WEEK OF NOVEMBER 6, 2006 • VOL. XXIX, NO. 45
Riding Into the Valley of Death
Contractors join soldiers in harm’s way, but without the same protections.
BY JAMES J. MCCULLOUGH
AND COURTNEY J. EDMONDS
G
overnment contractors supporting U.S. forces in Iraq are
facing a high risk of deadly attacks. Yet new Department
of Defense rules mean less military protection for them.
The rules leave contractors exposed to risks not just from insurgents
but also from legal liability for efforts to defend
themselves. Theirs is not an enviable position.
October 2006 was the deadliest month in more
than a year for U.S. forces in Iraq. The ongoing
sectarian violence and continuing attacks by terrorists and insurgents has placed enormous
demands on an already-overburdened U.S. military. From press reports and official announcements, it is clear that U.S. troops are spread thin,
and the United States will have to continue to rely
on contractors for many functions traditionally
performed by military personnel.
Contractors supporting U.S. and multinational
forces in Iraq and Afghanistan face many of the
same risks as the U.S. military. Like members of
the military, many have paid the ultimate sacrifice
in carrying out their mission.
More than 600 contractor personnel have been killed in the line
of duty since the war in Iraq began in 2003. This number obviously
pales in comparison with the number of military personnel killed,
which currently stands at more than 2,800. But one of the primary
reasons that the number of contractor deaths has not been significantly higher is that the U.S. military in the past has provided
“force protection” to contractors.
“Force protection,” as that term is used in connection with contractors accompanying the military force, means that the U.S. military provides armed security for contractor assets, including personnel and equipment, that is similar to the military’s security for
its own personnel and equipment in a battle zone. Force protection
for contractors lowers the number of casualties because the mili-
tary’s intelligence network and superior firepower protect contractor personnel.
Yet because of recent changes in Defense Department policy,
contractors will no longer be able to rely on military force protection in most cases. Consequently, their employees will be
exposed to even more hostile attacks from enemy forces, as well
as to liability for providing their own force protection.
INCREASING RISK
In October 2005 the Defense Department issued
DOD Instruction 3020.41 announcing a new policy covering contractor personnel who support military operations.
In June of this year the department issued an
interim rule that amended the Defense Federal
Acquisition Regulation Supplement, the controlling acquisition guidance for the military services,
to implement the new policy. The interim rule,
which was effective immediately, defines the
A Practice Focus
responsibilities of the combatant commander, the
senior military commander overseeing combat
operations, for protection of contractor personnel.
Most significantly, the new policy and interim
rule shifted responsibility for protection of civilian-contractor personnel from the combatant commander to each contractor and its
employees.
In spite of the amorphous, hostile environment in Iraq and
Afghanistan, the interim rule permits contractor personnel
(other than private security contractor personnel) to use deadly
force only against “enemy armed forces” in self-defense. The
new rule allows “private security contractor” personnel to use
deadly force on a case-by-case basis in accordance with the
mission statement in their contract and the approval granted by
the combatant commander.
Unfortunately, the new rule neither defines “enemy armed
forces” nor explains who is responsible for developing the “mission statement” that governs a contractor’s use of force. In spite
Government
Contracts
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of the interim rule’s ambiguity in these areas, it makes clear that
all liability for the use of any weapon by contractor personnel,
even under authorized circumstances, rests solely with the contractor and the contractor employee using the weapon.
Because of contractors’ exposure to the increased sectarian
violence and continual attacks in Iraq, the interim rule has generated significant concern.
It represents a fundamental shift in policy in which the
Defense Department has moved away from providing security
for contractors and instead directly exposed them to U.S., hostnation, and international law for their actions that support the
U.S. military. The increased exposure to hostile fire and potential third-party liability will have a significant effect on how
contractors compete for, perform, and price the contracts.
Moreover, the interim rule’s requirements relating to contractor use of force further complicate the ongoing debate over the
application of the Geneva Conventions to foreign and U.S. personnel. As seen in the aftermath of the Abu Ghraib prisoner
abuse scandal, certain actions taken by U.S. contractors may
blur the Law of Armed Conflict protections for contractor personnel and expose them to liability under U.S. laws, other international laws, or third-party lawsuits.
The Council of Defense and Space Industry Associations and
the American Bar Association Section of Public Contract Law
have called for withdrawing the interim rule. The council
advised the Defense Department that its members are “strongly
opposed to this significant and unannounced reversal” of longstanding policy and that the requirements in the interim rule
“will have a significant impact on the ability of contractors to
provide future support for the department.”
MORE EXPOSURE
In addition to their exposure to gunfire, contractors are also
exposed to third-party liability under U.S., host-country, and
international law.
The new policy and the interim rule require contractors to
comply with all applicable U.S. and host-country laws.
Compliance with host-country laws refers to all laws in the
country in which the contractor is accompanying U.S. forces,
unless immunities apply.
