The American Way: Private Military Contractors & US Law after 9/11

Abstract

Although increased reliance on private military contractors began with U.S. involvement in the Kosovo conflict, the post-9/11 wars in Afghanistan and Iraq prompted an exponential growth in the private military industry, increasing not only the sheer size of the industry but the types of services as well. 'Inherently governmental functions' were being performed by private entities, but with little regulations in place for vetting, monitoring and holding accountable either the company or its personnel.

This Report, as part of the National Reports Series in the Priv-War Project supported within the 7th Framework Programme by the European Commission DG Research, provides a comprehensive discussion of the use of private military and security contractors (PMSCs) by the United States since 9/11 and applicable U.S. law, regulations, and policies, with particular attention paid to the use of such firms in Afghanistan and Iraq. The Report describes the incorporation of contractors into the larger military presence and provides a detailed qualitative and quantitative analysis of the use of contractors, specifically, the number of contractor personnel working overseas, the governmental agencies with which they are involved, the cost of contractor operations, and the various roles played by contractors. The Report also covers the entire universe of mechanisms that regulate, govern, and hold accountable the private contractor firms and their personnel, by examining the statutes and guidelines that provide for both the process of contracting with the U.S. government and the oversight of military contractors, as well as the criminal and civil legal regimes that attempt to hold PMSCs and their personnel accountable for misconduct or negligence in situations of armed conflict and post-armed conflict.

Keywords: National security, armed conflict, private military and security contractors, private military firms, PMSCs, mercenaries, Blackwater, Iraq, Afghanistan, CPA 17, Military Extraterritorial Jurisdiction Act, Uniform Code of Military Justice, Alien Tort Statute, contractor defense, Boyle Doctrine