Security Outsourcing—Adjusting The New Rules For the Federal Government Overseas Private Security Contractor Procurement System By Todd Jason Hanks B.A., February 1996, State University of New York at Buffalo M.A., October 1998, Columbia University, Teacher’s College J.D., May 1999, Seton Hall University School of School LL.M, May 2010, The U.S. Army Judge Advocate General’s Legal Center and School
A thesis submitted to
The Faculty of The George Washington University Law School in partial satisfaction of the requirements for the degree of Master of Laws May 18, 2014
Thesis directed by Steven L. Schooner Nash and Cibinic Professor of Government Procurement Law; Co-Director, Government Procurement Law Program Dedication
I dedicate this thesis to my loving and supporting wife, Irene, two doting sons, Cenobio and Cadel, and my adoring daughter Martha. My dedication to this article is due to their support, patience and encouragement. You are the flicker in my heart.
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Acknowledgments
The author wishes to thank Professors Steven L. Schooner and Karen D. Thornton for
their insight, guidance, and encouragement. Many thanks also to Mr. Mark A. Rivest,
U.S. Army Legal Services Agency, Colonel Thomas C. Modeszto, U.S. Army Judge
Advocate General’s Corps, Lieutenant Colonel Ryan J. Lambrecht, U.S. Air Force Judge
Advocate General’s Corps, and William D. Faith, Esq., Legal Advisor for the Afghan
Public Protection Force Advisory Group, for their unwavering support and assistance
with resources and background information. I thank Christopher T. Mayer, Director of
U.S. Department of Defense Armed Contingency Contractor Policy and Programs, Doug
Brooks, Consultant on Private Sector Stability Operations, and Michael Love, MKL
Associates, for their time, expertise, and many valuable recommendations in this subject area. Finally, I thank Stephen T. Watson, News Staff Reporter for The Buffalo News for his editorial acumen and recommendations.
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Disclaimer
Major Todd J. Hanks serves in the U.S Army Judge Advocate General’s Corps. This paper was submitted in partial satisfaction of the requirements for the degree of Master of
Laws in Government Procurement at The George Washington University Law School.
The views expressed in this paper are solely those of the author and do not reflect the official policy or position of the U.S. Army, Department of Defense, or U.S.
Government.
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Abstract
Security Outsourcing—Adjusting The New Rules For the Federal Government Overseas Private Security Contractor Procurement System
Over the past decade of armed conflict in the Middle East, the United States increased its use of Private Security Companies (PSC) to fill capability security voids. The increase in security demands led to expanding PSC contracts to areas abroad that were not tied to the armed conflicts in Iraq and Afghanistan. The Department of State (DOS) contracted with PSCs to guard its embassies and diplomatic missions, while the
Department of Defense (DOD) contracted with PSCs to provide guards for its overseas installations. The DOD’s prime contractors in Iraq and Afghanistan often subcontracted for security services to deal with the increased hazards of the conflicts. While the demand for PSC contracts went up, procedural planning and oversight of these contracts lagged behind. A statutory and regulatory framework now exists that requires the DOD to develop procedures and rules for PSCs performing during combat operations and other significant military operations. The PSC legislative and regulatory regimes should be expanded to overseas strategic sites, like overseas military installations and diplomatic missions. The federal government should consolidate the PSC regulatory mandates under a single, uniform system to increase efficiencies and consistencies over PSC contracts.
Finally, enforcement mechanisms should be expanded to provide efficient and timely oversight to the Geographic Combatant Commands (GCC) that contract with PSCs.
These mechanisms, together with a uniform PSC system, will ensure a transparent enforcement system that promotes fairness, sound judgment and efficiency.
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Table of Contents
INTRODUCTION ...... 1
I. STATUTORY AND REGULATORY GAPS IN PSC CONTRACTING ...... 6
A. POOR PLANNING LEADS TO STRATEGIC RISK 8
B. THE NEW PSC LAW REGIME—A BROAD SCOPE WITH A NARROW APPLICATION 12
C. PROTECTING STRATEGIC SITES OUTSIDE OF CONTINGENCY AREAS 15
D. PROTECTING OVERSEAS STRATEGIC SITES IN NON-COMBAT ZONES 19
E. PROMULGATING THE FINAL RULES—AN INTERAGENCY QUAGMIRE 23 II. THE PROBLEMS WITH REGIONAL SPECIFIC POLICIES ...... 26
A. DIFFERING PROCEDURES CAUSE INEFFICIENCIES AND TRAINING PROBLEMS 27
B. INTERAGENCY PROCEDURAL DISPARITIES CAUSE INEFFECTIVENESS AND ENFORCEMENT ROADBLOCKS 31
C. DIFFERING AGENCY INDUSTRY STANDARDS CREATE GOVERNMENT INEFFICIENCIES 36
D. STATUTORY AND REGULATORY DIRECTIVES LACK ADEQUATE PSC OVERSIGHT, ENFORCEMENT AND TRANSPARENCY MECHANISMS 39 III. STRATEGIC SOLUTIONS TO INCREASE PSC OVERSIGHT AND
ENFORCEMENT ...... 44
A. BROADEN SECTION 862 REQUIREMENTS TO NATIONAL STRATEGIC SITES ...... 45
B. IMPLEMENT THE ANSI/ASIS STANDARDS GOVERNMENT-WIDE 47
C. ESTABLISH OVERSIGHT AND TRANSPARENT ENFORCEMENT MECHANISMS 49 1. APPLY MINIMUM STANDARD INVESTIGATION STANDARDS TO PSC CONTRACTS ...... 49 2. BROADEN SECTION 841 AUTHORITY TO ALL OVERSEAS GCCS ...... 51 3. IMPLEMENT TRANSPARENT SECTION 841 DECISIONS ...... 53 4. CO-LOCATE SUSPENSION OFFICIALS WITHIN THE GCC’S AORS ...... 55 CONCLUSION ...... 59
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As George Orwell pointed out, people sleep peacefully . . . only because rough men stand ready to do violence on their behalf.1
Introduction
Engaging in war is a dirty business borne on the backs of the military—but not the military services alone.2 The complex nature of international armed conflict3 often invokes domestic policy concerns over national defense, the timing and risk of sending
American troops into harm’s way, and the significant costs of such undertakings.4 Over the past twelve years of contingency operations5 in Southwest Asia, many of the costs
1 Richard Genier, Perils of Passive Sex, The Washington Times, April 6, 1993 (Paraphrasing political writer George Orwell’s commentary about poet Rudyard Kipling’s Tommy, a poem depicting the rugged nature of soldiers and the English aristocracy’s general disdain for them). George Orwell pontificated further about the subject, editorializing that “men can only be highly civilized while other men, inevitably less civilized, are there to guard and feed them.” George Orwell, Rudyard Kipling (1942), reprinted in THE ORWELL READER, FICTION, ESSAYS, AND REPORTAGE BY GEORGE ORWELL 274 (Harcourt, Brace and Company New York, ed., 1st ed., 1956) (Referencing Kipling’s poem “Tommy”). An excerpt of Tommy demonstrates the hypocrisy of the English aristocracy Kipling attempted to capture at the time:
Yes, makin' mock o' uniforms that guard you while you sleep . . . But it's "Saviour of 'is country" when the guns begin to shoot . . . .
Rudyard Kipling, Tommy, reprinted in RUDYARD KIPLING, KIPLING 100 POEMS OLD AND NEW 62 (Thomas Pinney, ed., 2013) (emphasis added). In 1943, Orwell again emphasized the paradoxical assumption that a nationalistic pacifist must assume—“Those who ‘abjure’ violence can only do so because others are committing violence on their behalf.” George Orwell, Notes on Nationalism, POLEMIC—A MAGAZINE OF PHILOSOPHY, PSYCHOLOGY, AND AESTHETICS, Oct. 1945, reprinted in GEORGE ORWELL—ENGLAND, YOUR ENGLAND AND OTHER ESSAYS 4 (Secker & Warburg, ed., 1953). 2 See JAMES WRIGHT, THOSE WHO HAVE BORNE THE BATTLE: A HISTORY OF AMERICA'S WARS & THOSE WHO FOUGHT THEM (2012) (Chronicling how the U.S. historically wages war through the military and other civilians); see also Andrew J. Bacevich, Thank You for Your Serv., Sort Of, New York Times Sunday Book Review, May 25, 2012 (Reviewing Wright’s book, “Those Who Have Borne the Battle: A History of America’s Wars & Those Who Fought Them”). 3 The term “international armed conflict” connotes any armed conflict between two or more States. INT’L COMM. OF RED CROSS, GENEVA CONVENTION (I) FOR AMELIORATION OF CONDITION OF WOUNDED & SICK IN ARMED FORCES IN FIELD: COMMENTARY 32 (Jean Pictet gen. ed., 1958). 4 CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Parent trans., Princeton 1989) (Defining war as “an act of policy”). Clausewitz’s wondrous trinity theory of war weighted the relationship violence, the interplay of chance, and “the element of subordination, as an instrument of policy, which makes it subject to reason alone.” Id. at 89. 5 DOD defines the term “contingency operation” as “A military operation that is either designated by the Secretary of Defense as a contingency operation or becomes a contingency operation as a matter of law. (Title 10, United States Code, Section 101[a][13]).” CHAIRMAN OF JOINT CHIEFS OF STAFF, JOINT PUB. 1- 02, DICTIONARY OF MILITARY & ASSOCIATED TERMS 57 (8 Nov. 2010, as amended though 15 Oct. 2013)
1 and risks were shouldered, in large part, by contractors.6 Throughout this period, the reliance on contractors to augment American military service members7 spurred continual Congressional debate8 and the call for much needed federal contract oversight.9
[hereinafter JOINT PUB. 1-02], citing 10 U.S.C. § 101(a)(13) (Describing “contingency operation” as one designated by the Secretary of Defense as . . . military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or . . . results in the call or order to, or retention on, active duty of members of the uniformed services . . . or any other provision of law during a war or during a national emergency declared by the President or Congress”). Previously, the DOD referred to military operations as either War or Military Operations Other Than War (MOOTW), but discontinued the use of the latter term and acronym in 2006. See U.S. DEP’T OF DEFENSE JOINT PUBLICATION 3-0, JOINT OPERATIONS (17 Sept. 2006). 6 See OWCP Defense Base Act Case Summary Reports, Dep’t of Labor, Office of Worker’s Compensation Programs (Nov. 20, 2013, 3:10 PM), http://www.dol.gov/owcp/ dlhwc/dbaallnation.htm (Reporting 49,962 contractor Defense Base Act claims made from September 2001 through September 2013 for contracts performed in Iraq, and 27,197 claims made in the same period for contracts performed in Afghanistan); see Rod Nordland, Risks of Afghan War Shift From Soldiers to Contractors, The New York Times February 11, 2012 (Comparing 430 American contractors killed with 418 service members killed in Afghanistan in 2011); see also Steven L. Schooner, Why Contractor Fatalities Matter, 38 Parameters 78, 79-80 (2008) (Portraying the U.S. Military’s growing strategic use of contractors during contingency operations). 7 See Report on U.S. Use of Private Security Firms Overseas Before Comm. on S. Homeland Sec. & Gov’t’l Affairs, 110th Cong. (2008) (statement of Sen. Susan M. Collins) (Asserting that private security firms augment American service members overseas when they are unavailable to provide services and requirements); Hearing on Impact of Security Policy Changes on Reconstruction in Afghanistan Before Subcomm. on Nat’l Sec., Homeland Def., & Foreign Operations, Comm. on H. Oversight & Gov’t Reform 112th Cong. (2012) (statement of J. Alexander Their, Ass. to USAID Adm’r, Dir. of Office of Afghanistan & Pakistan Affairs) (Testifying on DOS’s need and use of private security firms to provide security services for its overseas projects); Hearing on the Role of Private Security Firms Before S. Commission on Wartime Contracting in Iraq & Afghanistan, 111th Cong. (2010) (statement of Charlene Lamb, Deputy Ass. Sec’y For Int’l Programs, Dir. of Diplomatic Sec. Serv. Dep’t of State) (Calling on Dep’t of State continued need for private security firms in post-war Iraq); INQUIRY INTO ROLE & OVERSIGHT OF PRIVATE SECURITY CONTRACTORS IN AFGHANISTAN, S. REP. NO. 111-345, at 88 (2010) (Add’l views of Senators McCain, et al.) (Asserting that private security firms were needed in Afghanistan to provide security services when the national focus was on the conflict in Iraq). 8 See e.g., Hearing on Private Security Firms Operating in Iraq, Before the H. Subcomm. on Nat’l Sec., Emerging Threats, & Int’l Relations, Comm. on H. Gov’t Reform, 109th Cong. (2006) (statement of Rep. Christopher Shays) (Opening the hearing on the changing roles and missions of private security contractors performing in Iraq), (statement of Alan Chvotkin, Senior Vice President and Counsel, Professional Serv. Council) (Providing the subcommittee with oversight recommendations and private security firm reforms while operating in Iraq); Hearing on the Role of Private Security Firms Before the S. Commission on Wartime Contracting in Iraq & Afghanistan, 111th Cong. (2010) (statement of Ignacio Balderas, Chief Executive Officer, Triple Canopy, Inc.) (Outlining the benefits of using private security firms and the fallacies associated with these companies); 156 CONG. REC. H1251-01 (daily ed. March 10, 2010) (statement of Aram Roston, Investigative Journalist) (Asserting that private security firms are often compelled to associate with local national criminal and terrorist networks to provide security and related services to the American military contingency during debate over the Afghanistan War Powers Resolution). 9 See INQUIRY INTO ROLE & OVERSIGHT OF PRIVATE SECURITY CONTRACTORS IN AFGHANISTAN, S. REP. NO. 111-345, at 52-56 (2010) (Calling for robust oversight of private security firms performing in Afghanistan); AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 2011 FOR MILITARY ACTIVITIES OF DEP;T OF DEFENSE, FOR MILITARY CONSTRUCTION, & FOR DEFENSE ACTIVITIES OF DEP’T OF ENERGY, TO
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Deficits in the existing private security company (PSC) regulatory regime quickly became apparent.10 Law and regulation soon developed to implement existing agency practices over PSC contracting.11 The aftermath of this decentralized approach resulted in key events that captivated the world’s attention and, sometimes, even altered American strategy in battle hardened areas struggling over sovereignty and stability.12 Reports of the 2005 PSC convoy guards shooting at a U.S. Marine lookout tower near Fallujah,
Iraq,13 the 2006 PSC employee shooting of an Iraqi guard detailed to the Iraqi Vice-
President,14 the 2007 civilian casualties in Nisur Square,15 the 2007 security contractors
PRESCRIBE PERSONNEL STRENGTHS FOR SUCH FISCAL YEAR, & FOR OTHER PURPOSES, S. REP. NO. 111– 201, at 166 (2010) (Recommending new oversight and accountability measures over private security firms performing contracts in areas where combat operations are taking place); NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008, H.R. REP. NO. 110–477, Sec. 841 (2007) (Proposal of the establishment of the Commission on Wartime Contracting in Iraq and Afghanistan to provide oversight studies of contractors in Iraq and Afghanistan). 10 See Email from Christopher T. Mayer, Director, U.S. Dep’t of Defense Armed Contingency Contractor Policy and Programs, ODASD (Program Support), to author (Apr. 2, 2014, 4:14 PM E.S.T.) (on file with author) [hereinafter “Mayer Email”] (Providing review and input for author’s LL.M thesis); see also Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations or Other Significant Military Operations, 76 Fed. Reg. 49650-02, 49650 (Aug. 11, 2011) [hereinafter DOD PSC Final Rule 2011] (Acknowledging that “there was insufficient policy and guidance regulating the actions of DOD and other governmental PSCs and their movements in operational areas”). 11 See Mayer Email, supra note 10 (Providing review and input for author’s LL.M thesis); see also, e.g., Hearing on the Role of Private Security Firms Before the Comm. on S. Comm’n on Wartime Contracting in Iraq & Afghanistan, 111th Cong. (2010) (statement of Danielle Brian, Exec. Dir., Project On Gov’t Oversight (POGO)) (Testifying about the 2006 DFARS change permitting private security contractors to use deadly force when necessary to protect people and equipment); National Defense Authorization Act For Fiscal Year 2008 Conference Report, H.R. Report 110-477, 110th Cong. § 862 (2007) [hereinafter FY 2008 NDAA] (Proposal to insert a contract clause for private security firms performing contracts in areas of combat operations). 12 MOSHE SCHWARTZ, CONG. RESEARCH SERV., R40835, DOD’S USE OF PRIVATE SECURITY CONTRACTORS IN AFGHANISTAN & IRAQ: BACKGROUND, ANALYSIS & OPTIONS FOR CONGRESS 14-15 (2011) (Finding that federal government contractors’ misconduct could adversely impact the American strategy and, in some instances, embolden enemy insurgents in post-war Iraq and Afghanistan). 13 See David Phinney, Marines Jail Contractors in Iraq, CorpWatch.com, June 7, 2005 (Apr. 15, 2014, 1:08 PM), http://www.corpwatch.org/article.php?id=12349 (Reporting on PSC Zapata allegedly firing on a Marine lookput tower while providing convoy security in Iraq). 14 Eric Schmitt, Report Details Shooting by Drunken Blackwater Worker, The New York Times, Oct. 2, 2007 (Apr. 15, 2014, 1:49 PM), http://www.nytimes.com/2007/10/02/world/middleeast/02shooting.html?_r=0 (Reporting on a drunk Blackwater employee who allegedly shot an Iraqi guard detailed to the Iraqi Vice-Present). 15Indictment, United States vs. Paul Alvin Slough, et als., (D.C. 2012) (No. CR-08-360 (RCL)) [hereinafter Nisur Square Indictment] (Jan. 31, 2014, 4:30 PM), http://www.contractormisconduct.org/ass/contractors/123/cases/ 798/2823/blackwater-latc-iraq-
3 indiscriminately shooting civilians outside of their SUV in Iraq;16 and the 2008 summary killing of a captured civilian suspected of setting another civilian aflame in Kandahar are but a few incidents where PSCs were involved in questionable and publicly alarming activities. 17 These incidents are augmented by a larger regime of crimes, like fraud, bribery, and assault cases, which heavily contributed to the need for further oversight.18
firefight_october-2013-update_indict.pdf (Charging Blackwater Worldwide contractors with voluntary manslaughter, attempted manslaughter, using and discharging a firearm in relation to a crime of violence, and aiding and abetting for conduct related to the Nisur Square incident in Iraq on September 16, 2007); HOUSE OF REP. COMM. ON OVERSIGHT & GOV’T REFORM, 110TH CONG., MEMORANDUM FROM THE MAJORITY STAFF, RE: ADDITIONAL INFORMATION ABOUT BLACKWATER USA 1 (Oct. 1, 2007) (Jan. 31, 2014, 4:35 PM), http://www.contractor misconduct.org/ass/contractors/123/cases/798/933/blackwater-latc- iraq-firefight_report.pdf (Reporting that Blackwater engaged in at least 195 escalation of force incidents since 1995); see, generally, United States v. Slough, et al., 641 F.3d 544 (Fed. Cir. 2011) (Remanding district court’s dismissal of an indictment for voluntary manslaughter and weapons violations related to a PSC’s shooting of civilians in Iraq); see also LAURA A. DICKINSON, OUTSOURCING WAR & PEACE— PRESERVING PUBLIC VALUES IN A WORLD OF PRIVATIZED FOREIGN AFFAIRS 56-57 (Yale University Press, 2011) (Noting a military lawyer’s recollection of the Nisur Square incident where the PSC personnel wittingly used warning shorts to clear traffic). 16 See Steve Fainaru & Alec Klein, In Iraq, a Private Realm Of Intelligence-Gathering, The Washington Post, July 1, 2007 (Apr. 15, 2014, 1:29 PM), http://www.washingtonpost.com/wp- dyn/content/article/2007/06/30/ AR2007063001075.html (Reporting on PSC Aegis’ purported video of its employees indiscriminately shooting outside of their SUV in Iraq that was posted on the internet by one of its employees); see also Sean Rayment, 'Trophy' Video Exposes Private Security Contractors Shooting Up Iraqi Drivers, The Telegraph, Nov. 27, 2005 (Apr. 15, 2014, 1:33 PM), http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/1504161/ Trophy-video-exposes-private- security-contractors-shooting-up-Iraqi-drivers.html; Lisa Myers, Contractors In Iraq Interview Aegis Trophy Video, NBC News, Feb. 17, 2005 (Apr. 15, 2014, 1:36 PM), http://www.nbcnews.com/id/6947745/ ns/nbc_nightly_ news_with_brian_williams-nbc_news_investigates/t/us-contractors-iraq-allege- abuses/#.U01t 9Z5OXyc (Reporting on the allegations made against Aegis PSC employees about a video of them indiscriminately shooting at civilians in Iraq). 17 See Bruce Alpert, Killing in Afghanistan Hits Very Close to Home, Times-Picayune, Dec. 16, 2008 (Describing the circumstances under which an armed American PSC contract employee summarily executed a handcuffed local national civilian suspected of setting another Afghani civilian aflame while performing contract duties in Kandahar Province). 18 See, e.g., United v. Ali, 71 M.J. 256 (C.A.A.F. 2012) (Denying reconsideration of an Army Court of Criminal Appeals’ review of a general courts-martial’s conviction of third national civilian contractor in Iraq for wrongful appropriation); Project on Gov’t Oversight Website, POGO.org (Jan. 3, 2014, 7:00 PM), http://www.contractormisconduct.org/index.cfm/1,73,222, html?CaseID=1599 (Reporting the April 3, 2011 settlement between the U.S. government and PSC DynCorp International Inc. for fraudulently submitting false claims for payment for contracts it performed for DOS for training Iraqi police); Project on Gov’t Oversight Website, POGO.org (Jan. 3, 2014, 7:11 PM), http://www.contractormisconduct.org/index.cfm/1,73,222,html ?CaseID=718 (Reporting the conviction of a contractor employee working for PSC L-3 Communications, a Titan Corp. subsidiary, for bribery to Iraqi police officials); Suhail Najim Abdullah AL SHIMARI, et al., v. CACI PREMIER TECHNOLOGY, INC., et al., 657 F.Supp.2d 700, 706 (E.D. Virginia, 2009) (Describing PSCs performing interrogations at Abu Ghraib prison in Iraq who were accused of, inter alia, beating prisoners).
