The Combat Operator

Archive for November 10th, 2008

Dogs of War: Losing sleep over SOFA

Nov 10, 2008 Industry News, Iraq

By David Isenberg of UPI

WASHINGTON, Oct. 31 (UPI) — If, as now seems possible, Iraq and the United States cannot finalize a Status of Forces Agreement governing U.S. troops there, private military contractors will be sighing in relief.

The agreement, known as SOFA, is basically a document signed by a country and a foreign nation stationing military forces there. The SOFA is intended to clarify the terms under which the foreign military is allowed to operate. Typically, purely military issues such as the locations of bases and access to facilities are covered by separate agreements. The SOFA is more concerned with the legal issues associated with military individuals and property.

At the end of the Cold War, the United States had permanent status of forces agreements with approximately 40 countries. Today the number has grown to more than 90, meaning the United States has agreements with 46 percent of the more than 190 nation-states comprising the world community.

The Iraq SOFA covers everything from prosecuting violations of law to establishing operational command and a deadline for withdrawal. The United States wanted it to be completed before Dec. 31, when the United Nations mandate, Security Council Resolution 1790, covering the presence of foreign troops in Iraq expires.

Without a signed SOFA, U.S. troops will lack legal authority to remain in Iraq. U.S. officials say they would have to cease operations and confine troops to bases unless some other arrangement, such as an extension of the U.N. mandate, could be worked out.

With respect to Iraq, U.S.-led Coalition forces participating in the 2003 invasion of Iraq were initially subject to the exclusive jurisdiction of their parent states. Since the handover of sovereign power to an Iraqi administration, Coalition forces in Iraq are nominally subject to Iraqi jurisdiction, and operate without any Status of Forces Agreement. Theoretically, Iraqi courts have the right to try Coalition forces for any alleged offenses, though this right has never been exercised.

In actuality, the United States has not been working all that hard on trying to negotiate a SOFA. In an interview on Jan. 24, 2008, U.S. Defense Secretary Robert Gates indicated that work on a SOFA had barely been started.

On July 1, 2008, Iraqi Foreign Minister Hoshyar Zebari said he had briefed members of the Iraqi Parliament that U.S. contractors no longer would have immunity from Iraqi prosecution under the SOFA’s negotiated terms.

About two weeks ago, Iraq essentially called for reopening negotiations to address objections to the SOFA draft that would require U.S. forces to leave Iraq by the end of 2011.

The proposed SOFA would make private American security companies and other contractors subject to Iraqi justice in criminal cases, which was a major Iraqi demand. By contrast, the United States retains “primary” jurisdiction over soldiers and Pentagon employees for alleged offenses committed on American facilities or during military operations. This language is expected to shield troops from prosecution for accidentally killing civilians caught in the crossfire.

Although no official versions of the proposed SOFA have been publicly released, a leaked version dated Oct. 13, titled “An agreement regarding the temporary U.S. presence in Iraq and its activities and withdrawal from Iraq, between the United States and the Iraqi government” was recently posted online.

When you read the language, you see why contractors are worried. Article nine states, “While respecting relevant aviation laws, the U.S. government aircraft and civilian aircraft contracted with the U.S. Department of Defense are authorized to fly in Iraqi airspace, refueling in the air, landing and departing in Iraq.”

The problem is that there are many aircraft, planes and helicopters that belong to contractors who are working for clients other than the Department of Defense. For example, Blackwater, which shares the Worldwide Personal Protective Services contract with Triple Canopy and DynCorp, has MD-530F Little Bird helicopters, the civilian version of the military OH-6 scout helicopter. Under the SOFA this would seem to indicate that these helicopters would not be authorized for operations.

However, that may be less of a concern than many think. The SOFA covers the Department of Defense and associated personnel; military, civilian and contractors. It does not cover the Department of State and associated personnel.

A senior private military industry executive told UPI, “We are under the WPPS contract and as such enjoy diplomatic immunity like (State Department Bureau of Diplomatic Security) agents, whose functions we are in fact performing. This SOFA will not apply to us, although sections 9.2 and 9.5 with respect to aircraft is ambiguous.”

In the worst case, the helicopter mission could simply be picked up by the Defense Department.

Article 12 states, “Iraq has the primary legal jurisdiction over contractors with the U.S. and their employees.”

