View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Digital Commons at St. Mary's University, San Antonio Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2006 Contractors on the “Battlefield”: Providing Adequate Protection, Anti-Terrorism Training, and Personnel Recovery for Civilian Contractors Accompanying the Military in Combat and Contingency Operations Jeffrey F. Addicott Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Jeffrey F. Addicott, Contractors on the “Battlefield”: Providing Adequate Protection, Anti-Terrorism Training, and Personnel Recovery for Civilian Contractors Accompanying the Military in Combat and Contingency Operations, 28 Hous. J. of Int'l L. 323 (2006). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. CONTRACTORS ON THE "BATTLEFIELD:" PROVIDING ADEQUATE PROTECTION, ANTI-TERRORISM TRAINING, AND PERSONNEL RECOVERY FOR CIVILIAN CONTRACTORS ACCOMPANYING THE MILITARY IN COMBAT AND CONTINGENCY OPERATIONS Jeffrey F. Addicott* I. INTRODUCTION .................................................................. 324 II. HISTORY AND STATUS OF CONTRACTORS ON THE BATTLEFIELD .................................................................... 330 A. Scope of ContractorSupport ...................................... 332 B. Status of Contractors................................................. 338 III. FORCE PROTECTION .......................................................... 345 A. Contractor's Use of Firearms..................................... 347 B. ProtectingContractors ............................................... 350 IV . A T TRAINING ..................................................................... 353 V. PARENT CONTRACTOR COMPANY LIABILITY ISSUES REGARDING EMPLOYEES ON THE BATTLEFIELD ............... 361 * Associate Professor of Law and Director, Center for Terrorism Law, St. Mary's University School of Law. B.A. (with honors), University of Maryland; J.D., University of Alabama School of Law; LL.M., The Judge Advocate General's Legal Center and School; LL.M. and S.J.D., University of Virginia School of Law. This paper was prepared under the auspices of the Center for Terrorism Law located at St. Mary's University School of Law, San Antonio, Texas, and Trusted Agent for Training & Education, Incorporated (TATE), Germantown, Maryland. The Author wishes to acknowledge with special thanks the superb efforts of research assistants Jason Lemons and Steve Roberts who supported this Article with outstanding research and editing. 323 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 28:2 VI. PERSONNEL RECOVERY ..................................................... 378 V II. CONCLUSION ..................................................................... 385 I. INTRODUCTION Personnel recovery is no longer limited to high-risk, specialized troops as was the case in the past .... Isolated personnel now include U.S. military, contractors and other government civilians, as well as coalitionpartners.' LTG Norton Schwartz Providing adequate protection, antiterrorism (AT)2 training and, if necessary, personnel recovery3 for civilian contractors 1. Roxana Tiron, Pentagon Still Undecided on Polices to Protect Contractors,NAT'L DEF., Nov. 2004, at 39. 2. U.S. DEP'T OF DEF., DICTIONARY OF MILITARY AND ASSOCIATED TERMS 40 (2001, amended edition 2005) (defining antiterrorism as "[diefensive measures used to reduce the vulnerability of individuals and property to terrorist acts, to include limited response and containment by local military forces") [hereinafter DICTIONARY OF MILITARY AND ASSOCIATED TERMS]. "The proactive, preventative stage to stopping terrorism, antiterrorism includes techniques designed to harden potential high-profile targets (e.g., government buildings or military installations), as well as actions taken to detect a planned terrorist attack before it occurs." JEFFREY F. ADDICOTT, TERRORISM LAW: THE RULE OF LAW AND THE WAR ON TERROR 19 (Lawyers & Judges Publishing Company, 2004). 