Flooded System

The American people are being inundated with allegations surrounding Blackwater, and more accusations are likely to follow given how belated the currant charges are. But beyond a media circus and witch hunt, the circumstances of Blackwater provide America the opportunity to review and clarify the use of private military contractors (PMCs) in future war zones.

Ambiguity is dangerous in counterinsurgencies, where Blackwater and other PMCs are most likely to find themselves in the coming decades.

Blackwater recently took a one-two punch from the New York Times. First broke the news that Blackwater assembles and loads Hellfire missiles onto Predator drones in Pakistan, a task outsourced by the CIA. Blackwater guards also provide security to both secret air-bases in Shamsi, Pakistan and Jalalabad, Afghanistan. Then, several months after CIA director Leon E. Panetta cancelled a secret assassination project against al-Qaeda, CIA officials admitted contracting Blackwater in 2004, “to begin collecting information on the whereabouts of Al Qaeda’s leaders, carry out surveillance and train for possible missions.”

Jeremy Scahill, an investigative journalist long on the trail of Blackwater, said the recent allegations warrant “deep investigation.”

“The idea that you would have a private company headed by a man [Erik Prince the former head of Blackwater] who was a major bankroller of President Bush's campaign, potentially on the payroll for his company to provide hit-men to the Bush administration is quite an explosive allegation,” he said. “The Bush administration clearly used private contractors as a way of circumventing congressional oversight over these very sensitive US operations on the battlefield in Afghanistan and Pakistan.”

Americans are inclined to agree with an investigation after tales of Blackwater in Iraq. Pakistanis should perk their ears as well; aside from recent revelations, Blackwater has reportedly been contracted for America's new super-embassy in Karachi. Still, a greater challenge lies in focusing beyond real and potential wrong-doing. Blackwater is one of many PMCs, merely the highest profiled. As such, it can be used as the beach head for examining the process.

The bulk of concentration must be applied to reviewing the fundamental use of PMCs, divided into four areas: cost and capabilities of PMCs, accountability, defining a mercenary, and interpreting their legal status.

Convenience always comes with a price. A 2007 House oversight committee found the average Blackwater employee costs $440,000 annually, six times the cost of a US soldier. And though capable of protecting American officials and loading missiles onto drones, another House report released last June questioned the PMC effectiveness in training foreign security forces and building projects. Blackwater and other PMCs mostly do good work, but the odds of error and miscommunication increase with a code of conduct operating outside the uniform methods of the American military.

One mistake can ignite an insurgency.

Accountability came to overshadow performance after several high-profile incidents in Iraq. The 2007 House committee concluded, “Even in cases involving the death of Iraqis, it appears that the State Department’s primary response was to ask Blackwater to make monetary payments to ‘put the matter behind us,’ rather than to insist upon accountability or to investigate Blackwater personnel for potential criminal liability.”

This strategy runs contrary to counterinsurgency, where consideration, sympathy, and respect for the local population must be exercised at all times. The House passed a law subjecting all PMCs to prosecution by U.S. courts, a necessary step to demonstrating accountability in American warfare. However, ambiguity remained after the White House opposed the bill. Foreign countries, such as Iraq, will likely end up drawing the red line instead. Afghanistan may be next, where PMCs have been repeatedly criticized by the government.

Thus America must proactively establish explicit laws for governing PMCs on foreign soil so as to maintain their capabilities. Delaying forfeits the initiative to the host state, who could ban them outright.

But America must clarify the definition of a mercenary before an earnest debate can begin. Erik Prince, Blackwater's CEO, objects to the term to “mercenaries,” instead opting for “loyal Americans.” Mercenaries aren’t inherently wrong. While some desert in a flash to the highest bidder, others are loyal to the hand that feeds them. Blackwater is loyal to the US government, not just because of fat paychecks but because many Blackwater agents are former soldiers, or FBI and CIA agents.

Still, when you’re air-dropping out of your own CASA C-212’s in Afghanistan, hovering above Baghdad in your own MD 500 helicopters with flak jackets, machine guns, wired headsets and no American flag, or being paid a billion dollars for “security,” you’re a mercenary. A mercenary and a PMC, if there is any true difference, must be concretely defined so as to apply regulation.

America needs a new law dedicated solely to the use of mercenaries and their various forms. Legality is currently being decided by the Anti-Pinkerton Act of 1893, which outlawed private security companies from breaking strike lines. The US Fifth Circuit Court of Appeals expanded this law in 1977 to ban the government’s use of mercenary and quasi-military forces. However, Comptroller General Elmer B. Staats reinterpreted an exemption in 1978 for “guard and protective services,” opening the door for Blackwater.

What then is Blackwater and the rest of PMCs? Are they mercenaries, quasi-military forces, or simple private security? What is their role in combat? How much does loading bombs differ from dropping them? Are PMCs static, or like Blackwater’s history suggests, does private security inevitably merge with a soldier’s duty? America must not delay the debate - private military contracting is a wave of the future.

America must do everything possible to prevent rogue waves.