Rise of the Shadow Army: Military Contracting and the Failure of U.S. Accountability
By Alec Woodard
As the United States has tried to disengage from the wars in Iraq and Afghanistan, it has come to rely more on private military contractors than its Army and Marines. Military contractors have died in greater numbers than troops, at least in Iraq and Afghanistan. These men sacrifice, but the international image of the United States suffers most.
The U.S. Government relies on contractors for security in Iraq and Afghanistan more than it does on troops by a margin of almost three to one today. That amounts to roughly 30,000 contractors versus around 10,000 U.S. troops in Afghanistan alone (the Pentagon continues to change its public account of troop numbers). Contractors present a problem to U.S. foreign policy because they are not accountable, have a track record of human rights abuses, and undermine U.S. government command and spending.
Armed military contractors operate in a legal grey area, unable to be prosecuted by the governments of lands in which they operate unless the U.S. government (or whichever state employs the contractors) allows it. Though the Strategic Partnership Agreement between the United States and the Islamic Republic of Afghanistan was signed by both nations, the immunity under Afghan law that it provides to U.S. soldiers and contractors undermines Afghan sovereignty and goals stated by U.S. President Donald Trump, who said in a speech on August 21st that “We are not nation-building again. We are killing terrorists.” The problem contractors present under this framework is that we are more likely to create new terrorists if our forces, contractors or troops, commit abuses against or kill Afghan civilians. Immunity under Afghan law provides no incentive for contractors to operate humanely and increases the perceived cost of monitoring their actions for the U.S. military, which already under-reports civilian deaths in the Middle East.
The opacity of military contractor’s actions is likely by design. Since the U.S. public is averse to its own troop deaths, and supports or is indifferent to greater military spending, it makes sense for the government to employ contractors, many of whom are not U.S. citizens. When the public does not care or hear about the cost of contractors, it lowers the domestic political cost to remain at war, though the international political price rises as foreign governments and citizens fail to discern between the actions of official U.S. forces and U.S. contractors.
When contractors have been held accountable, it has not changed U.S. policy toward their use. The most notable example of law as applied to contractors is the reaction to the Nisour Square Massacre of September 16th, 2007. On that date, contractors from the private military company Blackwater killed 17 Iraqi civilians and injured 24 more. All of the casualties were unarmed. The next day, the Iraqi government revoked Blackwater’s license to operate outside the Green Zone, the fortified center of U.S.-led coalition operations in Baghdad. Judge Ricardo Urbina of the Washington, D.C. District Court threw out the lawsuit made by a survivor of the massacre and the estates of three other victims. On April 22nd, 2011 the D.C. Court of Appeals revived the case and on April 13th, 2015 those charged were held accountable for the massacre and sentenced to thirty years in prison in for three men and life for the fourth. However, on August 4th, 2017, all four beat immediate conviction and won resentencing in their cases on appeal by those convicted. There was no doubt that the atrocity occurred, that unarmed civilians were killed or that these men killed them. The doubt was in the law and whether its letter held the men accountable.
The men are Paul A. Slough; Dustin L. Heard; Evan S. Liberty and Nicholas A. Slatten, all former employees of Blackwater Worldwide, now called Academi, the private military company that provided security and training for U.S. diplomats, forces and unarmed contractors during the Iraq War. Their alleged crimes were manslaughter, attempted manslaughter and, for Mr. Slatten alone, murder. The first three men’s sentences, all 30 year minimums for the use of a machine gun in a felony act, were ruled cruel and unusual punishment by the three-judge panel of the U.S. Court of Appeals of the Washington, DC Circuit Court. Mr. Slatten’s conviction for murder was overturned on the basis that it was not certain whether he or the other guards had shot first and that the court that previously sentenced the men “abused its discretion” by failing to try Mr. Slatten separately.
The court’s opinion is an uncomfortable read in the context of the acts these men perpetrated and the harm they caused. The document confirms that Slatten and others shot without cause. It acknowledges that the first shots of the incident resulted in the death of the driver of a white Kia sedan, that Iraqi police officers were able to approach the sedan and determine it posed no danger, that one of the officers waved to the convoy of Blackwater contractors to stop the shooting. From the court opinion, this is what happened next:
"At that point, the vehicle in front of the Kia moved away, causing the Kia to roll forward again. Heavy gunfire erupted from the Raven 23 convoy into the Kia, and the Iraqi officers took cover behind their nearby kiosk. Multiple grenades were fired at the Kia, causing it to catch fire. The Kia passenger was shot and killed. Indiscriminate shooting from the convoy then continued past the Kia, to the south of the Square. Victims were hit as they sought cover or tried to escape, giving rise to the bulk of casualties that day."
So the Blackwater guards have escaped punishment for their actions, and though the Iraqi government revoked Blackwater’s license to operate, the United States failed to uphold that ban. Since the Nisour Square Massacre, U.S. Department of Defense spending on contractors has fallen but the number of contractors employed abroad has risen sharply relative to troop numbers. From 2007 to 2017, the ratio of contractors to troops has gone from approximately one-to-one to three-to-one today.
Since they are not subject to the military chain of command, military contractors are not transparent about important information. While the U.S. military attempts to report its own casualties with speed and accuracy, contractors do not, and both underreport civilian deaths by huge margins.
This same lack of informational accountability and unclear regulations cost the U.S. government between 31 and 60 billion dollars in waste on military contractors in the ten years preceding the release of the Commission on Wartime Contracting’s official report to Congress in August, 2011. This waste is only set to increase as military contractors become an increasingly important part of how the United States reacts to armed conflict.
Any claim military contractors should be heavily involved in U.S. efforts abroad must overcome evidence from human rights organizations, the U.S. government and employees of the contracting companies. Three Blackwater contractors who were at the scene of the Nisour Square Massacre, in the same convoy as those charged, testified to a federal grand jury that they saw “unarmed civilians shot and killed who were clearly no threat to anyone,” and “Iraqis shot although they posed no threats.” According to a Congressional committee report, of 195 shooting incidents involving Blackwater personnel between January 1st, 2005 and September 12th, 2007, Blackwater employees fired first in 163 cases, a rate of 84% of offensive attacks that matches the 84% of “escalation of force incidents [that] resulted in casualties or property damage or both.” These rates indicate that military contractors are willing to escalate conflict and apt not to care about the consequences, as according to the same report “In the vast majority of instances in which Blackwater forces engage in weapons fire, the Blackwater shots are fired from a moving vehicle and Blackwater does not remain at the scene to determine if their shots resulted in casualties.”
Academi, called Blackwater when it perpetrated the Nisour Square Massacre, is only one of a thriving industry of private military contractors whose lack of oversight and accountability threatens American diplomacy and the rule of law at home and abroad today. There are many more cases of human rights abuse by these companies, Academi and others, across U.S. military involvement in the Middle East. These abuses prolong U.S. involvement in the region under its mission to end global terrorism and create more terrorists as civilian populations react to infringement on their rights and sovereignty. Human rights violations will continue as long as U.S. military contractors and combat personnel of all kinds remain unaccountable to the rule of law. The U.S. government should reduce the number of contractors it employs if it wants to reduce costs and achieve its military and anti-terrorist goals. The only result of continued lack of accountability will be prolonged war, more terrorists attacks and reduced ability of Middle East governments to function.