Rebuilding Iraq
DOD and State Department Have Improved Oversight and Coordination of Private Security Contractors in Iraq, but Further Actions Are Needed to Sustain Improvements Gao ID: GAO-08-966 July 31, 2008The U.S. government relies extensively on private security contractors (PSC) for a variety of security services. However, incidents involving PSCs have raised concerns about oversight and legal accountability. Under the authority of the Comptroller General and in response to continuing congressional interest, GAO performed this review to examine the extent to which the Department of Defense (DOD) and Department of State have strengthened (1) oversight and (2) coordination of private security contractors in Iraq. GAO is also providing information on the legal framework used to hold private security contractor employees legally accountable for their actions in Iraq. GAO reviewed DOD and State Department policies and guidance, and their memorandum of agreement on PSCs; observed operations in Iraq and met with DOD officials there and in the U.S.; and met with officials from the Departments of Justice and State, and private security contractors.
Both DOD and the State Department have taken steps to strengthen oversight of private security contractors in Iraq since September 2007. However, staffing and training challenges remain for DOD. DOD has increased the number of personnel in Iraq assigned to provide oversight for DOD's PSCs but has not developed plans or a strategy to sustain this increase. An Army-commissioned report has specifically raised concerns about the lack of personnel available to provide sufficient contracting support to either expeditionary or peacetime missions. In the short term, DOD has increased the number of oversight personnel in Iraq by shifting existing oversight personnel from other locations into Iraq. However, without developing and implementing a strategy for providing and sustaining an increased number of personnel dedicated to oversight of PSCs, it is not clear whether DOD can sustain this increase because of the limited number of oversight personnel in the workforce. Moreover, while DOD has provided some training on PSCs for units deploying, the training has not been updated to reflect the changes made by DOD since September 2007 to increase oversight. As a result, military units may be unaware of their expanded oversight and investigative responsibilities. The State Department has implemented 11 of 18 actions recommended in October 2007 by a panel tasked by the Secretary of State with reviewing that agency's use of private security contractors in Iraq. For example, the State Department has increased the number of diplomatic security personnel stationed in Iraq to provide oversight of contractor activities and has requested and received funding to hire and train 100 additional agents to replace those who were transferred from other State Department programs in the United States to Iraq. According to State Department officials, the additional personnel will help sustain the increased number of agents in Iraq. In addition, as of June 2008, the State Department has equipped 140 of its security vehicles with video recording equipment and plans to equip an additional 93 vehicles. Coordination among DOD, the State Department, and the government of Iraq has significantly improved since September 2007. The State Department coordinates its PSC movements with DOD through liaison officers, and by providing a daily briefing to Multi-National Forces-Iraq (MNF-I) on upcoming PSC activities. MNF-I 's Armed Contractor Oversight Division facilitates coordination for PSC matters among DOD, State Department, the government of Iraq, and the PSC community. Further, DOD and the State Department signed a memorandum of agreement detailing coordination activities to be undertaken. Various laws hold PSC employees accountable for their actions in Iraq, including U.S. criminal laws that may be applied extraterritorially, the Military Extraterritorial Jurisdiction Act, and the Uniform Code of Military Justice. The applicability of these laws depends on the circumstances--e.g., the nature and location of the alleged crime and the nationality of the accused--of any specific incident. The legal framework for holding PSCs accountable also includes Iraqi and international law and contract provisions.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-08-966, Rebuilding Iraq: DOD and State Department Have Improved Oversight and Coordination of Private Security Contractors in Iraq, but Further Actions Are Needed to Sustain Improvements
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Oversight and Coordination of Private Security Contractors in Iraq, but
Further Actions Are Needed to Sustain Improvements' which was released
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This report was revised on August 1, 2008 to reflect a change to the
text on page 2, in line 11 of the second paragraph, ’provisions of the
2007 National Defense Authorization Act“ is revised to ’provisions of
Section 862 of the 2008 National Defense Authorization Act.“
Report to Congressional Committees:
United States Government Accountability Office:
GAO:
July 2008:
Rebuilding Iraq:
DOD and State Department Have Improved Oversight and Coordination of
Private Security Contractors in Iraq, but Further Actions Are Needed to
Sustain Improvements:
GAO-08-966:
GAO Highlights:
Highlights of GAO-08-966, a report to Congressional Committees.
Why GAO Did This Study:
The U.S. government relies extensively on private security contractors
(PSC) for a variety of security services. However, incidents involving
PSCs have raised concerns about oversight and legal accountability.
Under the authority of the Comptroller General and in response to
continuing congressional interest, GAO performed this review to examine
the extent to which the Department of Defense (DOD) and Department of
State have strengthened (1) oversight and (2) coordination of private
security contractors in Iraq. GAO is also providing information on the
legal framework used to hold private security contractor employees
legally accountable for their actions in Iraq. GAO reviewed DOD and
State Department policies and guidance, and their memorandum of
agreement on PSCs; observed operations in Iraq and met with DOD
officials there and in the U.S.; and met with officials from the
Departments of Justice and State, and private security contractors.
What GAO Found:
Both DOD and the State Department have taken steps to strengthen
oversight of private security contractors in Iraq since September 2007.
However, staffing and training challenges remain for DOD. DOD has
increased the number of personnel in Iraq assigned to provide oversight
for DOD‘s PSCs but has not developed plans or a strategy to sustain
this increase. An Army-commissioned report has specifically raised
concerns about the lack of personnel available to provide sufficient
contracting support to either expeditionary or peacetime missions. In
the short term, DOD has increased the number of oversight personnel in
Iraq by shifting existing oversight personnel from other locations into
Iraq. However, without developing and implementing a strategy for
providing and sustaining an increased number of personnel dedicated to
oversight of PSCs, it is not clear whether DOD can sustain this
increase because of the limited number of oversight personnel in the
workforce. Moreover, while DOD has provided some training on PSCs for
units deploying, the training has not been updated to reflect the
changes made by DOD since September 2007 to increase oversight. As a
result, military units may be unaware of their expanded oversight and
investigative responsibilities. The State Department has implemented 11
of 18 actions recommended in October 2007 by a panel tasked by the
Secretary of State with reviewing that agency‘s use of private security
contractors in Iraq. For example, the State Department has increased
the number of diplomatic security personnel stationed in Iraq to
provide oversight of contractor activities and has requested and
received funding to hire and train 100 additional agents to replace
those who were transferred from other State Department programs in the
United States to Iraq. According to State Department officials, the
additional personnel will help sustain the increased number of agents
in Iraq. In addition, as of June 2008, the State Department has
equipped 140 of its security vehicles with video recording equipment
and plans to equip an additional 93 vehicles.
Coordination among DOD, the State Department, and the government of
Iraq has significantly improved since September 2007. The State
Department coordinates its PSC movements with DOD through liaison
officers, and by providing a daily briefing to Multi-National Forces-
Iraq (MNF-I) on upcoming PSC activities. MNF-I ‘s Armed Contractor
Oversight Division facilitates coordination for PSC matters among DOD,
State Department, the government of Iraq, and the PSC community.
Further, DOD and the State Department signed a memorandum of agreement
detailing coordination activities to be undertaken.
Various laws hold PSC employees accountable for their actions in Iraq,
including U.S. criminal laws that may be applied extraterritorially,
the Military Extraterritorial Jurisdiction Act, and the Uniform Code of
Military Justice. The applicability of these laws depends on the
circumstances”e.g., the nature and location of the alleged crime and
the nationality of the accused”of any specific incident. The legal
framework for holding PSCs accountable also includes Iraqi and
international law and contract provisions.
What GAO Recommends:
GAO recommends that DOD develop a strategy to sustain the increase in
its oversight personnel in Iraq. Further, GAO made two recommendations
that DOD update current training being provided to military units
deploying to Iraq. DOD concurred with these recommendations. However,
State disagreed with some of GAO‘s comments regarding the status of the
implementations of the recommendations made by the panel.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-966]. For more
information, contact William Solis, (202) 512-8365 or solisw@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
DOD and the State Department Have Increased Oversight Efforts Regarding
PSCs, but Staffing and Training Challenges Remain for DOD:
Coordination, Including Interagency Coordination, Related to PSCs in
Iraq Has Improved:
An Overview of the Legal Framework for Holding Private Security
Contractor Employees Accountable for Their Actions in Iraq:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluations:
Appendix I: Scope and Methodology:
Appendix II: Implementation Status of Recommendations from the
Secretary of State's Panel on Personal Protective Services in Iraq:
Appendix III: Comments from the Department of Defense:
Appendix IV: Comments from the Department of State:
Table:
Table 1: Implementation Status of Recommendations from the Secretary of
State's Panel on Personal Protective Services in Iraq:
Figures:
Figure 1: Key Organizations with Roles in Oversight and Coordination of
Private Security Contractors in Iraq:
Figure 2: Armed Contractor Oversight Division (ACOD) Organizational
Structure:
Figure 3: Description of the PSC Incident Reporting Process:
Figure 4: Overview of the Contractor Operations Cells (CONOC):
Abbreviations:
ACOD: Armed Contractor Oversight Division:
CENTCOM: U.S. Central Command:
COM: Chief of Mission:
CONOC: Contractor Operations Cells:
COR: Contracting Officer's Representative:
CPA: Coalition Provisional Authority:
DCMA: Defense Contract Management Agency:
DOD: Department of Defense:
DS: Diplomatic Security:
JCC-I/A: Joint Contracting Command-Iraq/Afghanistan:
MEJA: Military Extraterritorial Jurisdiction Act:
MNC-I: Multi-National Corps-Iraq:
MNF-I: Multi-National Force-Iraq:
PSC: private security contractor:
RSO: Regional Security Office:
TOC: tactical operations center:
UCMJ: Uniform Code of Military Justice:
USAID: U.S. Agency for International Development:
WPPS: Worldwide Personal Protective Services:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 31, 2008:
Congressional Committees:
Since military operations began in Iraq in 2003, the United States
government has relied extensively upon the services of private security
contractors (PSC). For the Department of Defense (DOD) these services
include providing security for senior military officials such as the
Commanding General of the Multi-National Force-Iraq and for personnel
from the Army Corps of Engineers, protecting military facilities, and
protecting more than 19,000 supply convoys traveling throughout Iraq.
[Footnote 1] For the Department of State, PSCs provide security for the
ambassador, other U.S. government officials working in Iraq as well as
visiting Members of Congress and visiting officials of the executive
branch. PSCs also provide site security of the embassy and other State
Department facilities in Iraq. The number of PSCs in Iraq is also
substantial. DOD and the Department of State estimate that about 11,000
private security employees (9,952 with DOD, 1,400 with the State
Department) are working in Iraq under direct contracts with the U.S.
government. DOD has estimated that it would need to create nine new
Army brigades to replace the current number of PSC employees working in
Iraq.[Footnote 2]
Because of incidents involving PSCs in Iraq, concern regarding the
level of oversight and the legal accountability over these firms and
their employees has increased. Incidents occurring between PSCs and
Iraqis and between PSCs and U.S. forces have been reported since 2004.
In July 2005, we issued a report that examined how the U.S. government
and reconstruction contractors used PSCs.[Footnote 3] In that report we
made a number of recommendations including one addressed to DOD to
develop a training package for military units deploying to Iraq that
included information on (1) the role of PSCs in Iraq, (2) typical PSC
operating procedures, (3) guidance related to PSCs, and (4) the
military's responsibilities to PSCs. In 2006, we testified that
coordination between the U.S. military and the PSCs needed improvement
and that further action needed to be taken by DOD to implement the pre-
deployment training recommendation from 2005.[Footnote 4] According to
the report of the Secretary of State's Panel on Personal Protective
Services in Iraq, on September 16, 2007, an incident involving a PSC
firm working for the Department of State resulted in the deaths of 17
Iraqi civilians in Baghdad. In the wake of this incident, which U.S.
government officials describe as a watershed event, both DOD and the
State Department began to examine their efforts to provide oversight,
improve coordination between DOD, the State Department and the
government of Iraq, and enhance accountability for the PSCs they employ
in Iraq.
Because of continuing congressional interest in the use of PSCs in
Iraq, we began in August 2007, under the authority of the Comptroller
General to conduct evaluations on his own initiative, a review to
update our work on the U.S. government's use of PSC. This report
examines the extent to which DOD and the Department of State have
strengthened (1) oversight and (2) coordination of private security
contractors in Iraq. In addition, we are providing information on the
legal framework in place to hold private security contractor employees
legally accountable for their actions in Iraq. Later this year, we plan
to issue a report on other PSC issues related to selection, training,
and weapons accountability as well as DOD's implementation of
provisions of Section 862 of the 2008 National Defense Authorization
Act which requires DOD to prescribe regulations for the use of private
security contractors in contingency operations.
