Private Security and the Law

Private Security and the Law: International Use of Private Security in Support of U.S. Interests Abroad
Introduction
To support U.S. interests abroad more and more resources have been diverted to private security as American military have been scaled back in places like Afghanistan, Iraq and Syria. But is the international use of private security in support of U.S. interests abroad justifiable or lawful? Certainly it is both—but then why the controversy among certain groups? The controversy among some constitutionalists and conservative circles is that private security defense contractors take the place of the military and thus put distance between the American public and the continuation of wars abroad, which the public is under the mistaken belief have ended. As Jennifer Elsea notes, “the use of private security contractors (PSCs) to protect personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community” (2). The main issues, according to Elsea are, “transparency, accountability, and legal and symbolic issues” surrounding the use of PSCs abroad in place of American military (2). This paper will discuss these issues and evaluate their legitimacy.
Transparency
The issue of transparency is, first and foremost, one of the biggest. It was Erik Prince’s Blackwater private defense firm that came under fire in the wake of the WikiLeaks reporting. Glanz and Lehren pointed out that one of the WikiLeaks reports shed light on the fact that “on May 14, 2005, an American unit “OBSERVED A BLACKWATER PSD SHOOT UP A CIV VEHICLE,” killing a father and wounding his wife and daughter, a report said, referring to a Blackwater protective security detail.” That this kind of information was only made public due to a breach of American databases and the subsequent theft of that data and its publication by the secrets-exposing social media site WikiLeaks suggests how little transparency there actually is when it comes to the use of PSCs abroad.
The scandal and negative press that followed were so great that it prompted Erik Prince to start a new PSC entity, which was named Xe. This later underwent a name change, too, as different variations on the same sort of news continued to come out. Transparency in relation to the use of PSCs abroad has thus been a major issue—at least in connection with the wars in the Middle East.
The use of PSCs in other capacities, such as in the protection of public figures, ambassadors, or other people and places, has been far less problematic: the main issue with PSCs abroad is when they are put in militaristic roles and are tasked with combating an enemy that they may not be logistically situated or able to handle. The shooting up of civilian vehicles is just one example of how things can go wrong with PSCs in foreign countries when they are operating on their own, independently of any oversight or any type of body that would ordinarily do the overseeing.
For U.S. military oversees, there is a clear chain of command and a clear line of transparency, which means that soldiers can expect that they will be held accountable for any actions that violate ethical norms and standards. For PSCs, there is no clear chain of command as it is unknown just to whom the PSC is accountable—the government who contracts out the service? The public? Congress? Because there is no clear answer, there is no transparency, as there is no definite felt need on the part of those involved in contracting out PSCs to make sense of the issue. Prince, responding to issues about his company, stated: “While it would be inappropriate to comment on specific cases, we work closely with our government customers and cooperate fully in all investigations” (Glanz and Lehren). In other words, incidents happen and oversight and regulation are missing—because there is little to no standard for transparency in the use of PSCs supporting U.S. interests abroad.
Leander and Van Munster observed in their study of the use of PSCs in the Darfur region that the deputy director of the Human Rights Watch there was skeptical about PSCs and the lack of transparency they showed: the deputy director stated, “There is not a lot of transparency about these [private security] contracts, we don’t know how they get recruits or what kind of training they get […] Unlike a government agency, the private companies are not required to tell the public exactly what they do, often citing business confidentiality” (202). This type of situation is one that can cause tension between the local administrators in a foreign country, human rights advocates both abroad and at home, and the PSC firm itself—as well as the government that employs them. To address this matter so that all stakeholders are more comfortable, it would seem that more transparency in the PSC industry is required when those PSC firms are used to support U.S. interests abroad.
Accountability
Accountability follows on the heels of transparency. An organization is transparent because it wants to be held accountable. With PSCs abroad, the lack of transparency suggests to some critics that there is no desire on their part for them to be held accountable to anyone. The PSCs believe they are doing an important job in supporting American interests abroad because they are taking on work that the American military cannot do for whatever reason—political pressures, social pressures, or even economic pressures. Contracting out the services makes sense financially, politically and socially. Yet, when it comes to accountability, that box often goes unchecked because no one knows who really is responsible for what goes on in foreign countries when PSCs are hired out.
Thurnher argues that “weak accountability over private security contractors significantly undermines counterinsurgency efforts” (64). In other words, because there is no or only limited accountability when it comes to oversight of PSCs supporting American interests—i.e., counterinsurgency missions—abroad, there can be a great deal of neglect and even abuses of power. In turn, those abuses cause insurgents to want to resist more and may lead to more or worse blowback that what American interests experienced before.
