By Joshua S. Press[*]
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.[†]
Whenever a people . . . entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens.[‡]
Introduction
On September 16, 2007, as U.S. diplomats met at a secured compound in Baghdad, a bomb exploded a few hundred yards away.[1] In response, the diplomats were moved out of the compound toward the “Green Zone.” As they traveled through Nisour Square, a security convoy attempted to block traffic to ensure that the diplomats could pass through the area; some of the diplomats’ guards exited the convoy to patrol the street. One guard shot at an oncoming car and killed the vehicle’s driver, along with a mother cradling her infant in the passenger seat.[2] The car caught fire but continued rolling forward, prompting other guards to shoot—killing seventeen and wounding twenty-four.[3]
The guards insisted that they fired out of self-defense, but an FBI inquiry found that the shootings were unprovoked.[4] Indeed, the Iraqi government announced its intention to prosecute those responsible.[5] But these guards could be neither criminally prosecuted nor court-martialed under the Uniform Code of Military Justice (UCMJ) because they were not members of the U.S. armed services.[6] As privately paid soldiers of Blackwater Worldwide (Blackwater),[7] the guards fell into a “legal Bermuda Triangle.”[8] In other words, they were not subject to Iraqi law due to an immunity order granted to private military firms (PMFs), were not subject to the UCMJ for the military, and were not subject to United States criminal laws because they were outside its territorial jurisdiction.[9]
This is an especially troubling dilemma because private soldiers’ duties in modern warfare are virtually indistinguishable from their public counterparts’. For example, private soldiers have provided security to U.S. Administrator of Iraq (and later-Ambassador) L. Paul Bremer, helped train the Iraqi army, interrogated military prisoners,[10] used helicopters and chemical weapons,[11] operated in Louisiana after Hurricane Katrina,[12] and fought off insurgents in combat.[13] This blending of responsibilities has put the legality of private soldiers’ actions in limbo.
Of course, such a commingling of roles is inevitable given the United States’ increasing reliance on PMFs. Since the end of the Cold War, the Pentagon’s use of private soldiers has more than quadrupled.[14] During the Gulf War, only 10% of soldiers in the war zone were privately paid.[15] From 1994 to 2002, however, the Department of Defense contracted with PMFs more than 3,000 times for a total of more than $300 billion.[16] By 2008, the “estimated 180,000 private contractors outnumber[ed] the 160,000 US troops stationed in [Iraq].”[17] Indeed, the conflicts in Iraq and Afghanistan are now the central stage for the world’s preeminent PMFs: DynCorp International has about 1,500 employees in Iraq; Blackwater has more than 1,000 employees; Military Professional Resources, Inc. has about 500 employees; and Kellogg Brown and Root, Inc. has more than 50,000 contractors and subcontractors in Iraq, Afghanistan, and Kuwait.[18]