To assess the U.S. government's efforts to improve oversight and
coordination of PSCs it employs in Iraq, we reviewed recent DOD, United
States Central Command (CENTCOM), Multi-National Force-Iraq (MNF-I),
and State Department policies and guidance addressing the requirements,
procedures, and responsibilities for the oversight and coordination of
PSCs. These documents include new MNF-I PSC guidance and policies on
incident reporting, investigation requirements, coordination, and
contract oversight. In addition, we reviewed the memorandum of
agreement between DOD and the State Department on PSCs working for the
U.S. government in Iraq. We reviewed these policies to determine the
U.S. government's authority and responsibility for the oversight and
coordination of PSCs in Iraq that have contracts with the U.S.
government. In February 2008, we traveled to Iraq to examine what, if
any, improvements had been made after the Nisour Square incident. In
Iraq we met with officials from DOD, including officials from MNF-I,
the Joint Contracting Command-Iraq/Afghanistan (JCC-I/A), and the
Defense Contract Management Agency (DCMA), as well as officials from
the State Department, including officials from the U.S. Embassy-Baghdad
and its Regional Security Office, to discuss issues related to
oversight, coordination, and accountability over PSCs in Iraq. While in
Iraq, we observed operations at DOD's Contractor Operations Cell and at
the State Department's Tactical Operations Center, witnessing the
planning, oversight and coordination, and tracking of PSC movements
throughout Iraq. We also met with the Executive Secretary of the
Secretary of State's panel established to review the State Department's
security practices in Iraq. We also interviewed officials from ten
selected private security firms who currently provide or have recently
provided private security functions in Iraq, as well as representatives
from an Iraq-based private security association.
To describe the legal framework in place to hold PSC employees
accountable we reviewed various laws including the Uniform Code of
Military Justice and the Military Extraterritorial Jurisdiction Act. We
also interviewed officials from DOD's Office of the General Counsel,
the State Department's Office of the Legal Adviser and from the
Department of Justice to gain an understanding of the process used to
hold PSCs accountable. Moreover, we also reviewed applicable U.S.
government PSC contract clauses that outline and regulate contractor
behavior.
Our work focused on PSCs who have a direct contractual relationship
with the United States government and we did not assess the use of PSCs
by reconstruction contractors, non-governmental organizations or other
coalition nations. We reviewed processes used to provide oversight and
coordination over PSCs in Iraq but did not evaluate how effectively
they were being implemented because the processes reviewed are new. We
also did not evaluate how laws were being used to hold contractors
accountable. Appendix I contains a more detailed presentation of our
scope and methodology. We conducted this performance audit from
February 2008 to June 2008, in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide
a reasonable basis for our findings and conclusions based on audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
Results in Brief:
Since the Nisour Square incident in September 2007, DOD and the State
Department have taken action to improve oversight of PSCs in Iraq,.
However staffing and training challenges remain for DOD. In November
2007 MNF-I established the Armed Contractor Oversight Division to
provide oversight and serve as MNF-I's overall point of contact on
policies that govern DOD's PSCs. MNF-I has also published comprehensive
guidance related to the oversight of DOD PSCs and has made military
units more responsible for providing oversight of PSCs in terms of
incident reporting and investigating as well as contract management.
However, while DOD has incorporated information on working with PSCs
into senior military staff and unit training programs and exercises,
this training does not reflect the increased PSC oversight
responsibilities and organizational structures established since the
September 2007 incident. Thus, military units may not be aware of and
trained on how to carry out their expanded oversight responsibilities
and the required incident investigations may not occur. Further, while
DOD has increased the number of personnel in Iraq devoted to providing
contract oversight and management over private security contracts it is
not clear whether DOD can sustain this increase because limited number
of oversight personnel in the workforce. In the short-term, DOD has
increased the number of oversight personnel in Iraq by shifting
existing oversight personnel from other locations into Iraq. However,
if DOD is unable to sustain the increase in oversight personnel, the
improvements in contract oversight gained by the current personnel
increases may well be lost. The State Department has implemented 11of
the 18 actions recommended by a panel that reviewed the Department's
use of PSCs in Iraq and continues to implement others. Among the
recommendations it has implemented or is in the process of implementing
are recommendations to install video recording equipment in its
security vehicles, place a diplomatic security agent in each PSC
motorcade, and increase the number of Diplomatic Security agents
stationed in Iraq to improve contract oversight and management. To
provide these additional agents, the State Department moved personnel
from other assignments both in the U.S. and abroad which negatively
affected other Diplomatic Security missions. The State Department has
requested and received funding for an additional 100 diplomatic
security agents in its fiscal year 2008 supplemental appropriations
request.
Coordination between DOD, the State Department, and the government of
Iraq has improved since the Nisour Square incident. For example, the
State Department now coordinates its PSC movements with DOD through
liaison officers, and by providing a daily briefing to MNF-I regarding
upcoming PSC activities. Multi-National Corps-Iraq (MNC-I) has
established several operations centers to track and coordinate the
movement of DOD PSCs with U.S. military units throughout Iraq, as well
as to coordinate the movements of PSCs working for the State
Department. Prior to the establishment of these operations centers, PSC
movements were not always coordinated with U.S. military units.
Moreover, MNF-I 's Armed Contractor Oversight Division facilitates
coordination for PSC matters in Iraq among DOD, the State Department,
the government of Iraq, and the PSC community in Iraq. Prior to the
establishment of the oversight division the U.S. government did not
coordinate PSC issues with the Government of Iraq. Since the
establishment of the division, representatives of the State Department
and the oversight division meet regularly to listen to concerns,
resolve issues, and generate joint solutions. In addition, the division
notifies the Iraq Ministry of the Interior when an incident occurs
involving PSCs and Iraqi civilians. Finally, in December 2007 DOD and
the State Department signed a memorandum of agreement that details
specific coordination activities to be undertaken by the departments.
Various laws exist to hold PSC employees accountable for criminal acts
committed in a wartime environment beyond the borders of the United
States. These laws include U.S. criminal laws that may be applied
extraterritorially, the Military Extraterritorial Jurisdiction Act
(MEJA), the Uniform Code of Military Justice (UCMJ), international law,
as well as Iraqi laws. Whether a particular law provides extra-
territorial jurisdiction over a criminal act by a PSC employee depends
on the specific facts of the incident, such as the time, nature and
location of the alleged crime, the nature of the contractor's
employment, and the nationality of the accused. For example, an
employee of a DOD contractor, whether a U.S. citizen or Third Country
National, who commits a felony while accompanying the Armed Forces in
Iraq during a contingency operation may be charged under the UCMJ or
MEJA. With regard to other than DOD contractor employees, a panel of
State Department representatives reporting on protective services in
Iraq concluded in October 2007 that the legal framework for holding non-
Department of Defense contractor employees accountable under U.S. law
is inadequate. Congress is presently considering legislation that would
clarify and extend U.S. criminal jurisdiction over individuals employed
under a contract awarded by any U.S. department or agency where
contract performance is located in the area of a contingency operation.
In addition to U.S. law, the legal framework for holding PSCs
accountable includes applicable international law and Iraqi law. Also,
contract provisions serve to regulate contractor behavior.
We are making recommendations to the Secretary of Defense to (1) take
the necessary steps to ensure that the Joint Contracting Command Iraq/
Afghanistan has sufficient personnel to meet its contract oversight and
management responsibilities; (2) update training materials to reflect
the current guidance and oversight requirements; and (3) fully
implement our 2005 recommendation by including information on PSC
typical operating procedures and the military's responsibilities to
PSCs.
The Department of Defense agreed with our recommendations and noted
that it welcomed our assistance in improving how DOD and its
contractors can plan for and effectively execute comments in a complex
and changeable security environment. DOD's comments appear in appendix
III.
In commenting on our report the State Department noted that in addition
to the oversight improvements discussed in this report, the State
Department and the Bureau of Diplomatic Security have increased and
realigned staff to enhance oversight. In addition, the State Department
expressed concern over our depiction of the status of implementation of
the Secretary of State's Panel on Personal Protective Services in Iraq
in appendix II. In its comments the State Department stated that it has
implemented 16 of the 18 recommendations made by the panel. In our
draft report we originally assessed 9 recommendations as complete.
Based on additional information provided by the State Department we
changed our assessment of the status of two recommendations
(recommendation numbers 3 and 11 in appendix II) and now we are
reporting that the State Department has completed 11 of the 18
recommendations. The State Department's comments and our detailed
responses appear in appendix IV.
In addition, both Departments provided technical comments which we
incorporated as appropriate.
Background:
PSCs are defined as private companies, and/or personnel, that provide
physical security for persons, places, buildings, facilities, supplies,
or means of transportation. These contractors provide security services
for a variety of U.S. government agencies in Iraq; however, they
principally are hired by DOD and the State Department. Given the
security concerns in Iraq, the U.S. government has relied upon PSCs to
fulfill a variety of important security functions throughout the
country in support of the DOD military mission and the State
Department's diplomatic mission.[Footnote 5]
The mission of PSCs hired by the U.S. government in Iraq is to protect
government agency officials as they perform their duties in the
unstable security environment currently present. These contractors may
be U.S. or foreign-based and their employees are recruited and hired
from a wide variety of countries, including the United States, the
United Kingdom, South Africa, Nepal, Sri Lanka, and Fiji. They also
include Kurds and Arabs from Iraq. These firms may provide a variety of
security related services including:
* static security - security for housing areas and work sites,
including U.S. military installations;
* personal security details - security for high-ranking U.S. officials
and Chief of Mission personnel;
* security escorts - security for U.S. government employees, contractor
employees, or others as they move through Iraq;
* convoy security - security for vehicles and their occupants as they
make their way into Iraq or within Iraq; and:
* security advice and planning.
In Iraq, two distinct authorities are responsible for the security of
U.S. government employees and contractors. The U.S. military, under the
authority of the Secretary of Defense and the Combatant Commander, is
responsible for the security of all personnel who are under direct
control of the Combatant Commander.[Footnote 6] The State Department,
under the authority of the Secretary of State, is responsible for the
security of all other U.S. government personnel on official duty abroad
[Footnote 7]. In Iraq, that responsibility is delegated to the U.S.
Ambassador as Chief of Mission and to the U.S. Embassy's Regional
Security Officer who is the Chief of Mission's focal point for security
issues and as such establishes specific security policies and
procedures. While these two agencies also are responsible for providing
oversight, coordination and accountability for U.S. government PSCs,
the government of Iraq also plays a role. Figure 1 depicts the
organizations that play a key role in the oversight and coordination of
PSCs operating in Iraq.
Figure 1: Key Organizations with Roles in Oversight and Coordination of
Private Security Contractors in Iraq:
[See PDF for image]
This figure is an illustration of the following information:
Government of Iraq:
* Ministry of Interior (MOI):
Under the Prime Minister of the Government of Iraq, the Ministry of
Interior works with DOD and the State Department on registration and re-
registration of PSCs operating in Iraq, the issuance process of weapons
cards and vehicle licensing, and developing and implementing PSC rules,
regulations and guidelines for operations in Iraq.
Department of State:
* Regional Security Officer:
Under the Chief of Mission, the Regional Security Officer, who is a
State Department Diplomatic Security Service special agent, oversees
all functions related to security.
* A Bureau:
The Department of State‘s Office of Acquisitions Management manages,
plans, and directs the Department‘s acquisition programs and conducts
contract operations in support of activities worldwide, including
support of the Bureau of Diplomatic Security‘s Iraq requirements.
Department of Defense:
* Multi-National Forces – Iraq (MNF–I):
Under the combatant commander, MNF–I is the military command, led by
the United States, which comprises the Coalition Forces.
* Multi-National Corps – Iraq (MNC–I):
MNC–I, part of MNF–I, is the tactical unit responsible for the command
and control of operations throughout Iraq.
* Joint Contracting Command – Iraq/Afghanistan (JCC–I/A):
JCC–I provides operational contracting support to MNF–I to efficiently
acquire vital supplies, services, and construction in support of the
Coalition Forces and the relief and reconstruction of Iraq; and to
provide capacity building to establish effective contracting and
procurement processes within the Iraqi Ministries to build and sustain
self-sufficient security forces.