The purpose of accountability is not to handcuff, limit or restrict the activities of the private security firm. Rather accountability is there to make sure that the firm does not slip into mistaken courses of action that actually end up hurting American interests. Accountability is a major factor in every major firm in the U.S. If there is no accountability, the firm is likely to slip into some sort of deviant behavior, as it feels no one is keeping tabs on its behavior. With Enron, this occurred and the outcome was a spectacular blowup. The same risks are inherent in the PSC sector abroad because the same dangers and temptations to go off the beaten path and engage in hostile actions like those depicted in the WikiLeaks releases becomes an issue.
The issue off accountability is so problematic in fact that Leander points out that “the impunity of private military companies (PMCs) appears increasingly puzzling”—for the simple reason that “not only is there widespread awareness and public debate about violations of the spirit — if not the letter — of the law; there is also a ‘mad scramble’ to improve regulation” (467). The fact that authorities are looking for ways to regulate the industry while the symbolic head of the industry Erik Prince has strong ties all the way to the White House—after all, his sister-in-law Betsy Devos is on Trump’s Cabinet—shows that there is growing unease between PSCs—or PMCs as some critics call them—i.e., mercenary forces—and those who are elected to lead the country and are accountable to the voters. Once the voters become informed about abuses of power—from sites like WikiLeaks that do seek to bring transparency and accountability to an opaque topic by putting issues in the hands of the technological citizenship, the “mad scramble” for regulation begins. However, the scramble typically does not lead to anything meaningful because the issue “is usually explained either as an expression of the techno-legal difficulties created by the move from government to governance or as reflecting the social, political and economic capital” of the PSCs (Leander 467). In short, there is no easy way to address the issue because simply conceiving it in terms is so complex and complicated by the nature of the service that is being provided abroad. Is it security service? Is it military service? Should PSCs be viewed as mercenaries? What sort of standards could or should be required of them? These questions are difficult to answer because often the roles that are asked of PSCs are difficult to define.
Legal Issues
The lack of clarity, precision, definition and certainty regarding the use of and role of PSCs abroad clouds the legal issues surrounding the use of private security in support of U.S. interests abroad. Priddy and Casey-Maslen show that the issue extends beyond the Middle East battlefields and even touches upon the situation of maritime security for ships traveling in foreign waters where piracy threats are high. As Priddy and Casey-Maslen suggest, “while this may bring greater security to ships and their crews, it also raises a number of important issues, especially what constitutes lawful use of force by armed guards belonging to” the PSCs (839). The international community has not been quiet on the issue.
In fact, as Priddy and Casey-Maslen show, as far back as 2010, when PSCs were becoming more and more common, “an International Code of Conduct for Private Security Service Providers (ICoC) was opened for signature after an 18-month process of drafting” (852). That ICoC aimed “to clarify international standards for the private security industry operating in complex environments and to improve oversight and accountability of such companies” (Priddy and Casey-Maslen 853)—and following its drafting, more than 400 companies from 57 nations around the world signed it. The companies that signed the ICoC are thus “commit to supporting the rule of law, respecting the human rights of all persons and protecting the interests of their clients”—and when it comes to using force, they must, in accordance with the ICoC “take all reasonable steps to avoid the use of force and in no circumstances exceed the use of force that is strictly necessary and proportionate to the threat” (Priddy and Casey-Maslen 853-4). This Code is one that can be helpful in regulating the use of PSCs abroad; however, it does not exactly make the legal issues any clearer: it simply provides a set of rules for companies to promise to abide by. There is no legal or regulatory body in existence that can oversee the PSCs or hold them accountable, investigate instances of controversy, or insist on transparency. This means that in terms of supporting U.S. interests abroad, PSCs can operate independently of any governing body; they are responsible to their clients—and beyond that they are virtually free from any type of legal ramifications, barring a full-fledged investigation by Congress at home.
Symbolic Issues
As Higate shows, symbolically speaking, the use of PSCs in support of American interests abroad has created a kind of new “Wild West” in foreign lands where there is no real rule of law, and professional PSCs can view themselves as “cowboys” whose goal is to secure the well-being of their clients and to protect their clients’ interests—any way they see how. Essentially, PSCs are like “guns for hire,” which feeds into the symbolism of their being as individuals whose services fall outside the scope of the law: they exist in a gray area where few people dare to tread. They live in the lawless parts of the world and must protect what is important to their American clients back home. Their duty may raise eyebrows or draw criticism from those who have never been in their shoes or stepped foot in the parts of the world that the PSCs live in, but the fact is that their actions and methods are often judged to be necessary on their part. They are bringing—if not order—then at least the threat of trouble should they or their clients’ interests be crossed or violated.