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The government’s reliance on private contractors to provide security services to DOD and other agencies does not appear to be changing anytime soon.19 The government’s goal, however, should be to use PSCs in a reasonable manner that complies with U.S. policies, domestic law and international legal obligations.20 Obstructions to meeting this goal include, inter alia, a lack of comprehensive regulatory conformity throughout the
U.S. government and abroad, and adequate mechanisms to efficiently assess and enforce consistent standards on the PSC industry.21 To achieve this goal and overcome the obstacles in place, the government should (1) expand the statutory framework and regulatory authorities used for PSCs in combat operations22 and Other Significant
Military Operations,23 (2) implement a single government-wide, uniform industry
19 For example, DOS expanded its indefinite delivery, indefinite quantity contract with a small number of PSCs to provide security and guard services to its embassy and mission facilities around the world. See U.S. Dep’t of State, Blackwater, Triple Canopy & Dyncorps Worldwide Personal Protective Serv. (WPPS) Contract No. SAQMPD-05-D1098—Specification Section 2-3 (undated) (Sept. 23, 2013, 11:23 AM), http://psm.du.edu/national_regulation/ united_states/ laws_regulations/index.html#contracts (Providing the Statement of Work for the WPPS). Senator Joseph Lieberman recognized the growth of the PSC industry, stating:
Throughout our history, the American military has relied on the private sector in what has been called a ``great arsenal of democracy`` to provide weapons and supplies for our fighting forces. But once it delivered the goods, the responsibilities of private industry ended. Over the past 15 years, we have seen a significant expansion of the role of private firms from just the manufacturers of military supplies, to suppliers of crucial military services, like the logistical support of our troops, the training of foreign police and armies, the conduct of interrogations, and the provision of armed security details.
U.S. Use Of Private Security Firms Overseas Before S. Homeland Security & Gov’t’l Affairs, 110th Cong. (2008) (statement of Joseph I. Lieberman, Chairman, Homeland Security & Gov’t’l Affairs Comm.) (emphasis added). 20 See Telephone Interview with Christopher T. Mayer, Director, U.S. Dep’t of Defense Armed Contingency Contractor Policy and Programs, ODASD (Program Support) (Apr. 3, 2014) [hereinafter “Mayer Interview”] (Providing review and input for author’s LL.M thesis). 21 See id. 22 See FY 2008 NDAA, supra note 10, at § 862 (Limiting the PSC regulatory mandate to combat operations). 23 See NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011, Pub. L. No. 111-383, 124 Stat. 4137, Section 831 [hereinafter FY 2011 NDAA] (Expanding the PSC regulatory mandate to include Other Significant Military Operations).
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standard for PSCs, and (3) provide greater oversight and enforcement authority to the
GCCs that contract for PSC services.
Part I of this paper discusses the gaps in the U.S.’ implementation of PSCs, focusing on the PSC contracting policies and new rules governing overseas PSC contracts. Part II focuses on the inefficiencies of differing agency rules, the problems of a non-transparent
PSC regulatory regime and oversight issues affiliated with these rules. Part III proposes changes in the existing law and regulatory rules related to PSC contracting activities to address these challenging areas.
I. STATUTORY AND REGULATORY GAPS IN PSC CONTRACTING The federal government’s proliferation of PSC contracts in the past few decades began
with diverse approaches.24 Following the attacks on the U.S. embassy in Beirut,25 the
Omnibus Diplomatic Security and Anti-terrorism Act of 1986 delegated security
responsibilities for overseas diplomatic buildings and personnel to the Secretary of
State.26 The Reagan-era law provided PSCs the opportunity to compete for overseas
diplomatic missions’ contracts.27 The State Department’s direct export of armed
contractors exploded in 2000 with its Worldwide Personal Protective Services (WPPS)
contract with contractor DynCorp International to meet diplomatic security requirements
24 Compare Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense, Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating DOD’s use of the ANSI/ASIS industry standards in its PSC contracts), With U.S. Dep’t of State, Diplomacy in Action Media Note: DOS to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm (Reporting that DSS plans on requiring PSC membership in its WPS successor contract, as well as requiring PSCs to comply with the ANSI mandates). 25 David Isenberg, The Well-Ordered Worldliness of WPPS, United Press International, Sept. 19, 2008, reprinted in CATO Institute (2008), http://www.cato.org/publications/commentary/wellordered- worldliness-wpps (Mar. 30, 2014, 3:10 pm). 26 ALEX TIERSKY & SUSAN B. EPSTEIN, CONG. RESEARCH SERV., R42834, SECURING U.S. DIPLOMATIC FACILITIES & PERSONNEL ABROAD: BACKGROUND & POLICY ISSUES 3 (Nov. 8, 2013), citing to 22 U.S.C. § 4801 et seq., P.L. 99-399. 27 See David Isenberg, supra note 24. The DOS first deployed PSCs to Haiti in 1994 in response to the small island nation’s political unrest. See id.
6 in the former Yugoslavia.28 The DOS continued using PSC contractors with deployments to the Palestinian Territories and then to Afghanistan.29
In contrast to DOS’s prime contracts for security requirements, the bulk of DOD PSCs in Iraq and Afghanistan over the past decade resulted from subcontracting activities because the U.S. military did not provide security for them.30 DOD did not even formally track the number of PSCs performing security requirements in Iraq and
Afghanistan until well into 2007, much less account for the locations where individual
PSC employees operated from.31 When DOD finally started to monitor the number of
PSC employees, its systems could not keep up with the amount of PSC prime employees or the subcontractor numbers.32
The Departments of Defense and State continue to develop diverging PSC policies and rules for each of their outsourced security contracting requirements. 33 This rule fracturing causes poor planning and coordination between agencies that require
28 See id. 29 See id. 30 CONGRESSIONAL BUDGET OFFICE, PUB. NO. 3053, CONTRACTORS’ SUPPORT OF U.S. OPERATIONS IN IRAQ 13 (2008). The CBO reported that the U.S. military only provided security requirements to contractors that “deploy[ed] with the combat force or directly support the military’s mission.” Id. In 2013, the United States Central Command reported that most of its PSC contractors in Iraq and Afghanistan provided security services through subcontracts. U.S. Deputy Ass. Sec’y of Defense for Program Support, Contractor Support Of U.S. Operations In The USCENTCOM Area Of Responsibility To Include Iraq And Afghanistan (Jan. 2013), http://psm.du.edu/media/ documents/reports_and_stats/us_data/dod_quarterly_census/dod_quarterly_census_jan_2013.pdf (Mar. 30, 2014, 9:19 pm) (Reporting that most of DOD’s PSCs provides security for convoys, personnel and for static missions). 31 MOSHE SCHWARTZ, CONG. RESEARCH SERV., R40835, DOD’S USE OF PRIVATE SECURITY CONTRACTORS IN AFGHANISTAN & IRAQ: BACKGROUND, ANALYSIS & OPTIONS FOR CONGRESS 5-6 (2010). 32 Id. 33 Compare Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense, Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating DOD’s use of the ANSI/ASIS industry standards in its PSC contracts), With U.S. Dep’t of State, Diplomacy in Action Media Note: DOS to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm (Reporting that DSS plans on requiring PSC membership in its WPPS successor contract, as well as requiring PSCs to comply with the ANSI mandates).
7 synchronization on the international stage to meet national strategic objectives.34 The proceeding sections will explore how the new PSC rules lack developed policy guidance and are too narrow to meet the heavy demands of national security needs.
A. POOR PLANNING LEADS TO STRATEGIC RISK
The United States sits in a unique position to review its past thirteen years of armed conflict in Iraq, Afghanistan and other overseas military deployments,35 such as in the
Horn of Africa36 and in the Philippines.37 The terrorist attacks on September 11th, 2001
34 Rickey L. Rife, Lieutenant Colonel U.S. Army, & Rosemary Hansen, Foreign Serv. Officer, Defense is From Mars, State is From Venus—Improving Communications & Promoting Nat’l Security, U.S. Army War College iii (1998) (Mar. 12, 2014, 4:22 PM), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd =11&ved=0CCQQFjAAOAo&url=http%3A%2F%2Fwww.dtic.mil%2Fcgibin%2FGetTRDoc%3FAD%3 Dada351032&ei=pMAgU6GRB8ug 0gH35oD4CQ&usg=AFQjCNHOq7tSnXxmcaBFurXhL0x22xtWlA&cad=rjt (Asserting that DOD and DOS represent two pillars of the U.S. national security strategy and must work together when developing foreign policy). 35 See Joel Wuthnow, et als., U.S. Army in Asia: Opportunities & Challenges—Report of a Workshop of Experts, Report No. DCP-2013-U-004995-Final, Ctr for Naval Analysis—China Div. 1 (Aug. 2013) (Finding the U.S. national strategic objectives in the Asia-Pacific region will require the Army to focused on military-to-military engagements to provide capacity shaping capabilities); see also Rajiv Chandrasekaran, Army’s ‘Pacific Pathways’ initiative sets up turf battle with Marines, THE WASHINGTON POST, Dec. 29, 2013 (Detailing the U.S. Army’s Pacific Pathways Initiative that forward deploys Army units on a continuous basis to nations around the Asia-Pacific region to challenge China’s power grab by providing training and a presence in the area). 36 See ADDITIONAL DEPLOYMENT OF U.S. MILITARY PERSONNEL IN SOUTH SUDAN—COMMUNICATION FROM PRESIDENT OF UNITED STATES TRANSMITTING A LETTER INFORMING CONGRESS THAT ADDITIONAL U.S. MILITARY PERSONNEL WERE DEPLOYED TO SOUTH SUDAN TO SUPPORT U.S. PERSONNEL AND OUR EMBASSY, H.R. Doc. No. 113-81 (2013), http://www.gpo.gov/fdsys/pkg/CDOC-113hdoc81/pdf/CDOC- 113hdoc81.pdf (Notifying Congress of the President’s decision under the War Powers Act to deploy U.S. troops to South Sudan on December 21, 2013 to conduct evacuation operations of U.S. personnel); see Hearing on TRANSCOM & AFRICOM Before S. Armed Serv. Comm., 113th Cong. (2013) (statement of General Carter Ham, Commander, U.S. Africa Command), http://www.africom.mil/Content/CustomPages/ResearchPage/pdfFiles/2013%20AFRICOM%20Posture %20Statment.pdf (Notifying Congress of AFRICOM’s FY 2014 strategic posture and advising the Senate of AFRICOM’s plan to continue counter-terrorism capacity building in Djibouti, Ethiopia, Kenya and other African countries); see, generally, Combined Joint Task Force—Horn of Africa Website (Jan. 1, 2014, 9:05 AM), http://www.hoa.africom.mil/ (Describing the CJTF-HOA vision and mission in the Horn of Africa). 37 See, generally, http://jsotf-p.blogspot.com (Describing mission of the Joint Special Operations Task Force—Philippines, executing counter-terrorism and humanitarian operations); see Special Operations Command History 141-44 (6th ed., 2008) (Jan. 1, 2014, 9:06 AM), http://www.socom.mil/Documents/history6thedition.pdf (Recounting Operations BALIKATAN 02-1 & ENDURING FREEDOM—PHILIPPINES beginning with deployments by special operations troops in 2002 through the present).
8 set America on a fast pace to re-establish its defenses38 against an unfamiliar non-state enemy who sought martyrdom through terrorism.39 The Bush Doctrine projected U.S. foreign policy into other countries that dared not challenge the United States and her allies, lest they be deemed an enemy of the coalition for providing safe harbor to terrorists and other bad state actors.40 Money poured into the military, flowing down to government contractors like an open faucet as the United States struggled to find its footing in the post-9/11 world.41
This ramp up of defense contractors led to PSC contracts for base security, logistical
38 The total U.S. military active duty strength peaked at over 2.1 million personnel in September 1989. Defense Manpower Data Ctr, HISTORICAL REPORTS – FY 1954-1993 (Jan. 3, 2014, 11:30 AM), https://www.dmdc.osd. mil/appj/dwp/reports.do?category=reports&subCat=milActDutReg. Coming out of the 1990’s post-Cold War draw down error, the U.S. military found itself surging once again after the September 11th terror attacks in 2001. Active duty personnel strength rose from 1.38 in September 2001 to over 1.43 in September 2010. Defense Manpower Data Ctr, HISTORICAL REPORTS – FY 1993-2012 (Jan. 3, 2014, 11:30 AM), https://www.dmdc.osd.mil/ appj/dwp/reports.do?category=reports&subCat=milActDutReg. The military found itself lowering its personnel quality standards to meet its active duty recruiting goals, accepting more personnel without high school degrees and waiving pre-enlistment misconduct. LAWRENCE KAPP, CONG. RESEARCH SERV., RL 32965, RECRUITING & RETENTION: AN OVERVIEW OF FY2011 & FY2012 RESULTS FOR ACTIVE & RESERVE COMPONENT ENLISTED PERSONNEL 3-4, fn.10 (2013). 39 NATIONAL SECURITY STRATEGY OF UNITED STATES OF AMERICA 15 (Sept. 2002). President George W. Bush’s national security team assessed that the post-September 11th terrorists enemy would not be deterred by traditional methods whose followers “avowed tactics . . . [of] wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.” Id. 40 The 2002 National Security Strategy outlined the Bush Doctrine, an executive policy to defend the United States against weapons of mass destruction attacks by broadening its approach to imminent threats and acting preemptively against adversaries. NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 13-15 (Sept. 2002); see, generally, Jeffrey Record, Bush Doctrine & War with Iraq, 33 Parameters 1 (2003) (Outlining the Bush Doctrine’s formative tenants as using preemptive force against terrorist enemies who threaten the United States with weapons of mass destruction); see also, 28 U.S.C. § 1605A (2008) (Waiving the immunities of a sovereign nations that sponsor or cause acts of terrorism and providing civil liability jurisdiction to the federal and state courts). 41 Defense spending was cut during the post-Cold War era, but rose dramatically after the September 11th, 2001 terror attacks with a spike in fiscal year 2008 for the overseas contingency operations budget —$187 billion. Walker, Dinah, Trends in U.S. Military Spending, COUNCIL ON FOREIGN RELATIONS, Jul 2013, http://www.cfr.org/defense-budget/trends-us-military-spending/p28855#. Contrast this with the fiscal year 2000 overseas contingency operations budget, which only included the peacekeeping operations in Bosnia, was limited to $1.8 billion. NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008, Pub. L. No. 106-65, 113 Stat. 512, Section 1006(a) (1999).
9 support security,42 personnel security and other security-related requirements that U.S. agencies could not provide for themselves.43 After years of contracting for security services during the Iraq and Afghanistan conflicts, Congress attempted to promulgate a unified policy for overseas PSC contracts.44 Section 862 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2008 requires the DOD to establish regulatory guidance for the “selection, training, equipping, and conduct of personnel
42 Under the initial Logistics Civil Augmentation Program (LOGCAP) contract with Kellogg, Brown and Root Services (KBR) in 2001, the Army promised to provide force protection for the logistical contractor while performing in war and contingency operations areas. Kellogg Brown & Root Services, Inc., ASBCA No. 56258, 12-1 BCA ¶ 35,001 (2012). LOGCAP is a U.S. Army program that provides, inter alia, rapid logistical support augmentation to contingency base operations through contract mechanisms. U.S. DEP’T OF ARMY REGULATION 700-137, LOGISTICS CIVIL AUGMENTATION PROGRAM ¶ 3.1 (Dec. 28, 2012). LOGCAP support does not include direct security services. Id. at ¶ 6-3.d. During the initial few years of LOGCAP performance in the Iraq theater of operations, KBR submitted invoices to the Army for its security subcontract in an amount of $99.7 million. See Letter from Claire McCaskill, Senate Chairman, Subcommittee on Contracting Oversight, to Robert M. Gates, Sec’y of Defense (Nov. 6, 2009), http://www.mccaskill.senate.gov/index.cfm?p=subcommittee_on_contracting_oversight &pg=4 (Mar. 31, 2014, 11:02 am) (Requesting Secretary Gates about KBR’s improper billing). U.S. audits found that the lack of security in both Iraq and Afghanistan impeded reconstruction efforts, much of which was performed by contractors. See Memorandum from S. Subcomm. on Contracting Oversight Members & Staff on Afghanistan Contracts: An Overview (Dec. 16, 2009), http://www.comw.org/qdr/fulltext/2009-12- 16StaffMemo.pdf (Mar. 31, 2014, 11:15 am). KBR found itself in this security quagmire in the early days of Iraq, impacting its ability to provide logistical support to the Army. Kellogg Brown & Root Services, Inc., ASBCA No. 56258, supra, at ¶ 35,001. KBR notified the government that its failure to provide security for its convoys hampered its ability to continue performance. The Army responded that it would provide escorts when it has available units, effectively ignoring KBR’s concerns. Id. The Army’s failure to address KBR’s security concerns resulted in seven dead contract personnel, seven wounded and four missing from convoys during the months between mid-May to July 2003 alone Id. KBR’s subcontractor then undertook to provide its own security details to fill the security gaps left open by the Army. Id. A DCAA audit found that KBR’s invoices for this private security were unallowable costs which the Army could not pay for. Id. On administrative appeal, the Board found that the contract did not prohibit the use of PSCs to KBR or its subcontractors, effectively finding the security costs allowable. Id. In 2010, the U.S. government filed a claim against KBR under the False Claims Act for filing false claims related to the invoices for security costs in the Federal District Court for the District of Columbia. Complaint at ¶ 22, United States v. Kellogg Brown & Root Services, Inc., No. 10CV00530 (D.D.C., April 1, 2010), 2010 WL 1416216. Two years into the litigation the government dismissed its claims against KBR under seal. Order Granting Government’s Motion To Dismiss Without Prejudice, United States v. Kellogg Brown & Root Services, Inc., No. 10CV00530 (D.C.C. Nov. 15, 2012). 43 See P. W. SINGER, CORPORATE WARRIORS—RISE OF PRIVATE MILITARY INDUSTRY 92-100 (Cornell University Press, 2003). Peter Singer uses the term ‘privatized military firm’ (PMF) instead of the U.S. defined term ‘private security company.’ Singer divides PMFs into three categories: Military Provider Firms (providing tactical requirements, to include taking part in actual fighting), Military Consulting Firms (providing both advice and training services), and Military Support Firms (providing nonlethal assistance services, like logistical and intelligence support). 44 See generally FY 2008 NDAA, supra note 10, at § 862 (Contractors Performing Security Functions in Areas of Combat Operations).
10 performing private security functions under a covered contract in an area of combat operations.”45 Although similar to DOD’s current regulatory policy at the time,46 the law requires the defense department to develop regulation in nine specific areas of private security functions.47 Among these areas, the law directs DOD to develop an independent review and investigations’ process.48 Section 862 requires DOD to inquire into alleged PSC misconduct, weapons discharge incidents, PSC employee deaths and injuries, and any death, injury or property damage resulting from a PSC contractor.49
Section 862 addresses PSC contractor misconduct through preventive screening measures50 and contractual remedies.51 The legislation includes administrative enforcement mechanisms such as the requirement to conduct administrative
45 FY 2008 NDAA, supra note 10, at § 862 (Directing the Secretary of Defense to promulgate PSC regulations). Section 863 of FY08 NDAA defined the term Covered Contract as the following:
(A) a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; (B) a subcontract at any tier under such a contract; or (C) a task order or deliver order issued under such a contract or subcontract.
FY 2008 NDAA, supra note 9 at Section 863(a)(3). Further, the legislation broadly defined the term Private Security Functions as “(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party. (B) Any other activity for which personnel are required to carry weapons in the performance of their duties.” Id. at Section 863(a)(5). 46 See, generally, DFARS 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States (Revised Apr. 26, 2007); DFARS PGI 225.7402, Contractor personnel authorized to accompany U.S. Armed Forces deployed Outside the United States (Revised Nov. 8, 2007). 47 FY 2008 NDAA, supra note 9 at § 862(a)(2). 48 Id. at § 862(a)(2)(E). 49 Id. 50 Id. at § 862(a)(2)(F) (Requiring screening and, if practicable, background checks of PSC personnel); § 862(a)(2)(G) (Requiring PSC personnel training in “country information and cultural training, and guidance on working with host country nationals and military. . . .”); see also LAURA A. DICKINSON, OUTSOURCING WAR & PEACE—PRESERVING PUBLIC VALUES IN A WORLD OF PRIVATIZED FOREIGN AFFAIRS 56-57 (Yale University Press, 2011) (Reporting of military lawyers’ experiences with PSCs in Iraq using unnecessary lethal force at traffic control points and using warning shots to clear a street, leaving his soldiers with the consequences of the PSC’s actions and oft irate local civilian nationals to contend with). 51 Section 862 does not, for instance, provide for an expansion of criminal or civil remedies against PSC personnel. See, generally, FY 2008 NDAA, supra note 15 at Section 862.
11
investigations into PSC employee misconduct,52 the discretionary removal of PSC
employees from the theater of operations, and the authority to terminate for default.53
Congress directed DOD to promulgate its own rules for PSC contractors but declined to
provide expanded enforcement authority tools and investigatory mechanisms in the
legislation.54
While Section 862 directed DOD to form its own regulations, Congress and the
President missed a critical opportunity to provide specific direction in the law.55 The FY
2008 NDAA could have been a vehicle to forge a uniform and transparent national PSC
contracting policy to meet its strategic goals, but missed this opportunity by constraining
the law to a narrow set of operational activities.56 More specific guidance and uniformity
should have been the hallmark of the law. This construct could have enabled the Defense
and State Departments to work more focused together on the strategic national policy abroad while meeting their security needs through PSC contract vehicles.57
B. THE NEW PSC LAW REGIME—A BROAD SCOPE WITH A NARROW APPLICATION
The Section 862 legislation limits the application of mandatory PSC regulatory
policy.58 As initially enacted, FY 2008 NDAA applied only to “area[s] of combat operations.”59 With minor exceptions, Congress delegated sole authority to the Secretary
52 Id. at § 862(a)(2)(E) (Requiring the DOD promulgate regulatory procedures to conduct independent reviews and investigations). 53 Id. at § 862(b)(3) (Providing the incorporation of a contract clause into new and existing PSC contracts that permitted the contracting officer to remove the alleged offender and to terminate PSC contracts for default for gross and repeated violations). 54 See id., at § 862(a)(1) (Directing DoD to prescribe PSC regulatory policies). 55 See id. 56 See id. 57 See infra Section II.d. for futher discussion about problems with the lack of PSC rule uniformity. 58 See id. at § 862(a)(1) (Limiting PSC regulatory application to combat operations areas). 59 FY 2008 NDAA, supra note 9, at § 862(a)(1).
