When American troops are stationed overseas the US will have a Status of Forces Agreement (SOFA) with the host country which defines the legal responsibilities of the US and the host country.
The SOFA will address entry and exit of personnel and personal belongings, labor conditions, damage claims, and US contractor restrictions or requirements, and the susceptibility of companies and employees to taxes, etc.
SOFAs also deal with civil and criminal legal jurisdiction. The Department of Defense is required “to protect … the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.”
This can get complicated since crimes can be committed as part of one’s service (shooting innocent civilians) or under contract, or outside of service or contractual requirements.
When a defense contract calls for overseas work the contract will include its own status of forces agreement on top of the specific contract terms. Status of forces agreements are usually just boilerplate addressing the status of the contractor personnel — and their families (“dependents”), or if they marry and have kids in the foreign country — while they are performing the contracted work. Typically status of forces agreements will address employee diplomatic immunity, the carrying of weapons, responsibilities for crimes committed while in country, who is to provide security, etc.
Unless a war is declared, contractor personnel are not subject to the Uniform Code of Military Justice.
The Pentagon’s recent huge no-bid contract with Kellogg, Brown & Root, a subsidiary of Halliburton (the company that Vice President Dick Cheney ran before he moved over to take the VP job) is classified. The terms are secret.
The Bush administration says that the reason that the KBR contract is a secret is also a secret. All the Army has said publicly about the contract is, “Brown & Root offered the best value to government, considering price and non-price factors,” according to Army lawyer Dave Defrieze. “Cost was considered but because of the nebulous nature of cost in the contract, it wasn’t the most significant.”
So what was most significant?
Kellogg, Brown & Root (KBR) is known to provide a wide range of support services for the military and oil field development. Normally such government contracts are public documents, of course, including the status of forces agreements and the specific contract provisions.
But in Iraq we have a very unusual — and secret — situation, and defense contracts with an extremely wide variety of “nebulous” possibilities.
Say an Iraqi national is employed by a subcontractor of KBR to provide security services for another company working on the electrical grid in Baghdad. What if the Iraqi security guard is bribed by an insurgency group to turn the other way while a suicide bomber drives a car bomb up to a contractor’s office complex? Who investigates the security guard’s role? Who does the contractor sue for property damage? Who is responsible for tightening up the security around the contractor facilities?
Or what if a corporate executive is kidnapped by Iraqi outlaws while a private Iraqi security firm was supposed to be providing security under contract to Kellog, Brown & Root? Who handles the negotiations and investigations? The private security firm? Kellog, Brown & Root? Iraqi police? US military police?
Or what if a Humvee driven by a drunk US citizen contractor employee runs into a cafe on a Baghdad street, damaging the restaurant and killing or injuring its customers? Who investigates and prosecutes? Who does the cafe owner submit his loss claim to?
Such scenarios might be the stuff of a Graham Greene novel. Or, such very real problems ultimately fall to the occupying country’s military authority, i.e., the United States.
And there’s the rub. The US has already awarded dozens of multi-million dollar contracts to dozens of US companies in Iraq, each with more subcontractors from who knows where. If those companies commit big sums of money and personnel to carry out these lucrative contracts but are prevented from carrying them out because of hazardous conditions or lax security, those companies can probably sue the US government for whatever their losses may be. They might have secret contract provisions, possibly in the status of forces agreement, that says any the US is liable for financial losses stemming from inadequate security.
According to Army Captain Isolde K. Garcia-Perez, in a recently published review of the Army’s increased use of contractors in combat zones, “Since contractors will live and work in the field environment, the Army must provide certain support services. … Since the theater commander is responsible for the security and support of the contractor, the military support plan must include requirements for supporting them. As a minimum, the commander must plan to provide field service support, protection from enemy action, individual weapons, and training in basic military skills. Having to support the contractor work force places additional logistics and security requirements on the deploying units. Commanders must include contractor needs when considering the unit’s life support, security, and mission requirements. … There may be a contract condition requiring the military to provide security to contractor personnel and their equipment. … Even an enemy with relatively unsophisticated conventional battlefield capabilities can have very sophisticated operatives who can sabotage information processing systems. But attacks on civilian logistics operations can be more direct than infiltration. For example, civilian organizations rely on civilian communications systems, which are more vulnerable to terrorist strikes…”
Even if the KBR contract wasn’t secret, the problems of administering a country like Iraq would be staggering. But the current occupation is a situation unique in modern times and ordinary status of forces agreements are probably not enough to handle the unusual status of contractor personnel under these conditions.
The KBR contract is secret for secret reasons. The press has not delved very far into the conditions of US taxpayer-paid contract work in Iraq. This leaves the public to speculate about the real reason the US is staying in a country with escalating unrest and ongoing guerrilla attacks. Although Iraq can and should be turned over to its own citizens as soon as possible, the United States may be contractually obligated to maintain an increasingly unpopular military security presence in Iraq for as long as the well-connected, highly paid high-profile contractors are there — no matter what the losses in lives and dollars, and no matter how the political winds here in the US may blow.