Still, when scandals emerge—such as the killing of civilians by PSCs in what appears to be a senseless manner—problems arise: for instance, how is it possible to judge whether the PSCs—the cowboys of the new “Wild West” are really helping to protect America’s interests? These questions, gone unanswered, only lead to more misunderstanding of the symbolic nature of the PSC abroad.
The point that Higate makes is that symbolically speaking the role of the PSC has to be more defined and better understood by the public before a reduction in the risk of scandals can take place. Whether that reduction occurs because the public becomes more understanding of the role of the PSC and thus is more sympathetic to the types of responses and actions they may have to take, or whether that reduction comes because a regulatory body is put in place will be something that is determined in the future, as the issue is covered by Congress in more detail.
For the present, the symbolic issue of the PSC supporting America’s interests abroad is one that also includes the manner in which America presents itself to other countries. As Elsea and other researchers, like Glanz and Lehren, have shown, this symbolic presentation can undermine security efforts if it projects a pompous attitude or set of behaviors that angers locals in the foreign country where the PSCs are located. If the locals become angry by the perceived symbolism of the PSC, they PSCs can find themselves in greater risk of being attacked by antagonistic parties. The recent vote in Iraq to expel the U.S. military serves as an indication of just how tense it can become between America and its security forces and the foreign countries wherein America’s interests are located.
As Franke and Von Boemcken point out, even today “we know very little about the motivations and occupational self-perceptions of individuals working for the private security industry” abroad (725) and that means there can be a great deal of misunderstanding between PSCs and the people in the lands where they are working for American interests. If Americans do not even know who these people working for PSCs are or what they represent, it is even more likely that foreigners do not understand them, their principles or what they stand for. What Franke and Von Boemcken show, however, is that in spite of the often predatory way in which PSCs are depicted in antagonistic media, most of the individuals who work for them consider themselves to be military professionals sworn to uphold the rule of law. Specifically, Franke and Von Boemcken stated that “contrary to media-dominating images of ruthless, money-grabbing mercenaries, respondents in our sample displayed attitudes comparable to those of military professionals, adhering to high levels of professionalism and ethical conduct and motivated largely by altruistic factors” (725). Thus, to correct the wrong impression or false symbolism that some may have of PSCs working abroad in support of American interests, the media depiction should change and provide a more realistic representation of PSCs as ethically-minded, altruistic, and professional.
Conclusion
The role of private security contractors working abroad in support of U.S. interests is fairly misunderstood because so little is actually known about who they are and what they do. There is a shroud of mystery that hangs over the industry. A lack of transparency, accountability and stories about scandals all contribute to an air of mistrust and the emergence of a symbol of “guns for hire,” mercenaries of the U.S. government filling in for American military, and so on. The reality, however, is that PSCs operate a gray zone, legally speaking. It is a relatively new sector and there are no real regulatory bodies there to provide oversight. Still, those who are in the PSC tend to come from the military and have been trained according to the principles and ethical system of the military. Thus, it should not be surprising to find that they themselves respect the same rule of law that Americans do.




Works Cited
Elsea, Jennifer. “Private Security Contractors in Iraq and Afghanistan: Legal Issues.”
Congressional Research Service, 2010. https://web.archive.org/web/20110807121937/http://assets.opencrs.com/rpts/R40991_20100107.pdf
Franke, Volker, and Marc Von Boemcken. "Guns for hire: Motivations and attitudes of
private security contractors." Armed Forces & Society 37.4 (2011): 725-742.
Glanz, James and Andrew Lehren. “Use of Contractors Added to War’s Chaos in Iraq.”
New York Times, 2010. https://www.nytimes.com/2010/10/24/world/middleeast/24contractors.html?_r=1&hp
Higate, Paul. "‘Cowboys and professionals’: The politics of identity work in the private
and military security company." Millennium 40.2 (2012): 321-341.
Leander, Anna. "The paradoxical impunity of private military companies: Authority and
the limits to legal accountability." Security dialogue 41.5 (2010): 467-490.
Leander, Anna, and Rens Van Munster. "Private security contractors in the debate about
Darfur: Reflecting and reinforcing neo-liberal governmentality." International relations21.2 (2007): 201-216.
Priddy, Alice, and Stuart Casey-Maslen. "Counter-Piracy Operations by Private Maritime
Security Contractors: Key Legal Issues and Challenges." Journal of International Criminal Justice 10.4 (2012): 839-856.
Thurnher, Jeffrey S. "Drowning in Blackwater: how weak accountability over private
security contractors significantly undermines counterinsurgency efforts." Army Law. (2008): 64.