This is the provision that most unsettles contractors. The industry official said: “Having said all of that, I think if we fell under this, we would be very uncomfortable with section 12.3, as should all contractors supporting U.S. (military) operations. Currently, worldwide we fall under U.S. laws. Under this SOFA, we would not.

“I would not work for (the Department of Defense) in Iraq if this were signed. I also think if you were working for a U.S. contractor and this was signed, you would have cause for resigning and having them pay your way back.”

–

(U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute, a correspondent for Asia Times and the author of a forthcoming book, “Shadow Force: Private Security Contractors in Iraq.” His “Dogs of War” column, analyzing developments in the private security and military sector, appears every Friday.)

Tags: DoD, Iraq, SOFA

Dogs of War: Contractors and Obama

Nov 10, 2008 Industry News

By: DAVID ISENBERG

WASHINGTON, Nov. 7 (UPI) — In the wake of Barack Obama’s election victory many American private military and security contractors are wondering what their future will be under President Obama. It is probably better than they imagine.Recall that at the beginning of the year inveterate PSC critic Jeremy Scahill blasted Obama for being too sympathetic toward contractors. He reported that a senior foreign policy adviser of Obama’s said that if elected, Obama would not “rule out” using private security companies like Blackwater Worldwide in Iraq. The adviser also said Obama does not plan to sign on to legislation that seeks to ban the use of these forces in U.S. war zones by January 2009, when a new president will be sworn in.

Instead Obama’s campaign said he will focus on bringing accountability to these forces while increasing funding for the State Department’s Bureau of Diplomatic Security, the agency that employs Blackwater and other private security contractors.

After Obama takes office, his advisers will find that as an issue accountability just keeps marching on. For example, just consider some of the provisions in the Fiscal Year 2009 Defense Authorization Act. There are several sections that focus on private contractors.

Section 321 calls for the Office of Federal Procurement Policy to establish a single consistent definition of the “inherently governmental” function that could be applied across federal agencies.

Now creating a common definition is not an easy task. Federal departments and agencies, by law, annually do an inventory of their workforces to try to determine exactly that, in order to determine what can be outsourced.

Still, the end result should be that positions that are critical, inherently governmental functions should not be outsourced. Thus, situations in which interrogators from a firm like CACI operate at a place like Abu Ghraib should become a historical memory. In fact, just to make it clear that it is still on Congress’ mind, Section 1057 states that “the interrogation of enemy prisoners of war, civilian internees, retained persons, other detainees, terrorists, and criminals when captured, transferred, confined, or detained during or in the aftermath of hostilities is an inherently governmental function and cannot appropriately be transferred to private sector contractors.”

Another provision, Section 832, states that private security functions ordinarily should be performed by members of the Armed Forces; the relevant combatant command commander should determine whether the performance by a private security contractor is appropriate; and the Defense Department should have appropriate numbers of trained personnel to perform private security functions. Admittedly this provision is a sense of Congress, and not an actual requirement, but nevertheless could prove unsettling for the likes of Triple Canopy, DynCorp, Blackwater and a host of other firms.

Section 841 requires the Office of the Federal Procurement Policy Administrator to review the Federal Acquisition Regulations to identify contracting methods, types and services that raise heightened concerns for potential personal and organizational conflicts of interest. This would be a useful provision, considering that most of the ethics safeguards that exist such as laudable but unenforceable codes of conducts promulgated by the trade association are oriented more toward ensuring operators in the field act properly, and not to prevent company officials from using their personal contacts to help win a contract.

Section 843 requires the Pentagon to adopt an acquisition strategy for insurance required by the Defense Base Act, which minimizes the cost of such insurance to the Department of Defense and to defense contractors subject to it.

This will make for an interesting contrast in approaches between the Defense and State departments. A congressional study found that, in regard to the DBA requirement to obtain insurance, three agencies — the State Department, USAID and the Corps of Engineers — conducted a competition to select an insurance carrier to offer this insurance at low rates to their contractors.

Typically, insurers offering workers compensation pay out as much in claims and expenses as they take in through premiums. The carriers make their real money off investment returns they earn during the interval between when they receive premiums and pay claims and expenses.