* Defense Contract Management Agency (DCMA):
DCMA is a combat support agency within DOD that performs contract
management functions by serving as the department‘s contract manager.
The contracting officer is responsible for oversight and management of
the contract, but may delegate some of those functions to DCMA.
Source: DOD data; GAO presentation.
[End of figure]
DOD and the State Department Have Increased Oversight Efforts Regarding
PSCs, but Staffing and Training Challenges Remain for DOD:
DOD and the State Department have both taken action to increase their
oversight efforts over PSCs in Iraq, however, staffing and training
challenges remain for DOD. In Iraq, MNF-I has established an office to
provide PSC oversight and MNF-I has published comprehensive mandatory
guidance related to the oversight of DOD PSCs and has made military
units more responsible for providing oversight to PSCs in terms of
incident reporting and investigating. However, senior military staff as
well as units may not be aware of their increased responsibilities
because DOD has not incorporated information on the revised guidance
and increased responsibilities in its training program. Further, while
DOD has increased the number of personnel in Iraq devoted to providing
contract oversight and management over private security contracts it is
not clear based on our current and past work whether DOD can sustain
the increased number of contract oversight and management personnel it
has sent to Iraq since late 2007. In addition, the State Department has
implemented 11 of the 18 recommendations made by a panel appointed by
the Secretary of State to review the agency's oversight of PSCs in
Iraq. Among the recommendations implemented or being implemented are
recommendations to increase the number of agents in Iraq to provide
oversight over its PSC contractors, install audio and video recording
equipment in security vehicles, and a recommendation to place a
diplomatic security agent in each PSC motorcade.
Multi-National Force-Iraq Has established an Office to Provide
Oversight over DOD PSCs in Iraq:
Prior to the incident in Baghdad in September 2007, the U.S. military
lacked a single structure for managing its PSCs in Iraq. In November
2007, MNF-I, established a new organization, the Armed Contractor
Oversight Division[Footnote 8], to serve as MNF-I's overall point of
contact for policy issues relating to PSCs hired by DOD[Footnote 9] as
well as to provide broad oversight over these contractors. According to
MNF-I officials, the office's goals include (1) working to reduce the
number of incidents of PSCs discharging weapons or behaving in a manner
that undermines the credibility of U.S. efforts; (2) developing a
mechanism for holding PSCs accountable for their actions; (3) reducing
the time that elapses between the occurrence of an incident and the
reporting of that incident; and (4) minimizing the impact of an
incident on the credibility of U.S. efforts in Iraq[Footnote 10]. The
office is currently staffed with 7 full time employees comprised of 3
military personnel and 4 contractors. Figure 2 depicts the Armed
Contractor Oversight Division's organizational structure and the
responsibilities of each staff member.
Figure 2: Armed Contractor Oversight Division (ACOD) Organizational
Structure:
[See PDF for image]
This figure is an illustration of the Armed Contractor Oversight
Division (ACOD) Organizational Structure, as follows:
Director/O-6:
Sets the direction for the ACOD and reports directly to the MNF–I.
Provides direct liaison with the Government of Iraq Ministry of
Interior, U.S. Embassy Baghdad, the Private Security Company
Association of Iraq, and the Private Security Company (PSC) Country
Managers.
Policy & Legal Advisor/O-5:
ACOD lead for managing MNF–I development of new armed contractor policy
and procedures, including changes required by new legislation, DOD and
CENTCOM policy, or US/Iraq agreements. Coordinates with command staff
judge advocate offices on ACOD actions. Advises Director on
adequacy/appropriateness of unit incident investigations and actions.
Lead for requests for information, Freedom of Information Act, and
other info requests.
Deputy Director/O-4/O-5:
Manages daily operations including the daily work of the contracted
personnel; coordinates with other military and U.S. Government agencies
on all manner of PSC related topics and requests for information in the
narrative for the Deputy Director.
Operations Officer (position held by contractor):
Coordinate with the Contractor Operations Cell and MNF–I Strategic
Operations Center, to identify and track all PSC incidents provide
timely and accurate reporting through completion of investigations.
Assistant Operations Officer (position held by contractor):
Assist the Operations Officer in all operational duties of the ACOD
with prime duties of processing and logging incident reports.
Arabic Interpreter/Liaison Officer (position held by contractor):
Maintain contact with the Ministry of Interior representative to
identify issues concerning PSCs and MNF–I/Ministry of Interior working
relations.
Database Administrator (position held by contractor):
Collection, management and organization of data reported by ACOD
components for analysis to identify trends.
Source: DOD presentation.
[End of figure]
One of the key efforts of the Armed Contractor Oversight Division is to
monitor, review, and report all PSC incidents. These incidents include
those involving injuries; deaths; negative reports in the media;
weapons discharges; complaints from U.S. military commanders, local
Iraqi citizens or the government of Iraq; and other allegations of PSC
misconduct. PSCs are required to report these incidents in writing to
the MNC-I CONOC. The office then reviews each incident report to
determine whether the incident requires additional investigation. After
an investigation is completed by the appropriate unit commander, the
Armed Contractor Oversight Division tracks corrective or disciplinary
actions initiated by the commander or the PSC. The Armed Contractor
Oversight Division also conducts a trend analysis of incident reporting
data. According to officials, since the office began oversight over
PSCs in October 2007, weapons discharges by PSCs have decreased
approximately 60 percent.[Footnote 11] Figure 3 depicts how the Armed
Contractor Oversight Division monitors and reports PSC incidents.
Figure 3: Description of the PSC Incident Reporting Process:
[See PDF for image]
This figure illustrates the following description of the PSC Incident
Reporting Process:
1) Incident;
2) PSC;
3) MNC-I Contractor Operations Cell;
4) ACOD Battle Tracking MNF-I Strategic Operations Center (SOC);
interactions occur with the following:
- State Department;
- Government of Iraq;
- Joint Contracting Command-Iraq/Afghanistan;
- Staff Judge Advocate.
5) MNF-I SOC reporting.
ACOD coordinates and tracks reporting:
1. Notifies the government of Iraq.
2. Coordinates with the State Department if State Department PSC.
3. Coordinates with the appropriate unit commander and JCC–I/A if
further investigation is necessary.
4. Confers with Staff Judge Advocate if any legal issues arise.
5. Communicates with tactical military units to assist in
investigations and condolence payments.
Source: DOD presentation.
[End of figure]
DOD Has Consolidated and Strengthened Its PSC Oversight Guidance by
Requiring Further Incident Investigation:
According to MNF-I officials, prior to December 2007 there were between
40 and 50 separate fragmentary orders relating to regulations
applicable to PSCs in Iraq. As such, contracting officers as well as
military commanders rotating into Iraq may not have been aware of all
of the regulations covering PSCs. In December 2007, MNF-I issued
Fragmentary Order 07-428, to consolidate the previous fragmentary
orders and establish authorities, responsibilities and coordination
requirements for MNC-I to provide oversight for all armed DOD
contractors and civilians in Iraq including PSCs. The establishment of
the consolidating fragmentary order creates a single source for CENTCOM
mandated orders, regulations and mandatory contract clauses relating to
requirements, procedures, and responsibilities for control,
coordination, management, and oversight of PSCs in Iraq. Specifically,
the order addresses PSC requirements including arming procedures and
responsibilities, rules for the use of force and mandates strengthened
serious incident reporting procedures and responsibilities. For
example, under the new order when a PSC observes, suspects, or
participates in a serious incident such as a weapons discharge, PSCs
are required to submit an immediate incident report at the earliest
opportunity via the most secure means available to MNC-I and then
submit an initial written report of the incident not later than 4 hours
after the incident in contrast to the previous 48 hour reporting
requirement.[Footnote 12] The order requires the initial report to
contain a highlighted version of the incident, including critical
information such as who was involved and when and where the incident
occurred. PSCs are required to file a final report with 96 hours of the
incident.
Additionally, the fragmentary order increases the oversight
responsibilities for military units by requiring the military to
investigate serious incidents involving a DOD PSC. Previous orders only
directed the military to investigate incidents related to contractors
firing weapons. According to the December 2007 order, the military unit
that receives the contracted security services is required to conduct a
preliminary inquiry if contractors are involved in a serious incident.
The order also stipulates that at a minimum, a commander's inquiry will
be conducted and documented. Previously, there was no requirement that
commanders' investigations be documented. Incidents that involve death,
serious injury, or property damage in excess of $10,000 must be
investigated by the appropriate level commander. Previous investigative
requirements did not include this requirement. The order directs
commanders to involve criminal investigative authorities if the
preliminary investigations suggest either criminal misconduct, a
violation of the rules for the use of force, or an inappropriate
graduated force response. Finally, the order requires that any military
unit observing or becoming aware of a serious incident provide an
investigative report to the unit's operational chain of command and to
include photographs and names if possible. In reviewing investigative
reports to determine whether PSC misconduct was involved, commanders
are to use the same standards as they would for their own units'
actions. Investigations or inquiries completed by the military are
forwarded to the Armed Contractor Oversight Division and the MNC-I
Staff Judge Advocate for review. Moreover, according to an Armed
Contractor Oversight Division official, if a military investigation is
deemed to have been inadequate, MNF-I or MNC-I can direct another
investigation. Prior to the establishment of the Armed Contractor
Oversight Division there was no MNF-I level review of incident reports.
The fragmentary order also requires that PSCs report all weapons
discharges on a monthly basis to the contracting officer's
representative or sponsoring activity. The monthly report, which
includes information on the type of discharge, is to be annotated to
include information on the type and status of the investigation and who
conducted it. In addition, if an action such as a fine or termination
was taken against a contractor employee, this information also is to be
included in the report. The reports are provided to the MNC-I office
responsible for authorizing individual contractor employees to carry
weapons and may be considered when MNC-I determines whether an
individual will be allowed to carry a weapon. The monthly reports are
also provided to the Armed Contractor Oversight Division, which
analyzes the data for trends. Previous guidance did not require the
monthly weapons discharge report.
The fragmentary order also addresses the contracting officer
representative's (COR) critical role in contract support and provides
information to properly designate, train, and support the COR in
government oversight and administration of security contracts. A DOD
guidance memo assigning contract administration functions lists
oversight over a contractor's compliance with CENTCOM policies and
directives among contract administration responsibilities. The order
states that organizations supported by security services shall insure a
COR is nominated to perform contract oversight. The order further
states that contracting officers are responsible for monitoring PSC
performance and ensuring PSC compliance with contractual requirements.
According to the order, contracting officer representatives should be
selected at a rank commensurate with the contract's oversight
responsibilities and that contract oversight should be their primary
function. The contracting officer's representative should also be at a
location to allow sufficient direct oversight of contractor operations.
Prior to the fragmentary order there was not a comprehensive document
describing these responsibilities and how they relate to providing
oversight over PSCs.
DOD Has Increased the Number of Personnel Devoted to Contract
Management and Oversight, but It Is Unclear Whether the Increase Can Be
Sustained:
DOD contract oversight efforts in Iraq have also been strengthened
through actions taken by the Undersecretary of Defense, Acquisition
Technology and Logistics and the Defense Contract Management Agency
(DCMA). However the Department may be challenged to continue to provide
the increased number of personnel needed to sustain the additional
oversight. In October 2007, the Undersecretary issued memoranda giving
JCC-I/A new authorities and responsibilities for PSCs contracting in
Iraq. Specifically, JCC-I/A is responsible for all contract
administration for DOD's security contracts in Iraq.[Footnote 13] In
Iraq, JCC-I/A has delegated to DCMA the responsibility to provide
contract administration over private security contracts. This newly
delegated authority enables DCMA, with its presence in Iraq, to
implement a systematic approach toward oversight of PSCs contracts.
DCMA officials told us that this approach, which did not exist prior to
DCMA receiving this authority, includes developing a quality assurance
framework, a key component of which is the agency's development of a
series of quality assurance checklists for PSCs. DCMA officials stated
that the checklists have been developed by incorporating requirements
from the statements of work in PSC contracts and current MNF-I guidance
and fragmentary orders and translating these requirements into
objective measurable standards intended to enable the agency to conduct
regular and unbiased inspections of contracting personnel, known as
surveillance audits. According to DCMA officials, these checklists are
intended to ensure that PSCs are meeting contract requirements and that
DOD is providing appropriate oversight over the contracts. The
checklists translate security contract requirements into an audit
document. According to DCMA officials, the agency coordinates with the
Armed Contractor Oversight Division to ensure that the checklists
reflect current MNF-I guidance and fragmentary orders related to PSCs.