12 of Defense to designate these areas.60 The FY 2011 NDAA broadened the scope of this authority to include “Other Significant Military Operations.”61 Other Significant Military
Operations activities include overseas contingency non-combat “operation[s] that are carried out by the U.S. Armed Forces in an uncontrolled or unpredictable high-threat environment where personnel performing security functions may be called upon to use deadly force.”62
Although Section 862 specifically directs DOD to promulgate PSC regulation, the law also requires DOD to coordinate with DOS in areas relating to this regulation.63 The law, however, is not sufficiently broad to cover DOS’s wide range of overseas diplomatic activities even though it is one of the largest global consumers of prime contractor
PSCs.64 Other agency overseas activities requiring PSC contracts are only covered by the
60 Id. at § 862(c)(1). Under the original legislation, Congress specifically designated Iraq and Afghanistan as combat operations areas. Id. at § 862(c)(2). Similarly, the 2011 statutory amendments required the Secretary of Defense to make a specific decision about whether the Horn of Africa, Yemen and the Philippines should be designated as areas of operations. NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011, Pub. L. No. 111-383, 124 Stat. 4137, Section 832(b) [hereinafter FY 2011 NDAA]. The legislation also authorized the Secretary of Defense to modify or cease a designation in areas where combat operations no longer existed. This authority appeared to also apply to the Congressionally mandated areas, as named above in this paragraph. See FY 2008 NDAA, supra note 10, at § 862(c)(4). 61 FY 2011 NDAA, supra note 43, at § 832(a)(2)(C). 62 Id. The DOD expanded these activities to “contingency operation[s], humanitarian or peace operation[s], or other military operation[s] or exercise[s] within their AOR. . . .” U.S. DEP’T OF DEFENSE INST. 3020.50, PRIVATE SECURITY CONTRACTORS (PSCS) OPERATING IN CONTINGENCY OPERATIONS, HUMANITARIAN OR PEACE OPERATIONS, OR OTHER MILITARY OPERATIONS OR EXERCISES, Encl. 3, ¶ 1 (Change 1, Aug. 1, 2011). These expanded activities are limited to DOD, however. 63 FY 2008 NDAA, supra note 9, at § 862(a); FY 2011 NDAA, supra note 43, at § 832(c)(1) (Inserting an amended limitations clause into the law). 64 See U.S. Dep’t of State, Blackwater, Triple Canopy & Dyncorps Worldwide Personal Protective Serv. (WPPS) Contract No. SAQMPD-05-D1098—Specification Section 2-3 (undated) (Sept. 23, 2013, 11:23 AM), http://psm.du.edu/national_regulation/ united_states/ laws_regulations/index.html#contracts (Providing for global PSC services to DOS’s diplomatic missions). The DOS also regulates U.S. companies exporting arms and military-related services overseas pursuant to the 1968 Arms Control Export Act. 22 U.S.C. §§ 2751, et seq. This oversight is implemented through the DOS’ International Traffic Controls in Arms Regulations. See ROBERT MANDEL, ARMIES WITHOUT STATES: THE PRIVATIZATION OF SECURITY 152-53 (Lynne Reinner, 2002).
13 law if they are operating in combat areas or Other Significant Military Operations areas.65
The Section 862 PSC regulatory requirements do not apply, for example, to lower threat areas where humanitarian operations are conducted by the military or humanitarian assistance is conducted by the U.S. Agency for International Development (USAID) in developing and, often, dangerous nations.66 The Section 862 legislation does not apply to the defense of U.S. embassies and consulates outside of combat zones, or other overseas strategic sites, like overseas military bases where PSCs may be contracted to provide security services.67 Although military installations currently operate under a rubric of regulatory structured policy and guidelines that meet the Section 862 mandates, the law does not require compliance outside of contingency areas.68 Unless Congress adopts
65 See FY 2008 NDAA, supra note 9, at § 864(a)(3), as modified (defining the term “covered contracts” that apply to Section 862); FY 2011 NDAA, supra note 43, at § 832(a)(1) (Expanding PSC regulatory application to include Other Significant Military Operations). 66 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Limiting PSC regulatory application to combat operations areas); FY 2011 NDAA, supra note 43, at § 832(a)(1) (Expanding PSC regulatory application to include Other Significant Military Operations). Under the Foreign Assistance Act of 1961, as amended, the president is given wide latitude to strengthen the economies and provide stability and assistance to less developed nations. 75 Stat. 424, 22 U.S.C. § 2151 et seq., P.L. 87-195). The DOD, DOS and USAID are primarily responsible for executing this mission. Other less known government agencies play a part in providing foreign assistance as well, i.e., “U.S. Department of Agriculture’s (USDA) Forest Service, the U.S. Geological Survey (USGS), the Department of Health and Human Services (HSS), Centers for Disease Control and Prevention (CDC), the National Oceanic and Atmospheric Administration (NOAA), and the Environmental Protection Agency (EPA), which contribute technical assistance to OFDA as needed in response to humanitarian emergencies.” RHODA MARGESSON, CONG. RESEARCH SERV., RL33769, INT’L CRISES & DISASTERS: U.S. HUMANITARIAN ASSISTANCE RESPONSE MECHANISMS 3, fn 12 (2013); see also, 10 U.S.C. § 401, et seq. (2011) (Providing for humanitarian assistance in military operations). 67 See generally FY 2008 NDAA, supra note 10, at § 862(a)(1) (Limiting PSC regulatory application to combat operations areas); FY 2011 NDAA, supra note 43, at § 832(a)(1) (Expanding PSC regulatory application to include Other Significant Military Operations). 68 See, generally, U.S. DEP’T OF DEFENSE DIRECTIVE 5210.56, CARRYING OF FIREARMS AND THE USE OF FORCE BY DOD PERSONNEL ENGAGED IN SECURITY, LAW AND ORDER, OR COUNTERINTELLIGENCE ACTIVITIES (April 1, 2011); DoD Directive 3000.3, Policy for Non-Lethal Weapons (July 9, 1996); U.S. DEP’T OF DEFENSE INSTRUCTION 5200.08, SECURITY OF DOD INSTALLATIONS AND RESOURCES AND THE DOD PHYSICAL SECURITY REVIEW BOARD (PSRB) (Ch. 2, April 8, 2014); U.S. DEP’T OF DEFENSE 5200.08-R, PHYSICAL SECURITY PROGRAM (Ch. 1, May 27, 2009); U.S. DEP’T OF DEFENSE 5200.2-R, Personnel Security Program (Ch. 3, Feb. 23, 1996); U.S. DEP’T OF DEFENSE INSTRUCTION 5210.84, SECURITY OF DOD PERSONNEL AT U.S. MISSIONS ABROAD (Ch. 1, Oct. 15, 1996); U.S. DEP’T OF DEFENSE Instruction O- 2000.22, DESIGNATION AND PHYSICAL PROTECTION OF DOD HIGH RISK PERSONNEL (HRP) (Ch. 1, July 22, 2008); U.S. DEP’T OF DEFENSE Manual 5100.76, PHYSICAL SECURITY OF SENSITIVE CONVENTIONAL ARMS,
14 comprehensive, uniform legislative reform, DOD and State will continue to maintain diverging and, ultimately, ineffective and inefficient parallel systems.
C. PROTECTING STRATEGIC SITES OUTSIDE OF CONTINGENCY AREAS
The DOS’s Bureau of Diplomatic Security Service (DSS) is ultimately responsible for the protection of 285 U.S. embassies and consulates,69 and their employees and families, stationed abroad.70 The U.S. Marine Corps and DOS cooperate together to protect U.S. diplomats operating in overseas missions.71 This relationship was formalized in 1948 with the establishment of the Marine Security Guard (MSG) program, which works closely with DSS.72 The MSG forces are stationed at select consular facilities to provide internal security73 and to ensure classified material is not compromised.74 Despite having
AMMUNITION, AND EXPLOSIVES (April 17, 2012); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE USE OF FORCE FOR U.S. FORCES (June 13, 2005); see also Mayer Email, supra note 10; Mayer Interview, supra note 19 (Providing review and input for author’s LL.M thesis) (Noting that U.S. military installations located within the United States and abroad already comply with the mandates of the Section 862 PSC law, as well as international law norms and obligations). 69 Dep’t of State, State.Gov, About Diplomatic Security, Frequently Asked Questions (Jan. 13, 2014, 1:44 PM), http://www.state.gov/m/ds/about/faq/ (Reporting on the number of DOS facilities DSS is responsible for). 70 Dep’t of State, State.Gov, About Diplomatic Security, An Overview (Jan. 8, 2014, 9:15 PM), http://www.state.gov/m/ds/about/ overview/index.htm. The DSS also provides law enforcement activities for the overseas U.S. embassies and consulates. Dep’t of State, State.Gov, About Diplomatic Security—An Overview—Summing Up (Jan. 8, 2014, 9:17 PM), http://www.state.gov/m/ds/about/overview /c9013.htm. 71 DEP’T OF STATE, DSS, U.S. MARINE SECURITY GUARDS SAFEGUARDING AMERICAN MISSIONS AROUND WORLD 4 (Nov. 2013) (Jan. 8, 2014, 9:07 PM), http://www.state.gov/documents/ organization/138440.pdf (Noting that the Marine Corps has provided diplomatic security since 1798). 72 Id. 73 The MSG mission is to protect mission personnel, equipment, facilities and classified documents. U.S. DEP’T OF STATE FOREIGN AFFAIRS MANUAL, MARINE SECURITY GUARD (MSG) PROGRAM, 12 FAM 430, 17 (Mar. 13, 2014). The MSG is not authorized to conduct offensive operations as part of their duties at the overseas missions. See id. at 73-74. 74 Marine Corps Embassy Security Group Website (Jan. 15, 2014, 10:54 AM), http://www.mcesg.marines.mil/. According to the MSG’s website, “[t]he primary mission of the Marine Security Guard (MSG) is to provide internal security at designated U.S. diplomatic and consular facilities in order to prevent the compromise of classified material vital to the national security of the United States.” Id.
15 the assistance of the Marine Corps,75 the DSS rarely has the internal assets required to provide the broad range of security activities across the globe.76
To compensate for these gaps, DOS contracts for most of these security requirements to a small number of PSCs under its Worldwide Protective Services (WPS) family of contracts.77 The initial contract was an indefinite delivery, indefinite quantity PSC services contract for the procurement of guard services, personal protective services and intelligence operations.78 These security services are issued by individual task orders to
DOS’s facilities, stretching to every region around the globe.79 A heavy overseas
75 While host nations have responsibility to provide protection to foreign embassies, embassy parameters have been protected by local PSCs for decades. See Email from Doug Brooks, Consultant on Private Sector Stability Operations, to author (Apr. 4, 2014, 11:00 AM E.S.T.) (on file with author) [hereinafter “Brooks Email”] (Providing review and input for author’s LL.M thesis). 76 U.S. Dep’t of State: Hearing on, Diplomatic Security Challenges Before the H. Comm. on Foreign Affairs, 112th Cong. 4 (Nov. 15, 2012) (Statement of Michael J. Courts, Acting Dir. Int’l Affairs & Trade, relating to the lack of manning to meet the DSS’s expanded mission). In 2008, for instance, Diplomatic Security lacked about one-third of required work force in its domestic officer to support its mission). Id; see also U.S. Dep’t of State, The Worldwide Protective Services (WPS) Program Provides Comprehensive Protective Security Services To Support U.S. Department Of State Operations Around The World, Solicitation No. SAQMMA10R0005, § C ( April 27, 2010), (April 10, 2014, 1:07 PM), https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=4847a60695ff81 fec0ccf77771bd942b&_cview=0 (Explaining the purpose of DOS’s security requirements for its overseas missions). 77 See. id. The State Department multiple IDIQ security contracts evolved from three separate iterations of Worldwide Personal Protective Services (WPPS) contracts before changing to the current round of contracts known as the Worldwide Protective Services contract. See U.S. Dep’t of State, The Worldwide Personal Protective Services (WPPS) III Initiative Is An Effort By The Department Of State To Pre-Plan, Organize, Set Up, Deploy And Operate Contractor Protective Service Details For The Protection Of U.S. And/Or Certain Foreign Government, Solicitation No. SAQMMA10R0005, Original Synopsis (Oct. 26, 2009), (April 4, 2014, 1:21 PM), https://www. fbo.gov/?s=opportunity&mode=form&tab=core&id=61747f0456fc7e13068c3bc87b0f76b6&_cview=0. 78 U.S. Dep’t of State, Blackwater, Triple Canopy & Dyncorps Worldwide Personal Protective Serv. (WPPS) Contract No. SAQMPD-05-D1098, 3-4 (undated) (Jan. 23, 2014, 11:23 AM), http://psm.du.edu/ national_regulation/united_states/ laws_regulations/index.html#contracts (Referring to the Statement of Work). 79 The WWPS contract provides that PSC “services include, but are not limited to the following [regions]: Africa Southwest/Southeast Asia and Southeast Island Nations of Asia North and South America and the Caribbean Eastern and Western Europe Near East” Id. at 4 (Referencing paragraph C.2.3. of the WPPS contract’s Statement of Work, entitled, “Locations of Performance”).
16 presence in unstable, conflict-worn regions and the re-direction of the military out of those areas prompted an increased need for PSC contract services.80
The WPS family of contracts is not without flaw.81 In 2010, the Office of the
Inspector General (OIG) found the WPS contractors deficient in personal security specialist training, filling vacant positions, and storing critical U.S. government inventory used for security services.82 These types of PSC deficiencies are especially concerning where non-state actors, like the al Qaida terrorist network,83 are not constrained by traditional deterrence and diplomacy measures.84
The September 11, 2012 terrorist attacks on the U.S. consulate facilities in Benghazi,
Libya illustrate the grave risk to these strategic sites.85 The DOS’s investigation found that DSS was inadequate to provide protection to the U.S. Special Mission Compound
80 Id. Examples of conflict areas covered by the WPPS security service contract has covered include Bosnia and the Israel/Palestine Territories. U.S. Dep’t of State & Broadcasting Board of Governors Office of Inspector Gen., Special Inspector Gen. for Iraq Reconstruction, Joint Audit of Blackwater Contract & Task Orders for Worldwide Personal Protective Serv. in Iraq, Report Nos. AUD/IQO-09-16, SIGIR 09- 021, 1 (June 2009) [hereinafter OIG WPPS Blackwater Iraq Report] (Jan. 13, 2014, 3:00 PM), http://psm.du.edu/media/documents/ us_research_ and_oversight/dos_oig/audits/us_dos_oig_report_audioq-09-16.pdf. 81 See id. 82 2010 OIG WPPS Report, supra note 84 at 1. The inventory included “U.S. Government property, armored vehicles, explosives detection canines, and radios.” Id. The OIG noted that DSS did address these issues once raised by the OIG. Id. 83 KATHERINE L. ZIMMERMAN, SENIOR ANALYST, CRITICAL THREATS PROJECT, AMERICAN ENTERPRISE INSTITUTE, STATEMENT BEFORE H. COMM. ON HOMELAND SECURITY SUBCOMM. ON COUNTERTERRORISM & INTELLIGENCE ON “UNDERSTANDING THREAT TO HOMELAND FROM AQAP”—AQAP’S ROLE IN AL QAEDA NETWORK 1 (Sept. 18, 2013) (Jan 8, 2014, 2:05 PM), http://docs.house.gov/meetings/ HM/HM05/20130918/101315/HHRG-113-HM05-Wstate-ZimmermanK-20130918.pdf (Assessing the al Qaeda in the Arabian Peninsula, or AQAP, as “[t]he most direct threat to the U.S. homeland today”). 84 See SENATE SELECT COMMITTEE ON INTELLIGENCE, JAMES R. CLAPPER, DIR. OF NAT’L INTELLIGENCE, STATEMENT FOR THE RECORD ON THE WORLDWIDE THREAT ASSESSMENT OF THE U.S. INTELLIGENCE COMMUNITY FOR THE SENATE SELECT COMMITTEE ON INTELLIGENCE, 112th Cong. 5 (Jan. 31, 2012) (Jan. 8, 2014, 11:20 AM), http://www.intelligence.senate.gov/120131/clapper.pdf (Assessing that weapons of mass destruction may fall in the hands of undeterred terrorists if countries fail to adequately protect them). 85 See, generally, Benghazi, Part Attack II: Report of the Accountability Review Board 5 (Dec. 20, 2012) [hereinafter Benghazi ARB Report] (Jan. 8, 2014, 11:53 AM), http://www.state.gov/documents/organization/ 202446.pdf (Reporting on the Benghazi attacks). Although the Benghazi diplomatic mission represents one example, reports indicate that none of the DOS overseas diplomatic facilities meet the required security standards. See Brooks Email, supra note 79 (Providing review and input for author’s LL.M thesis).
17 and Annex located in Benghazi.86 The DSS contracted with a local PSC, Blue Mountain
Libya (BML), to provide installation and gate security.87 Although BML did not fall under the WPS contract, it similarly failed to fill personnel vacancies and lacked adequate security training.88 Despite taking contractual security measures, State Department
Foreign Service officials acknowledged that the expeditionary mission in Benghazi lacked an adequate security guard force and was less safe than the department’s overseas missions in Liberia and Iraq.89 In those countries, the State Department procured security services from PSCs and local governments to provide a strong outer-perimeter defense, which was significantly lacking at the Benghazi compound.90 Had the State Department been required to comply with uniform federal PSC contract standards, many of its security failures may not have occurred.91
86 Id. at 5. 87 Blue Mountain is a PSC headquartered in Carmarthen, Wales which provided personnel and training to Blue Mountain Libya, the security license holder in Libya. See Catherine Herridge, State Dep’t Stayed Out Of Contractors' Dispute Over Consulate Security, Letters Show, Fox News, Oct. 3, 2012 (Jan. 8, 2014, 5:04 PM), http://www.foxnews.com /politics/2012/10/02/letters-show-state-stayed-out-dispute-over-security- concerns-at-libya-consulate/; see, generally, Blue Mountain—Always a Little Further, BLUEMOUNTAIN.COM (Jan. 8, 2014, 5:07 PM), http://www.bluemountaingroup.co.uk/. Blue Mountain, a relatively inexperienced firm, was awarded the DOS contract for $387,000, a procurement which was highly criticized by the PCS industry after the attacks on Benghazi. See Damien McElroy, Richard Spencer and Raf Sanchez, British firm secured Benghazi consulate contract with little experience, The Telegraph, Oct. 14, 2012 (Jan. 8, 2014, 5:08 PM), http://www.telegraph.co. uk/news/worldnews/africaandindianocean/libya/9607958/British-firm-secured-Benghazi-consulate- contract-with-little-experience.html. 88 Compare Benghazi ARB Report, supra note 90, at 32, With 2010 OIG WPPS Report, supra note 84 at 1 (Finding the WPPS contractors were not filling security vacancies). 89 STAFF OF H.R. COMM. ON OVERSIGHT & GOV’T REFORM, 113TH CONG., BENGHAZI ATTACKS: INVESTIGATIVE UPDATE INTERIM REPORT ON THE ACCOUNTABILITY REVIEW BOARD 68 (2013) (Jan. 8, 2014, 12:20 PM), http://oversight.house.gov/wp-content/uploads/2013/09/Report-for-Members-final.pdf (Covering Lee Lohman, Exec. Dir. of Near Eastern Affairs Bureau, who testified that “I'm not sure we've ever gone into something in such an expeditionary way as this by ourselves without having military along with us”); id. (Covering Brian Papanu, the DS desk officer for Libya, who testified “that host nation security support had been better in the war-torn nation of Liberia than in Benghazi”); id. at 69 (Covering Greg Hicks, former Deputy Chief of Mission in Libya, who testified that the mission in Benghazi lacked adequate security). 90 Id.at 68 (Reporting that DOS heavily relied upon the U.S. military to provide security in Iraq and Afghanistan, then transitioned to using PSCs and local governments to provide these services in Iraq and Liberia). 91 See id. generally.
18
The lack of a coherent interagency PSC regulatory scheme weakens overall security of
overseas operations.92 The Section 862 legislative requirements leave gaps in this
protection by only requiring the DOD to implement PSC regulatory policy for area-based activities during designated combat operations and Other Significant Military
Operations.93 The range of military operations, or ROMO, varies greatly along a
conflict continuum of activities depending on the size and scope of the requirement.94
These activities may include military engagements, security cooperation, crisis response
operations, contingency operations and major operations and campaigns.95 Tying a
military operation to the protection of U.S. embassies and other strategic sites does not
always fit neatly within the ROMO.96 Expanding the PSC statutory and regulatory
schemes to a broader range of non-military and non-operational activities provides a uniform and efficient mechanism to overseas PSC contract activities.
D. PROTECTING OVERSEAS STRATEGIC SITES IN NON-COMBAT ZONES
While the DOD is responsible for drafting its PSC regulations for combat operations
and Other Significant Military Operations, Section 862 leaves out a dearth of major
activities that are not included in these two categories.97 Many overseas activities, such
92 Compare Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense, Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating DOD’s use of the ANSI/ASIS industry standards in its PSC contracts), With U.S. Dep’t of State, Diplomacy in Action Media Note: DOS to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm (Reporting that DSS plans on requiring PSC membership in its WPPS successor contract, as well as requiring PSCs to comply with the ANSI mandates). 93 See FY 2008 NDAA, supra note 10, at § 862. 94 U.S. DEP’T OF DEFENSE, JOINT PUB. 3-0, JOINT OPERATIONS v-1 (Aug. 11, 2011). 95 Id. at I-15, V-2. 96 See id. (Noting the military operational nature of DOD’s ROMO). 97 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Directing DOD to prescribe regulatory policy for PSC contracts performed in combat operations areas); FY 2011 NDAA, supra note 43, at § 832(a)(1) (Directing DOD to prescribe regulatory policy for PSC contracts performed in combat operations and Other Significant Military Operations areas)
19 as military basing and diplomatic missions, provide a significant strategic advantage to the United States and its allies.98 DOD, for its part, currently has 666 overseas installations and other facilities,99 covering more than 28.5 million acres of land mass and servicing over 3.5 million military members, their families, employees and contractor personnel.100 Security at these sites is critical to the successful projection of U.S. power abroad, and an attack against these installations and personnel has devastating strategic effects for America.101
98 See Daniel Widome, The List: The Six Most Important U.S. Military Bases, Foreign Policy, May 13, 2006, available at http://www.foreignpolicy.com/articles/2006/05/12/the_list_the_six_most_important_us_military_bases (Reporting that a number of critical military installations important to U.S. national strategy are overseas); RICHARD G. LUGAR, CHAIRMAN, COMM. ON FOREIGN RELATIONS, EMBASSIES AS COMMAND POSTS IN nd ANTI-TERROR CAMPAIGN, S. REP. NO. 109-52, V (2 Sess. 2006) (Reporting “the increasingly instrumental role that the U.S. ambassador plays in making judgment calls that will affect our success or our failure”); Learning from Benghazi: Rethinking Preparedness & Response for Security of U.S. Embassies, Consulates, & Diplomatic Missions in High-Risk Scenarios Before H. Comm. on Foreign Affairs, 112th Cong. (Nov. 15, 2012) [hereinafter Carafano Statement to Congress] (Statement of James Jay Carafano, Ph.D., Deputy Dir. of Kathryn & Shelby Cullom Davis Institute for Int’l Studies & Dir. of Douglas & Sarah Allison Ctr for Foreign Policy Studies at Heritage Foundation, finding that “[t]he many U.S. embassies, consulates, and diplomatic missions around the world are the clearest and boldest statement of the United States’ determination to represent the interests of the nation and its citizens and to engage other peoples in the common pursuit of prosperity, peace, and freedom”). 99 U.S. DEP’T OF DEFENSE, OFFICE OF DEPUTY UNDER SEC’Y OF DEFENSE (INSTALLATIONS & ENVIRONMENT), BASE STRUCTURE REPORT—FISCAL YEAR 2012 BASELINE—A SUMMARY OF DOD'S REAL PROPERTY INVENTORY 7 (2012) (Jan. 13, 2014, 10:30 AM), http://www.acq.osd.mil/ie/download/bsr/BSR2012Baseline.pdf (Reporting that, as of fiscal year 2012, the DOD had a majority if its overseas sites located in German with 232 sites, following by Japan with 109 sites, and finally South Korea with 85 sites). 100 Id. at 97. Many of the U.S. military installations across the globe have hospitals, schools, child development centers, exchanges, commissaries and other recreational facilities located within their boundaries. See, generally, DOD Military Installations (April 10, 2014, 2:25 PM), http://www.militaryinstallations.dod.mil/MOS/wwv_flow. accept (Providing a searchable online database of the various activities located on U.S. military installations); see also MICHAEL J. LOSTUMBO, ET ALS., REPORT ON OVERSEAS BASING OF U.S. MILITARY FORCES, AN ASSESSMENT OF RELATIVE COSTS & STRATEGIC BENEFITS, RAND CORPORATION xxi (2013) (Reporting that overseas military installations provide the U.S. with facilities and lift assets to maintain a global expeditionary capability); U.S. NAT’L STRATEGY FOR COUNTERTERRORISM 9 (June 2011) (Jan. 13, 2014, 5:39 PM), http://www.whitehouse. gov/sites/default/files/counterterrorism_strategy.pdf (Asserting that military installations and diplomatic missions support U.S. counter-terrorism strategy by fostering partnerships abroad and engaging in capacity building). 101 The U.S.S. Cole Commission found that DOD’s strategic role in operating in high threat overseas areas exposes the military to terrorist threats that requires a focus on force protection of the force. The focus of the Commission was on the GCC’s responsibility to improve the force protection and the anti-terrorism threat in his area of responsibility. U.S. DEP’T OF DEFENSE U.S.S. COLE COMMISSION REPORT—LEARNING
20
Failing to adequately protect diplomatic facilities may also adversely affect the U.S strategy abroad.102 The U.S. Senate Select Committee on Intelligence’s review of the
Benghazi attacks found that local guard forces, not under the operational control of the host nation, “are an inherently less reliable security force than security provided by U.S.
