As this unprecedented private force expanded in Iraq, Bremer’s last act before skulking out of Baghdad on June 28, 2004, was to issue a decree known as Order 17, immunizing contractors in Iraq from prosecution.12 It was a significant move in a sea of policies (and absence of policies) governing the occupation of Iraq, and one that emboldened private forces. While U.S. soldiers have been prosecuted for killings and torture in Iraq, the Pentagon has not held its vast private forces to the same standards. That point was driven home during one of the rare Congressional hearings on contractors in Iraq, which took place in June 2006. Blackwater represented the industry at the hearing, which also included several government officials. Representative Dennis Kucinich questioned Shay Assad, the Pentagon’s director of defense procurement and acquisition, the department in the DoD responsible for contractors. Kucinich pointed out that U.S. troops are subjected to enforceable rules of engagement and have been prosecuted for violations in Iraq, while contractors were not. He said that as of the date of the hearing, “no security contractor has been prosecuted” for crimes in Iraq.13 He then directly asked Assad, “Would the Department of Defense be prepared to see a prosecution proffered against any private contractor who is demonstrated to have unlawfully killed a civilian?”
“Sir, I can’t answer that question,” Assad replied.
“Wow,” Kucinich shot back. “Think about what that means. These private contractors can get away with murder.” Contractors, Kucinich said, “do not appear to be subject to any laws at all and so therefore they have more of a license to be able to take the law into their own hands.”
Blackwater has openly declared its forces above the law. While resisting attempts to subject its private soldiers to the Pentagon’s Uniform Code of Military Justice (UCMJ)—insisting they are civilians—Blackwater has simultaneously claimed immunity from civilian litigation in the United States, saying its forces are a part of the U.S. Total Force. Blackwater has argued in legal briefs that if U.S. courts allow the company to be sued for wrongful death of its workers, that could threaten the nation’s war-fighting capacity: “In order for responsible federal contractors to accompany the U.S. Armed Forces on the battlefield, it is essential that their immunity from liability for casualties be federally protected and uniformly upheld by federal courts. Nothing could be more destructive of the all-volunteer, Total Force concept underlying U.S. military manpower doctrine than to expose the private components to the tort liability systems of fifty states, transported overseas to foreign battlefields…. How the President oversees and commands these military operations, including his decisions through the chain of command concerning the training, deployment, armament, missions, composition, planning, analysis, management and supervision of private military contractors and their missions, falls outside the role of [the courts].”14 Instead, Blackwater claims that its forces operate under the legally impotent and unenforceable code of conduct written by its own trade association, ironically named the International Peace Operations Association. Erik Prince says his forces are “accountable to our country,”15 as though declarations of loyalty to the flag are evidence of just motives or activities or somehow a substitute for an independent legal framework.
This logic is encouraged not only by the virtual immunity already extended to contractors but also by the Pentagon’s failure to oversee this massive private force that is now officially recognized as part of the U.S. war machine. Private contractors largely operate in a legal gray zone that leaves the door for abuses wide open. In late 2006, a one-line amendment was quietly slipped into Congress’s massive 2007 defense-spending bill, signed by President Bush, that could subject contractors in war zones to the Pentagon’s UCMJ, also known as the court martial system.16 But the military has enough trouble policing its own massive force and could scarcely be expected to effectively monitor an additional 100,000 private personnel. While the five-word insert hardly establishes a system of independent oversight, experts still predict it will be fiercely resisted by the private war industry. Despite the unprecedented reliance on contractors deployed in Iraq, Afghanistan, and elsewhere, the government has failed to even count them, let alone police them. A Government Accountability Office report released in December 2006 found that the military had no effective system of oversight and that “officials were unable to determine how many contractors were deployed to bases in Iraq.”17 The Army and Air Force were unable to provide the GAO investigators “the number of contractors they were using at deployed locations or the services those contractors were providing to U.S. forces.” The GAO concluded “problems with management and oversight of contractors have negatively impacted military operations and unit morale and hindered DOD’s ability to obtain reasonable assurance that contractors are effectively meeting their contract requirements in the most cost-efficient manner.”
A week after Donald Rumsfeld’s rule at the Pentagon ended, U.S. forces had been stretched so thin by the war on terror that former Secretary of State Gen. Colin Powell declared “the active Army is about broken.”18 Rather than rethinking such aggressive policies and wars of conquest, the Bush administration and the Pentagon talked of the need to expand the size of the military. Prince had already offered up a proposal of his own: the creation of what he called a “contractor brigade” to supplement the conventional U.S. military. “There’s consternation in the DoD about increasing the permanent size of the Army,” he said. “We want to add 30,000 people, and they talked about costs of anywhere from $3.6 billion to $4 billion to do that. Well, by my math, that comes out to about $135,000 per soldier…. We could do it certainly cheaper.”19 It was an extraordinary declaration that could only come from a man in control of his own army. Prince likes to position Blackwater as a patriotic extension of the U.S. military, and in September 2005 he issued a company-wide memorandum requiring all company employees and contractors to swear the same oath of loyalty to the U.S. Constitution as Blackwater’s “National Security-related clients (i.e. Pentagon, State Department and intelligence agencies)” to “support and defend the Constitution of the United States against all enemies, foreign and domestic…. So help me God.”20
But despite the portrayal of Blackwater as an all-American operation seeking to defend the defenseless, some of its most ambitious and secretive projects reveal a very different and frightening reality. In May 2004, Blackwater quietly registered a new division, Greystone Limited, in the U.S. government’s Central Contracting office. But instead of incorporating the company in North Carolina or Virginia or Delaware, like Blackwater’s other divisions, Greystone was registered offshore in the Caribbean island-nation of Barbados. It was duly classified by the U.S. government as a “tax-exempt” “corporate entity.”21 Greystone’s promotional literature offered prospective clients “Proactive Engagement Teams” that could be hired “to meet emergent or existing security requirements for client needs overseas. Our teams are ready to conduct stabilization efforts, asset protection and recovery, and emergency personnel withdrawal.” It also offered a wide range of training services, including in “defensive and offensive small group operations.” Greystone boasted that it “maintains and trains a workforce drawn from a diverse base of former special operations, defense, intelligence, and law enforcement professionals ready on a moment’s notice for global deployment.” The countries from which Greystone claimed to draw recruits were: the Philippines, Chile, Nepal, Colombia, Ecuador, El Salvador, Honduras, Panama, and Peru, many of whose forces have human rights records that are questionable at best. It asked applicants to check off their qualifications in weapons: AK-47 rifle, Glock 19, M-16 series rifle, M-4 carbine rifle, machine gun, mortar, and shoulder-fired weapons (RPG, LAAW). Among the qualifications the application sought: sniper, marksman, door gunner, explosive ordnance, counter-assault team. In Iraq, Blackwater has deployed scores of Chilean mercenaries, some of whom trained and served under the brutal regime of Augusto Pinochet. “We scour the ends of the earth to find professionals,” said Blackwater president Gary Jackson. “The Chilean commandos are very, very professional and they fit within the Blackwater system.”22