To assist in its greater role in Iraq to provide contract award,
administration and oversight, JCC-I/A plans to add additional personnel
in Iraq while DCMA has increased its number of oversight personnel in
Iraq and hopes to add additional personnel. DCMA has approximately
doubled the number of oversight personnel in the CENTCOM area of
responsibility by shifting personnel from other areas. Of the personnel
in theater in March 2008, somewhat more than half were deployed to Iraq
to provide greater oversight of contracts in Iraq including private
security contracts.[Footnote 14] Furthermore, DCMA plans to increase
the number of staff deployed to the theater to 348 by the end of 2008.
While the contracting command and DCMA both hope to be able to increase
the number of personnel available in Iraq to provide additional
oversight of DOD's PSC contracts, our current and past work suggests
that the agencies may not be able to fill all of the positions or
sustain this increase. For example, during our visit to Iraq officials
from JCC-I/A stated that while they had a joint manning document that
authorizes 39 additional staff, the positions would not be immediately
filled and thus they continued to work with the individual services to
fill the positions. As of June 2008, JCC-I/A officials reported that 32
of the 39 positions listed in the joint manning document had been
created and should be filled by the services soon. DCMA also developed
a joint manning document and is asking the services to provide the
additional oversight and management personnel needed in part because
DCMA lacks the personnel to meet the additional requirements. During
our visit to Iraq, DCMA officials expressed concerns about maintaining
the increase in the number of oversight personnel in Iraq over the long-
term. In 2007 the report of the Commission on Army Acquisition and
Program Management in Expeditionary Operations stated that the Army
lacks the leadership and military and civilian personnel to provide
sufficient contracting support to either expeditionary or peacetime
missions.[Footnote 15] According to the commission, Army contracting
personnel experienced a 600 percent increase in their workload and are
performing increasingly complex tasks, but the number of Army civilians
and military in the contracting workforce has either remained static or
declined because of congressional direction to DOD and the Army to make
significant cuts in the acquisition workforce.[Footnote 16] According
to a May 2008 Congressional Research Service report, the earlier
reductions in the contracting workforce reflected Congress' view that
the workforce had not been reduced enough in proportion with the
overall defense budget, particularly the acquisition portion of the
defense budget.[Footnote 17] However, concomitant to the workforce
reduction was the department's decision to increase its reliance on
contractors to provide services previously provided by DOD civilians or
service members. As a result, the actual workload of contracting
personnel (the people charged with writing, negotiating, monitoring,
and enforcing performance of the contracts) was substantially
increasing in complexity and volume. Furthermore, in a June 2008 report
to Congress, the Air Force commented that in the current conflict it
was strained to cover its own contracting requirements and provide 67
percent of the contracting personnel to support joint contracting
requirements. These comments cast doubt on the Air Force's ability as
well as the Army's ability to fully support either JCC-I/A or DCMA. As
we noted in our January 2008 testimony, without adequate contract
oversight personnel in place to monitor DOD's many contracts in
deployed locations such as Iraq, DOD may not be able to reasonably
assure that contractors are meeting their contract requirements
efficiently and effectively.[Footnote 18]
Units Continue to Deploy to Iraq without Training on Increased PSC
Oversight Responsibilities:
In July 2005, we reported that units deploying to Iraq received no
training on working with PSCs and were unclear as to their
responsibilities towards PSCs.[Footnote 19] At that time we recommended
that DOD establish and incorporate a training program into the mission-
rehearsal exercises and predeployment training for units deploying to
Iraq. In response to the recommendation, DOD has incorporated training
on PSCs into various predeployment training programs and exercises. For
example, the Joint Forces Command has developed training on the role of
PSCs in the battlespace for senior military staff in Iraq. The Army has
a pilot program to incorporate PSC scenarios into its Battle Command
Training Program, which trains Corps, division and brigade staff. The
Army and the Marine Corps also incorporated scenarios on the rules of
engagement and escalation of force involving PSCs into unit
predeployment training. Additionally, according to DOD officials, PSC
scenarios have been incorporated into two recent training exercises for
senior staff. However, this training does not include all of the topics
we recommended in 2005 such as information on PSC standard operating
procedures nor does it reflect the increased PSC oversight
responsibilities and organizational structures established since the
September 2007 incident, such as training on the role of the Armed
Contractor Oversight Division. When we made our recommendation, DOD's
use of PSCs was limited to a few contracts that provided support to the
Army Corps of Engineers and to static security for work areas within
military installations. Since then DOD's use of PSCs has increased
significantly and military units at all levels have been given more
oversight responsibility for PSCs as well as more responsibilities for
coordination as we discuss below. Without training that reflects
current policies, practices and procedures, military units deploying to
Iraq may not conduct the independent incident investigations required
to ensure contractor accountability.
The State Department Has Begun to Increase Its Oversight Efforts in
Iraq:
After the Nisour Square incident, the Secretary of State assembled a
panel of experts to review the agency's security practices in Iraq and
make recommendations to reduce the likelihood of future incidents that
could adversely affect the overall U.S. mission in Iraq. The panel
found that while the State Department's security operations had been
highly effective in ensuring that mission personnel were safe,
improvements were needed to address deficiencies in oversight and
coordination. To address these deficiencies, the panel made 18
recommendations to improve oversight of PSCs contracted by the State
Department in Iraq. The State Department has implemented 11of the
recommendations and is in the process of implementing the remaining
recommendations. Appendix II provides additional information on all of
the panel's recommendations, their implementation status, and our
comments on the implementation status.
When we met with State Department officials at the U.S. Embassy in
Baghdad, officials told us that the department had made progress in
implementing some of these recommendations. For example, one of the
panel's principal recommendations was to increase the number of
Diplomatic Security Special Agents in Iraq in order to expand oversight
of the department's PSCs. State Department officials told us that the
agency is increasing the number of agents in Iraq from 36 to 81
permanent and 7 temporary duty personnel to provide additional
oversight of the department's PSCs, such as accompanying the PSC
contractors on each personal protection mission. According to the State
Department, these positions are expected to be filled by September
2008. The State Department has acknowledged that it does not have
sufficient numbers of diplomatic security agents to meet the agency's
security requirements and as a result relies on and will continue to
rely on private security contractors to provide additional capacity.
According to the State Department, in order to provide enough
Diplomatic Security Special Agents in Iraq, the department had to move
agents from other programs, and those moves have negatively affected
the agency's ability to perform other missions including providing
security for visiting dignitaries and visa, passport, and identity
fraud investigations. For example, the official stated that the agency
had to borrow personnel from another federal law enforcement agency in
order to provide security at the Middle East Peace Summit held in
Annapolis, Maryland. According to the State Department, 100 new agents
are needed in order to sustain this increase and will continue to be
needed after the hostilities in Iraq are over. The State Department
received funding for the new agents in the 2008 supplemental
appropriations act signed by the President of the United States on June
30, 2008, which covers the 4th quarter of fiscal year 2008 and all of
fiscal year 2009. According to the State Department, these positions
will be included in the agency's fiscal year 2010 budget request.
Similar to DOD, the State Department has developed directives to
consolidate and establish the agency's rules, regulations, and policies
for PSCs in Iraq. As of May 2008, the State Department has issued four
directives that provide guidance similar to the fragmentary order
issued by MNF-I. The purpose of these policy directives is to provide
PSCs with rules, regulations, and requirements for operating in Iraq.
The topics covered in these directives cover rules for the use of
force, escalation of force, serious incident reporting, and
investigating as well as coordination with DOD. According to State
Department officials, these directives consolidate previously issued
guidance and ensure that all of the State Department's PSCs are aware
of current department policies.
Coordination, Including Interagency Coordination, Related to PSCs in
Iraq Has Improved:
DOD and the State Department have improved coordination related to PSCs
in Iraq. For example, since the Nisour Square incident in late 2007,
the agencies have increased interagency coordination of their PSC
movements in Iraq through liaison officers and other means. In
addition, MNC-I has established several operation centers to track the
movement of DOD PSCs as well as to coordinate the movements of PSCs
working for the State Department. MNF-I's Armed Contractor Oversight
Division has also been coordinating efforts related to PSC oversight
and accountability among DOD, the State Department, the Government of
Iraq, and the PSC community in Iraq. Moreover, in December 2007, DOD
and the State Department entered a memorandum of agreement that covers
a broad range of management and operational procedures intended to
improve the U.S. government's management coordination over PSC
operations in Iraq.
Interagency Coordination Has Improved between DOD and the Department of
State and between the U.S. Government and the Government of Iraq:
Prior to the Nisour Square incident, DOD and the State Department did
not maintain regular communication or coordination on the departments'
efforts related to PSCs in Iraq, and neither DOD nor the State
Department coordinated on a regular basis with the Government of Iraq
on issues related to PSCs. According to State Department officials,
much of the prior coordination with MNF-I was ad hoc in part because
MNF-I lacked a focal point to coordinate with. During our visit to
Iraq, DOD and State Department officials told us that since the
incident, both agencies have implemented several measures to improve
communication and coordination between the two agencies. For example,
the State Department has a liaison officer stationed at MNC-I's
operations cell, and MNC-I continues to maintain a liaison officer in
the RSO's operations center. In addition, representatives from the
State Department participate in daily MNF-I briefings to coordinate
with MNF-I regarding planned State Department personnel movements.
Additionally, the agencies have increased their coordination on the
reporting and investigation of serious incidents involving PSCs. For
example, the State Department's Tactical Operations Center coordinates
with and reports all serious incidents involving its PSCs to the Armed
Contractor Oversight Division. Moreover, State Department officials in
Iraq stated that they are now sharing additional information and have
enhanced coordination on PSC movements with DOD, requesting route
intelligence from DOD, and providing DOD feedback on route security.
While the State Department provided MNF-I with route information and
scheduled personnel movements prior to the Nisour Square incident, MNF-
I did not know that the information was being provided by the State
Department. The State Department uses a data tracking system to provide
DOD tactical units with situational awareness of State Department PSC
movements. According to DOD and State Department officials, these
improvements were driven in part by recommendations made by the State
Department panel reviewing PSC operations and by the signing of a
memorandum of agreement between the two agencies stating that they
agree to work together on PSC matters in Iraq.
Additionally, the director of the Armed Contractor Oversight Division
coordinates with the State Department by co-chairing an incident review
board with the Regional Security Officer. This board meets quarterly to
examine incidents involving U.S. government PSCs in order to identify
trends and make recommendations to improve U.S. Government oversight of
PSCs in Iraq. The board also identifies best practices and communicates
these practices with PSCs. Furthermore, Armed Contractor Oversight
Division officials told us that the office has increased its
coordination efforts with the government of Iraq. For example, the
division and the State Department's Regional Security Officer regularly
meet with the Ministry of the Interior to coordinate on managing PSCs,
and listen to concerns, resolve issues, and generate joint solutions.
This process did not occur prior to the establishment of the oversight
division. Furthermore, the division ensures that the Ministry is
immediately notified when incidents occur involving PSCs and Iraqi
civilians.
Multi-National Corps-Iraq Has Created a Group of Operations Centers to
Coordinate Movement of DOD and State PSCS:
Prior to the issuance of the fragmentary order, DOD tracked the
movement of its PSCs through the Reconstruction Operations Center,
which was run by a U.S. Army Corps of Engineers contractor. As directed
by the fragmentary order, MNC-I has established six Contractor
Operations Cells to assume the responsibility to provide battlefield
coordination, previously handled by the Reconstruction Operations
Center, control of PSC movement throughout Iraq, and facilitate the
expedient reporting of incidents involving PSCs. The central Contractor
Operations Cell is located at MNC-I headquarters at Camp Victory, while
the others are located at the tactical operations centers of each of
the five divisions that control the corresponding battle space in Iraq.