FROM ATTACK ON U.S.S. COLE . . . IMPLICATIONS FOR PROTECTING TRANSITING U.S. FORCES FROM TERRORIST ATTACK (9 January 2001) [hereinafter U.S.S. COLE COMMISSION REPORT] (Jan. 13, 2014, 11:10 AM), http://www.fas.org/irp/threat/cole.pdf. These responsibilities include, inter alia, the assessment of contracting with PSCs for the security of aircraft and water-borne mobile security of U.S. ships when docked at overseas ports. Lessons Learned From The Attack On U.S.S. Cole, On Report Of Crouch- Gehman Commission, And On The Navy's Judge Advocate General Manual Investigation Into Attack, Including A Review Of Appropriate Standards Of Accountability For U.S. Military Serv., Hearing Before S. Comm. On Armed Serv’s, 107th Cong. 27 et seq. (2001) (Jan. 13, 2014, 11:24 AM), http://www.gpo.gov/fdsys/pkg/CHRG-107shrg81231/html/CHRG-107shrg81231.htm (Statement of Gen. Charles T. Robertson, Jr., USAF, Commander in Chief, U.S. Transportation Command); see also Carafano Statement to Congress, supra note 105 (concluding that “[t]he many U.S. embassies, consulates, and diplomatic missions around the world are the clearest and boldest statement of the United States’ determination to represent the interests of the nation and its citizens and to engage other peoples in the common pursuit of prosperity, peace, and freedom. Providing security for these outposts that protect U.S. personnel and their operations, while at the same time facilitating the accomplishment of the mission, is vital”); Paul D. Shinkman, The Benghazi Effect: Embassy Closures Could Do Lasting Damage, U.S .News & World Report, August 9, 2013 (Jan. 15, 2014, 1:57 PM), http://www.usnews.com/news/articles/2013/08/09/the-benghazi-effect-embassy-closures-could-do-lasting- damage (Reporting that the U.S. is not willing to undergo another Benghazi-type of attack on its overseas consulates, which could threaten the nation’s reputation and impact its relations with other countries). These closings are in stark contrast to the blueprint prior to the Benghazi attack when DOS pushed to expand its missions abroad. After the 1983 bombing on the U.S. embassy in Beirut which killed over 60 people, many of them U.S. Marines, recommendations from the Congressionally appointed Inman Report were made to strengthen the security of the consulates, fortifying their structures. These recommendations were not implemented and funded, however, until after the attacks on the U.S. embassies in Kenya and Tanzania. As recently as 2010, DOS opened seven new diplomatic missions and in 2011 it opened ten more. As of April 2012, DOS's Bureau of Overseas Buildings Operations (OBO) announced that there were 41 new diplomatic mission projects in either the design or construction phase. Dave Seminara, America’s Embassy Building Boom Fortifies Diplomacy, Security Abroad, The Washington Diplomat, April 2012 (Jan. 15, 2014, 2:21 PM), http://www.washdiplomat.com/index.php?Itemid= 428&catid=148canadian%20cialis%20online&id=8292:americas-embassy-building-boom-fortifies- diplomacy-security-abroad-&option=com_content&view=article. The move toward more secure facilities and locations resulted in the relocation of over 28,000 diplomatic members and their families since 2000. U.S. DEP’T OF STATE, FY 2013 BUDGET REQUEST SUMMARY: EMBASSY SECURITY, CONSTRUCTION, AND MAINTENANCE 470 (undated) (Jan. 15, 2014, 2:30 PM), http://www.state.gov/documents/organization/ 181119.pdf. A sampling of these 41 projects still included high threat level areas, like Bagdad, Iraq, Islamabad, Pakistan, Jakarta, Indonesia, Kabul, Afghanistan, and Sana’a, Yemen. Id. at 469. When requesting its fiscal year 2013 budget, DOS anticipated six additional mission projects in fiscal year 2012 and three more in fiscal year 2013. Id. at 470. 102 See Carafano Statement to Congress, supra note 98 (Noting the importance of securing diplomatic facilities).
21 forces or the military or police forces of a host government.”103 In spite of this unpredictable nature of the local guard force, DOS and the Central Intelligence Agency
(CIA) stationed in Benghazi did not believe they had a better option than to hire out local security.104 This decision was made in spite of the European Union’s decision to use a
British PSC for its diplomatic security requirements.105 The result was that the individual employees of the local security guard force were found to have vandalized the mission facilities in the months prior to the large-scale September 11 attacks.106
The DSS could have enforced contractual measures on the basis of these warning signs to thwart the attack, but perhaps the agency should have taken more uniform steps to prevent the violence even earlier, during contract formation. Had DSS been required to comply with the rigorous requirements of the Section 862 legislation, the PSC guarding the U.S. mission facilities in Benghazi would have been required to undergo uniform training to react to external terrorist threats.107 The PSC employees would
103 TH U.S. S. SELECT COMM. ON INTELLIGENCE, 113 CONG., REVIEW OF TERRORIST ATTACKS ON U.S. FACILITIES IN BENGHAZI, LIBYA, SEPTEMBER 11-12, 2012 TOGETHER WITH ADDITIONAL VIEWS 39 (January 15, 2014) [hereinafter S. SELECT COMM ON INTELLIGENCE BENGHAZI REVIEW] (Jan. 15, 2014, 10:20 AM), http://www.intelligence.senate.gov/benghazi2014/benghazi.pdf (Reviewing the intelligence community’s actions prior to and during the Sept. 11-12, 2012 attacks on the U.S. Embassy and Mission in Benghazi, Libya). In 1996, Congress found that the diplomatic posts had broad authority to determine the method of announcing its contract requirements for security and guard related requirements. Some of the diplomatic missions only openly advertised to local national PSCs. Increased Participation of U.S. Contractors In Local Guard Contracts Abroad Under Diplomatic Security Programs, 22 U.S.C. § 4864(a) (1996). 104 S. SELECT COMM ON INTELLIGENCE BENGHAZI REVIEW, supra note 110, at 39. 105 See Mayer Email, supra note 10 (Commenting that while DOS did not believe it could use third country PSCs in Libya, the EU contracted with a western PSC for its security requirements); see also EU acts on security in Libya without consulting Libyans, Libya Herald, May 10, 2012 (Apr. 11, 2014, 3:03 PM), http://libyaherald.com /2012/05/10/eu-decides-on-security-in-libya-without-consulting- libyans/#axzz2ybc6l6v2 (Reporting on the EU’s deployment of a PSC detail to Libya); but see Andrew Rettman, EU Bins Security Contract, Annoys Libya, EU Observer, May 29, 2012 (Apr. 11, 2014, 3:05 PM), http://euobserver.com/very-private/116407 (Reporting on the EU’s abandoning of the EU’s PSC contract in Libya due to procedural problems). 106 S. SELECT COMM ON INTELLIGENCE BENGHAZI REVIEW, supra note 110, at 39. 107 See Carafano Statement to Congress, supra note 105 (Concluding that the Benghazi attacks could have been prevented through, inter alia, contingency planning and integrated response mechanisms); but see Brooks Email, supra note 19 (Commenting that the U.S. Ambassador’s primary focus was on the
22 conceivably have been more reliable due to standardized personnel selection criteria.108
Expanding the PSC legislative requirements to diplomatic facilities ensures more effective rules and procedures and oversight of PSCs contracts.
E. PROMULGATING THE FINAL RULES—AN INTERAGENCY QUAGMIRE DOD published its PSC regulatory policy in August 2011 (2011 Final Rule).109 The
2011 Final Rule expressly covered the requirement for DOD to prescribe regulatory policy for “the selection, training, equipping, and conduct of” PSCs.110 Two years later,
DOD published PSC contract clauses to incorporate into the contracts covered by the
Section 862 law (PSC FAR Rule).111
stabilization of the Libyan government and not on diplomatic security concerns; and local national laws forbade the use of armed PSCs). 108 See id. 109 DOD PSC Final Rule 2011, supra note 9 (published further in 32 C.F.R. Part 159, Private Security Contractors Operating in Contingency Operations). The DOD’s PSC regulatory development incorporated two amendments to the Section 862 legislation. Section 813(b) of the National Defense Authorization Act for Fiscal Year 2010 amended the definition of a covered contract to additionally include “(D) a grant for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; or (E) a cooperative agreement for the performance of services in such an area of combat operations.” FY 2010 NDAA, supra note 55, at § 813. Section 832 of the National Defense Authorization Act for Fiscal Year 2011 applied the law to “Other Significant Military Operations,” in addition to combat operations, upon agreement by both DOD and DOS. FY 2011 NDAA, supra note 43, at § 832(a)(2)(C). This interagency agreement was a departure from the original legislation that gave the Secretary of Defense sole authority over when an activity was designated as a combat operation. Compare FY08 NDAA, supra note 15 at § 862(c), With FY 2011 NDAA, supra § 832(c). The term “Other Significant Military Operations” was defined as “activities other than combat operations, as part of an overseas contingency operation that are carried out by U.S. Armed Forces in an uncontrolled or unpredictable high-threat environment where personnel performing security functions may be called upon to use deadly force.” FY 2011 NDAA, supra at § 832(a)(2)(C). Of note, intelligence activities and nonprofit nongovernmental organizations were deemed exempt by the Section 832 amendment. Id. at § 832(c)(2). 110 Id. 111 Contractors Performing Private Sec’ty Functions Outside United States, 78 Fed. Reg. 37670 (June 21, 2013) [hereinafter DOD, GSA & NASA PSC Final Rule 2013]. The 2009 Final Rule that set forth the implementing policy and standards for the Section 862 legislation was promulgated by the Dep’t of Defense, Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics. See 76 Fed. Reg. 49650, Agency. Unlike the 2011 Final Rule, the PSC FAR Rule that implemented the FAR changes was jointly promulgated by the DOD, the General Administrative Administration (GSA), and the National Aeronautics and Space Administration (NASA). See 78 Fed. Reg. 37670, Agency.
23
In the 2011 Final Rule, DOD directed the Geographic Combatant Commanders (GCC) to develop PSC policies for their individual areas of responsibility.112 The regulation also mandates PSC personnel to acknowledge they could be held civilly and criminally liable for “inappropriate use of force . . . .”113 Unlike uniformed military service members,114
PSC personnel do not receive combat immunities from domestic civil115 or criminal
112 DOD PSC Final Rule 2011, supra note 9, at § 159.4(b) (Delegating authority and responsibility to the GCCs to develop PSC procedures specific to each of their AORs); see id. at § 159.5(e) (Responsibilities); § 159.6(a) (Procedures). For example, the GCC for U.S. Central Command implemented a policy for PSCs performing in Iraq and Afghanistan. See U.S. CENTRAL COMMAND, USCENTCOM POLICY & DELEGATION OF AUTHORITY FOR PERSONAL PROTECTION & CONTRACT SECURITY SERV. ARMING OF DOD CIVILIAN PERSON (181607Z Jan 11) (on file with author). 113 Id. at § 159.6(a)(1)(iii)(F)(1) (Procedures). Under the rule, contract personnel who request to carry a firearm are required to acknowledge that they could be held liable under civil and criminal law. Id. By way of example, the 2011 Final Rule offers that PSC personnel could be held criminally liable under the Military Extraterritorial Maritime Act, pursuant to 18 U.S.C. § 3261(a), for conduct arising from a weapons’ violation under the statute. Id. at § 159.6(a)(1)(iii)(F)(1), Fn. 13. 114 Under the Third Geneva Convention, combatant status protections are tied to membership of the armed force and other members of a voluntary corps of the Party to the armed conflict. GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 4A(4) (entered into force October 21, 1950) [hereinafter GENEVA CONVENTION III] (Providing protections to civilian non- combatants accompanying the force so long as they have not taken part in hostilities); U.S. DEP’T OF DEFENSE INSTRUCTION 3020.21, OPERATIONAL CONTRACT SUPPORT (OCS) 9 (Dec. 20, 2011) (Recognizing certain war-time protection status under Geneva Convention III for contract personnel so long as the DOD specifically designates them as accompanying the force and the contract personnel are U.S. citizens or legal residence and issued the identification cards pursuant to the convention’s requirements). These protections only apply if PSC personnel do not directly engage in hostilities during international armed conflict because they are not considered combatants and do not receive combat immunities recognized for their status. See, e.g., JENNIFER K. ELSEA & NINA M. SERAFINO, RL32419, PRIVATE SECURITY CONTRACTORS IN IRAQ: BACKGROUND, LEGAL STATUS, & OTHER ISSUES Summary (Updated June 21, 2007) (Determining that PSC personnel receive prisoner of war protections under the Geneva Convention only if they do not engage in hostilities); see also LINDSEY CAMERON, PRIVATE MILITARY COMPANIES: THEIR STATUS UNDER INTERNATIONAL HUMANITARIAN LAW AND ITS IMPACT ON THEIR REGULATION, 88 Int’l Rev. Red Cross 863 (Sept. 2006) (Assessing that Geneva Convention III, Art. 4A(2), cannot be used to recognize PSC personnel with combatant status because this provision was adopted to permit partisans participating in hostilities during World War II to receive prisoner of war status), citing MICHAEL N. SCHMITT, HUMANITARIAN LAW & DIRECT PARTICIPATION IN HOSTILITIES BY PRIVATE CONTRACTORS OR CIVILIAN EMPLOYEES, 5 Chi. J. Int'l L. 511 (2005). 114 DOD PSC Final Rule 2011, supra note 83, at §§ 159.6(a)(1)(v)-(vii). 114 Id. at §§ 159.6(a)(1)(viii)-(ix). 115 See, e.g., False Claims Act, 31 U.S.C. §§ 3729-3733 (2012) (the “FCA”) (Making a false claim for payment a crime); Alien Tort Statute, 28 U.S.C. § 1350 (2012) (Providing civil action jurisdiction in federal courts to aliens over tortious conduct “committed in violation of the law of nations or a treaty of the United States”); but, see Fed. Tort Claims Act, 28 U.S.C. § 1346(b) (Preempting civil action, in some instances, using the FTCA’s combatant activities exception); see generally, VIVIAN S. CHU & KATE M. MANUEL, CONG. RESEARCH SERV., R41755, TORT SUITS AGAINST FED. CONTRACTORS: OVERVIEW OF
24 law.116 Further, the 2011 Final Rule requires GCCs to report and investigate alleged PSC crimes117 and GCCs to remove PSC employees from operational areas for non- compliance with contract requirements.118
The PSC FAR Rule requires each GCC to implement PSC policies and procedures for their specific AORs for DOD contractors119 and for DOS contractors.120 The DOD FAR
Supplement is silent about specific PSC contract administration policies outside of the general delegated authority to the GCCs.121 The DOD rules are generally devoid of
LEGAL ISSUES 15-20 (2011) (Providing detailed description of the combatant activities exception to the FTCA). 116 PSC personnel may be held criminally liable by the host nation, depending upon the Status of Forces Agreement (SOFA) or other host nation laws applicable at the time of the alleged incident. For instance, PSC personnel were not subject to Iraq law during Operation IRAQI FREEDOM. COALITION PROVISIONAL AUTHORITY ORDER NUMBER 17 (REVISED) STATUS OF THE COALITION PROVISIONAL AUTHORITY, MNF—IRAQ, CERTAIN MISSIONS AND PERSONNEL IN IRAQ (2004); see also JENNIFER K. ELSEA & NINA M. SERAFINO, RL32419, PRIVATE SECURITY CONTRACTORS IN IRAQ: BACKGROUND, LEGAL STATUS, & OTHER ISSUES Summary 15 (Updated June 21, 2007). Similarly, PSC personnel may be held criminally liable under U.S. law. See, e.g., Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261-3267 (2000) [hereinafter MEJA] (Expanding jurisdiction over DOD contractors who commit qualifying crimes abroad); MEJA Expansion and Enforcement Act of 2007, H.R. 2740,110th Cong. (2007) (Expanding MEJA to non-DOD agency contractors who are operating in support of DOD); USA Patriot Act of 2001, Pub. L. No. 107-56 § 804, 115 Stat. 272 (2001) (Expanding the U.S. special maritime and territorial jurisdiction to U.S. facilities abroad, regardless of whether the facilities are in support of DOD); War Crimes Act of 1996, Torture, 18 U.S.C. § 2441 (1996); 18 U.S.C. § 2340A (2006); Uniform Code of Military Justice, 10 U.S.C. § 802(a)(10) (2013) [hereinafter UCMJ] (Originally providing UCMJ jurisdiction over contractors to include only crimes committed during declared war].; John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, § 552, 120 Stat. 2083, 2089 (2005) (Expanding the UCMJ jurisdiction over contractors to include crimes committed in contingency operations]; see also LAURA DICKINSON, OUTSOURCING WAR & PEACE—PRESERVING PUBLIC VALUES IN A WORLD OF PRIVATIZED FOREIGN AFFAIRS 50-51 (Yale U. Press, 2011) (Describing the various criminal statutes applicable to PSC personnel). 117 DOD PSC Final Rule 2011, supra note 83, at §§ 159.6(a)(1)(v)-(vii). 118 Id. at §§ 159.6(a)(1)(viii)-(ix). 119 DOD, GSA & NASA PSC Final Rule 2013, supra note 114, at ¶ 25.302-4(b)(1). 120 Id. at ¶ 25.302-4(b)(2). 121 DFARS PGI 225.74, Defense Contractors Outside The United States, ¶ 225.74a(ii)(B) (Rev. Dec. 16, 2013) (Delegating PSC contract administration to the GCCs). DOD implemented separate guidance to the GCCs which provides authority to implement area-specific policies and procedures for PSC contingency contractors. See U.S. DEP’T OF DEFENSE INST. 3020.50, PRIVATE SECURITY CONTRACTORS (PSCS) OPERATING IN CONTINGENCY OPERATIONS, HUMANITARIAN OR PEACE OPERATIONS, OR OTHER MILITARY OPERATIONS OR EXERCISES, Encl. 3 (Change 1, Aug. 1, 2011) (Procedures).
25 specific guidance or directives to the GCCs122 that encourage uniformity in public contracting or embolden cost-cutting efficiencies within the PSC industry.123
II. THE PROBLEMS WITH REGIONAL SPECIFIC POLICIES The GCCs are delegated the flexibility to interpret the FAR124 and DOD implementing instructions to develop their own, independent PSC policies and procedures.125 This flexibility may prove inefficient and inadequate in the area of investigations.126 Under the DOD rules, the GCCs are required to develop and publish guidance to investigate PSC personnel misconduct.127 Each GCC has established procedures for investigating criminal misconduct of service members.128 Potential
122 But see FY 2008 NDAA, supra note 9 at § 862(a)(2)(E) (Delineating mandatory general topics required by the Section 862 legislation). 123 See DOD PSC Final Rule 2011, supra note 9, at § 159.4(b) (Directing GCCs with responsibility to develop “PSC guidance and procedures” specific to each of their AORs). 124 See PSC FAR Rule, supra note 100, at § 25.302-4(b)(1). 125 See DOD PSC Final Rule 2011, supra note 83, at §§ 159.5(b), 159.6(a). 126 See e.g., United States v. Slough, 677 F. Supp. 2d 112 (D.C.C. 2009), judgment vacated by 641 F.3d 544 (D.C. Cir. 2011) (Holding that PSC contract employees’ sworn statements taken by the Diplomatic Security could not be used during criminal proceedings because of the Garrity clause contained within the statements). 127 DOD PSC Final Rule 2011, supra note 83, at §§ 159.6(a)(1)(vi)-(vii). 128 U.S. ARMY JUDGE ADVOCATE GENERAL’S LEGAL CTR & SCHOOL, COMMANDER’S LEGAL HANDBOOK 91 (June 2013) (Explaining that each military service has their own specific procedures for conducting administrative investigations); DEP’T OF DEFENSE INST. 5502, CRIMINAL INVESTIGATIONS OF FRAUD OFFENSES (April 29, 2013) (Providing policy directives to the military service’s criminal investigation organizations to conduct fraud investigations, including contractor fraud); DEP’T OF DEFENSE INST. 5503, INITIATION OF INVESTIGATIONS BY DEFENSE CRIMINAL INVESTIGATIVE ORGANIZATIONS (Mar. 24, 2011) (Providing policy directives to the military service’s criminal investigation organizations to conduct criminal investigations); DEP’T OF DEFENSE INST. 5505.08, MILITARY CRIMINAL INVESTIGATIVE ORGANIZATIONS (MCIO) & OTHER DOD LAW ENFORCEMENT ORGANIZATIONS INVESTIGATIONS OF ADULT, PRIVATE, CONSENSUAL SEXUAL MISCONDUCT (April 17, 2013) (Providing for DoD policy to directives to the military service’s criminal investigation organizations conducting investigations into sexual misconduct); DEP’T OF DEFENSE INST. 5505.10, CRIMINAL INVESTIGATIONS OF NONCOMBAT DEATHS (Aug. 13, 2013) (Directing the military service’s criminal investigation organizations to investigate the non- combat deaths of active duty service members); DEP’T OF DEFENSE INST. 5505.16, CRIMINAL INVESTIGATIONS BY PERSONNEL WHO ARE NOT ASSIGNED TO A DEFENSE CRIMINAL INVESTIGATIVE ORGANIZATION (May 7, 2012) (Providing policy directives to the military service’s criminal investigation organizations using non-DoD personnel to conduct DoD criminal investigations); see e.g., U.S. PACIFIC COMMAND, USCINCPAC INSTRUCTION 5040.5E, COMMANDER IN CHIEF, U.S. PACIFIC COMMAND INSPECTOR GENERAL (June 12, 1996) (Providing for inspector general inspections, inspections and inquiries within the U.S. Pacific Command area of responsibility); U.S. PACIFIC COMMAND, USCINCPAC INSTRUCTION 5810.1B, DISCIPLINARY ACTION UNDER THE UNIFORM CODE OF MILITARY JUSTICE (April 27, 1999) (Publishing policies and procedures for the administration of military justice within the U.S.