3. See U.S. DEP'T OF DEF., DIRECTIVE NO. 2310.2, PERSONNEL RECOVERY para. 3.1 (2000) (defining personnel recovery as the "aggregation of military, civil, and political efforts to recover captured, detained, evading, isolated or missing personnel from uncertain or hostile environments and denied areas"). The Defense Prisoner of War/Missing Personnel Office (DPMO) defines personnel recovery as, "[tihe aggregation of military, civil, and political efforts to recover captured, detained, evading, isolated, or missing personnel from uncertain or hostile environments and denied areas." DEF. PRISONER OF WAR/MISSING PERS. OFFICE, PERSONNEL RECOVERY DEFINITION, DEFENSE POW/MISSING PERSONNEL OFFICE OPERATIONS DIRECTORATE FACT SHEET, http://www.dtic.mil/dpmo/personnel-recovery/fact-sheets.htm (last visited Feb. 5, 2006) [hereinafter DPMO]. "Personnel recovery may occur through military action, action by non-governmental organizations, other U.S. Government (USG)-approved action, and diplomatic initiatives, or through any combination of these options." Id. See also DICTIONARY OF MILITARY AND ASSOCIATED TERMS, supra note 2, at 409 (noting that personnel recovery "includes but is not limited to theater search and rescue; combat search and rescue; search and rescue; survival, evasion, resistance, and escape; evasion and escape; and the coordination of negotiated as well as forcible recovery options"). 2006] CONTRACTORS ON THE "BATTLEFIELD" deployed to support U.S. military operations presents significant legal and policy challenges that both the military and civilian contractor companies have yet to fully appreciate, let alone properly institutionalize. Although many Americans still visualize the U.S. military as a monolithic force of uniformed personnel only, the reality is far different. Due to federally imposed personnel limitations for the armed forces and the need for specialized skills in the modern high-tech military, 5 hundreds of activities once performed by the military are now privatized and outsourced to thousands of civilian contractors.6 These civilian contractors routinely provide a wide array of important and essential activities in support of the full range of militaryS operations• 7 to include infrastructure improvements and rebuilding. In other words, civilian contractors now work shoulder-to-shoulder with military personnel during both armed conflict and in Military Operations Other Than War (MOOTW). s While armed conflict refers to traditional combat operations associated with internationally recognized warfare, MOOTWs are contingency 9 missions that include activities such as 4. See U.S. GEN. ACCOUNTABILITY OFFICE, GAO-03-695, MILITARY OPERATIONS: CONTRACTORS PROVIDE VITAL SERVICES TO DEPLOYED FORCES BUT ARE NOT ADEQUATELY ADDRESSED IN DOD PLANS (2003) (recommending that DOD adopt a series of proposals to improve DOD supervision of support contractors including "(1) conducting required reviews to identify mission essential services provided by contractors and include them in planning; (2) developing and implementing the use of standard language for contracts; and (3) developing comprehensive guidance and doctrine to help the services manage contractors' supporting deployed forces") [hereinafter GAO REPORT]. 5. See OPERATIONAL LAW HANDBOOK 135 (Maj. Derek I. Grimes ed., The Judge Advocate General's Legal Center & School, 2005) [hereinafter OPLAW HANDBOOK]. 6. Id. at 135. The term contractor personnel "does not include those persons who reside in the country where the contract performance takes place." Id. 7. See Gordon L. Campbell, Contractors on the Battlefield: The Ethics of Paying Civilians to Enter Harm's Way and Requiring Soldiers to Depend on Them, JOINT SERVICES CONF. ON PROFESSIONAL ETHICS, Jan. 27-28, 2000, available at http://www.usafa.af.mil/jscope/JSCOPEOO/CampbellOO.html (noting that "[c]ontractor support is an essential, vital part of our force projection capability-and [it is] increasing in its importance"). 8. See OPLAW HANDBOOK, supra note 5, at 57. 9. See DICTIONARY OF MILITARY AND ASSOCIATED TERMS, supra note 2, at 117 (defining a contingency as "[ain emergency caused by natural disasters, terrorists, subversives, or by required military operations"). "Due to the uncertainty of the situation, contingencies require plans, rapid response and special procedures to ensure HOUSTON JOURNAL OF INTERNATIONAL LA W [Vol. 28:2 combating terrorism, counter-narcotic operations, peacekeeping operations, and other high-risk missions around the globe.' ° One of the consequences of the global War on Terror" is that the safety and readiness of personnel, installations, and equipment." Id. 10. See OPLAW HANDBOOK, supra note 5, at 57 (stating that MOOTW operations include: Arms Control, Combating Terrorism, DOD Support to Counterdrug Operations, Enforcement of Sanctions/Maritime Intercept Operations, Enforcing Exclusion Zones, Ensuring Freedom of Navigation and Overflight, Humanitarian Assistance, Military Support to Civilian Authorities, Nation Assistance/Support to Counterinsurgency, Noncombat Evacuation Operations, Peace Operations, Protection of Shipping, Recovery Operations, Show of Force