According to MNF-I and MNC-I officials, the Contractor Operations Cells
provide a better mechanism for coordination than did the Reconstruction
Operations Center, for several reasons. First, as we noted above, the
Contractor Operations Cells are co-located with the tactical units
responsible for the battle space, making coordination easier. Second,
commanders have improved situational awareness because information
related to PSCs is now viewed in context with other battle space
activities. For example, the State Department provides the Contractor
Operations Cells with U.S. Embassy PSC movement information that can be
tracked by battlefield commanders using the same system as is used to
track military vehicles. This movement information was never provided
to the Reconstruction Operations Center when it was responsible for
tracking DOD's PSC movements. Third, battle space commanders now
control the movement of DOD PSCs in Iraq. According to the MNF-I order
establishing the Contractor Operations Cells, the tactical unit
responsible for the battle space must approve or deny the movement
request submitted by DOD PSCs. Previously, the battlespace commanders
may have been made aware of the PSCs' planned movements, but they were
not required to approve the movement. Additionally, MNF-I developed
common standards for communications between PSCs and government
personnel. MNF-I secured funding from U.S. Army Central Command for
radios and satellite phones for all DOD PSCs in Iraq in order to
standardize communication standards between PSCs and government
personnel. Additionally, the Defense Contract Management Agency is
currently modifying all PSC contracts in Iraq to incorporate these
common standards, and the PSCs will be acquiring standardized radios
and satellite phones as contractor furnished equipment in order to meet
these new requirements. Figure 4 depicts how the Contractor Operations
Cells coordinates U.S. government PSC movements in Iraq.
Figure 4: Overview of the Contractor Operations Cells (CONOC):
[See PDF for image]
This figure illustrates the following information:
Overview of the Contractor Operations Cells (CONOC):
1) The Army Corps of Engineers Logistics Management Coordination Center
coordinates its PSC movements with the central CONOC.
2. The central CONOC reviews the request and forwards it to one of the
five regional CONOCs that own the territory through which the PSC
wishes to move.
3. This regional CONOC, which is co-located with the division that
controls the corresponding battle space, will forward the request to
the appropriate tactical unit.
4. The tactical unit then approves or denies the route and time, and
forwards the response back to its regional CONOC.
5. This regional CONOC, which is co-located with the division, receives
the approval or denial, and forwards it backup to the central CONOC.
6. The central CONOC receives the approval or denial, and provides a
response to the PSC.
7. The PSC submits a movement request to the CONOC within 72 hours
prior to the movement request time.
8. Repeat the cycle starting and number two.
Source: DOD data. GAO presentation.
[End of figure]
The Department of Defense and Department of State Have Developed a
Memorandum of Agreement to Improve Coordination of PSCs in Iraq:
After the Nisour Square incident, DOD and the Department of State
recognized the need for a more unified approach toward the oversight
and coordination of U.S. government PSCs in Iraq and began to develop,
implement, and follow standards, policies, and procedures for the
coordination of PSCs in Iraq. On December 5, 2007, DOD and the State
Department signed a memorandum of agreement with the purpose to clearly
define the authority and responsibility for the accountability and
operations of U.S. government PSCs in Iraq. The memorandum of agreement
lays an important groundwork and, as we have discussed, many of its
provisions are being implemented. For example, the memorandum of
agreement directs the two agencies to:
* improve the effectiveness of incident management, response, and
follow-up for investigations;
* assure transparent, timely reporting and investigation of incidents
between U.S. Embassy in Baghdad and MNF-I, with timely reporting of
same to the government of Iraq; and:
* synchronize PSC operations between the battle space commander and
Regional Security Officer in order to establish real-time oversight,
visibility, and coordination of PSC convoy movements outside secure
bases[Footnote 20].
The memorandum of agreement also directs DOD and the State Department
to ensure that their respective PSC contracts and subcontracts contain
common language, through contract modifications if necessary,
implementing relevant provisions of the memorandum of agreement.
On July 10, 2008, pursuant to Section 861 of the 2008 National Defense
Authorization Act, DOD, the State Department and U.S. Agency for
International Development (USAID) signed a memorandum of understanding
which covers, among other things, contracting and contracting personnel
in Iraq, including PSCs. The matters addressed include: identifying
each agency's roles and responsibilities pertaining to procedures and
coordination for the movement of contractor personnel in Iraq;
identifying and maintaining a common database to serve as a repository
of information on contracts in Iraq; and collecting data on, and
appropriately referring, cases of contractor criminal misconduct.
An Overview of the Legal Framework for Holding Private Security
Contractor Employees Accountable for Their Actions in Iraq:
Various laws exist to hold PSC employees accountable for criminal acts
committed in a wartime environment beyond the borders of the United
States. These laws include U.S. criminal laws that may be applied
extraterritorially, the Military Extraterritorial Jurisdiction Act
[Footnote 21] (MEJA), the Uniform Code of Military Justice[Footnote 22]
(UCMJ), international law, as well as Iraqi laws. Whether a particular
law provides extra-territorial jurisdiction over a criminal act by a
PSC employee depends on the specific facts of the incident, such as the
time, nature and location of the alleged crime, the nature of the
contractor's employment and the nationality of the accused. For
example, an employee of a DOD contractor, whether a U.S. citizen or
Third Country National, who commits a felony while accompanying the
Armed Forces in Iraq during a contingency operation may be charged
under the UCMJ or MEJA. With regard to other than DOD contractor
employees, a panel of State Department representatives reporting on
protective services in Iraq concluded in October 2007 that the legal
framework for holding non-Department of Defense contractor employees
accountable under U.S. law is inadequate. Congress is presently
considering legislation that would clarify and extend U.S. criminal
jurisdiction over individuals employed under a contract awarded by any
U.S. department or agency where contract performance is located in the
area of a contingency operation. In addition to U.S. law, the legal
framework for holding PSCs accountable includes applicable
international law, including the law of war, and Iraqi law. Also,
contract provisions serve to regulate contractor behavior.
U.S. Laws May Be Applied Extraterritorially in Certain Instances:
Congress has the authority to enact laws that have effect beyond the
territorial boundaries of the United States.[Footnote 23] However, it
is a long standing principle that a law of the United States is meant
to apply only within the territorial jurisdiction of the United States,
unless there is a clear expression of congressional intent to the
contrary.[Footnote 24] Certain federal statutes prescribe criminal
sanctions for offenses committed by or against U.S. nationals overseas,
such as the War Crimes Act of 1996, which makes murder, rape, torture,
and other grave breaches punishable during an armed conflict.[Footnote
25] The United States also has jurisdiction over U.S. nationals for
crimes committed outside U.S. territory through special maritime and
territorial provisions for certain offenses clearly identified in the
U.S. Code, such as maiming, assault, kidnapping, murder, and
manslaughter. In the U.S. Code, the definition of "special maritime and
territorial jurisdiction" includes any lands reserved or acquired for
use of the United States or any place acquired by the United States for
the erection of a building.[Footnote 26] In addition, effective October
26, 2001, the definition of the "special maritime and territorial
jurisdiction" was expanded to include U.S. diplomatic, consular,
military or other U.S. missions or entities in foreign states including
leased buildings or residences with respect to offenses committed by or
against a U.S. national, except where the offense is committed by a
person employed by or accompanying the Armed Forces or a member of the
Armed Forces, as defined in MEJA.[Footnote 27] Therefore, the statute
essentially exempts people who are already subject to MEJA (in other
words, giving preference to MEJA as the source of jurisdiction).
MEJA Applies to Contractors Supporting DOD's Mission Overseas:
In 2000, Congress enacted MEJA in part due to a disagreement among
federal courts interpreting the breadth of special maritime and
territorial jurisdiction. [Footnote 28] MEJA extended U.S. criminal
jurisdiction over civilians employed by or accompanying the Armed
Forces outside the United States who commit offenses outside the United
States that would have been punishable by imprisonment for more than 1
year had the offense occurred within the special maritime and
territorial jurisdiction of the United States. The statute is
applicable to DOD contractors, including subcontractors at any tier,
and, beginning in 2004,[Footnote 29] to contractors of any other U.S.
agency to the extent that the contractor employee's employment relates
to supporting the mission of the DOD overseas. The law is not
applicable to individuals who are nationals of or ordinarily resident
in the host nation. DOD has issued regulations and an instruction
implementing policies and procedures under MEJA.[Footnote 30] Among
other things, the regulation states that the DOD General Counsel shall
provide initial coordination and liaison with the departments of
Justice and State, on behalf of the military departments, regarding a
case for which investigation and/or federal criminal prosecution under
MEJA is contemplated.[Footnote 31] The regulation further states that
the DOD Inspector General shall report to the Attorney General whenever
the Inspector General has reasonable grounds to believe that a
violation of federal criminal law has occurred and to ensure that DOD
criminal investigative organizations fulfill their responsibilities
outlined in the memorandum of understanding between the Department of
Justice and DOD. The regulation also notes that a question remains as
to whether MEJA jurisdiction should be applied to persons who are Third
Country Nationals but have a tenuous nexus to the United States.
The Report of the Secretary of State's Panel on Personal Protective
Services in Iraq stated among its principal findings that the panel was
unaware of a clear legal basis for holding non-Department of Defense
contractors accountable under U.S. law and recommended the State
Department urgently engage with other administration agencies to
establish a clear legal basis for holding contractors accountable under
U.S. law. A number of bills have been introduced during the 110th
Congress, including one that was passed in the U.S. House of
Representatives in October 2007, to broaden the applicability of MEJA
beyond members of the Armed Forces and individuals employed by or
accompanying the Armed Forces outside the United States, to include
individuals employed under a contract or subcontract awarded by any
U.S. department or agency where the employment is carried out in or
near an area where the Armed Forces are conducting a contingency
operation.[Footnote 32] DOD officials we interviewed expressed concern
that the pending legislation is imprecise and contains nebulous
language that needs refinement. State, Defense and Justice Department
officials we interviewed all confirmed that alternative language is
being jointly prepared in an effort to clarify the jurisdictional
boundaries under MEJA.
Certain Contractors May Be Subject to Prosecution under the UCMJ:
Contractor personnel may be subject to prosecution by court-martial
under the Uniform Code of Military Justice (UCMJ) for conduct that
takes place during a contingency operation in certain circumstances.
The John Warner National Defense Authorization Act for Fiscal Year 2007
broadened the applicability of the UCMJ regarding persons serving with
or accompanying an armed force in the field,[Footnote 33] from "in time
of war"[Footnote 34] to "in time of declared war or a contingency
operation." According to DOD officials we interviewed, the trial of
civilian contractors by courts-martial will likely be challenged on
constitutional grounds, particularly in light of variations between the
rules of courts-martial and civilian trials on key issues such as jury
composition and due process. On March 10, 2008, the Secretary of
Defense issued guidance regarding expanded UCMJ jurisdiction over DOD
contractor personnel and other persons serving with or accompanying the
Armed Forces overseas. The memorandum clarifies the broad scope of
command authority to act whenever criminal activity may relate to or
affect the commander's responsibilities. It requires that when alleged
offenses committed by civilians violate U.S. federal criminal laws, DOD
notify responsible Department of Justice authorities to afford them the
opportunity to pursue prosecution of the case in federal district
court. The memorandum also specifically notes that the unique nature of
extended UCMJ jurisdiction requires sound management over when, where,
and by whom such jurisdiction is exercised. According to MNF-I
officials, on June 22, 2008, the Army for the first time tried a
civilian defense contractor employee by court-martial under the
expanded UCMJ authority. MNF-I officials informed us that an
interpreter with U.S. armed forces in Iraq was originally charged with
aggravated assault for allegedly stabbing another contractor at a
combat outpost, but pleaded guilty to wrongfully taking a soldier's
knife, obstructing justice, and lying to investigators. After the
military judge accepted the guilty plea, the government dismissed the
assault charge and the contractor employee was found guilty of all
remaining charges and sentenced to 5 months confinement.
International Law:
The part of international law that addresses the conduct of armed
hostilities is referred to as the law of war. The law of war
encompasses all international law for the conduct of hostilities
binding on the United States or its individual citizens, such as
treaties and international agreements to which the United States is a
party. According to DOD policy, the law of war obligations of the
United States are observed and enforced by the DOD components and DOD
contractors assigned to or accompanying deployed Armed Forces.[Footnote
35] This DOD policy also requires the service secretaries to develop
internal policies and procedures to forward all reports of suspected or
alleged violations of the law of war involving contractors or
subcontractors assigned to or accompanying the Armed Forces to the DOD
General Counsel for review for prosecutorial action under the criminal
jurisdiction of the United States.
PSCs in Iraq Operate under the Law of the Government of Iraq:
PSCs who perform services for U.S. agencies, for any member of the
multinational force, or for diplomatic entities in Iraq operate under
the law of the government of Iraq, which includes orders issued by the
Coalition Provisional Authority (CPA) that have not been rescinded.
PSCs, however, currently enjoy legal protections by virtue of CPA Order
17, which was revised on June 27, 2004. CPA Order 17 provides that PSCs
are not subject to Iraqi laws or regulations on matters relating to the
terms and conditions of their contracts, as long as they comply with
CPA Orders and instructions governing the activities of PSCs in Iraq.