26 problems are likely to arise when the GCCs are faced with developing PSC contract policies for operations affecting DOS contracts.129 These contract activities need to be heavily coordinated and preplanned as early as practicable to avoid inefficiencies and strengthen effective oversight and enforcement systems.130 The following sections discusses some of the problem areas related to the lack of uniformity in the PSC law and
GCC responsibilities.
A. DIFFERING PROCEDURES CAUSE INEFFICIENCIES AND TRAINING PROBLEMS
Area specific coordination between the DOS and other agencies need to be synchronized and preplanned to avoid inefficiencies and training problems. The GCC staffs, subordinate units, interagency staff and criminal investigators are responsible for training on these procedures each time they move from one GCC area of operation to the next.131 The military’s cyclical personnel moves132 force continuous training on specific
Pacific Command area of responsibility); see also MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 303 (2012) [hereinafter MCM] (Providing authority and procedures to commanders to conduct inquiries into misconduct on personnel subject to the Uniform Code of Military Justice); U.S. DEP’T OF ARMY, REGULATION 15-6, PROCEDURES FOR INVESTIGATING OFFICERS & BOARDS OF OFFICERS (Oct. 2, 2006) (Providing for Army administrative investigation procedures); U.S. DEP’T OF NAVY, JAG INSTRUCTION 5800.7F, MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN) (June 26, 2012) (Providing Navy procedures to conduct administrative investigations); Headquarters, U.S. Marine Corps, Marine Corps Order P5800.16A, Marine Corps Manual for Legal Administration (LEGADMAN) (Aug. 31, 1999) (Providing Marine Corps legal procedures); SEC’Y OF AIR FORCE OFFICE OF INSPECTOR GENERAL COMPLAINTS RESOLUTION DIR., COMMANDER-DIRECTED INVESTIGATIONS (CDI) GUIDE (April 26, 2010) (Provides for Air Force command procedures for investigating inquiries referred from the inspector general’s office). 129 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Requiring the DoD to coordinate with the DOS on PSC regulatory policies). 130 See id. 131 See DOD PSC Final Rule 2011, supra note 10, at § 159.4(b) (Directing each GCC to develop their own PSC regulatory procedures specific to their AORs). 132 The military’s routine practice is to move its uniformed personnel from their duty stations and positions every couple of years. Prior to the terrorist attacks of September 11, 2001, U.S. Army soldiers remained at their duty station for 36 months prior to transferring to another military installation (called a Permanent Change of Station, or PCS). Due to the high operational tempo and demands placed on unit rotations into and out of the Iraq and Afghanistan theaters of operation, PCS moves occurred less than 36 months. These trends are anticipated to return back to 36 months now that the force requirements in the theaters of operation have reduced and the military undergoes a force strength reduction. See David Vergun, Soldiers
27 theater rules and procedures which can be burdensome on the PSC industry, especially with government contracts spanning across GCC boundary lines.133
The need for a uniform approach across GCC boundary lines is illustrated by the
U.S.’s recent experience in fighting a global terror threat.134 The United States conducted
Operation ENDURING FREEDOM (OEF) in several command areas of responsibility, including the Central Command,135 the European Command,136 the Africa Command,137
To See Fewer PCS Moves, Army News Serv., June 3, 2014 (Feb, 12, 2014, 3:15 PM), http://www.army.mil/article/104647. 133 See DOD PSC Final Rule 2011, supra note 10, at § 159.4(b) (Directing each GCC to develop their own PSC regulatory procedures specific to their AORs). The training associated with these differing procedural requirements is a cost of doing business for PSCs that is generally not allowable and chargeable to the government. See Brooks Email, supra note 19. 134 The U.S. is no stranger to fighting on multiple fronts across the globe. America’s first “two-front war” in the East and West was precipitated by the Japanese attack on Pearl Harbor in the Hawaiian Islands in December 1941 and the subsequent declaration of war by the Axis Allies Germany and Italy against the United States. AMERICAN MILITARY HISTORY, VOLUME II—U.S. ARMY IN A GLOBAL ERA: 1917–2003 78 (Richard W. Stewart, gen. ed., Ctr of Military History U.S. Army 2005) (Feb. 21, 2014, 1:35 PM), http://www.history.army.mil/books/AMH-V2/PDF/Chapter03.pdf (Describing the events leading up to the attacks by Japan and the declarations of war by the Axis Allies); see also HISTORY, ART & ARCHIVES— U.S. H., THE HOUSE DECLARATIONS OF WAR AGAINST THE AXIS POWERS—DECEMBER 11, 1941 (Feb. 21, 2014, 1:42 PM), http://history.house.gov/HistoricalHighlight/Detail/ 36390?ret=True (Describing the unanimous U.S. Congressional vote to declare war on Italy and Germany). 135 U.S. Central Command (CENTCOM) initiated the prosecution of OEF in Afghanistan (OEF-A) in 2001 in response to the September 11, 2001 attacks in the U.S. by the al-Qaeda terrorist network. Less than one year later, CENTCOM initiated OEF-Horn of Africa (HOA) in October 2002 to assist several African nations to combat terrorism within their borders. CENTCOM then executed Operation IRAQI FREEDOM in March 2003 following United Nation Security Council (UNSC) Resolutions to secure weapons of mass destruction in Iraq. See ANDREW FEICKERT, CONG. RESEARCH SERV., R42077, UNIFIED COMMAND PLAN & COMBATANT COMMANDS: BACKGROUND & ISSUES FOR CONGRESS 34 (2013) (Recounting U.S. Central Command’s launch of OEF to drive out the Taliban from Afghanistan subsequent to the September 11, 2001 attacks on the financial and military institutions in the United States). 136 In coordination with CENTCOM, U.S. European Command (EUCOM) established a Combined Joint Operating Area in Africa in executing OEF-HOA. This initial operation crossed GCC boundary lines which provided joint responsibilities over its execution. GlobalSecurity.Org, Operation Enduring Freedom - Horn of Africa (OEF-HOA)— Operation Octave Shield (Feb. 21, 2014, 5:01 PM), http://www.globalsecurity.org/military/ops/oef-djibouti.htm (Describing Operation Octave Shield, the operational plan directed by the campaign plan for OEF-HOA). U.S. EUCOM also planned for and executed Operation ENDURING FREEDOM–TRANS SAHARA (OEF-TS) in 2005 and 2006. U.S. Dep’t of Defense, U.S. Africa Command (AFRICOM), Information Brief on Operation Enduring Freedom – Trans Sahara (OEF-TS) Culture of Maintenance and Logistics Course, 11 (2011) [hereinafter OEF-TS Brief] (Feb. 23, 2014, 3:25 PM), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source =web&cd=4&ved=0CDwQFjAD&url=https%3A%2F%2Fcommunity.apan.org%2Fcfs- file.ashx%2F__key%2F telligent-evolution-components-attachments%2F13-6201-00-00-00-08-33- 29%2FAFRICOM-OEF_2D00_TS-Brief.pptx&ei=VFQKU5eZMcnOyQGmloCYCg&usg= AFQjCNG7HhrHwTR4Vofs9UxkyN3j886Hpg&cad=rjt. This counterterrorism operation focused on eleven west and central African nations, partnering with host national governments to bolster their
28 the Southern Command138 and the Pacific Command.139 This single military operation required the coordination and resources of all the overseas GCCs,140 which were simultaneously conducting other military operations requiring the support of PSCs.141
capabilities to deny terrorists refuge. Id. at slides 4, 18. With DoD in the lead, DOS and U.S. Agency for International Development (USAID) played critical roles in diplomacy and development. Id. at slide 5-7. U.S. EUCOM transferred authority over OEF-TS to AFRICOM in 2008 where it continues today. Id. at sides 11-12. 137 Freshly stood up as a GCC, U.S. Africa Command (AFRICOM) took over most of the responsibility for OEF-Horn of Africa (HOA) in 2006 from CENTCOM. While CENTCOM retained control over the operation in Egypt, AFRICOM took responsibility of OEF-HOA for the countries of Sudan, Eritrea, Ethiopia, Djibouti, Kenya, and Somalia. FEICKERT, CONG. RESEARCH SERV., R42077, supra note 147, at 34-35; see infra note 121 (Explaining the purpose of OEF-HOA). As of 2010, Somalia and Eritrea were no longer part of OEF-HOA. GlobalSecurity.Org, Operation Enduring Freedom - Horn of Africa (OEF- HOA)—Operation Octave Shield (Feb. 21, 2014, 5:01 PM), http://www.globalsecurity. org/military/ops/oef-djibouti.htm. During the same time, AFRCOM took over OEF-TS in 2008 from EUCOM. See OEF-TS Brief, supra note 148, at slides 11-12. 138 In 2002, U.S. Southern Command (SOUTHCOM) stood up Joint Task Force Guantanamo (JTF— GTMO), combining two joint task forces with the mission to detain enemy combatants captured after the 9/11 attacks and to collect intelligence from these detainees in furtherance of OEF. JAMISON D. BRAUN, MAJOR, U.S. AIR FORCE, JTF-GTMO: A 10-YEAR RELOOK 3 (May 2012) (Feb. 23, 2014, 3:59 PM), http://www.dtic.mil/dtic/tr/fulltext/ u2/a563766.pdf; see also U.S. SOUTHCOM, Joint Task Force Guantanamo, Mission (Feb. 23, 2014, 4:03 PM), http://www.jtfgtmo.southcom.mil/xWEBSITE/fact_sheets/jtf_mission.pdf (Detailing JTF-GTMO’s continued mission). In 2008, SOUTHCOM executed Operation ENDURING FREEDOM—CARIBBEAN, CENTRAL AMERICA (OEF-CCA) to address the terrorist threat in the Caribbean region. The Posture Statement, Hearing Before H. & S. Armed Serv. Comm., 110th Cong. (Mar. 5, 2008), available at http://www.dod.mil/dodgc/olc/docs/testStavridis080305.pdf (Feb. 23, 2104, 3:44 PM) (Testimony of Admiral James G. Stavridis, U.S. Navy Commander, U.S. Southern Command). 139 U.S. Pacific Command (PACOM) initiated Operation ENDURING FREEOM—Philippines (OEF-P) in 2002 with the mission of fighting terrorists and providing humanitarian relief to Mindanao, an island chain in Southern Philippines. Mark Munson, Has Operation Enduring Freedom-Philippines Been a Success?, Small Wars Journal (Apr. 5, 2013), http://smallwarsjournal.com/jrnl/art/has-operation-enduring-freedom- philippines-been-a-success (Feb. 23, 2104, 4:33 PM). 140 The FAR defines “Combatant Commander” as “the commander of a unified of specified combatant command in accordance with 10 U.S.C. 161.” FAR 2.101. The three functional Combatant Commands also work in concert with the GCCs in support of OEF and other on-going missions. See The Posture Of U.S. Central Command, U.S. Special Operations Command, And U.S. Transportation Command— National Defense Authorization Act For Fiscal Year 2014 & Oversight Of Previously Authorized Programs, Hearing Before H. Comm. On Armed Serv., 113th Cong. (Mar. 5, 2013), http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79956/html/CHRG-113hhrg79956.htm (Describing the missions and roles of U.S. Special Operations Command (SOCOM) and U.S. Transportation Command (TRANSCOM) relating to CENTCOM’s mission in OEF); see also Donna Miles, Strategic Command Provides Vital Warfighter, Operational Support, American Forces Press Serv. (Apr. 11, 2013), http://www.defense.gov/news/newsarticle. aspx?id=119752 (Reporting on the missions and roles U.S. Strategic Command (STRATCOM) plays in OEF). 141 For example, during the post-Operation IRAQI FREEDOM transition from U.S. military control to the host nation government, DOS reported a need for approximately 17,000 contractors, chiefly providing security and life-support requirements, to provide security requirements for its fifteen geographically separate diplomatic sites. IRAQ: TRANSITION FROM MILITARY MISSION TO A CIVILIAN-LED EFFORT, A REPORT TO S. COMM. ON FOREIGN REL., S. REP. NO. 112-3, at 8 (Jan. 31, 2011) (Feb. 23, 2014, 5:54 PM),
29
Differing rules and procedures across these GCC boundaries, especially in the context of the same military operation, hamper the PSC industry’s efficiency and effectiveness to operate.142
Contracting officers, contracting officer representatives (COR) and unit commanders deployed within a GCC combat zone are often the individuals charged with responsibility for implementing these procedures and rules.143 Crime can often detract military commanders and their legal advisors144 from their operational tasks to make critical law
http://www.gpo.gov/fdsys/pkg/CPRT-112SPRT 63954/html/CPRT-112SPRT63954.htm. From about 2006 to 2010, PSCs began to conduct field training in EUCOM’s AOR in Africa as military uniformed members were diverted to Iraq and Afghanistan during OEF and OIF. Emma Holager, The Impact Of The Private Security Industry On Peace-Building Efforts In Africa: An Assessment Of Executive Outcomes, MPRI And Dyncorp, (March 2011) (unpublished M.A. thesis, Stellenbosch University) (Feb. 23, 2014, 6:30 PM), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=28&v ed=0CGQQFjAHOBQ&url=http%3A%2F%2Fscholar.sun.ac.za%2Fbitstream%2Fhandle%2F10019.1%2F 6866%2Fholager_the_2011.pdf%3Fsequence%3D2&ei=uoEKU6zPLcmT0QH2wIGgDA&usg=AFQjCNE _4zlrecUvywmueA163k_TwreQCQ&bvm=bv.61725948,d.dmQ&cad=rjt (Recounting EUCOM’s use of PSCs in the Africa mission prior to turning the operations over to AFRICOM). AFRICOM’s 2010 military cooperation strategy, however, did not include the use of PSCs to meet its security requirements in OEF-TS or OEF-HOA. See Transcript of General William E. Ward, U.S. Army, Commander, U.S. AFRICOM, Interview by Radio France Internationale (RFI) (France, Jan. 8, 2010), http://www.africom.mil/ Newsroom/Article/7086/transcript-africoms-general-ward-interviewed-by-ra (Commenting that AFRICOM does not use private military companies to meet its operational requirements in Africa). 142 See Michael Pasquarett Colonel, U.S. Army & James Kievit, Prof., A Blueprint For A Bold Restructuring Of Organization For National Security—Phase One: Military Combatant Commands & State Dep’t Regional Bureaus, Ctr for Strategic Leadership U.S. Army War College 8 (1997) (Asserting that the national strategy should be viewed as a global problem rather than a regional problem since the end of the Cold War). 143 Contracting officer representatives, or CORs, assist the contracting officer and end-user activities with the technical monitoring and administration of a contract. See FAR 1.604; see also DFARS 252.201-7000. Within the DoD, [t]he term “Contracting Officer’s Representative” is used primarily by the Army, DoD, DLA and DCMA. The Air Force uses the term “Quality Assurance Personnel” for an equivalent position. Other terms commonly used include Contracting Officer’s Technical Representative, Task Order Manager.” U.S. DEP’T OF DEFENSE COR HANDBOOK DIR., DEFENSE PROCUREMENT & ACQUISITION POLICY 9 (Mar. 22, 2012) (Jan. 31, 2014, 3:19 PM), http://www.acq.osd.mil/dpap/policy/policyvault/usa001390-12-dpap.pdf. 144 Military legal advisors, known as Judge Advocate General’s Corps attorneys or JAGs, are responsible for, inter alia, ensuring the operational plans and policies are “in compliance with U.S. law, international law, local law, SOFAs, and DOD policy as they relate to the use of contracted, vice military, support. Specific concerns are legal status of United States and third country national contractor personnel hired outside of the operational area; force protection/security measures; and, arming contractor personnel (includes arming for self-defense and for security support).” U.S. DEP’T OF DEFENSE JOINT PUBLICATION 1-04, LEGAL SUPPORT TO MILITARY OPERATIONS I-12 (Aug, 17, 2011) (Citing U.S. DEP’T OF DEFENSE INSTRUCTION 3020.41, CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY THE U.S. ARMED FORCES (Dec. 20, 2011).
30 enforcement and investigative decisions.145 These decisions and actions affect criminal prosecutions,146 theater transfers, contract personnel employment decisions and, sometimes, civil suits.147 It is important, therefore, that the GCC procedural rules be clear, concise and uniform. Requiring uniform procedures ensures that military units have the ability to train on these procedures prior to deploying to a theater of operations, regardless of which GCC is charged with oversight and command authority.
B. INTERAGENCY PROCEDURAL DISPARITIES CAUSE INEFFECTIVENESS AND
ENFORCEMENT ROADBLOCKS
145 Military commanders are empowered and delegated a multitude of various disciplinary responsibilities over the unit they command. For example, Chapter III, Manual for Courts-Martial provides that a military commander has the responsibility to receive reports of criminal offenses. Rule for Courts-Martial 301, Uniformed Code of Military Justice (2012) (Report of Offense). Once this report is made, commanders are responsible to conduct or cause to conduct an inquiry into the misconduct. Rule for Courts-Martial 303, Uniformed Code of Military Justice (2012) (Preliminary Inquiry into Reported Offenses). Commanders have authority to order a service member into pretrial restraint pending a court-martial. Rule for Courts- Martial 304(b), Uniformed Code of Military Justice (2012) (Pretrial Restraint). Commanders have authority to dispose of offenses, to include court-martialing a service member for violations of the Uniformed Code of Military Justice. Rule for Courts-Martial 306, Uniformed Code of Military Justice (2012) (Initial Disposition). See also U.S. DEP’T OF ARMY REGULATION 600-20, ARMY COMMAND POLICY ¶ 4-7 (RAR, Sept. 12, 2012) (Explaining that commanders have “broad disciplinary powers”); U.S. DEP’T OF DEFENSE JOINT PUBLICATION 1-04, LEGAL SUPPORT TO MILITARY OPERATIONS I-11 (Aug, 17, 2011) (Explaining that the Judge Advocate for the joint force during operations is responsible for supervising the administration of military justice). 146 Legal disputes over jurisdiction still exist in U.S. law over trying contract employees performing overseas with the U.S. military and other agencies. The Blackwater PSC employees involved in the Nisur Square shooting incident in 2007 that left fourteen Iraqi citizens dead recently requested a federal judge to dismiss criminal charges against them for manslaughter, arguing that the MEJA does not provide jurisdiction over them because they were contract employees at the time of the incident. See Dan Ivers, Blackwater Workers Say Iraq Shooting Charges Don't Apply, Law360, Mar. 3, 2014 (Mar. 4, 2014, 9:05 AM), http://www.law360.com/governmentcontracts/articles/514827?nl_ pk=66f61642-427d-4978-abfc- ea6bdcc49944&utm_source=newsletter&utm_medium=email&utm_ campaign=governmentcontracts. 147 See U.S. JOINT FORCE COMMAND, HANDBOOK FOR ARMED PRIVATE SECURITY CONTRACTORS IN CONTINGENCY OPERATIONS, E3 (Feb. 23, 2010) (Explaining that PSC contract employees who fail to comply with established rules for the use of force procedures may be held criminally or civilly liable for their conduct); see e.g., Slough, 677 F. Supp. 2d, supra note 138 (Criminal prosecution of PSC employees for murder of civilians during use of force incident in Iraq); see also INGRID L. PRICEA, CRIMINAL LIABILITY OF CIVILIAN CONTRACTORS IN IRAQ AND AFGHANISTAN, 49 Stan. J. Int'l L. 491, 496 (2013) (describing the Department of Justice’s prosecution of Blackwater contract employees for murder in a use of force incident); Jomana Karadsheh & Mohammed Tawfeeq, Iraq to Sue Ex-Blackwater Guards, CNN.com, Jan. 10, 2010 (Feb. 28, 2014, 3:11 PM), http://www.cnn.com/2010/WORLD/meast/01/01/ iraq.blackwater.charges/ (Reporting on the Iraqi government’s intention of filing a civil law suit against the Blackwater contract employees involved in the civilian deaths during the Nisur Square use of force incident).
31
Failing to require uniform agency PSC procedures that include overseas strategic sites
creates a potential for varying standards among agencies.148 These varying standards could negatively affect overall quality of the security services provided.149 Where
another agency or department disagrees with the GCC procedures, there is potential for
conflicts to arise between DOD and that agency.150 Conflicts over these procedures and the potential of degraded quality standards create needless tension among agencies that must cooperate to successfully achieve national strategic goals for the country.151 For
instance, differences in agency rules for carrying out administrative investigations on
PSC contractors as an oversight mechanism can have detrimental impacts on the
government’s mission and strategy.152 Although the GCCs are charged with developing
the rules for investigations during certain military operations, their authority is limited in
scope by DOD.153
Differing interagency investigatory standards may adversely affect PSC oversight.
The recent federal district court case United States v. Slough provides a ready example of
how agency investigative procedures may assist or hamper a criminal proceeding
outcome.154 Here, DSS used a routine sworn statement form in an administrative inquiry
148 The overseas PSC statutory scheme only requires PSC procedures during combat activities and designated “Other Significant Military Operations.” FY 2008 NDAA, supra note 10, at § 862, as amended by FY 2011 NDAA, supra note 43, at § 831. 149 See id. 150 See id. at § 159.4(a) (Requiring DOD to coordination with DOS). 151 See DOD PSC Final Rule 2011, supra note 10, at § 159.4(a). Under the rule, coordination between the DoD and DOS is required during the planning stages of operations. The Chief of Mission is responsible for GCC implementation instructions for their PSC personnel during combat operations and Other Significant Military Operations. Id. at § 159.4(c). The GCC or subordinate command will consult with the Chief of Mission over implementing procedures and common threats and concerns related to PSC oversight matters. Id. at §§ 159.6(c)-(d). 152 See DOD PSC Final Rule 2011, supra note 10, at §§ 159.4(b), 159.6(a)(vi)-(vii) (Requiring the GCCs to develop area specific PSC rules and policies related to investigations on PSCs); 153 See id. 154 Slough, 677 F. Supp. 2d, supra note 138.
