The fog of war keeps getting thicker. The Iraqi government's decision to temporarily ban the security company Blackwater USA after a fatal shooting of civilians in Baghdad reveals a growing web of rules governing weapons-bearing private contractors but few signs U.S. agencies are aggressively enforcing them.
Nearly a year after a law was passed holding contracted employees to the same code of justice as military personnel, the Bush administration has not published guidance on how military lawyers should do that, according to Peter Singer, a security industry expert at the Brookings Institution in Washington.
A Congressional Research Service report published in July said security contractors in Iraq operate under rules issued by the United States, Iraq and international entities such as the United Nations.
All have their limitations, however.
A court-martial of a private-sector employee likely would be challenged on constitutional grounds, the research service said, while Iraqi courts do not have the jurisdiction to prosecute contractors without U.S. permission.
"It is possible that some contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq," the report said.
Blackwater and other private security firms long have been fixtures in Iraq, guarding U.S. officials and an international work force helping to rebuild the war-torn country.
Prior to the March 2003 invasion, however, U.S. officials paid little attention to how prevalent these security firms would be in combat zones and the difficulties their presence could cause, according to Steve Schooner, co-director of the government procurement law program at George Washington University.
"The real problem is when we went into Iraq none of this had been worked out," Schooner said. "We hadn't thought it through."
The result is dissatisfaction on multiple fronts that is tempered by the acknowledgment these hired hands have become an important part of the long-running effort to stabilize Iraq.
"This is what happens when government fails to act," Singer wrote on the Brookings Web site of the incident Sunday involving Blackwater.
Iraq's government said Tuesday it would review the status of all security firms working in Iraq to ensure each is complying with Iraqi laws.
But Iraqi government representatives also said they probably would not rescind Order No. 17, which was issued more than three years ago by the U.S.-led Coalition Provisional Authority. The order gives American security companies immunity from Iraqi prosecution on issues arising from their contracts.
"We don't want to do so because we don't have the services they are providing for the diplomats and for the American Embassy here in Iraq," government spokesman Ali al-Dabbagh told CNN.
Blackwater, based in Moyock, N.C., is one of three private security firms employed by the State Department to protect its personnel in Iraq. The two others, both of which are headquartered in the Washington, D.C., suburbs, are Dyncorp, based in Falls Church, Va., and Triple Canopy of Herndon, Va.
The State Department has provided little information on Sunday's incident, which began after a car bomb attack against an American convoy guarded by Blackwater employees turned into a firefight that left eight Iraqis dead.
The department's Bureau of Diplomatic Security is conducting an investigation with assistance from the U.S.-led coalition in Iraq. The Iraqis are conducting their own inquiry, although it seems unlikely the Iraqi government would revoke Blackwater's license and order the company's 1,000 personnel to leave the country.
Blackwater spokeswoman Anne Tyrrell said the guards acted "lawfully and appropriately" after being "violently attacked by armed insurgents."
‘Who are they accountable to?’
In a separate development, a congressional committee is questioning how aggressively the State Department has looked into allegations that Blackwater illegally brought weapons into Iraq.
In a letter to Howard Krongard, the State Department inspector general, the House Oversight and Government Reform Committee said Krongard impeded a Justice Department probe into claims that a "large private security contractor was smuggling weapons into Iraq."
Although the security company was not named in the letter, several senior administration officials confirmed it was Blackwater.
In an e-mailed response to the committee's charges, Krongard said Tuesday he made one of his "best investigators" available for the probe.
Tyrrell declined to comment.
For Democrats in Congress, the Blackwater shooting incident has reinvigorated an effort to pass additional regulations on how security contractors operate.
Rep. Jan Schakowsky, D-Ill., a longtime critic of Blackwater, is pushing legislation requiring the Pentagon and State Department to provide details about security contractors it has hired, including any disciplinary actions taken against them.
"I think we have to have some uniform rules, particularly when these security guys are walking around fully armed," Schakowsky said Tuesday. "Who are they accountable to?"
But that's not because there is a shortage of laws, according to Laura Dickinson, a law professor at the University of Connecticut who has studied the use of private contractors on the battlefield.
"There are plenty of laws that apply to them," said Dickinson, who is working on a book called "Outsourcing War and Peace."
Problem is enforcement
The problem is enforcement, she said.
The Pentagon and State Department have their own contracting officers and separate systems for ensuring performance and accountability.
Dickinson said a single government office is needed to monitor contracts and keep Congress informed.
"I don't think there's real clarity about what the rules of the game are either," said Schakowsky, a member of the House Intelligence Committee. "It's a very murky area."
The International Peace Operations Association, a trade group that represents Blackwater and other companies doing business in Iraq, is not opposed to better oversight of the industry, according to Doug Brooks, the group's president.
That begins with the federal government having a deeper pool of experienced contracting officers who can properly monitor the work that's being done, he said.
"The companies try to operate within their contracts," Brooks said. "It's a problem when you can't get a hold of a contracting officer, or when the contracting officers don't understand how the contracts work."