Those orders and instructions include the registration and licensing of
weapons and firearms. One such instruction, CPA Memorandum17, provides
binding rules for the use of force and a code of conduct that must be
followed by all PSCs. CPA Order 17 further recognizes that the United
States shall have the right to exercise within Iraq any criminal and
disciplinary jurisdiction conferred by U.S. law over persons subject to
U.S. military law.
Contract Provisions Also Regulate Contractor Behavior:
Contracts specify the terms of conduct and employment by which
contractors must abide. For example, PSC contracts typically provide
that a contractor is responsible for ensuring that its personnel who
are authorized to carry weapons are adequately trained to carry and use
them safely, adhere to the rules on the use of force, comply with law
and agreements, and are not barred from possession of a firearm.
Inappropriate use of force could subject a contractor, its
subcontractors, or its employees to prosecution or civil liability
under the laws of the United States and the host nation. A Defense
Federal Acquisition Regulation Supplement clause, which is required to
be included in contracts that authorize contractor personnel to
accompany U.S. Armed Forces outside the United States in contingency
operations, reminds such contractor personnel that they must comply
with, and ensure that deployed personnel are familiar with and comply
with, all applicable laws, rules, and regulations, including those of
the host country, all treaties and international agreements, all U.S.
regulations, and all orders, directives, and instructions issued by the
combatant commander.[Footnote 36] A Federal Acquisition Regulation
clause, which is required to be included in contracts that require
contractor personnel to perform outside the United States in a
designated operational area during contingency operations, creates
similar requirements for contractor personnel supporting a diplomatic
or consular mission outside the United States.[Footnote 37] The
requirements of these clauses apply to subcontractors as well. As
discussed earlier in this report, Fragmentary Order 07-428 also
identifies language that must be incorporated into all DOD contracts
where arming of employees is contemplated in Iraq, including a
statement that the contractors and their subcontractors agree to obey
all existing and future laws, regulations, orders, and directives
applicable to the use of private security personnel in Iraq.
Conclusions:
Given the security situation in Iraq and the shortage of available
military personnel and Department of State diplomatic security
personnel to provide security, private security contractors play an
integral role in providing the security. The September 16, 2007,
incident in Nisour Square demonstrated the importance of having in
place a coordinated system of oversight and coordination over U.S.
government-hired private security contractors. Since that incident, DOD
and the State Department have taken steps to increase oversight and
coordination over PSCs, including establishing the Armed Contractor
Oversight Division and Contractor Operations Cell systems and
increasing the number of personnel devoted to PSC oversight functions
in Iraq. The improvements DOD and the State Department have made may
reduce the number of PSC incidents in Iraq. However, these enhancements
may not eliminate incidents. Moreover, while the increase in the number
of DOD personnel devoted to PSC oversight in Iraq should improve
oversight, more efforts are required to ensure that that these
personnel are well-trained and qualified, and that positions are filled
and sustained over time. Furthermore, unless DOD ensures that military
units deploying to Iraq understand both their expanded oversight and
coordination responsibilities problems in managing and overseeing PSCs
may continue. By ensuring that these efforts are sustained, the U.S.
government can strengthen its framework of PSC oversight and
coordination in Iraq and can better prepare to respond effectively to
incidents and to apply this framework to future contingency operations,
should they occur, and overseas diplomatic missions in high threat
areas.
Recommendations for Executive Action:
To ensure that DOD sustains its current efforts to strengthen oversight
for private security contractors in Iraq, we recommend that the
Secretary of Defense develop and implement a strategy to fill
authorized positions for the Joint Contracting Command - Iraq/
Afghanistan and DCMA.
To ensure that units and military commanders deploying to Iraq are
aware of their new oversight and coordination responsibilities, we
recommend that the Secretary of Defense direct the service Secretaries
to update the information being provided on PSCs at unit mission-
rehearsal exercises and predeployment training to include information
regarding the operations of the Armed Contractor Oversight Division and
the Contractor Operations Cells along with the role of military units
in providing contract oversight, incident investigation, and PSC
coordination procedures. Further, we recommend that DOD fully implement
our 2005 recommendation by including information on PSC typical
operating procedures and the military's responsibilities to PSCs.
Agency Comments and Our Evaluations:
We provided a draft of this report to DOD and the State Department for
their review and comment. DOD's response is provided in appendix III,
and the State Department's response and our comments are provided in
appendix IV. Both departments also provided us with technical comments,
which we incorporated into the report as appropriate.
In commenting on the draft of this report, DOD concurred with our
recommendations. First, DOD concurred with our recommendation to
develop and implement a strategy to fill authorized positions for the
JCC-I/A and DCMA. DOD concurred and stated that it has initiated a
strategy to deploy 220 personnel by December 15, 2008. DOD also
concurred with our second recommendation that the Secretary of Defense
direct the Service Secretaries to update the information being provided
on PSCs at unit mission rehearsal exercises and pre-deployment training
to include information regarding the operation of the Armed Contractor
Oversight Division and the Contractor Operations Cells along with the
role of military units in providing contract oversight, incident
investigation, and PSC coordination procedures. DOD stated that it is
actively incorporating contractors and contract support into the
exercise schedules. We believe this is a positive step. However, DOD's
efforts should also ensure that the training provided is given to a
wide audience including senior military leadership, officers, and
enlisted personnel. Lastly, DOD concurred with the third recommendation
to fully implement our 2005 recommendation by including information on
typical PSC operating procedures and the military's responsibilities to
PSCs. DOD stated that it continues to swiftly improve its procedures
through the rapid dissemination of changes to the MNF-I Fragmentary
Order 07-428.
In commenting on our report the State Department noted that in addition
to the oversight improvements discussed in this report, the State
Department and the Bureau of Diplomatic Security have increased and
realigned staff to enhance oversight. According to the State
Department, the duties of the increased and realigned staff include
assisting in administrating contracts, approving invoices, and
increasing oversight of contractor training. In addition, the State
Department provided us with some additional information regarding
actions it has taken to improve contract oversight for private security
contractors in Iraq which we have included in the report. The State
Department expressed concern over our depiction of the status of
implementation of the Secretary of State's Panel on Personal Protective
Services in Iraq in appendix II. In its comments the State Department
stated that it has implemented 16 of the 18 recommendations made by the
panel. In our draft report we originally assessed 9 recommendations as
complete. Based on additional information provided by the State
Department we changed our assessment of the status of two
recommendations (recommendation numbers 3 and 11 in appendix II) and
now we are reporting that the State Department has completed 11 of the
18 recommendations. For example, in comments the State Department noted
that it considered the implementation of the panel's recommendation
that video recording equipment be installed into each security vehicle,
even though to date the equipment has been installed in 140 of 233
vehicles. Therefore, we disagreed with the State Department's
assessment and stand by our assertion that the State Department has
implemented 11 of the panel's recommendations and have detailed our
rationale in appendix II. In addition, the State Department's comments
and our detailed responses appear in appendix IV.
We are sending copies of this report to other interested congressional
committees, the Secretary of Defense and the Secretary of State. Copies
of this report will also be made available to others upon request. In
addition, this report will be available at no charge on GAO's Web site
at [hyperlink, http://www.gao.gov].
If you or your staff has any questions on the matters discussed in this
report, please contact me at (202) 512-8365. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Key contributors to this report are John
Needham, Director, Acquisition and Sourcing Management; Carole Coffey,
Assistant Director; Vincent Balloon; Laura Czohara; Barbara Hills;
Moshe Schwartz; Karen Thornton; Cheryl Weissman; and Natasha Wilder.
Signed by:
William M. Solis:
Director, Defense Capabilities and Management:
List of Congressional Committees:
The Honorable Carl Levin:
Chairman:
The Honorable John McCain:
Ranking Member:
Committee on Armed Services:
United States Senate:
The Honorable Ike Skelton:
Chairman:
The Honorable Duncan L. Hunter:
Ranking Member:
Committee on Armed Services:
House of Representatives:
The Honorable David Price:
House of Representatives:
[End of section]
Appendix I: Scope and Methodology:
To assess the U.S. government's use of PSCs in Iraq as well as to
examine the efforts by DOD and the State Department to provide
oversight, coordination, and accountability over the actions of the
PSCs they employ in Iraq, we took a number of actions.
To determine if the oversight and coordination of PSCs operating in
Iraq strengthened between U.S. government agencies, we reviewed several
DOD, CENTCOM, Multinational Force-Iraq (MNF-I) and State Department
policies and guidance addressing the requirements, procedures and
responsibilities for the control, coordination, management and
oversight of PSCs, as well as policies and guidance on arming
requirements and certification, rules for the use of force, and
incident reporting and investigation requirements. Specifically, we
reviewed DOD regulations and instructions that relate to the management
and oversight of PSCs during contingency operations as well as guidance
and fragmentary orders issued by CENTCOM and headquarters MNF-I,
including fragmentary order 07-428 entitled 'Armed Contractors/DOD
Civilians and PSCs', and its appendices, which consolidates several
prior MNF-I fragmentary orders. We analyzed these documents to gain an
understanding of the evolution of oversight roles and responsibilities
and the delegation of authority to increase coordination between the
agencies. In addition, we reviewed the memorandum of agreement, signed
in December 2007, between DOD and the State Department on U.S.
Government PSCs in Iraq. We reviewed these policies and documents to
determine the authority and responsibility for the oversight,
coordination, and accountability over PSC operations in Iraq. We
reviewed the National Defense Authorization Act, including Sec. 861
directing the agencies to enter into a Memorandum of Understanding as
well as Sec. 862 which outlines regulations on contractors performing
private security functions in areas of combat operations.
To understand what actions the agencies have or can take to hold PSCs
accountable, we analyzed the legal framework that PSCs hired by the
U.S. government must comply with, including applicable international
law, Iraqi law, and U.S. law. We reviewed the Military Extraterritorial
Jurisdiction Act and the Uniform Code of Military Justice to gain an
understanding of the process of how PSCs are held accountable for
criminal misconduct. We interviewed officials from DOD's Office of the
General Counsel, the State Department's Office of the Legal Adviser and
from the Department of Justice to gain an understanding of the process
used and the actions taken against PSC employees accused of misconduct
in Iraq. Moreover, we also reviewed applicable U.S. government PSC
contract provisions that outline and regulate contractor behavior.
Additionally, we met with military officials from the Office of the
Under Secretary of Defense, Acquisition, Technology, and Logistics;
Office of the Secretary of Defense, Office of the General Counsel, U.S.
Central Command; and the U.S. Army Corps of Engineers; officials from
the State Department, including the Bureau of Diplomatic Security,
Office of Acquisitions Management, and the Office of the Legal Advisor,
and the U.S. Agency for International Development to discuss oversight,
coordination, and accountability of PSCs in Iraq. We also met with the
Executive Secretary who led the State Department panel to review the
State Department's security practices in Iraq to discuss the findings
and recommendations of their study.
We also interviewed officials from ten private security firms, located
in the United States, the United Kingdom, and/or Baghdad, Iraq, who
currently provide or have recently provided private security functions
in Iraq. We met with the three firms contracted by the State Department
under the Worldwide Personal Protective Service Contract as well as the
firm hired by DOD to run the Reconstruction Operations Center, the
predecessor to the Contractor Operations Cells. In addition, we
interviewed several others to reflect a range of firms that provide
private security. The private security firms we met with provided the
U.S. government with a variety of private security services, including
static security, personal protective detail, high threat protection,
and convoy security. Our discussions included qualification and
training standards, employee conduct and accountability, coordination
with U.S. government agencies and their tactical operations centers,
interaction amongst the other PSC firms operating in Iraq, vehicle and
weapon tracking, and incident reporting procedures. Additionally, we
met with representatives from an Iraq-based private security
association to gain an industry perspective on the use, role,
oversight, accountability, and legal framework of PSCs operating in
Iraq.
We traveled to Iraq to meet with officials from DOD, including Multi-
National Force-Iraq, Multi-National Corps-Iraq, and Multi-National
Division-Baghdad, and Joint Contracting Command-Iraq/Afghanistan to
discuss issues related to oversight, coordination, and accountability
of PSCs in Iraq. We met with senior officials responsible for the
establishment and operation of the Armed Contractor Oversight Division
and the Contractor Operations Cells, as well as the military liaisons
who are located in the State Department's Tactical Operations Center.