32 into a use of force incident during Operation IRAQI FREEDOM.155 At the time of the incident in 2007, the DSS contracted with Blackwater Worldwide (Blackwater)156 to provide security for its diplomats in war torn Iraq.157 Several Blackwater employees were tasked to provide back-up fire support158 for other contract employees performing security details under the contract.159 Responding to a reported vehicle borne improvised explosive device,160 the heavily armed contract employees took up positions around a traffic circle in the city of Bagdad known as Nisur Square.161 Shortly after they arrived, shots were fired in the area of the square.162 The incident ultimately ended with fourteen local national civilians killed and twenty others wounded.163
155 Id. at 118 (Recounting DOS’s PSC contract’s “WPPS [Worldwide Personnel Protective Services] On– Duty Discharge of Firearm Reporting Procedures” (‘the Hunter Memorandum’)”). 156 Blackwater Worldwide later changed its business name to Xe in 2009 and then again changed its business name to Academi, LLC in 2011. See Project on Gov’t Oversight Website, POGO.org, Blackwater USA (Mar 12, 2014, 9:10 PM), http://www.contractor misconduct.org/index.cfm/1,73,221,html?ContractorID=123&ranking=140. 157 Id. at note 7. 158 The term “fire support” refers to “[t]he collective and coordinated integration and synchronization of the fires and effects of armed aircraft, land-based and sea-based indirect fire systems, and electronic warfare systems that directly support combat forces against ground targets to delay, disrupt, or destroy enemy forces, combat functions, and facilities in pursuit of operational and tactical objectives.” U.S. Army Combined Arms Ctr, Fort Leavenworth, Kansas, Ctr for Army Lessons Learned,Thesaurus: Fire Support (Feb. 23, 2014, 8:21 PM), http://usacac.army.mil/cac2/ call/thesaurus/toc.asp?id=12784§ion=. 159 Slough, 677 F. Supp. 2d, supra note 138, at 116 (Recounting that defendants were assigned to the Blackwater Tactical Support Team with the mission of providing backup support to the PSC personal security detachment). 160 A vehicle borne improvised explosive device, VBIED, is “[a] device placed or fabricated in an improvised manner on a vehicle incorporating destructive, lethal, noxious, pyrotechnic, or incendiary chemicals and designed to destroy, incapacitate, harass, or distract. Otherwise known as a car bomb.” U.S. DEP’T OF DEFENSE, JOINT PUB. 3-10, JOINT SECURITY OPERATIONS IN THEATER GL-8 (Feb. 3, 2010). 161 Slough, 677 F. Supp. 2d, supra note 138, at 116. 162 Id. The record appears to be unclear how the shooting erupted or who initiated the shooting. The district court’s initial dismissal reported that as defendant PCS personnel arrived at “the traffic circle, a shooting incident erupted.” Id. The government prosecutors found, however, that the initial shots were fired from within the circle toward outside of the circle, and not toward the PSC convoy. Brief for Appellant at 19, United States v. Slough, No. 10-3006 (DCC Nov. 29, 2010). The defendants argued that the testimony about who fired the initial shots was tainted and not credible to make the determination. Brief for Appellee at 75, United States v. Slough, No. 10-3006 (DCC Oct. 1, 2010). 163 Slough, 677 F. Supp. 2d, supra note 138, at 116.
33
In compliance with the standard operating procedure for use of force incidents,164 DSS members interviewed the Blackwater employees about the skirmish165 as part of DOS’s reporting procedures.166 According to these procedures, employees performing under the
WPS contract were required to provide a sworn statement if they discharged their weapons during a use of force incident.167 The sworn statement expressly stated that its use was for administrative purposes at the request of the DSS and that the statement could not be used in a criminal proceeding.168 Both the trial and appellant courts found that the notice on the sworn statements amounted to a Garrity warning,169 which excludes
164 Id. at 118. The DSS’s standard operating procedures to report use of force incidents and take sworn statements from PSC contract personnel appear to be supported by other DSS use of force incident practices in Iraq around the same time period as the Nisur Square incident. See e.g., DSS, SPOT Report— 010907-01, COM TST Team Attacked by SAF 30-44 (Jan. 9, 2007) (Feb. 20, 2014, 12:45 PM), https://s3.amazonaws.com/ s3.documentcloud.org/documents/271276/january-to-june-2007.pdf (Reporting on a use of force incident in the vicinity of Bagdad that occurred on September 9, 2007 concerning a DSS PSC contract Tactical Support Team (TST) that included an incident report and several sworn statements); DSS, Incident Report 184-199 (Aug. 15, 2007) (Feb. 20, 2014, 12:49 PM), https://s3.amazonaws.com/s3.documentcloud.org/ documents/271277/june-to-december-2007.pdf (Reporting on a use of force incident in the vicinity of Bagdad that occurred on August 15, 2007 concerning a DSS PSC contract Personal Security Service (PSS) that included an incident report and several sworn statements). 165 Slough, 677 F. Supp. 2d, supra note 138, at 117. 166 Id. at 118. 167 Id. 168 The sworn statement used for this purpose bore the following language on the form:
I, ______, hereby make the following statement at the request of ______, who has been identified to me as a Special Agent of the U.S. Department of State, Diplomatic Security Service. I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001.
Id. 169 Slough, 677 F. Supp. 2d, supra note 138, at 118; Slough, 641 F.3d at 548 (Finding that the government conceded the statement to be a Garrity warning and was not an issue for appeal).
34
“statements compelled under a threat of removal from office”170 from being used during prosecution proceedings against the individual.171 The appellate court held that information derived from these statements was inadmissible and must be segregated from other admissible evidence.172
Congress should enact legislation that not only requires other agencies to follow DoD
PSC policy but to also investigate possible crimes by PSC personnel in accordance with
DoD investigative procedures. The procedural mistakes made in the Slough case would likely not have occurred if the use of force investigative procedures were uniformly applied across agency lines.173 The military’s investigative procedural scheme is not without flaw itself, but has developed adequate measures over time to address fundamental problems with reporting misconduct and ensuring proper dispositions are available to the appropriate authorities.174
170 Slough, 677 F. Supp. 2d, supra note 138, at 118 (Citing Garrity v. New Jersey, 385 U.S. 493 (1967) & Kalkines v. United States, 200 Ct. Cl. 570, 473 F.2d 1391, 1393 (1973). 171 Id. 172 Slough, 641 F.3d at 550-51. 173 See id. 174 See U.S. DEP’T OF ARMY TECHNIQUES PUB. 3-39.12, LAW ENFORCEMENT INVESTIGATIONS 3-8 (Aug. 2013) (Detailing the Army’s rights procedures used during the conduct of investigations and interrogations); U.S. DEP’T OF ARMY FORM 3881, RIGHTS WARNING PROCEDURE/WAIVER CERTIFICATE (Nov. 1989) (Providing for rights warning procedures to both military service members and civilians); see also U.S. DEP’T OF AIR FORCE FORM 1168, STATEMENT OF SUSPECT/WITNESS/COMPLAINT (Apr. 1, 1998) (Providing for rights warning procedures to both military service members and civilians); U.S. DEP’T OF NAVY, OFFICE OF THE CHIEF OF NAVAL OPERATIONS FORM 5580/3 MILITARY SUSPECT'S ACKNOWLEDGEMENT & WAIVER OF RIGHTS (Nov. 2006) (Providing for rights warning procedures to both military service members and civilians); see also LIEUTENANT GENERAL DANA K. CHIPMAN, THE JUDGE ADVOCATE GENERAL, U.S. ARMY, WRITTEN SUBMISSION TO U.S. COMMISSION ON CIVIL RIGHTS— MILITARY, JUSTICE 101 2-3 (Jan. 11, 2013) (Feb. 28, 2014, 4:09 PM), http://www.eusccr.com/Chipman,%20Army %20WrittenStatement_USCCR.pdf (Describing the extensive training commanders and service judge advocates undergo in conducting criminal investigations and administering military justice); LAURA A. DICKINSON, MILITARY LAWYERS, PRIVATE CONTRACTORS, AND PROBLEM OF INT’L LAW COMPLIANCE, 42 N.Y.U. J. Int'l L. & Pol. 355, 361-64 (2010) (Describing how judge advocates assisted commanders during the Iraqi and Afghanistan military operations in establishing procedures and practices relating to contractor oversight, management and investigations); U.S. Dep’t of Defense & U.S. Dep’t of State, Memorandum of Agreement (MOA) Between DOD & DOS on USG Private Security Contractors, Washington, D.C. (Dec. 5, 2007) (Providing for the development of investigations procedures for PSCs performing in Iraq who commit misconduct); U.S. JOINT FORCE
35
The preparedness of agencies to work with DOD is fundamental to mission accomplishment and often includes routine tasks like conducting administrative investigations related to PSC use of force incidents.175 Such investigative procedures should be homogenous to develop a common operating picture of the contingency operation and to ensure appropriate accountability over both troops and contract personnel.176
C. DIFFERING AGENCY INDUSTRY STANDARDS CREATE GOVERNMENT
INEFFICIENCIES
The DOD and DOS should use a single industry standard in overseas PSC contracts for combat activities, for other significant military operations and for overseas strategic sites. Other U.S. agencies could benefit from a single PSC standard as well.177 The current DOD regulatory regime developed from a local security guard directive that applied to Army and Air Force contracts in Iraq during OIF.178 An international consortium led by the Swiss government later produced the Montreux Document which
COMMAND, HANDBOOK FOR ARMED PRIVATE SECURITY CONTRACTORS IN CONTINGENCY OPERATIONS, E4- 5 (Feb. 23, 2010) (Feb. 28, 2014, 3:33 PM), http://www.defense.gov/pubs/ pdfs/signed%20 MOA%20Dec%205%202007.pdf (Explaining that PCS violations of the rules for the use of force during overseas contingency operations will be reported and investigated). 175 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Requiring some cooperation between the DOD and DOS regarding PSC procedures). 176 The U.S. military uses a common operational picture (COP) to provide a system that includes common intelligence and other information between multiple commands and inter-agencies as a means of synchronization. See U.S. DEP’T OF ARMY, ARMY DOCTRINE REFERENCE PUBLICATION 6-0, MISSION COMMAND (May 17, 2012) (Defining the term “Common Operational Picture”). 177 For instance, the U.S. Department of Energy stations both permanent and temporary federal employees overseas to manage and oversee its programs (e.g., industrial technologies and nuclear stockpile oversight). See, generally, U.S. Dep’t of Energy, Handbook on Overseas Assignments (July 2013), (Apr. 14, 2014, 12:29 PM), http://energy. gov/sites/prod/files/2013/07/f2/DOE%20HANDBOOK%20ON%20OVERSEAS%20ASSIGNMENTS.pdf. 178 See Mayer Interview, supra note 19, citing U.S. DEP’T OF DEFENSE, UNITED STATES GOVERNMENT POLICY GUIDANCE ON CONTRACTOR SECURITY (July 2004) [hereinafter DOD PSC Policy]. The DOD PSC Policy was developed from a combined effort between the Pentagon and the military operating in Bagdad, Iraq. The State Department opted not to apply the regulatory guidance to its contracts, but the military heavily used it for its PSC contracts. The DOD PSC Policy was not officially published, but was widely disseminated among DOD in its orders and subsequent PSC regulation. See Mayer Interview, supra note 19.
36 provides a consolidated list of existing international legal obligations and establishes best practices for contracting nations and PSCs.179
In 2011, Congress directed DOD to formally review how it could better implement the principles and good practices outlined in the Montreux Document in its PSC contracts.180
In 2012, DOD developed PSC standards and management practices through the
American National Standards Institute (ANSI)/ASIS International.181 Consistent with this commitment, DOD ensured that the standards required by Congress were structured to implement those sections in the Montreux Document suitable for inclusion in a management system standard for PSCs.182
DOD now requires its PSC contractors to comply with the ANSI/ASIS PSC.1
179 See Swiss Gov’t Fed. Dep’t of Foreign Affairs—Topics: Montreux Document on Private Military & Sec’ty Companies (Mar. 2, 2014, 11:50 PM), http://www.eda.admin.ch/psc; see also The Montreux Document On Pertinent International Legal Obligations & Good Practices for States Related to Operations of Private Military & Sec’ty Companies During Armed Conflict, Int’l Comm. for Red Cross & Fed. Dep’t of Foreign Affairs, Switzerland 9 (2009) [hereinafter the “Montreux Document”]. A report five years after the Montreux Document was drafted found PSC compliance to the international standards as mixed. See Montreux Five Years On: An Analysis Of State Efforts To Implement Montreux Document Legal Obligations And Good Practices (Dr. Rebecca DeWinter-Schmitt, ed., AU, Washington College of Law 2013). 180 See FY 2011 NDAA, supra note 19, at § 833 (Directing DOD to review PSC standards and certifications). 181 See Dep’t of Defense, Office of Deputy Ass. Sec’ty of Defense—Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating DOD’s position of recognizing the Montreux Document’s importance). The DOD currently uses ANSI/ASIS PSC.1, .2 and .3 for the management and oversight practices of its PSC contracts. The DOD does not, however, use ANSI/ASIS PSC.4 for its maritime PSC contracts. See Mayer Interview, supra note 19; see also ANSI/ASIS PSC.1 (Mar. 5, 2012), Management System for Quality of Private Security Company Operations — Requirements with Guidance [hereinafter ANSI/ASIS PSC.1]; ANSI/ASIS PSC.2 (2012), Conformity Assessment & Auditing Management Systems for Quality of Private Security Company Operations [hereinafter ANSI/ASIS PSC.2]; ANSI/ASIS PSC.3 (2013), Maturity Model for Phased Implementation of Quality Assurance Mgmt System for Private Security Serv. Providers [hereinafter ANSI/ASIS PSC.3]; ANSI/ASIS PSC.4 (2013), Quality Assurance & Security Mgmt for Maritime Private Security Companies – Guidance (Implementing PSC standards for maritime related activities) [hereinafter ANSI/ASIS PSC.4]; see also Dep’t of Defense Office of Deputy Ass. Sec’ty of Defense, Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Explaining each of the ANSI/ASIS PSC documents). 182 See Mayer Interview, supra note 19; Mayer Email, supra note 10.
37
standards.183 The ANSI/ASIS PSC.1 standard requires member PSCs to develop internal ethical codes of behavior184 and training programs on International Humanitarian Law and other security related themes.185 More significantly, the ANSI/ASIS PSC.1 requires
PSC members to train on the rules of the use of force that comport with their client’s procedural requirements.186
DOD PSC contracts must comply with the standards set forth in the ANSI/ASIS
PSC.1.187 DOS, however, does not yet formally require its PSC contractors to comply with ANSI/ASIS PSC.1.188 The DSS has expressed an intent to require PSC bidders to its WPS successor contract to be members of the International Code of Conduct for
Private Security Service Providers (ICoC)189 and comply with the ANSI/ASIS PSC.1.190
Similar to the ANSI/ASIS PSC.1, the ICoC sets forth agreed-upon international principles and codes of conduct for PSCs to operate under. 191 The ANSI/ASIS
183 DFARS Part 225, PGI 225.7401(a)(vi)(Checklist-15) (Requiring ANSI/ASIS PSC.1 standards to be incorporated into all DoD PSC contracts performed during combat, contingency and other military operations and exercises). 184 ANSI/ASIS PSC.1, supra note 195, at ¶ 9.1.2. 185 Id. at ¶¶ 6.3, 9.3, A.2.2. For instance, training emphasizes a focus on the proscription of torture and maltreatment, and awareness programs on human trafficking and sexual exploitation prevention. Id. at ¶ 9.3. 186 Id. at 9.5.2 187 DFARS Part 225, PGI 225.7401(a)(vi) (Checklist-15); see also Dep’t of Defense Office of the Deputy Assistant Sec’t’y of Defense, Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Explaining DoD PSC contract requirements). 188 U.S. Dep’t of State, Diplomacy in Action Media Note: State Dep’t to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm (Reporting that the United States intends on joining the ICoC and that the DSS plans on requiring PSC membership in its WPPS successor contract, as well as requiring PSCs to comply with the ANSI mandates). 189 See International Code of Conduct for Private Security Service Providers Website—About the ICoC, http://www.icoc-psp.org/About_ICoC.html (Mar. 2, 2104, 11:25 PM). DOD’s position is that the FAR does not permit DOD to create such a membership requirement. See Mayer Email, supra note 10. 190 U.S. Dep’t of State, Diplomacy in Action Media Note: State Dep’t to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ ps/2013/08/ 213212.htm. 191 See Rebecca DeWinter-Schmitt & Heather Elms, Providing Security in Challenging Environments: Evolutions in Security Management 5 (Int’l Studies Ass’n Annual Convention, Working Paper, April 6, 2013) (Mar. 2, 2014, 4:32 PM),
38 management system provides a practicable standards approach of “the principles outlined in the ICoC.”192
Given that the federal government already funded the development of the ANSI/ASIS standards, DOS’ future requirement for ICoC membership appears unnecessary.193
Moreover, requiring membership in the ICoC as a responsibility determination could be inconsistent with FAR requirements.194 Using a single uniform standard for federal government PSC procurements minimizes potential expenses on agency oversight systems and increases overall management efficiencies.
D. STATUTORY AND REGULATORY DIRECTIVES LACK ADEQUATE PSC
OVERSIGHT, ENFORCEMENT AND TRANSPARENCY MECHANISMS
The lack of uniformity among agencies and gaps between the law and regulation also dilute both conventional government oversight and private sector watchdog access.195
http://www.wcl.american.edu/humright/center/documents/Proliferationdynamicinteractionandevolutionof selfregulationinthePMSI.pdf (Documenting that the ASIS/ASIS PSC provides broader PSC standards than those provided for in the ICoC). While the ANSIS/ASIS PSC was developed by ASIS International, a professional security organization that develops educational materials for the industry. See id. 192 ANSI/ASIS PSC.1, supra note 195, at ¶ 0.1; see also Mayer Email, supra note 10 (Distinguishing the ANSI/ASIS from the ICoC). 193 See International Code of Conduct for Private Security Service Providers Website—About the ICoC, http://www.icoc-psp.org/About_ICoC.html (Mar. 2, 2104, 11:25 PM). 194 See Mayer Email, supra note 10 (Explaining potential problems of requiring ICoC membership with the FAR). 195 Recent Congressional proposed reforms recognize the need to ensure uniformity and oversight in government contracting oversight. See e.g., Press Release, H. Comm. on Gov’t Oversight & Reform, Oversight Leaders Introduce Bill to Address Gov’t Contracting Abuses (Oct. 28, 2013) (Mar. 6, 2014, 9:56 AM), http://oversight.house.gov/release/oversight-leaders-introduce-bill-address-government-contracting- abuses/ (Announcing that the Suspend Act promotes transparency and consistency for the government suspension and debarment system); Dietrich Knauth, Contractor Suspension Reform Bill Clears House Panel, Law 360, Oct. 29, 2013) (Mar. 6, 2014, 9:59 AM), http://www.law360.com/articles/484456/contractor-suspension-reform-bill-clears-house-panel (Reporting the Suspend Act promotes a timely, uniform and transparent suspension and debarment system). The federal government does not routinely track or openly publish the number of suspended or debarred companies by type of business; rather, only raw numbers are collected. See System for Award Management (Oct. 14, 2013, 10:12 AM), https://www.sam.gov/portal/public/SAM/ (Reporting on the federal government’s suspensions and debarments). The consequence of this lack of data is that there is no accessible way to track PSCs that are suspended or debarred unless there is a Congressional inquiry or other investigation on that matter. See id. The federal government does not routinely track or openly
39
The government’s approach to debarments and suspensions provides a ready example of an area that neither the 2008 PSC statute196 nor the new DOD rules adequately address.197
This area is a general contracting concern not specific to PSCs alone,198 but should be addressed within the PSC context given its recent regulatory development.
Section 841 of the National Defense Authorization Act for Fiscal Year 2012 grants the
Commander of U.S. Central Command the discretion to determine whether an individual or entity is assisting the insurgency in its AOR.199 Once identified, all contracts with the individual or entity are either terminated or voided to stop the flow of U.S. monies from reaching terrorists actively engaged against the United States and its mission.200 Known as the Contracting With The Enemy Act, the CENTCOM Commander is authorized to constructively debar these individuals and entities from contracting with the U.S. government within its AOR without going through the regulatory administrative procedural requirements demanded in the FAR.201
publish the number of suspended or debarred companies by type of business; rather, only raw numbers are collected. See System for Award Management (Oct. 14, 2013, 10:12 AM), https://www.sam.gov/portal/public/SAM/ (Reporting on the federal government’s suspensions and debarments). The consequence of this lack of data is that there is no accessible way to track PSCs that are suspended or debarred unless there is a Congressional inquiry or other investigation on that matter. See id. 195 See id. For instance, the Army reported that it suspended or debarred between fourteen and forty-six contract individuals or entities operating in Afghanistan between the years 2008 through 2011. Sanctions increased in the years 2012 and 2013 with 100 and 145 suspensions or debarments, respectively. None of the Army’s data, however, was collected to break down this raw data into what types of companies were sanctioned or, more specifically, how many PSCs were suspended or sanctions and for what purpose. E- mail from Mark Rivest, Esq., Chief, Procurement Fraud Branch, Contracts & Fiscal Law Div., U.S. Army Legal Serv. Agency, Fort Belvoir, Virginia to author (September 13, 2013, 13:23 EST) (on file with author). 196 See FY 2008 NDAA supra at note 9. 197 See 2011 Final Rule supra at note 83; see PSC FAR Rule supra at note 100. 198 See Mayer Email, supra note 10. 199 National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 STAT. 1298, § 841 (2012) [hereinafter FY 12 NDAA] (Legislating the “Prohibition On Contracting With Enemy In U.S. Central Command Theater Of Operations”). 200 Id. at § 841(a)(1)(B)-(C). 201 Id. at § 841(a)(1)(A). Section 841 does not provide for notification procedures provided for in the FAR or require contracting officials to enter those effected into the System for Award Management (SAM), the data base where suspensions and debarments are recorded for the federal government. Compare Section
40
Upon implementation of the Contracting With The Enemy Act, CENTCOM referred some of its constructive debarments to the Army.202 These referrals were made pursuant to the FAR and required compliance of specific debarment procedures, which ensures the individuals or entities are debarred on a government-wide basis—instead of being isolated to the CENTCOM AOR.203 The Army is the executive agency responsible for
CENTCOM AOR contracting matters, which includes suspensions and debarments.204 In its regular report to Congress, the Special Inspector General for Afghanistan
Reconstruction (SIGAR)205 found the Army slow and inefficient to administer the
CENTCOM debarment referrals.206 The referrals, however, were incomplete and failed to satisfy the demanding FAR procedural requirements.207 This procedural obstacle prevented the Army from efficiently administering the referrals without opening itself up
841(a)(1)(B)-(C), (c), supra at note 170, With FAR 9.406-3, Procedures, & System for Award Management) (Providing for a suspension and debarment database). 202 See SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION, QUARTERLY REPORT TO U.S. CONGRESS 49-50 (October 30, 2013) [hereinafter SIGAR Report Oct. 2013]. The SIGAR reported that in 2012 it referred forty-three individuals or companies to be debarred to the executive agency responsible for contracting activities for the CENTCOM AOR—the Army. These individuals and companies were determined to be supporting terrorist activities by CENTCOM pursuant to its Section 841 authority. Id. 203 See id. 204 Memorandum from William J. Lynn III, Deputy Secretary of Defense, on Coordination & Contracting Activities in the USCENTOM Area of Responsibility (AOR) (November 22, 2010) (on file with author) [hereinafter Army EA Designation] (Designating the DOD Army as the executive agent responsible for contracting, to include suspension and debarment authority, for Operation NEW DAW in Iraq, Operation ENDURING FREEDOM in Afghanistan, Pakistan and Kuwait). 205 The SIGAR was established by the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 122 Stat. 3, §§ 842, 1229 (2008) (Section 842 is entitled, “Investigation of waste, fraud, & abuse in wartime contracts & contracting processes in Iraq & Afghanistan;” and Section 1229 is entitled, “Special Inspector General for Afghanistan Reconstruction”). 206 Hearing on SIGAR Report—Document Destruction & Millions Of Dollars Unaccounted For At DOD Before H. Comm. on Oversight & Gov’t Reform, Subcomm. on Nat’l Security, Homeland Defense, & Foreign Ops, 112th Cong. 131 (2012) [hereinafter “Sopko Testimony”] (testimony of Special Inspector General John F. Sopko) (Mar. 6, 2013, 11:02 AM), http://www.gpo.gov/fdsys/pkg/CHRG- 112hhrg76193/html/CHRG-112hhrg76193.htm (Reporting that the Army had not yet adjudicated the SIGAR’s debarment referreals relating to the Section 841 determinations). 207 Letter from John M. McHugh, The Secretary of the Army, to The Honorable Jeanne Shaheen, U.S. Senator 1 (March 15, 2013) [hereinafter Army Letter March 2013] (Mar. 6, 2014, 11:12 AM), http://www.pogoarchives.org/m/co/sigar-army-response-20130131.pdf (Explaining that the Army considered each of the SIGAR’s forty-three debarment referrals individually to determine whether sufficient evidence existed to appropriately adjudicate them).