For example, contractors in Iraq must comply with all laws,
including statutes, regulations, and orders, that are recognized
by the Iraqi government. The Iraqi government, however, currently recognizes some of the orders issued by the Coalition
Provisional Authority, which is now defunct. One such order,
CPA Order 17, which is currently effective through the end of
this year, provides immunity from arrest or prosecution by nonU.S. persons and the Iraqi government for contractors supporting the multinational force in Iraq.
Despite this blanket protection from liability in Iraq, some
have said that the requirement to comply with all domestic, hostnation, and international laws is unreasonable. They note that
the interim rule does not require the Defense Department to
identify applicable laws to its contractors, and there is no consistent, reliable, or comprehensive public source of applicable
international and host-nation laws.
The United States often seeks to establish a status-of-forces
agreement with each friendly country in which the U.S. military
operates. This agreement governs the legal status of visiting
United States forces and, in some cases, contractors accompanying such forces and civilian employees of the U.S. government.
A SOFA is intended to clarify generally the terms under which
the U.S. military and its personnel operate.
Currently, the United States has no formal SOFA with either
Iraq or Afghanistan, but Afghanistan, unlike Iraq, has not
extended broad immunity from its laws to U.S. military and contractors. No formal SOFA with Afghanistan addresses whether
members of the U.S. armed forces are subject to Afghan law,
and in practice, they are not.
This implicit immunity likely extends to contractor employees
supporting U.S. troops in Afghanistan as well. To date, U.S.
forces and supporting contractors have not been prosecuted
under Afghan law, despite a number of reported incidents that
arguably could have resulted in such prosecutions. In cases
where charges have been brought, the charges have been
brought exclusively by U.S. prosecutors.
Although contractor personnel may be immune for their
actions in Iraq and Afghanistan, such personnel are still subject
to a variety of U.S. laws. For example, under the USA Patriot
Act, the United States can prosecute any U.S. national for
crimes committed on the premises of any U.S. government entity in foreign states.
Using a provision of the Patriot Act that extends U.S. jurisdiction to U.S. bases, federal prosecutors recently charged a CIA
contractor with the death of an Afghan national. The victim died
at a U.S. military outpost near Arababad, Afghanistan, while
being questioned about a rocket attack.
The contractor, David Passaro, was the first American civilian
charged in the aftermath of the prisoner-abuse scandal in Iraq
and Afghanistan, and the first civilian to be charged under the
Patriot Act. On Aug. 17, a federal jury found him guilty of all
counts. Passaro is currently awaiting sentencing. He is facing up
to 11 years in prison and a $250,000 fine.
ACTS AND OMISSIONS
Another form of exposure facing contractors in Iraq is potential liability to their employees for the contractor’s acts or omissions in protecting its employees.
For example, the families of certain Blackwater subcontractors and Halliburton employees killed in separate incidents in
Iraq have filed wrongful death actions in both state and federal
court.
Families of the four Blackwater subcontractors who were
killed in Fallujah in March of 2004 filed their wrongful death
suit in North Carolina state court. The families allege that
Blackwater, in its effort to cut costs to make profits, sent the
men into Fallujah without proper equipment, armored vehicles,
and weapons.
In a motion to dismiss in federal court, Blackwater argued
that the families of the four men were entitled only to insurance
payments under the Defense Base Act. In addition, Blackwater
argued that the men were “performing a classic military function” as part of their “official duties” under authorization from
the Defense Department. No federal or state court, therefore,
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could impose liabilities for casualties sustained on the battlefield
in performance of such duties. The U.S. Court of Appeals for the
4th Circuit ruled in August 2006 that Blackwater’s “constitutional interpretations” were “too extravagantly recursive” to
accept. The ruling allows the case to go forward in North
Carolina state court. Blackwater plans to seek review at the U.S.
Supreme Court.
In the Halliburton lawsuits, the families of seven employees
filed actions in a Texas federal court claiming that Halliburton
was responsible for the deaths of the employees when their convoy was ambushed outside Baghdad in April 2004. The families
alleged that Halliburton knew that the proposed convoy route
had been the scene of intense fighting earlier in the day but sent
the convoy out despite the risk of attack.
U.S. District Judge Gray Miller dismissed the two suits in late
September. He concluded that “the Army, not the defendants,
was responsible for the security of the convoys” and that he
would not second-guess the Army’s decision.
As these decisions show, contractors and members of the U.S.
military face the same risks. In support of military operations,
both U.S. servicemen and contractors are under the operational
control of the combatant commander. Yet the new Defense
Department rule allows the combatant commander to require contractors to defend themselves while they support the U.S. military.
But like the troopers in Alfred, Lord Tennyson’s “The Charge of
the Light Brigade,” defense contractors will continue to assist the
Defense Department in even the most hostile environments. They
will support the military, even when the military isn’t providing
them with the force protection that is routinely provided to the military forces they support.
James J. McCullough is a partner in the D.C. office of Fried,
Frank, Harris, Shriver & Jacobson, where he heads the firm’s
government contracts practice. Courtney J. Edmonds is an associate in the D.C. office. McCullough may be reached at
[email protected].
© 2006 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times
(1-800-933-4317 • [email protected] • www.legaltimes.com).