Likewise, we met with officials from the State Department, including
senior officials from the U.S. Embassy Baghdad and its Regional
Security Office. We met with them to gain an understanding of the
delegated responsibility and oversight structure of PSCs in Iraq,
procedures for the coordination and communication between MNF-I and US
Embassy Baghdad for the movement of PSCs within the MNF-I battle space,
procedures for reporting and investigation in the event that a serious
incident occurs as well as applicable laws to hold PSCs operating in
Iraq accountable for their actions. While in Iraq, we toured DOD's
Contracting Operations Cell and the State Department's Tactical
Operations Center, witnessing the planning, oversight and coordination,
and tracking of PSC movements throughout Iraq. Additionally, in Iraq,
we met with officials from private security firms to gain an industry
perspective.
We scoped our work to include only on PSCs that have a direct
contractual relationship with the U.S. government. As such, our work
excluded PSCs with an indirect relationship with the U.S. government,
such as those contracted by reconstruction firms. We reviewed processes
but did not evaluate how effectively they were being implemented
because the processes reviewed are new. We also did not evaluate how
laws were being used to hold contractors accountable. We conducted this
performance audit from February 2008 to April 2008, in accordance with
generally accepted government auditing standards. Those standards
require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on audit objectives. We believe that the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives.
We visited or contacted the following organizations during our review:
The Department of Defense:
* Office of the Under Secretary of Defense, Acquisition, Technology,
and Logistics, Washington, D.C.
* Office of General Counsel, Arlington, Va.
* Office of the J4, Washington, D.C.
* U.S. Central Command, Tampa, Fla.
* Defense Contract Management Agency, Baghdad, Iraq:
* Multi-National Forces-Iraq, Baghdad, Iraq:
* Multi-National Corps-Iraq, Baghdad, Iraq:
* Multi-National Division-Baghdad, Baghdad, Iraq:
* Joint Contracting Command Iraq/Afghanistan, Baghdad, Iraq:
Department of the Army:
* Army Corps of Engineers Gulf Regional Division, Baghdad, Iraq:
* Army Corps of Engineers, Logistics Movement Coordination Center,
Baghdad, Iraq:
Other Government Agencies:
* State Department:
* Bureau of Diplomatic Security, Arlington, Va.
* Office of Acquisitions Management, Arlington, Va.
* Office of the Legal Adviser, Arlington, VA; Baghdad, Iraq:
* Secretary of State's Panel on Personal Protective Services in Iraq,
Washington, D.C.
* US Embassy Iraq, Baghdad, Iraq:
* Department of Justice:
* Criminal Division, Washington, D.C.
* Federal Bureau of Investigation, Washington, D.C.
Industry Associations:
* Private Security Association of Iraq, Baghdad, Iraq:
Private Security Contractors:
* Aegis, London, United Kingdom:
* Armor Group, London, United Kingdom:
* Blackwater, Baghdad, Iraq; Moyock, N.C.
* Blue Hackle, Baghdad, Iraq:
* Control Risks Group, London, United Kingdom:
* Dyncorps International, West Falls Church, Va.
* Erinys International, London, United Kingdom:
* Olive Group, Baghdad, Iraq:
* Raymond Associates, Clifton Park, N.Y.
* Triple Canopy Inc., Herndon, Va.
[End of section]
Appendix II: Implementation Status of Recommendations from the
Secretary of State's Panel on Personal Protective Services in Iraq:
According to State Department officials, the department has also begun
to implement other recommendations made by the panel including the
installation of audio and video recording equipment in security
vehicles and the creation of an eight person unit to investigate any
reported and alleged incidents involving State Department PSCs
including those involving injuries or death. In July 2008, officials
provided information on the status of the implementation of the
recommendations noting that 16 were completed and that others were
dependent on other agencies or governments. This appendix provides
additional information on all of the panel's recommendations, their
implementation status, and our assessment of the implementation status.
In certain instances our assessment differed from the State
Department's. For example, the panel recommended that the Regional
Security Office should be provided video and audio recording equipment
for each security vehicle operating in Iraq. According to the State
Department, they have fully implemented this recommendation by
installing video recording systems into 140 vehicles and installing a
radio recording system in the Regional Security Officer's Tactical
Operations Center to record all Embassy radio transmissions. However,
according to State Department officials the goal is to install the
equipment into 233 vehicles by December 2008. Therefore, it is our
assessment that implementation of the recommendation is still in
progress. Similarly, the panel also recommended that a working group
should be established to determine ways to move the Iraqi licensing
process forward more transparently. The State Department stated that in
its view this recommendation has been completed because it established
the working group and that it was not necessary to have improved the
licensing process to consider the recommendation implemented.
Table 1: Implementation Status of Recommendations from the Secretary of
State's Panel on Personal Protective Services in Iraq:
Recommendation:
1. The State Department should urgently engage with the Department of
Justice and the Office of Management and Budget, and then with the
Congress, to establish a clear legal basis for holding contractors
accountable under U.S. law;
Status of Implementation as Reported by the State Department:
* The Department of State's Office of the Legal Adviser has actively
engaged with an interagency working group, led by the Department of
Justice, to work with Congress on legislation clarifying the Military
Extraterritorial Jurisdiction Act (MEJA) in order to hold USG private
security contractors overseas accountable for offenses;
* The Department of Justice is taking the lead on further discussions
of this issue with Senate staff;
* The Department of State's Office of the Legal Adviser will stay
engaged in this process until legislation is passed;
* The Department's actions have met the intent of the recommendation.
This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment that the
recommendation is complete. According to the State Department at least
three officials from the Legal Advisor's office have been working
continuously on this issue. However, when asked to provide a copy of
the legislation, officials stated that no such single draft exists and
that the language had evolved over time through discussions within the
agency and with Congress. In addition, the interagency working group is
still pursuing an effort to establish a clear legal basis for holding
contractors accountable under U.S. law. Therefore, we believe that
implementation of the recommendation is still in progress.
Recommendation:
2. The Department of State should work with the Department of Defense
to determine how to commence discussions with the Government of Iraq on
a new regulatory framework for PPS contractors;
Status of Implementation as Reported by the State Department:
* U.S. Embassy Baghdad, Multi-National Forces - Iraq (MNF-I), and the
Iraqi Ministry of Interior continue to negotiate a Status of Forces
Agreement and a Strategic Framework Agreement;
* The Department's actions have met the intent of the recommendation.
This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment that the
recommendation is complete. The Status of Forces Agreement and a
Strategic Framework Agreement are still being negotiated. Therefore, we
believe that implementation of the recommendation is still in progress.
Recommendation:
3. The requirement to expand security oversight requires an overall
increase in the Diplomatic Security Service's authorized staffing
level. The Department of State should approach the Office of Management
and Budget and request in the final appropriations action for FY-08 an
increase of 100 positions and the requisite salary and operating costs
in order to provide the needed staffing in Iraq without stripping other
missions of their security resources;
Status of Implementation as Reported by the State Department:
* The FY2008 Supplemental Appropriations Act provides funding for the
4th quarter of FY2008 and all of FY2009. The positions have been
regularized in the Department's FY2010 budget request;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
4. When the FBI investigation into the September 16, 2007, incident is
completed, the Embassy should submit its recommendation as to whether
the continued services of the contractor involved is consistent with
the accomplishment of the overall United States mission in Iraq;
Status of Implementation as Reported by the State Department:
* The Embassy and the Department are awaiting the results of the FBI's
investigation;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
5. The Regional Security Office should be provided with additional
Department of State Special Agents so that an Assistant Regional
Security Officer can accompany PPS movements. The State Department
should ensure that each Assistant Regional Security Officer should
complete an Iraq-specific orientation program;
Status of Implementation as Reported by the State Department:
* 45 new full time employee DS Special Agents positions were created
for Iraq. Currently, 11 of these new positions are staffed at post and
34 agents are completing High Threat Training. All positions will be
filled by Sept. 08;
* Additionally, the RSO staff is currently augmented by 16 temporary
duty (TDY) DS personnel;
* All Diplomatic Security (DS) Special Agents complete Iraq-specific
training at the DS Training Center and Foreign Service Institute prior
to deployment;
* This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment that the
recommendation is complete as the Department's efforts to fulfill this
requirement are ongoing. Therefore, we believe that implementation of
the recommendation is still in progress.
Recommendation:
6. The Worldwide Personal Protective Service (WPPS) contract should be
amended to require the contractor to provide a limited number of Arabic
language staff for use as needed;
Status of Implementation as Reported by the State Department:
* The WPPS contract was modified to require eight (8) Protective
Security Specialist/Translators, as requested by the RSO, to serve
throughout Iraq;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
7. Additional training modules should be added under the Worldwide
Protective Services contract to enhance the cultural awareness of
assigned personnel, acquaint them with diplomatic structures and
procedures, and familiarize them with Multi-National Force-I tactics,
techniques, and procedures;
Status of Implementation as Reported by the State Department:
* The WPPS contract was modified to require that all WPPS personnel
complete the Iraq Cultural Awareness training program developed by the
DS Training Center and the online "Working in an Embassy" course
offered by the Foreign Service Institute;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
8. To tighten the ground rules for the use of deadly force and to
ensure greater parallelism with USCENTCOM rules on the use of force by
contracted security in Iraq, the U.S. Mission Firearms Policy should be
revised to specify, without limiting the inherent right to take action
necessary for self-defense, if an authorized employee must fire his/her
weapon, he/she must fire only aimed shots; fire with due regard for the
safety of innocent bystanders; and make every effort to avoid civilian
causalities;
Status of Implementation as Reported by the State Department:
* The Departments of State and Defense agreed upon common principles
for the Rules for the Use of Force;
* The updated Mission Firearms Policy incorporating these revised Rules
for the Use of Force was signed into effect by the Deputy Chief of
Mission on February 2, 2008;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
9. The Regional Security Office (RSO) should be provided video and
audio recording equipment for each security vehicle, audio recording
equipment in the Tactical Operations Center to record all radio
transmissions and computer enhancements to record all Blue Force
Tracking Data;
Status of Implementation as Reported by the State Department:
* To date, video recording systems have been installed into 140 mission
vehicles throughout Iraq. The remaining installations have been funded
and are planned for completion by December 2008;
* Each protective mission now includes a vehicle with video recording
capability;
* Protective vehicle video camera installations have been
institutionalized. All new vehicles are now being hard-wired for video
recording capability in the assembly line process;
* The radio recording system in the RSOs Tactical Operations Center is
operational, and all Embassy radio transmissions are recorded;
* Post implemented long-term recording of all Blue Force Tracker data.
Blue Force Tracker data is stored on external hard drives, expanding
retention capabilities;
* This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment that the
recommendation is complete. According to State Department documents,
video and audio recording equipment has been installed into 133
vehicles. While officials have stated that the systems have been
installed in 140 vehicles, according to State Department officials, the
equipment is to be installed into 233 vehicles. Therefore, we believe
that implementation of the recommendation is still in progress.
Recommendation:
10. The Regional Security Office should place a readable number (like a
license plate) on the right rear door of each vehicle utilized, to
enable anyone wishing to question its mode of operation to identify the
unit of the Regional Security Office, which can then review the matter
and take appropriate action;
Status of Implementation as Reported by the State Department:
* The intent of Recommendation 10 is to ensure that Private Security
Contractors (PSC) can be easily identified, located, and held
accountable for their actions should it be required. The technical
systems and procedural measures implemented by the Regional Security
Officer (RSO) place Chief of Mission motorcades in full compliance with
the scope of the recommendation;
* Currently, Chief of Mission (COM) motorcade movements are tracked and
monitored real-time by State Department personnel utilizing BFT and
Tapestry. COM motorcade radio communications are recorded and monitored
by RSO personnel in the RSO TOC. Motorcade vehicles are equipped with
video cameras that record and document motorcade movements and events.
These technical measures combined with reporting requirements and
established operational procedures allow for COM motorcades to be
monitored and held accountable;
* This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment that the
recommendation is complete. According to State Department officials,
this recommendation was reviewed because of concern that unless all
PSCs operating in Iraq, including non-State Department PSCs, were
required to use the readable number, placing such a number on the State
Department vehicles would make the agency's motorcades more vulnerable
to attack. However, during our trip to Iraq, we observed that many non-
State Department PSCs, including many with contracts with DOD, affixed
readable numbers on their vehicles. While the technical systems and
procedural measures being implemented may assist the monitoring of
these motorcades by U.S. government officials, these systems and
measures will not enable anyone to identify the vehicle via a readable
number such as a license plate as stated in the recommendation.