41 to litigation for failing to comply with the FAR’s procedural requirements.208 As a result, the Army took over 323 days to adjudicate the debarment referrals.209 In response to the
Army’s lag time in processing the referrals, the SIGAR referred the matter to Congress210 and attempted to obtain its own regulatory suspension and debarment authority.211
Although the legislation attempted to deal with the flow of monies filtering to terrorist groups,212 it still required the SIGAR to comply with the FAR’s procedural requirements to expand CENTCOM’s constructive debarment decisions.213 SIGAR’s wrangling over the issue brought this problem to the forefront of Congress’s attention, but only succeeded in causing a publicized interagency grudge match between itself and the
Army.214 Although the Section 841 legislation pertains to all areas of government procurement law, its application to overseas PSCs is relevant here.215 The federal government does not have a readily available and efficient process for suspending or
208 See id. 209 See Letter from U.S. Senator Jeannee Shaheen (D-NH), et als., to Honorable John McHugh, Sec’y of Army, & Honorable Ramond Odierno, Chief of Staff of Army (December 5, 2012) [hereinafter Shaheen 2013 Letter] (Mar. 6, 2014, 11:09 AM), http://www.shaheen.senate.gov/news/press/release/?id=5a128a64- 63d2-4ca5-a4b7-f726c7548c39 (Conveying concern to the Army that the debarment referrals were made 323 days ago). 210 See Sopko Testimony, supra note 217 (Testifying that the Army’s debarment systems were slow and inefficient to timely adjudicate its forty-three debarment referrals). 211 th See H.R. 2912, 113 Cong. (2013), AFGHANISTAN SUSPENSION & DEBARMENT REFORM ACT (Proposing to authorize SIGAR with debarment authority). 212 Special Inspector General for Afghanistan Reconstruction, SIGAR Audit 13-6, Contracting with the Enemy: DOD has Limited Assurances that Contractors with Links to Enemy Groups Are Identified & Their Contracts Terminated, 5-6 (April 2013) (Identifying weaknesses in CENTCOM’s Section 841 authority to identify terrorist groups to eliminate them from contracting activities within the CENTCOM AOR); see also Hearing on Protecting Taxpayer Dollars: Is Gov’t Using Suspension & Debarment Effectively? Before H. Comm. on Oversight & Gov’t Reform, 112th Cong. 24-26 (June 12, 2013) (testimony of Mr. Scott Amey, General Counsel, Project on Gov’t Oversight, advocating for the SIGAR’s debarment authority due to the Army’s refusal to timely debar terrorist groups). 213 See FAR 9.406-3, 9.407-3 (Providing the procedures for debarments and suspensions, respectively); 214 See Dietrich Knauth, Army Won't Debar 43 Contractors Suspected Of Insurgent Ties, Law360.com (July 30, 2013) (Feb. 12, 2014, 4:30 PM), http://www.law360.com/articles/461146/army-won-t-debar-43- contractors-suspected-of-insurgent-ties (Reporting of the Army’s refusal to debar SIGAR’s debarment referrals after finding this action would violate the effected companies’ due process rights). 215 See generally FY 2012 NDAA, supra note 223, at § 841. The Section 841 legislation provides CENTCOM the authority to restrict any individual or entity from contracting within its AOR and is not limited to PSC contractors). See id.
42 debarring PSCs that are identified as supporting terrorist activities.216 The government also lacks timely and efficient oversight and enforcement mechanisms to prevent these
PSCs from gaining contracts in other GCCs or from other agencies assisting the military.217 The Section 841 legislation may establish a legislative precedent to expand authority to GCCs beyond the CENTCOM’s current operations.218 Delegating this authority to other GCCs may increase efficiencies and DOD’s ability to cut off transnational terror groups that operate in multiple GCC AORs.
Another problem with the Section 841 legislation is that it lacks mandated transparency.219 Currently, there are no statutory requirements to announce
CENTCOM’s constructive debarment decisions on publicly accessible data bases.220
There could be operational and national security reasons not to announce certain determinations, however such concerns could be addressed.221 Currently, CENTCOM posts its Section 841 decisions on the open internet but this is a discretionary decision
216 See generally FAR 9.406-3, 9.407-3 (Mandating specific due process rights to contractors referred for suspension or debarment pursuant to the FAR’s authorization); see also generally FY 2012 NDAA, supra note 223, at § 841 (Limiting Section 841 authority to prohibit contracting activities within the CENTCOM AOR). 217 See SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION, QUARTERLY REPORT TO U.S. CONGRESS 20 (July 30, 2013) [hereinafter SIGAR REPORT July 2013] (Reporting that DoD provides only “limited assurances” of its capability to adequately identify terrorist groups under its Section 841 authority). 218 For example, SIGAR proposed expansion of Section 841 to DOS and USAID. See id. at 34. 219 See, generally, FY 2012 NDAA, supra note 208, at § 841. 220 See id. (Prescribing Section 841 authority without requiring open publication of CENTCOM’s determinations). 221 For example, U.S. contractors in Afghanistan with links to terror groups have been heavily involved in road construction. See Alissa J. Rubin & James Risen, Costly Afghanistan Road Project Is Marred by Unsavory Alliances, New York Times, May 1, 2011 (Reporting about contractor involved in building the Gardez-Khost Highway and its association with Afghani insurgents). U.S contractors have also been reported to provide funds to terror groups who attack troops. See Brian Ross, et als., Senator: U.S. Soldiers Being Killed by Terror Groups Backed With U.S. Money, ABCNews.Com, Nov. 11, 2013 (Mar. 6, 2014, 5:00 PM), http://abcnews.go.com/ Blotter/senator-us-soldiers-killed-terror-groups-backed- us/story?id=20660114 (Reporting that the U.S. military spent approximately $143 million in contracts that funneled funds to terrorist groups opposing U.S. forces).
43 made by the GCC.222 Without a statutory or regulatory requirement to increase transparent Section 841 determinations, DOD subjects itself to potentially adverse public scrutiny. This potential for the public and concerned watchdog groups to scrutinize
DOD’s Section 841 determinations will only increase if the authority is expanded to other
GCCs. Steps to ensure DOD minimizes public skepticism is essential for an effective program.
III. STRATEGIC SOLUTIONS TO INCREASE PSC OVERSIGHT AND
ENFORCEMENT
Some of the FAR’s objectives are to provide uniform policies223 and to promote transparency.224 The lessons learned from using PSC contractors over the past decade draws a three-pronged approach to dealing with overseas PSC requirements.225 First, apply the Section 862 legislation requirements to a broader range of activities to ensure vital national assets and policies are appropriately protected. Second, require a single uniform overseas PSC industry standard across the federal government. Third, establish better oversight and transparent enforcement mechanisms to PSC contracts.
222 U.S. statute does not required public reporting of CENTCOM’s Section 841 determinations. See generally FY 2012 NDAA, supra note 208, at § 841. Under current regulatory policy, DoD requires CENTCOM to notify Senior Procurement Executives of its Section 841 determinations and contracting activities are required to review CENTCOM’s contracting website where it voluntarily published some or all of its Section 841 determinations. See Memorandum from Office of the Undersecretary of Defense for Acquisition, Technology and Logistics on Class Deviations—Prohibition on Contracting with the Enemy in the U.S. Central Command Theater of Operations (DAR Tracking No. 2013-O0020) to Commander U.S. Special Operations Command, et als. (Oct. 1, 2013); see also U.S. Central Command Website, CCJ4, Contracting (Mar. 6, 2014, 4:37 PM), https://www2. centcom.mil/sites/contracts/ SiteAssets/Contracting.aspx (Publishing a list of contractors identified by CENTCOM pursuant to its Section 841 authorization). 223 See FAR 1.101 (Detailing the purpose of the FAR to provide codified and published uniform policies and procedures for procurements within the executive branch). 224 See FAR 1.102(b). 225 The U.S. military has learned from its experiences since it began procuring goods and services in 1775. Contracting support grew exponentially during Operation IRAQI FREEDOM because of the international involvement in the conflict. See U.S. Defense Procurement & Acquisition Policy, Contingency Contracting throughout U.S. History (Mar. 9, 2014, 3:15 PM), http://www.acq.osd.mil/dpap/pacc/cc/history.html.
44
A. BROADEN SECTION 862 REQUIREMENTS TO NATIONAL STRATEGIC SITES
The current legislative mandates should be expanded to include PSC contracts covering overseas strategic sites to ensure uniformity in the administration of these security contracts. Under the current legislative regime, Section 862 is limited to circumstances involving combat operations226 and other significant military operations.227
However, overseas PSC contract activities will likely continue to be a vital gap filler to other strategic sites across the federal government.228 The PSC legislative requirements should be broadened to cover all overseas strategic sites.229
Overseas strategic sites impacted by this expansion should include overseas military installations,230 embassies and attachés, overseas military and non-DOD agency exercises, and humanitarian operations.231 These facilities and activities are not an all-
226 See FY 2008 NDAA, supra note 9 at § 862(a)(1) (Limiting the PSC legislative requirements to combat operations). 227 See FY 2011 NDAA, supra note 43 at § 832(a)(2)(C) (Amending the FY 2008 NDAA to include Other Significant Military Operations). 228 During Operating IRQI FREEDOM, the Congressional Budget Office reported that PSCs played a vital role for both the military and the diplomatic corps in supplementing manpower to meet security requirements. CONGRESSIONAL BUDGET OFFICE, PUB. NO. 3053, CONTRACTORS’ SUPPORT OF U.S. OPERATIONS IN IRAQ 1 (2008); but see David A. Wallace, Future Use Of Corporate Warriors With U.S. Armed Forces: Legal, Policy, & Practical Considerations & Concerns, 16 Defense ARJ 123, 137 (2009) (Proposing that future use and contracting with PSCs should be seriously reviewed and considered prior to the next crisis). 229 Currently, the legislation requirements only require DOD to promulgate PSC procedures for contracts performed during combat operations and Other Significant Military Operations. See FY 2008 NDAA, supra note 10, at § 862 (Requiring combat operations PSC procedures); FY 2011 NDAA, supra note 43, at § 832 (Requiring Other Significant Military Operations PSC procedures). 230 As notes earlier, DOD exercises an extensive regulatory regime over military installations that incorporate many of the Section 862 mandates already. See supra note 73 (Providing list of DOD security regulations applying to military installations); see also Mayer Email, supra note 10 (Noting DOD’s extensive agency regulatory policies over PSC contracting activities). 231 The Section 862 legislation, as amended, does not currently include direct the DoD, DOS or other agencies to develop PSC procedures and regulatory policies for these listed activities. See FY 2008 NDAA, supra note 10, at §§ 862, 864; Duncan Hunter National Defense Authorization Act For Fiscal Year 2009, Pub. L. No. 110-417, 122 Stat. 4356, § 853 (2009) [hereinafter FY 2009 NDAA]; FY 2010 NDAA, supra note 55, at § 813; FY 2011 NDAA, supra note 43, at § 832. Although not mandated by statute, DOD already applies the current ANSI/ASIS standards to humanitarian operations. See U.S. DEP’T OF DEFENSE INST. 3020.50, PRIVATE SECURITY CONTRACTORS (PSCS) OPERATING IN CONTINGENCY OPERATIONS, HUMANITARIAN OR PEACE OPERATIONS, OR OTHER MILITARY OPERATIONS OR EXERCISES, Encl. 3 (Change 1, Aug. 1, 2011); DFARS 252.225-7039, Contractors Performing Private Security Functions.
45 inclusive list, however. Due consideration to expanding this legislation should be given to the Range of Military Operations,232 as well as other overseas non-DOD agency activities.233 Although great care should be made to defining what an overseas strategic site should cover, the definition should not be limited to fixed objects like a military installation or diplomatic building.
The proposed amendment should reflect an expansion of the term “covered contract”234 in the PSC legislation to include the following: “a contract of a federal agency for the performance of services in an overseas area of combat operations, other significant military operations, and strategic sites.”235 The law should define strategic sites broadly as military installations and other DOD facilities, U.S. embassies and diplomatic missions, and other activities conducted by the Departments of Defense and
State determined by the Secretaries of Defense and State Departments to be critical to the
U.S. national strategic objectives and that primarily236 provide security services to U.S. property or people conducting these activities.237 The Secretaries of Defense and State
232 The U.S. government projects its instrument of power abroad through the military’s Range of Military Operations, each varying “in purpose, scale, risk, and combat intensity.” U.S. DEP’T OF DEFENSE, JOINT PUB. 3-0, JOINT OPERATIONS x (Aug. 11, 2011). Examples of the varying types of military operations “include stability operations; civil support; foreign humanitarian assistance (FHA); recovery; noncombatant evacuation (NEO); peace operations (PO); combating WMD; chemical, biological, radiological, and nuclear consequence management; foreign internal defense (FID); counterdrug (CD) operations; combating terrorism; COIN; and homeland defense.” Id at xviii. 233 For example, DOS activities like humanitarian relief programs may require PSC contracted security teams to guard diplomatic relief workers abroad. See 10 U.S.C. § 2561 (Authorizing DOS to conduct humanitarian assistance efforts). 234 See FY 2008 NDAA, supra note 10, at § 864(3)(A) (Defining the term covered contract); FY 2011 NDAA, supra note 43, at § 832(a)(1) (Amending the term covered contract contained in the FY 2008 NDAA). 235 See FY 2011 NDAA, supra note 43, at § 832(a)(1) (Signifying proposed changes in the italicized text). 236 The purpose of incorporating the term “primarily” to the definition is to constrain the procurement of security services to U.S. property or people without limiting non-U.S. property and people related to the activity from benefiting from the security services. For example, the determination of an overseas military exercise could be determined to be a strategic site even where some of the personnel participating are foreign military. 237 Id.; see also Sean C. Sullivan, NSPA 11-1 (Rev. 1), Defense Resource Allocation—Principles of U.S. Defense Planning, Nat’l Security Decision Making Dep’t, U.S. Naval War College 2 (Jun. 30, 2010)
46
should be delegated authority to determine what activities and facilities are overseas
strategic sites, considering their national strategic importance to geopolitical spheres of
influence.238
The legislation may have to undergo fundamental amendments to incorporate this
expansion.239 Mandating PSC rules and procedures for overseas critical activities and
facilities provides greater efficiency to oversight mechanisms for PSC contracts. This
expansion is necessary to provide interagency uniformity in how the federal government
procures PSC contracts when strategic failure must be protected against.
B. IMPLEMENT THE ANSI/ASIS STANDARDS GOVERNMENT-WIDE
The federal government should require overseas PSC contractors and subcontractors to comply with ANSI/ASIS PSC.1 standards for consideration of security service contract
awards. This requirement should be incorporated into the solicitations and subsequent
contracts for all agencies across the federal government. Failing to comply with these
standards should be made grounds for termination for default.
The federal government funded the development of the ANSI/ASIS PSC.1 standards,
as well as the implementing model standards.240 The DOD already requires its PSC
contractors to comply with these standards, and requires the incorporation of standardized
(Defining strategic objectives as being “used to create the operational concepts that determine how a state’s military forces will be employed”). 238 See James F.Miskel, Ph.D., National Interests—Grand Purposes or Catchphrases?, LV Nat’l War College Rev. 96, 97 (Autumn 2002) (Defining one approach to defining the term “national interest . . . in terms of a state’s tangible power and sphere of influence relative to those of other states”). 239 See generally FY 2008 NDAA, supra note 10, at § 862; see also Mayer Email, supra note 10 (Commenting that such an expansion would require a rewrite of the current legislation). 240 See Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense—Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating that DOD assisted in the development of the ANSI/ASIS PSC standards); see ANSI/PSC.1, supra note 193 (Providing for the PSC standards); see also ANSI/ASIS PSC.2 (2012), supra note 193; ANSI/ASIS PSC.3.
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PSC clauses into all overseas PSC contracts.241 Alternatively, DOS publically announced that it will require ICoC membership for eligibility in successor WPS contract awards.242
The DOS acknowledges, however, that the untested ICoC243 is still in its infancy244 and such a requirement is doubtful.245 DOD’s early development and requirement of the
ANSI/ASIS PSC.1 standards make this approach a stronger candidate to implement government-wide in PSC contracts.246
Implementing the existing ANSI/ASIS standards as the single uniform approach is needed to develop minimum criteria from which to plan overseas PSC contracts during combat operations, other significant military operations and for the security of overseas strategic sites. The GCCs and DOS need to know what their planning constraints are to conduct appropriate level operational preparations and to determine the costs of needed resources. Such an approach will ensure uniformity and consistency throughout the
241 DFARS Part 225, PGI 225.7401(a)(vi)(Checklist-15) (Requiring ANSI/ASIS PSC.1 standards). 242 U.S. Dep’t of State, Diplomacy in Action Media Note: DOS to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm (Reporting that the United States intends on joining the ICoC and that the DSS plans on requiring PSC membership in its WPPS successor contract, as well as requiring PSCs to comply with the ANSI mandates). 243 See Daniel G. Straub, Outsourcing Human Security: The Pros and Cons Of Private Security Companies In Peacekeeping (Mar. 2013 (unpublished Ph.D. dissertation, Naval Postgraduate School) (Mar. 10, 2014, 6:29 PM), http://www.dtic.mil/dtic/ tr/fulltext/u2/a579966.pdf (Asserting that “[i]nternational norms such as the Montreux Document and the ICoC only become accepted and adopted after they have been effectively used”). 244 U.S. Dep’t of State, Diplomacy in Action Media Note: DOS to Incorporate International Code of Conduct into Worldwide Protective Serv. Contracts (Aug. 16, 2013) (Mar. 2, 2014, 1:42 PM), http://www.state.gov/r/pa/prs/ps/2013/08/ 213212.htm. 245 See Mayer Email, supra note 10 (Noting that DOS may not require ICoC membership in its PSC contracts); Mayer Interview, supra note 19 (Commenting that DOS may not require ICoC membership in its PSC contracts). 246 See Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense—Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating that DOD assisted in the development of the ANSI/ASIS PSC standards and now requires implementation of these PSC standards).
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federal government and make interagency coordination more efficient for PSC contract
planning purposes.247
C. ESTABLISH OVERSIGHT AND TRANSPARENT ENFORCEMENT MECHANISMS
Certain oversight and enforcement mechanisms should be utilized for PSC contracts.
These tools should be transparent to the public to the greatest extent possible without
releasing sensitive government information. At a minimum, agencies across the federal
government should have standardized procedures to conduct administrative investigations
into overseas PSC contracts.248 Additionally, Section 841 authority should be expanded
to GCCs to prevent terrorists from capitalizing on federal government contract monies.249
In furtherance of the need for timely enforcement tools, a suspension official should be attached to each GCC to provide more efficient sanction authority and coordinate debarment investigations and referrals. These mechanisms will not only ensure overseas
PSC contract oversight and enforcement are more efficient and transparent, but have the added effect of providing these benefits to non-PSC contracts as well.250
1. APPLY MINIMUM STANDARD INVESTIGATION STANDARDS TO PSC CONTRACTS
The mistakes made in the Slough case should be prevented to ensure administrative
inquiries relating to PSC incidents may be used during criminal and civil proceedings.251
With a broader government approach towards applying Section 862 to overseas strategic
247 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Requiring coordination between the DoD and DOS). 248 Currently, the Section 862 legislation only requires DOD to develop investigatory procedures during combat activities and Other Significant Military Operations. The legislation does not consider this requirement necessary for other PSC activities, like for overseas strategic sites. See FY 2008 NDAA, supra note 10, at § 862(a)(2)(E), as amended by FY 2011 NDAA, supra note 43, at § 831. 249 See FY 2012 NDAA, supra note 208, at § 841. 250 See Memorandum from U.S. President Barrack Obama on Transparency & Open Gov’t to Heads of Exec. Dep’ts & Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009) (Promoting a transparent government to bolster efficiencies and inform the public). 251 See Slough, 677 F. Supp. 2d, supra note 138.
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sites, DOD’s investigation procedures should be implemented government-wide to PSC contracts.252 The DOD’s general training and practiced approach toward conducting
routine administrative investigations on both military and civilians provides a ready
example of how DOS and other agencies should advance their administrative inquiries.253
Although administrative investigations are often used to ensure compliance, these inquiries should be capable of providing admissible evidence in criminal proceedings if
the need arises.254 The GCCs should implement these investigative standards into
standing procedures for PSC contracts, through coordination with DOS.255 Implementing
and enforcing uniform PSC investigation procedures ensures government-wide
compliance256 and available procedures for future operations and other activities where
PSC contracts are required.257
Mandating rights warnings and waivers, for instance, ensures that administrative
inquiries involving PSC contractors are not derailed on procedural grounds.258 PSCs may
find this uniform method advantageous because their requirement to conduct multiple
training standards will be reduced when performing contracts in more than one GCC
AOR.259 This reduction in requirements may reduce training and oversight overhead.260
252 See FY 2008 NDAA, supra note 10, at § 862. 253 See id. at § 862(a)(1) (Requiring DoD to promulgate PSC rules and procedures). 254 Using the U.S. military services approach to investigations, administrative inquiries may concurrently be used to meet criminal procedural requirements. See e.g., U.S. DEP’T OF ARMY, REGULATION 15-6, PROCEDURES FOR INVESTIGATING OFFICERS & BOARDS OF OFFICERS ¶ 3C(5) (Oct. 2, 2006) (Providing for rights to witnesses to preserve statement during criminal proceeding using Army administrative investigation procedures). 255 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Requiring DoD to coordinate with DOS over its PSC rules and procedures). 256 See e.g., Slough, 677 F. Supp. 2d, supra note 138 (Rendering a sworn statement taken by DSS inadmissible in court due to procedural problems used by DOS). 257 See id. 258 See id. 259 See FAR 19.201 (Providing the government’s policy to use small businesses when practicable); FAR 19.202-1 (Providing the government’s policy to conduct acquisition planning in order to maximize awards to small businesses).
