immediately to express regret over the incident and promise an investigation. As many as 11 Iraqis are dead and the Ministry of the Interior declared that Blackwater's license to operate had been revoked.
It is unclear whether Mr. Maliki's government has the authority to take such a step or to prosecute Blackwater employees for killing Iraqis. A 2004 regulation promulgated by U.S. authorities exempted American contractors from Iraqi law. And while a U.S. law passed a year ago holds contractors to the same code of justice as U.S. military personnel, court-martialing a private contractor is of questionable constitutionality.
Contracted personnel inhabit a gray zone in the chain of command and authority. In practice, they answer to neither the U.S. military commander, Gen. David Petraeus, nor U.S. Ambassador Ryan Crocker. But over the last year, according to the Washington Post, the U.S. military has issued orders to make security contractors operating under Department of Defense contracts more accountable.
Blackwater, however, is not covered by these orders because it reports to the State Department. It operates without an Interior Ministry license and can ignore U.S. military regulations on the use of weapons, procedures for reporting incidents, and movement tracking requirements.
Let's be clear. These are mercenaries providing an unfortunately necessary service. The Bush Administration contracts with them because, even with 170,000 troops in Iraq, there are not enough forces to provide security for U.S. officials and the international work force rebuilding Iraq.
There are perhaps as many as 48,000 of these bodyguards working in Iraq, only 2,000 of whom are American. The politically connected Blackwater firm has some $800 million in contracts and is the main provider of security for U.S. government civilian personnel.
The problem, according to George Washington University law professor Steve Schooner, is that no one in the administration thought about the role of private security before the 2003 invasion.
"The real problem is when we went into Iraq none of this had been worked out," he told the Associated Press.
That makes the question of whose criminal justice system private security firms answer to a U.S. problem. This administration, which showed no hesitation in throwing suspected terrorists behind bars and figuring out later where they fit into the legal system, ought to be able to hold private security firms accountable for their actions.
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