This was the experience of the State Department, USAID and the Corps of Engineers. In fact, the company that won these contracts, CNA, actually paid out 8 percent more in claims and expenses than it had received in premiums. But these contracts represent only 10 percent of the insurance market in Iraq and Afghanistan.

Ninety percent of the Defense Base Act market is controlled by the Pentagon, and that experience has been completely different. Under the Pentagon approach, private contractors negotiate with private insurers but bill the taxpayers for the costs. This arrangement has been exceptionally lucrative for the private insurers and the contractors. Over the last five years the four largest private insurers made underwriting profits of nearly 40 percent.

Section 854 requires mechanisms for ensuring that contractors are required to report offenses that are alleged to have been committed by or against contractor personnel to appropriate investigative authorities.

Finally, Section 870 calls for the establishment of a government-wide Contingency Contracting Corps that shall “be available for deployment in responding to an emergency or major disaster, or a contingency operation, both within or outside the continental United States.”

This is overdue and desperately needed, as monitoring of military contracting has long been a scandal. The 2007 independent Commission on Army Acquisition and Program Management in Expeditionary Operations found significant failures in the Army’s contracting and contract management.

Among other things, it found contracting personnel received no on-the-job training until after they had been shipped out to war zones like Iraq and Afghanistan.

The commission suggested improvements to the Army’s contracting personnel, the reorganization of contracting in expeditionary operations and at home, training for contracting activities, and getting external assistance to ensure contracting efficiency. It also recommended that the Pentagon add up to 2,000 military and civilian contract officers, strengthen the Defense Contract Management Agency, overhaul its personnel system and reform its procurement procedures.

–

Tags: CACI, CoE, USAID

Defense Contractors’ Growing African Business

Nov 10, 2008 Africa, Industry News

Northrop, Lockheed Martin, and other defense outfits see opportunities as the U.S. government, private industry, and the U.N. spend more in Africa

By Lawrence Delevingne of Business Week

Five years ago, Africa didn’t matter much to DynCorp International (DCP). The Falls Church (Va.) company had its hands full in Afghanistan and Iraq, where it recruited, trained, and supplied police. But with big new contracts in Liberia, Sudan, and Somalia—and lots of potential business elsewhere on the continent—DynCorp’s interest in Africa is growing fast. In fact, Africa is now so important that the company this month is paying to be the top sponsor of a Washington conference for defense contractors focused on the region.

In recent years, DynCorp’s African business has grown to $150 million annually, or 7% of its total revenue, and it’s looking for more. The company is eyeing “major” business opportunities there, says Will Imbrie, business development chief at DynCorp. It’s bidding on extending a current contract to train peacekeepers in Sudan for the U.S., and expects there may be a chance soon to build schools and hospitals on the continent for the U.S. Agency for International Development. Another possibility could be a contract to work with the army in the Democratic Republic of Congo for the U.N. “Africa really fits into the company’s sweet spot” Imbrie says.

DynCorp isn’t alone. Companies such as Triple Canopy, Northrop Grumman (NOC), PAE (a unit of Lockheed Martin (LMT)), and MPRI (a unit of L-3 Communications (LLL)) have received at least $1.1 billion for programs in Africa since 2004—mostly State Dept. and Pentagon contracts to train African soldiers, a steep increase from 2003. The continent, however, still represents only a small slice of U.S. defense contractors’ worldwide business, which totaled $20 billion to $316 billion last year, depending which companies and services are counted.

African Market Growth

Africa is now one of the industry’s most promising growth markets. American companies are currently bidding on U.S. and U.N. contracts that will be worth at least $1.2 billion over the next five years, and they see even more work providing security for oil companies, mining outfits, and other Western corporations operating in Africa. There’s probably even more than that on tap, experts say, but projections are difficult because many government contracts don’t break out funds for contractors until after the fact, and other contracts aren’t publicized. “There’s a huge surge” in African work, says consultant Frances Cook, a former U.S. ambassador to Cameroon and Burundi who advises clients on working in Africa. Since 2005, contractors have helped the U.S. train nearly 80% of African peacekeepers—some 39,000 soldiers from 20 countries. “It’s big bucks,” she says.

The biggest known prize, the continuation of an ongoing State Dept. peacekeeper-training program, is set to be awarded by February. The deal is worth up to $1 billion over five years, and involves support services such as communications, maintenance, and construction, rather than the armed security work carried out in Iraq by the likes of Blackwater, which has battled with insurgents.