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In sum, a uniform approach ensures that information gathered will withstand criminal procedural requirements and reduce costs to PSC training requirements.261
2. BROADEN SECTION 841 AUTHORITY TO ALL OVERSEAS GCCS
The GCCs should have permanent authority to block PSCs and other contractors from gaining contract awards when they are determined to be terrorists and providing enemy support against the United States and its national strategic objectives.262 The requirement to keep federal monies out of terrorists’ hands is not unique to the CENTCOM AOR.263
The post-9/11 Global War on Terrorism operations were premised upon a world-wide terrorism threat to the United States which the GCCs must be prepared to fight.264
Broadening the Section 841 authority to other GCCs recognizes the unique contracting issues raised by overseas procurements.265 For instance, contracts for PSC security services places these employees in positions close in proximity to critical assets and
260 Are Changes In Security Policy Jeopardizing USAID Reconstruction Projects & Pers. In Afghanistan?: Serial No. 112-149 Before the H. Oversight & Gov’t Reform Subcomm. on National Security, Homeland Defense & Foreign Operations, 112th Cong. 5 (Mar. 29, 2012) [hereinafter SIGAR Serial No. 112-149] (statement of Steven J Trent, Acting Special Inspector General for Afghanistan Reconstruction). The SIGAR recently reported that PSCs had difficulty meeting the procedural requirement changes mandated by the U.S. and Afghan governments. Id. This report is indicative that PSCs would endure an even greater hardship on meeting requirements that differ among the GCC AORs. See id. 261 See e.g., U.S. DEP’T OF ARMY, REGULATION 15-6, PROCEDURES FOR INVESTIGATING OFFICERS & BOARDS OF OFFICERS ¶ 3.C(5) (Oct. 2, 2006) (Providing for rights to witnesses to preserve statement during criminal proceeding using Army administrative investigation procedures). 262 See FY 2012 NDAA, supra note 208, at § 841. 263 Historically, terrorists operate all around the globe. Records maintained by DSS from 1973 to 1985 show that fifty-eight terrorist attacks occurred in the SOUTHCOM AOR, twenty-five attacks occurred in the EUCOM AOR, eleven attacks occurred in the PACOM AOR and seven attacks occurred in the AFRICOM AOR. U.S. Dep’t of State DSS Threat Analysis Division, Lethal Terrorist Actions Against Americans 1973-1985 2 (1985). During World War I, the United States similarly placed restrictions on certain lending vehicles that were targeting enemies of the states. See Trading With Enemy Act of 1917, 50 U.S.C. § 8, Contracts, mortgages, or pledges against or with enemy or ally of enemy; abrogation of contracts; suspension of limitations (Providing for the World War I era dissolution of contracts with the enemy enacted); see also, J. B. G., Who is "enemy" within Trading with the Enemy Act, 156 A.L.R. 1466 (1945) (Providing a general overview of the Trading With Enemy Act of 1917). 264 Report On United States Efforts In Global War On Terrorism, H.R. Doc. No. 107-266 (Sept. 24, 2002) (Reporting on the worldwide fight against terrorism). 265 See FY 2012 NDAA, supra note 208, at § 841.
51 personnel vital to U.S. interests.266 PSCs providing personal protection services may provide security to a U.S. ambassador.267 Other PSC contracts may require static gate guards at military installations where troops deploy from or where strategic ballistic missiles are maintained.268 Still other PSCs may provide roving guard forces to defend forward operating bases from enemy attack.269 In each of these examples, PSC personnel must be well vetted and ultimately entrusted with firearms to protect American troops, civilians and other vital assets.270 The GCCs should have an efficient and administratively legal procedure to ensure awards are not made to questionably unreliable contractors known for supporting terrorists.271
Related to this authority expansion, close coordination needs to be maintained between the GCCs and DOS.272 The DOS overseas consulates need to share intelligence with the GCCs so that relevant information is available to make proper Section 841
266 Inherent in the requirements provided in PSC contracts are the guarding of personnel and property critical to the mission. See Dep’t of Defense, Office of the Deputy Assistant Sec’ty of Defense—Program Support: Private Security Companies (PSC) (Mar. 2, 2014, 11:44 PM), http://www.acq.osd.mil/log/PS/psc.html (Stating that DOD assisted in the development of the ANSI/ASIS PSC standards and is not requiring use of these PSC standards). 267 See e.g., U.S. Dep’t of State Contract No. S-AQMPD-07-C0054 with ArmorGroup North America, Inc. (Mar. 12, 2007) (Sept. 17, 2013, 4:04 PM), http://psm.du.edu/national_regulation/united_states/laws_ regulations/index.html#contracts (Providing for PSC service requirements for guarding U.S. Embassy personnel and facilities in Kabul, Afghanistan); U.S. Dep’t of State Contract No. SGR100-06-C-0353 with Brink’s/Hernes Joint Venture (May 15, 2006) (Sept. 18, 2013, 12:06 PM), http://psm.du.edu/national_regulation/united_states/ laws_regulations/index.html#contracts (Providing for PSC service requirements for guarding U.S. Embassy personnel and facilities in Athens and Thessalonian, Greece). 268 See e.g., Matt Millham, Pond Security loses Army contract in Germany, Stars & Stripes, Jan. 23, 2014 (Mar. 10, 2014, 7:11 PM), http://www. stripes.com/pond-security-loses-army-contract-in-germany- 1.263521?reminder=off (Reporting of the U.S. Army’s award to a PSC to provide guard services to its overseas installations located in Germany). 269 See e.g., Taimoor Shah & Rod Nordland, Bomb Kills 4 Soldiers In Afghanistan, New York Times, Oct. 6, 2013 (Reporting of a PSC employee allegedly shot and killed a U.S. Soldier while on guard duty at Forward Operating Base Apache in the city of Qalat, Zabul Province, Afghanistan). 270 See FY 2008 NDAA, supra note 10, at § 862(a)(1) (Requiring DOD to develop PSC selection procedures); § 862(a)(2)(B) (Requiring DOD to develop procedures for authorizing weapons to PSCs). 271 See FY 2012 NDAA, supra note 208, at § 841 (Authorizing CENTCOM to identify terrorists and groups supporting terrorist organizations and to cancel contracts with these individuals and groups). 272 Under the current PSC legislation, the DoD is required to coordinate its rules and procedures with the DOS. FY 2008 NDAA, supra note 10, at § 862(a)(1).
52 determinations.273 Blocking these terrorist groups from gaining contracts can be successfully accomplished through continuous operational communication between the embassy country team desks and the GCCs.274 This expansion is necessary to ensure federal dollars are not funneled to terror groups and national strategic objectives are achieved.275
3. IMPLEMENT TRANSPARENT SECTION 841 DECISIONS
Permanent Section 841 authority requires transparency to ensure fairness and avoid abuses of discretion.276 CENTCOM currently is under no statutory obligation to publish its Section 841 determinations or notify the person or entities blocked from award.277
Expanding this authority to all of the GCCs will create a need to ensure these determinations are well founded and consistent across the federal government.
Publishing these determinations on a central government depository like the System for Award Management (SAM)278 or on the GCCs’ public domain websites279 will ensure
273 See FY 2012 NDAA, supra note 208, at § 841. The President also encourages executive agencies to actively collaborate together, using innovative tools to increase transparency and efficiencies. See Memorandum from U.S. President Barrack Obama on Transparency & Open Gov’t to Heads of Exec. Dep’ts & Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009) (Promoting a transparent government to bolster efficiencies and inform the public). 274 The U.S. military promotes interoperability systems to share intelligence among the military services and agencies to improve warfighter intelligence. See U.S. DEP’T OF DEFENSE, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, JOINT ENTERPRISE INTEGRATION OF WARFIGHTER INTELLIGENCE, 3340.02B (Oct. 24, 2013). 275 See FY 2012 NDAA, supra note 208, at § 841 (Providing a legislative means to protect the government fisc and keep funds from reaching terrorist organizations who oppose the United States). 276 See id. 277 See id. 278 System for Award Management (SAM) (Mar. 10, 2014, 8:54 PM), https://www.sam.gov/portal/public/SAM/ (Providing a government-wide public database for contractor suspensions and debarments). 279 See U.S. European Command Operational Contract Support Website (Mar. 7, 2014, 7:04 PM), http://www.eucom.mil/policies-and-compliance/eucom-operational-contract-support/guidance-for- contracting-officers (Providing access to DODI 3020.50, Private Security Contractors Operating in Contingency Operations but lacking any specific PSC information related to EUCOM); U.S. Africa Command Website, http://www.africom.mil/ (Lacking any publicly accessible information about its PSC rules and procedures); U.S. Southern Command Operational Contract Support Website, http://www.southcom.mil/workwithsouthcom/Pages/Contracting-Support.aspx (Lacking any publicly
53 the public has greater access to this information.280 These determinations have a direct financial and political implication.281 Potential contractors who are prevented from obtaining awards will necessarily lose government funds—the very purpose of the law.282
These individuals and entities should have access to this information in order to administratively contest these determinations with the GCCs.283 There exists some potential for these determinations to be wrongly made. For example, a contractor’s name
accessible information about its PSC rules and procedures); U.S. Pacific Command J46 Operational Contracting Support Website(Mar. 7, 2014, 7:13 PM), http://www.pacom.mil/ organization/staff- directorates/ j4/j46.shtml (Lacking any publicly accessible information about its PSC rules and procedures); U.S. Central Command Contracting Website (Mar. 7, 2014, 6:43 PM), https://www2.centcom.mil/ sites/contracts/SiteAssets/ Contracting.aspx (Listing the companies designated under Section 841). Although not readily accessible directly through CENTCOM’s website, some documents are accessible search through public domain search engines. See e.g., CENTCOM Synchronized Pre-Deployment and Operational Tracker (SPOT) Compliance Check List (Mar. 7, 2014, 6:50 PM), https://www2.centcom.mil/sites/contracts/Synchronized%20 Predeployment%20and%20Operational%20Tracker/CORSPOTComplianceCheck-List.pdf?Mobile=1& Source=%2Fsites%2Fcontracts%2F_layouts%2Fmobile%2Fdispform.aspx%3FList%3D955b4a58-b7d5- 4744-8256-7304cbacd1be%26View% 3D542780d7-5575-4caf-8f98- 48844a7f7c77%26ID%3D16%26CurrentPage%3D1 (Requiring the registering of PSC armored vehicles pursuant to Section 862); CENTCOM Provisions / Clauses Table (Mar. 7, 2014, 6:50 PM), https://www2.centcom.mil/ sites/contracts/Lists/Theater%20Contracting/ Attachments/13/Commercial MatrixPD21JUL12.pdf (Listing the solicitation provisions and contract clauses required for PSC contracts); Memorandum from the Office of the Undersecretary of Defense for Acquisition, Technology and Logistics on Class Deviation—Contractor Personnel Performing in the U.S. Central Command Area of Responsibility to Commander U.S. Central Command, et als. (Apr. 25, 2011) (Mar. 7, 2014, 7:01 PM), https://www2.centcom.mil/sites/contracts/DODUSCENTCOM %20Regulations%20and%20Policies/USA001267-11- DPAP%20Class%20Deviation%20Contractor%20Personnel%20Performing%20in%20the%20AOR.pdf? Mobile=1&Source=%2Fsites%2Fcontracts%2F_layouts%2Fmobile%2Fview.aspx%3FList%3D6f6f1974- b9c3-4352-812c-aefc90680710%26View %3D9edac875-52d0-4f30-8959- 4fd981d2c2ce%26CurrentPage%3D1 (Providing some use of force authorization and registration requirements for PSC performing in the CENTCOM AOR). 280 See supra note 262 (Listing of the GCC operational contract support public domain websites). 281 The federal government does not use the suspension and debarment system to punish contractors for prior misconduct. FAR 9.402(b) (2013). Instead, this system is maintained to protect the government’s interests in future procurements from companies that have a history of bad acts. FAR 9.406-2 (2013). 282 FAR 9.402(b) (2013). 283 Under the current statutory scheme, individuals and entities do not have an express right of appeal when CENTCOM determines them to be assisting terrorist organizations opposing the United States and then banning them from contracting activities within its AOR. See generally FY 2012 NDAA, supra note 208, at § 841.
54 may be similar to or the same as an individual or entity on the banned list. This is not an uncommon scenario considering the mistakes made on the national no-fly lists.284
Public scrutiny will increase over GCC determinations as the Section 841 authority is broadened beyond CENTCOM. Providing access to these determinations will increase transparency to the system and reduce skepticism over potential inconsistencies and unfair abuses. This practice is consistent with currently available information on suspended and debarred individuals and companies sanctioned through FAR procedures.285 Providing some information to the public will offer greater legitimacy to these determinations, even if this information is limited after national security and operational concerns are accounted for. As demonstrated by CENTCOM’s voluntary publication of its Section 841 determinations, however, these national security interests are likely the exception.286
4. CO-LOCATE SUSPENSION OFFICIALS WITHIN THE GCC’S AORS
Executive agencies should co-locate a suspension official with the GCC staffs to enhance their capabilities and efficiently enforce contractor conduct.287 This recommendation applies to all overseas contracts, but is particularly important to
284 See e.g., David Kravets, FBI Checks Wrong Box, Places Student on No-Fly List, Wired.Com, Feb. 6, 2014 (Mar. 13, 2014, 9:24 PM), http://www.wired.com/threatlevel/2014/02/no-fly-list-bungle/ (Reporting that the FBI mistakenly placed an individual on the government’s no-fly list due to a procedural error). 285 The federal government provides a publicly accessible website to publish contractors that are suspended or debarred from contracting activities. See System for Award Management (SAM) (Mar. 10, 2014, 8:54 PM), https://www.sam.gov/ portal/public/SAM/ (Providing a government-wide public database for contractor suspensions and debarments). 286 See U.S. Central Command Contracting Website (Mar. 7, 2014, 6:43 PM), https://www2.centcom.mil/sites/ contracts/SiteAssets/ Contracting.aspx (Listing the companies designated under Section 841). 287 See Dietrich Knauth, Calls for Contractor Debarment Carry Political Appeal, Law 360—A LexisNexis Company (May 13, 2013) (Mar. 6, 2014, 4:45 PM), http://www.law360.com/articles/440772/calls-for- contractor-debarment-carry-political-appeal (Describing government’s expansion of suspensions and debarments in recent years). FAR based suspensions and debarments are employed as sanctions and not to punish contractors. FAR 9.402(b) (2013).
55 enforcing PSC contracts given their potential for strategic impacts.288 Expanding Section
841 determinations to the GCCs will increase the need for streamline enforcement mechanisms that require specific compliance with regulatory administrative procedures.289 Broadening the PSC regulatory regime to include overseas strategic sites will potentially increase the number of contracts and servicing locations that require oversight and enforcement. Changes to the PSC regulations that offer GCCs and executive agencies responsible for contracting are necessary to ensure adequate oversight and efficient enforcement.
Locating an agency suspension official in the GCCs’ AOR will accomplish several objectives. Firstly, GCCs will ensure contractors, like PSCs who are entrusted to provide vital security requirements, are efficiently and timely suspended from contracting activities across the federal government.290 Secondly, the suspension officials will provide a direct point of contact to the executive agencies responsible for contracting activities in a particular area to investigate the suspension matter further.291 Finally, the
288 See generally FY 2012 NDAA, supra note 208, at § 841; See e.g., Colin Jones, Our Silent Partners: Private Security Contractors in Iraq, Small Wars Journal, May 17, 2012 (Mar. 10, 2014, 9:24 PM), http://smallwarsjournal.com/jrnl/art/our-silent-partners-private-security-contractors-in-iraq (Describing how the PSC Blackwater defended a Coalition Provinical Authority headquarters in al-Najaf, Iraq during a firefight). 289 See FAR 9.406-3 (2013); see also Memorandum from Richard Ginman, Dir., Defense Procurement & Acquisition Policy, Office of Undersec’y of Defense, Suspension & Debarment Referral Procedures (July 18, 2012) (Describing new DOD referral procedures for suspensions and debarments). Contrarily to Section 841 procedures, debarments administered using the procedures set forth in the FAR are effective government-wide unless an agency head has a compelling reason not to do so. FAR 9.406-1(c) (2013). These procedures provide contractors with minimum due process requirements. FAR 9.406-3 (2013). 290 See generally FAR 9.406-3 (2013) (Setting forth the debarment procedural requirements). 291 FAR 9.406-3(a) (2013) (Requiring agencies to establish investigation procedures to refer to the debarment official).
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suspension officials will work with the GCCs to provide a timely and supported
debarment referral to the executive agency heads for debarment decisions.292
As indicated from the Army’s recent experience with debarment referrals from Iraq, executive agencies responsible for contracting activities need a direct point of contact co- located where the contracting activity takes place.293 Following the debacle between the
Army and SIGAR over timely debarment decisions, the SIGAR requested suspension and
debarment authority.294 SIGAR’s requested authority, however, does not resolve the
underlying problems that prompted the Army to delay the requested debarments.295
Even if granted suspension and debarment authority, SIGAR would still be required to
comply with the FAR’s procedural requirements.296 Just as the Army experienced difficulties in receiving the necessary documentation to support the Section 841 debarment referrals, the SIGAR will also be required to ensure its debarment decisions are based upon supporting documentation.297 The Army currently administers its
suspension and debarment program from Fort Belvoir, Virginia and the Pentagon.298
SIGAR’s headquarters is located close by in Arlington, Virginia where it will presumably
292 See id. (Requiring agencies to establish referral procedures to the debarment official for consideration and decision-making); see also FAR 9.406-3(b) (Providing for the Debarment Official’s decision-making procedures). 293 See Sopko Testimony, supra note 217 at 331 (Reporting that the Army had not yet adjudicated the SIGAR’s debarment referreals relating to the Section 841 determinations). 294 th See H.R. 2912, 113 Cong. (2013), AFGHANISTAN SUSPENSION & DEBARMENT REFORM ACT (Proposing suspension and debarment authority to be given to the SIGAR). 295 The proposed legislation providing SIGAR with suspension and debarment authority does not provide any exceptions to vary from the FAR procedural requirements that the Army is required to use. See id. 296 Id. 297 Id; see also FAR 9.406-3(d) (Providing for the debarment official to consider the administrative record and findings of fact from an investigation). 298 See JAGC PERSONNEL DIRECTORY 22 (October 2012) (Describing U.S. Army Judge Advocate Corps office locations, including the Procurement Fraud Branch).
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administer its program.299 Neither the Army nor SIGAR are resourced to send a
suspension official to the CENTCOM AOR.300
Due consideration should be given to the command relationship and coordination
between the GCC and the forward suspension official. The executive agencies
responsible for contracting in a particular area will be responsible for oversight of the suspension officials.301 Their suspension decisions should be forwarded to the executive agencies responsible for contracting in their areas for continuous review and necessary communication.302
The GCCs require both contracting flexibility, as well as PSC enforcement tools.
Some discretion is vital to the GCC’s operational contracting readiness. Contingency
operations need supplies and services quickly and a healthy number of contractors able to
provide outsourcing.303 Suspension officials working closely with GCC staffs will better
know the requirements of the regional area and act as an advocate for the GCCs in
balancing these contracting concerns. At the same time, forward suspension officials will
be in a better position to advocate for the GCCs in preparing well substantiated
299 See Special Inspector General For Afghanistan Reconstruction Website, Contact SIGAR (Sept. 26, 2013, 12:09 PM), http://www.sigar.mil/contact/ (Publishing SIGAR’s office headquarters). 300 Under the current legislation proposed by the SIGAR, there are no provisions providing for additional personnel to be forward located in the CENTCOM AOR. See generally H.R. 2912, 113th Cong. (2013), AFGHANISTAN SUSPENSION & DEBARMENT REFORM ACT. 301 See Army EA Designation, supra note 215 (Designating the DOD Army as the executive agent responsible for contracting, to include suspension and debarment authority, for Operation NEW DAW in Iraq, Operation ENDURING FREEDOM in Afghanistan, Pakistan and Kuwait). 302 See id., see also FAR 9.406-3(a) (Providing for the procedure to refer debarments to the debarment official). 303 U.S. DEP’T OF DEFENSE JOINT PUBLICATION 4-10, OPERATIONAL CONTRACT SUPPORT III-12 (Oct. 17, 2008) (Emphasizing the requirement and capability of rapid positioning of contracting personnel).
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debarment packets. This is especially important for Section 841 determinations that
should be applied globally to prevent terror groups from operating across GCC lines.304
Although the suspension official may be co-located with a GCC, the official’s chain of command will still reside with the executive agency responsible for contracting.305 In this way, the executive agency may provide appropriate oversight of the official’s suspensions decisions, investigations and debarment referrals.306 This should not be
problematic for GCCs, as their staffs are already trained and equipped to work closely
with interagency staffs with whom coordination is required without direct control
responsibilities.307 Through a co-located suspension official, cross-coordination between
the GCCs and executive agencies will be managed in an efficient manner to make vital
decisions on contract enforcement matters that impact PSC contractors.308
Conclusion
The current statutory framework and newly issued rules effecting DOD and DOS’s
PSC contracts are certainly an improvement over the previous state of agency oversight
for these matters.309 Expanding PSC regulations to overseas strategic sites and
mandating agencies to use a single uniform industry standard in PSC contracts will
304 See SIGAR REPORT July 2013, supra note 228, at 20 (Reporting that CENTCOM lacks effective tools to adequately identify contractors that funnel monies to terrorist groups). 305 Suspension Officials are either agency heads or designees of the agency. FAR 403 (2013). 306 See id. 307 See U.S. DEP’T OF DEFENSE JOINT PUBLICATION 4-10, OPERATIONAL CONTRACT SUPPORT I-1 (Oct. 17, 2008) (Requiring GCCs to have the capability to synchronize and plan during contingency operations planning). 308 See FEICKERT, CONG. RESEARCH SERV., R42077, supra note 147, at 14-15 (Describing the interagency representation organization at the combatant commands). 309 In 2005 for instance, a GAO study found that the United States and international community lacked any uniform vetting qualifications for employee training or experience level. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-737, REBUILDING IRAQ—ACTIONS NEEDED TO IMPROVE USE OF PRIVATE SECURITY PROVIDERS 9 (July 2005).
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ensure the federal government’s use of PSCs is consistent and homogenous.310 This
expansion also ensures the nation’s critical assets and personnel are better protected when
PSC contracts are required to meet minimum security requirements.311 Requiring
uniform administrative investigations and broadening Section 841 authority provides
agencies better tools to enforce PSC contractor conduct.312 Forward locating suspension
officials offers GCCs a tool to increase efficiencies while balancing its outsourcing
requirements. These mechanisms, together with a uniform PSC system, ensure a transparent enforcement system that promotes fairness, sound judgment and efficiency.313
310 Public policy goal attainment is one of the FAR’s objectives. See FAR 1.102-2(d) (2013). 311 For instance, the protection of U.S. embassies, attachés or other humanitarian assistance activities. 312 See FY 2012 NDAA, supra note 208, at § 841. 313 See Memorandum from U.S. President Barrack Obama on Transparency & Open Gov’t to Heads of Exec. Dep’ts & Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009) (Promoting a transparent government to bolster efficiencies and inform the public).
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