Could contractors be deemed unlawful combatants?

Los Angeles Times (2007-10-14) Julian Barnes

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By Julian Barnes

7:35 PM PDT, October 14, 2007

WASHINGTON — As the Bush administration deals with the fallout from the recent killings of civilians by private security firms in Iraq, some officials are asking whether the contractors could be considered unlawful combatants under international agreements.

The question has been raised as an outgrowth of government reviews of the shootings in part because the officials want to determine whether the administration could be accused of treaty violations that could fuel an international outcry.

But it also holds practical and political implications for the administration's war effort and the image of the U.S. abroad.

If U.S. officials conclude that the use of guards poses a potential violation, they may have to order limits on what guards can do in war zones, which could leave more work for the already overstretched military.

Even unresolved questions are likely to touch off new criticism of Bush's conduct of the unpopular Iraq war, especially given the broad definition of unlawful combatants the president has used in justifying his detention policies at Guantanamo Bay, Cuba.

The issues surrounding the private security contractors are being examined by lawyers at the State, Defense and Justice departments, and there are disagreements about their status both between agencies and within the Pentagon itself.

"I think it is an unresolved issue that needs to be addressed," said a senior Defense Department official who spoke on condition of anonymity because he was not authorized to discuss the issue. "But if that is in fact the case, what the heck are we doing?"

The use of private contractors by the U.S. military and governments around the world began long before the U.S invasions of Afghanistan and Iraq, but it has mushroomed in recent years. With relatively little controversy, contractors have assumed a greater share of support and logistics duties traditionally handled by uniformed military, such as protecting diplomats inside a war zone.

On Sept. 16, a Blackwater USA security team guarding U.S. diplomats was involved in a shooting that killed as many as 17 Iraqis. Blackwater said its personnel were under attack, but Iraqis said the team began the shooting.

Other incidents portraying the private guards as aggressive and heavily armed have since come to light.

The guards also operate under immunity from Iraqi law, granted in 2004 by U.S. officials, and in a legally murky status with respect to American laws.

The designation of lawful and unlawful combatants is set out in Geneva Convention.Lawful combatants are nonmilitary personnel who must operate under their military's chain of command. Others are allowed to carry weapons in a war zone, but cannot use offensive force. Under the international agreements, they may only defend themselves.

But the amount of force being used in Iraq by security firms like Blackwater has raised questions.

The United States already has faced international criticism about its interrogation techniques and detention procedures, and charges that they do not adhere to international treaties. It was the government lawyers involved in those matters who first raised questions about the legal status of the private security contractors under Geneva Convention provisions.

But there is debate among those studying the question. Lawyers at the Justice Department are skeptical that the contractors could be considered unlawful combatants, but some legal experts within the State and Defense departments believe the contractors' actions in Iraq could be vulnerable to claims that their actions make them unlawful combatants.

If that happens, some experts say the U.S. would have to pull them out of the war zone.

There is wide agreement among legal experts that private contractors are allowed to use force to defend themselves. But exactly when defensive force becomes offensive force is an ill-defined threshold.

"In terms of these private military contractors, it really is, legally speaking, very convoluted," said the senior Defense official. "It is always true that people can defend themselves. The question then becomes: At what point does a contractor who is providing defensive security go beyond that?"

Interpretations also vary in academic circles, where the issue has been the subject of articles and discussions.

For a guard who is only allowed to use defensive force, killing civilians violates the law of war, said Michael N. Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer. "It is a war crime to kill civilians unlawfully in an armed conflict," he said.

If the contractors were the aggressors in an incident, they could be deemed to be unlawfully using offensive force, said Scott Silliman, a retired Air Force lawyer and now a professor at Duke University. He said they could claim they were defending themselves only if they had been fired upon.

"The only force they can use is defensive force," said Silliman. "But we may be seeing some instances where contractors are using offensive force, which in my judgment would be unlawful."

Some current Defense Department lawyers believe that interpretation is too restrictive. Like soldiers, the security guards should be able to defend themselves if they detect "hostile intent," said the Defense official.

But too often, the guards are being dragged into operations where the line between defensive and offensive force is hard to determine, such as escorting a diplomat through a neighborhood that is part of a war zone, as many frequently do. Those operations may be best left to the military, some experts said.

"To what extent is it appropriate to have people not in the chain of command under the president of the United States involved in the application of force?" the official asked.

Any doubt on the legal status of the contractors is likely to open the United States to further criticism from the international community.

John Hutson, a former top Navy lawyer, said he did not consider contractors to be unlawful combatants. But he emphasized that would be a difficult argument for U.S. officials make successfully.

"We are going to be hard-pressed to draw a distinction between the guys in Blackwater carrying automatic weapons and the bad guys setting bombs along the side of the road," said Hutson, now dean of Franklin Pierce Law Center in New Hampshire.

U.S. officials have described many of those it holds at Guantanamo Bay who are affiliated with Al Qaeda and the Taliban as unlawful combatants for either taking part in hostilities against the United States or by supporting the hostilities while not part of a nation's military.

By that standard, some of the private guards in Iraq and Afghanistan also could be seen as unlawful combatants, particularly if they have taken offensive action against unarmed civilians, experts said.

"If we hire people and direct them to perform activities that are direct participation in hostilities, then at least by the Guantanamo standard, that is a war crime," Schmitt said.

The 2004 immunity measure prevents Iraq from prosecuting private guards under Iraqi law. But some international law experts believe that Iraqis could use international treaties to put contractors on trial for killing civilians. For now, such trials are considered unlikely, especially because the Iraqi government does not have the contractors in its custody.

Many of the current and former government officials believe the administration has an obligation under the Geneva Convention to clarify the contractors' status. Some are perplexed that the Bush administration failed to resolve these issues -- or at least discuss them more thoroughly -- before putting contractors on such a complex battlefield.

"It's confusing," Silliman said. "And a lot of us are wondering why the Department of Defense pushed them into core military roles."