The rise in spending since 2003, mainly by the U.S. government and going to U.S.-based private contractors, parallels the continent’s rise in strategic importance. The White House now views Africa as an important battleground for stopping terrorism, securing access to oil, and countering Chinese influence, analysts say. The Pentagon’s new oversight structure for the continent, The U.S. Africa Command, AFRICOM, formally launched on Oct. 1 with a requested budget of $400 million and a mandate that recognizes the “emerging strategic importance of Africa,” according to the command’s Web site.

Controversial Outcomes

Many experts are critical of the contractors working in Africa and of the rising U.S. military presence there. “If you look at the record for these programs in terms of teaching respect for human rights, professionalizing militaries, and preparing African armies for peacekeeping operations—all of which are perfectly laudable goals—the end result of the programs doesn’t contribute very much to those,” says Daniel Volman, who directs the African Security Research Project in Washington. “It’s much more likely to be used for purposes not intended by the U.S. government: counter-insurgency warfare, terrorizing populations, repressing internal dissent, etc.”

Volman and others cite Executive Outcomes, a now-defunct South African mercenary force, as an example of the hazards of private defense contractors in Africa. Executive Outcomes fought on behalf of the repressive governments of Angola and Sierra Leone in their mid-1990s civil wars. Before being shut down by the South African government in 1998, the company also did security work for mining and oil companies in Africa, work that is continued today by other contractors.

The industry has since tried to clean up its image. The International Peace Operations Assn., a trade group that is sponsoring this month’s conference, promotes ethical conduct and consults with governments, nonprofits, and others. But while there are oversight mechanisms to prevent corruption and abuses of power, says independent analyst David Isenberg, often “the people who are supposed to implement them aren’t there.”

That criticism isn’t likely to deter the defense industry from pursuing more work in Africa, most of which doesn’t include armed security. Douglas Ebner, a DynCorp spokesman, refutes the notion that the company is a mercenary force, noting that most work is in training and equipping police, peacekeepers, and other armed forces in support of U.S. and U.N. objectives. Only 2% of the company’s sales, he says, come from security work. When asked about Executive Outcomes, Ebner insists, “We’re not that.”

Tags: Blackwater, DynCorp, Executive Outcomes, Triple Canopy

Blackwater: We’ll Fight Somalia’s Pirates

Nov 10, 2008 Africa, Industry News, World Events

By Noah Shachtman at Wired News

Security analysts and the Somali government are publicly flirting with the idea of hiring mercenaries to stop the pirates that are terrorizing east Africa. Now, the notorious guns-for-fire at Blackwater are responding to the call, with a resounding arrrr!!!!!

“Blackwater Worldwide today announced that its 183-foot ship, the McArthur, stands ready to assist the shipping industry as it struggles with the increasing problem of piracy in [Somalia's] Gulf of Aden,” the firm says in a statement. “As a company founded and run by former Navy SEALs, with a 50,000-person database of former military and law enforcement professionals, Blackwater is uniquely positioned to assist the shipping industry.”

Somali pirates have hit commercial vessels 100 times, just in this year. The U.S. Navy and its allies have admitted than they don’t have a big enough fleet to ensure every ship’s safety. So ship owners are now reaching out to Blackwater for protection, according to Executive Vice President Bill Matthews.

It’s not eactly a brand-new idea. Mercenaries have been battling pirates for a good eight centuries, off and on. Back in 2005, the Somali government tried to hire a U.S. security contractor for maritime protection — only to have the company fall victim to scandal. This June, there were conflicting reports that a French security outfit had won a $150 million deal to take the American firm’s place. One U.S. admiral even joined in the pirate-fighting mercenary chorus, allegedly. But it “raises more legal issues than anyone could possibly count.”

Meanwhile, Blackwater is looking for new income streams, as its business protecting diplomats and executives in Iraq looks increasingly fragile. Blackwater employees are protecting missile interceptors in Japan, schooling Taiwan’s secret police, and rescuing blondes in Kenya. The company is assembling a private fleet of airplanes, helicopters, and spy blimps. And let’s not forget about Blackwater’s work after Katrina in New Orleans. Maybe the company will get a chance to follow up another mess.

Tags: Blackwater, Piracy