Loss of legal immunity will change landscape for contractors in Iraq

A recent deal that lifts legal protections for U.S. contractors working in Iraq has representatives of private security guards concerned.

The Status of Forces Agreement signed last month by the State Department and ratified by the Iraqi Parliament could have serious repercussions for contractors who watch over key officials and infrastructure, according to industry observers.

"While we're confident the Department of State did not intend to put at risk the human rights of the thousands of civilians from around the world [who are] providing essential skills in support of Iraq reconstruction, we are disappointed and concerned that the document offers so few legal protections," said Doug Brooks, president of the International Peace Operations Association, a trade group for security contractors.

The agreement, which will take effect on Jan. 1, 2009, nullifies a 2003 order by the now-defunct Coalition Provisional Authority that granted U.S. contractors immunity from criminal prosecution in Iraqi courts for actions taken in the course of performing their jobs. Political pressure to lift Order 17 mounted after guards for Blackwater Worldwide were involved in a deadly shooting in Baghdad in September 2007 that left 17 civilians dead and dozens injured.

Iraqi officials reportedly would not sign a new Status of Forces Agreement -- the document that allows U.S. soldiers to remain in Iraq legally and that is set to expire at the end of the month -- unless contractor immunity was lifted.

Industry representatives said they were not opposed to accountability or compliance with Iraqi laws, but expressed concern about Iraqi courts and the filing of charges that lacked factual basis or were motivated by a desire for retribution for acts by other contractors. "While the Iraqi justice system has made enormous strides in the past few years, most international observers acknowledge that today it is not recognized as being just and fair," Brooks said.

Conditions at Iraqi prisons, Brooks said, also are subpar. Pre-trial and long-term incarceration facilities are significantly below international standards and the Iraqi government has been known to employ the death penalty robustly, he said.

"We are in a wait-and-see mode," said one industry source who spoke on the condition of anonymity. If criminal cases against contractors are handled justly and professionally, the source said, then the situation could remain workable. But, if a case is badly mishandled, "it will catch a lot of attention and could cause a ripple effect, both in recruitment and retention," the source said.

If the risk of improper criminal charges and incarcerations is too high and American contractors decide not to work in Iraq, Brooks said, critical work could fall to less ethical firms from third-party countries.

Government watchdogs have long argued against the increased use of war zone contractors, in part because of a fear that they could simply walk off the job if conditions became too dangerous or legally precarious.

Dina Rasor, author of Betraying Our Troops: The Destructive Results of Privatizing War (Palgrave MacMillan, 2007), said the test of the new agreement will be not only how prosecutions are handled but what types of companies and workers are targeted. If the net is expanded to include nonarmed contractors -- employees performing logistics and construction, for example -- there could be an exodus, she said.

"My gut reaction is that if something bad or unpleasant happens to a KBR-type … there might be giant flight out of there," Rasor said.

According to an August Congressional Budget Office report, there are about 190,000 contract employees in Iraq, although fewer than 39,000 are from the United States. CBO found there are 25,000 to 30,000 private security guards in Iraq, with 30 percent to 40 percent working directly for the U.S. government as prime contractors. Nearly all guards under contract with the U.S. government were hired through the State Department's Worldwide Personal Protective Services contract and are employed by one of three companies: Blackwater; DynCorp International of Falls Church, Va.; or Triple Canopy of Herndon, Va.

Company officials did not provide details on how they are preparing for the disappearance of contractor immunity.

"We work at the direction of our customer, the U.S. government, and it is our intention to continue to provide the best support available," said Anne Tyrrell, spokeswoman for Blackwater. "At the moment we have no plans to change any aspect of that support."

Heather Browne, spokeswoman for KBR Inc., the largest contractor operating in Iraq, said the company "is still reviewing the agreement in its entirety. So at this time, we do not yet know how the agreement will affect us."