Private Security Contractors Abroad: Law, Accountability & U.S. Interests

Introduction

To support U.S. interests abroad, more and more resources have been diverted to private security as American military forces 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 most significant. 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 publication of that data by the secrets-exposing platform 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 they prompted Erik Prince to start a new PSC entity, which was named Xe. This later underwent another name change as different variations of the same type of news continued to emerge. 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 the protection of public figures, ambassadors, or other people and places, has been far less problematic. The main issue with PSCs abroad arises when they are placed in militaristic roles and tasked with combating an enemy that they may not be logistically situated or equipped to handle. The shooting of civilian vehicles is just one example of how things can go wrong when PSCs operate in foreign countries independently, without oversight from any governing body.

For U.S. military personnel overseas, there is a clear chain of command and a clear line of transparency, meaning that soldiers can expect to be held accountable for any actions that violate ethical norms and standards. For PSCs, there is no clear chain of command, and it is unknown to whom the PSC is ultimately accountable—the government that contracts the service? The public? Congress? Because there is no clear answer, there is no real transparency, and no definite felt need on the part of those involved in contracting PSCs to resolve the issue. Prince, responding to questions 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 Human Rights Watch there was skeptical about PSCs and the lack of transparency they demonstrated. 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 can cause tension between 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 and make all stakeholders more comfortable, greater transparency in the PSC industry is clearly required when those firms are used to support U.S. interests abroad.

Accountability

Accountability follows on the heels of transparency. An organization is transparent because it wishes to be held accountable. With PSCs abroad, the lack of transparency suggests to some critics that there is no desire on their part to be held accountable to anyone. The PSCs believe they are doing important work in supporting American interests abroad by taking on tasks that the American military cannot perform—for political, social, or economic reasons. Contracting out these services makes sense financially, politically, and socially. Yet, when it comes to accountability, that standard often goes unmet because no one is certain who is truly responsible for what occurs in foreign countries where PSCs are deployed.

Thurnher argues that "weak accountability over private security contractors significantly undermines counterinsurgency efforts" (64). Because there is no—or only limited—accountability in the oversight of PSCs supporting American interests abroad, there can be a great deal of neglect and even abuses of power. In turn, those abuses can cause insurgents to intensify their resistance and may lead to greater blowback than what American interests experienced prior to PSC involvement.

The purpose of accountability is not to handcuff, limit, or restrict the activities of a private security firm. Rather, accountability ensures that the firm does not slip into mistaken courses of action that ultimately hurt American interests. Accountability is a major factor in every major firm in the United States. Without it, a firm is likely to drift toward deviant behavior, sensing that no one is monitoring its conduct. The Enron scandal illustrates this dynamic vividly—and the same risks are inherent in the PSC sector abroad, where the same dangers and temptations to abandon professional standards and engage in hostile actions, such as those depicted in the WikiLeaks releases, become real possibilities.

The issue of accountability is so problematic that Leander points out "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 searching for ways to regulate the industry while prominent PSC figures maintain strong ties to political power shows growing unease between PSCs—or PMCs, as some critics call them, framing them as mercenary forces—and those elected leaders who are accountable to voters. Once voters become informed about abuses of power, the "mad scramble" for regulation begins. However, the scramble typically does not produce meaningful results 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 even conceptualizing it in clear terms is complicated by the nature of the service being provided abroad. Is it security service? Is it military service? Should PSCs be viewed as mercenaries? What standards could or should be required of them? These questions are difficult to answer because the roles asked of PSCs are themselves difficult to define.

Conclusion

The role of private security contractors working abroad in support of U.S. interests is largely misunderstood because so little is actually known about who they are and what they do. A shroud of mystery hangs over the industry. A lack of transparency, accountability, and recurring scandal all contribute to an atmosphere of mistrust and the emergence of a "guns for hire" image—mercenaries filling in for the American military. The reality, however, is that PSCs operate in a legally ambiguous gray zone. It is a relatively new sector, and no real regulatory bodies exist to provide oversight. Nevertheless, those who work in the PSC sector tend to come from military backgrounds and have been trained according to the same principles and ethical frameworks as the armed forces. It should therefore not be surprising to find that they themselves respect the same rule of law that Americans do. What is needed going forward is a clearer regulatory framework for private military and security companies that brings transparency and accountability in line with the professional ethics that most contractors already embrace.

Works Cited

Elsea, Jennifer. "Private Security Contractors in Iraq and Afghanistan: Legal Issues." Congressional Research Service, 2010.

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.

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 Relations 21.2 (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.