Additionally, as stated above, the recording equipment has not been
installed into every vehicle. Therefore, we believe that implementation
of the recommendation is still in progress.
Recommendation:
11. The Regional Security Office should establish a "Go Team" that
would proceed as soon as possible to the scene of any weapons discharge
to gather information and material and provide an analysis of what
happened and why, and prepare a report. The team would work with
representatives of the appropriate Government of Iraq offices and the
U.S. military unit responsible for the location;
Status of Implementation as Reported by the State Department:
* The RSO established a dedicated Go Team, referred to as the Force
Investigation Unit, and reached an agreement with MNF-I for military
security support for investigators as needed;
* The Go Team is currently staffed with 2 full-time DS Special Agents
who are augmented by 4 DS Special Agents assigned to the Investigations
and Intelligence section. When the need arises this group is augmented
by Special Agents from other sections of the RSO office;
* Since January 2008, the Go Team has investigated 49 motor vehicle
accidents and 52 escalations of force incidents involving Tier 1 and
Tier 2 contractors --of those 35 were pen flares and 13 were discharge
of firearms incidents;
* To expand and augment the Go Team, DS awarded a contract on May 22,
2008, to provide additional investigators and translators;
* Six investigators and 2 translators have been hired and are now in
training. They depart for Iraq on July 27, 2008;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
12. An Embassy Joint Incident Review Board should be established to
review all incidents involving the use of deadly force that are known
or asserted to have caused injury or death or other serious
consequences. The Board should be chaired by the Deputy Chief of
Mission and other members should be the Regional Security Officer,
another civilian embassy officer with a law enforcement background from
an agency other than State or Justice, and a military officer
designated by MNF-I. The Board would hear from the Assistant Regional
Security Officer (A/RSO) who was in the motorcade, review the
statements provided by the security personnel involved, as well as any
protectee(s), plus the Go Team report, and then make a recommendation
to the Ambassador on whether or not the use of force appears justified.
If it does not feel that it was justified, the Department should be
informed to notify the Department of Justice;
Status of Implementation as Reported by the State Department:
* The Deputy Chief of Mission approved an Action Memo establishing the
framework and process for convening an Embassy Joint Incident Review
Board. The board has not yet had cause to meet;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
13. The Regional Security Office and MNF-I should establish a permanent
working group to develop commonly agreed operational procedures;
establish a robust liaison element; exchange information; ensure
optimal situational awareness; and ensure that any issues are discussed
and quickly resolved. In addition to the above, three specific items
should be on the agenda for the first meeting; Ensuring that the
planning, coordinating and routing information which currently flows
from the Regional Security Office's Tactical Operations Center (TOC) to
Multi-National Force-Iraq (MNF-1) liaison elements located in the TOC
and posted to the U.S. Military's Command Post of the Future system, is
available electronically to all operating elements under MNF-I;
Providing TOC Spot Reporting electronically to any subordinate military
element that wishes to receive it directly; Coordinating the provision
of frequencies for the military radios and the RSO has ordered to
enhance coordination.
Status of Implementation as Reported by the State Department:
* A permanent working group was established in November 2007;
* In December 2007, the Deputy Secretaries of State and Defense signed
a memorandum of agreement to define the authority and responsibility
for the accountability and operations of private security contractors
in Iraq;
* This recommendation is complete;
* Electronic tracking issues were addressed to everyone's satisfaction
by Command Post of the Future, Blue Force Tracker, and TAPESTRY.
(11/16/07);
* The RSO and MNC-I exchanged liaison officers in their respective
Tactical Operations Centers;
* This recommendation is complete;
* RSO Spot Report language entered into MNF-I Combined Information Data
Network Exchange database by the MNF-I liaison officer. This
recommendation is complete. (11/16/07);
* The RSO received 142 PRC-152 radios, which have been loaded and
configured with DOD-compatible channels. This recommendation is
complete;
GAO Comments: GAO agrees with the State Department's assessment.
Recommendation:
14. Coordination with MNF-I elements could be further enhanced if the
pending order for Harris Corporation Model PRC-110 radios were
received. The Department of State should intervene, including with DOD
as necessary, to obtain these units;
Status of Implementation as Reported by the State Department:
* Post received 142 PRC-152 radios;
* All radios have been loaded and configured with DOD-compatible
channels and were distributed to RSO protective security teams;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
15. When the "Go Team" is not involved in investigating incidents, it
should be employed in pattern analysis. The Diplomatic Security service
in Washington should provide the RSO with a relational database to be
used to review incidents and determine potential patterns. Such a
database would include: Date and time of incident; Destination and GPS
coordinates; GPS coordinates of incident; Mission identifier; Vehicle
identification numbers; Incident type; Names of all security personnel
involved and their assignments in the motorcade; Such other details as
would be useful. Data on each event would be input promptly after it
occurs. Weekly reports should be generated to look for potential
patterns that would call for systemic or individual changes;
Status of Implementation as Reported by the State Department:
* Pattern analysis software was identified, tested, modified, and beta
tested;
* Software was tested locally through May 2008 and milestones were met.
The software was deployed to Baghdad on June 19, 2008, and is
undergoing various forms of testing with hardwire and encrypted radio
networks;
* Based on feedback from the field, deployment of the finalized version
of pattern analysis software from headquarters with full operational
capability is expected by December 2008;
GAO Comments:
According to State Department officials the software is currently being
tested in Baghdad. However, officials could not provide documentation
of any evaluations of the software, noting that the software testing
and assessment continues.
Recommendation:
16. The Embassy should use the venue afforded by the Iraqi-U.S. Joint
Commission to establish a working group to determine ways to move the
licensing process forward in an open and transparent way;
Status of Implementation as Reported by the State Department:
* The Deputy Chief of Mission, Embassy Legal Advisor, RSO, and MNF-I
have been involved in discussions with Iraqi officials concerning
private security company licensing and registration processes;
* Currently the Iraqi licensing process involves the Ministries of
Interior and Trade. Security company licenses must be renewed every six
months. Worldwide Personal Protective Services (WPPS) contractors
Triple Canopy and DynCorp are currently licensed by the central
government in Baghdad. Blackwater has submitted an application for a
license, which is currently pending;
* The Department's actions have met the intent of the recommendation.
This recommendation is complete;
GAO Comments:
We disagree with the State Department's assessment. While State
Department officials stated that they have had numerous conversations
with Iraqi officials regarding the licensing and registration of PSCs
in Iraq, the process is still ongoing and officials were unable to
provide formal documentation of the discussions. According to the State
Department in its view this recommendation has been completed because
it established the working group and it was not necessary to have
improved the licensing process to consider the recommendation
implemented. We believe that implementation of the recommendation is
still in progress.
Recommendation:
17. The Regional Security Officer should establish direct channels to
senior Iraqi police and security officials in Baghdad and in any other
city where Provincial Reconstruction Teams are located. This should be
a major step towards providing information on incidents in a timely way
so that they can be appropriately investigated;
Status of Implementation as Reported by the State Department:
* The RSO had multiple meetings with senior Iraqi officials at the
National Police, Ministry of Interior, and Ministry of Defense and
developed working agreements on coordination, liaison, and mutually
supportive engagement;
* RSO personnel serving at Regional Embassy Offices and Provincial
Reconstruction Teams have also established relations with local Iraqi
police and security officials;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment.
Recommendation:
18. In order to be more responsive to Iraqi customs, the Embassy must
actively seek out the families of those innocent Iraqi civilians killed
or seriously injured, or those whose property has been damaged by
personal protective services personnel. The Regional Security Office
"Go Team", assisted by the U.S. military unit responsible for the area
in which an incident has occurred, should work with counterparts
designated by the Government of Iraq to promptly offer appropriate
condolences and compensation;
Status of Implementation as Reported by the State Department:
* As part of the investigative process, the RSO coordinates with MNF-I
and the Government of Iraq to facilitate victim access to the Embassy
Claims Program;
* This recommendation is complete;
GAO Comments:
GAO agrees with the State Department's assessment. However, our
interviews with PSCs with contracts with the State Department found
that they were unaware that the Embassy Claims Program existed.
Source: State Department; GAO Analysis.
[End of table]
[End of section]
Appendix III: Comments from the Department of Defense:
Deputy Under Secretary Of Defense For Logistics And Materiel Readiness:
3500 Defense Pentagon:
Washington, DC 20301-3500:
July 28, 2008:
Mr. William M. Solis:
Director, Defense Capabilities and Management:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Mr. Solis:
This is the Department of Defense (DoD) response to the GAO draft
report GAO-08-996, "Rebuilding Iraq: DoD and State Department Have
Improved Oversight and Coordination of Private Security Contractors in
Iraq, but Further Actions are Needed to Sustain Improvements," dated
July 8, 2008 (GAO Code 351234). We welcome your assistance in improving
how the DoD and its contractors can plan for and effectively execute
contracts in a complex and changeable security environment. Enclosed
are DoD's detailed comments regarding the recommendations on page 31 of
your draft report.
We appreciate the opportunity to review and comment on your findings.
Sincerely,
Signed by:
Jack Bell:
Enclosure: As stated:
GAO Draft Report - Dated July 8, 2008:
GAO CODE 351234/GAO-08-996:
"Rebuilding Iraq: DoD and State Department Have Improved Oversight and
Coordination of Private Security Contractors in Iraq, but Further
Actions are Needed to Sustain Improvements"
Department Of Defense Comments To The Recommendations:
Recommendation 1: The GAO recommends that the Secretary of Defense
develop and implement a strategy to fill authorized positions for the
Joint Contracting Command-Iraq/Afghanistan and Defense Contract
Management Agency (DCMA).
DOD Response: Concur. We have initiated a strategy, based on current
and projected delegated workload, to deploy 220 personnel by 15
December 2008. Underpinning this strategy is the recent hiring of
Emergency Essential employees, current volunteer efforts, and the
continued support by the Services to source the Joint Manning Document.
Recommendation 2: The GAO recommends that the Secretary of Defense
direct the Service Secretaries to update the information being provided
on PSCs at unit mission-rehearsal exercises and pre-deployment training
to include information regarding the operations of the Armed Contractor
Oversight Division and the Contractor Operations Cells along with the
role of military units in providing contract oversight, incident
investigation, and Private Security Contractor (PSC) coordination
procedures.
DOD Response: Concur. DoD is actively incorporating contractors and
contract support into the exercise schedules.
Recommendation 3: The GAO recommends that DoD fully implement their
2005 recommendation by including information on Private Security
Contractors (PSC) typical operating procedures and the military's
responsibilities to PSCs.
DOD Response: Concur. DoD continues to swiftly improve its procedures
through the rapid dissemination of changes to CENTCOM FRAGO 07-428,
'Overarching FRAGO For Requirements, Procedures, Responsibilities For
Control Coordination And Management And Oversight of Armed Contractors
DoD Civilian and PSCs', which was last updated on July 17, 2008.
[End of section]
Appendix IV: Comments from the Department of State:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
United States Department of State:
Assistant Secretary for Resource Management and Chief Financial
Officer:
Washington, D.C. 20520:
Ms. Jacquelyn Williams-Bridgers:
Managing Director International Affairs and Trade:
Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548-0001:
July 24, 2008:
Dear Ms. Williams-Bridgers:
We appreciate the opportunity to review your draft report, "Rebuilding
Iraq: DOD and State Department Have Improved Oversight and Coordination
of Private Security Contractors in Iraq, but Further Actions are Needed
to Sustain Improvements," GAO Job Code 351234.
The enclosed Department of State comments are provided for
incorporation with this letter as an appendix to the final report.
If you have any questions concerning this response, please contact Paul
Ginsburg, Program Analyst, Bureau of Diplomatic Security at (571) 345-
2742.
Sincerely,
Signed by:
Bradford R. Higgins:
cc: GAO - William Solis:
DS - Eric Boswell:
State/OIG - Mark Duda:
Department of State Comments on GAO Draft Report:
Rebuilding Iraq: DOD and State Department Have Improved Oversight and
Coordination of Private Security Contractors in Iraq, but Further
Actions are needed to Sustain Improvements:
(GAO-08-966, GAO Code 351234):
The Department of State (DOS) thanks the Government Accountability
Office (GAO) for the opportunity to respond to their draft report
resulting from the August 9, 2007, notification letter to review
private security contractors in Iraq. In addition to oversight
enhancements discussed in this document, the State Department and
Bureau of Diplomatic Security (DS) have increased and realigned staff
to enhance Post's oversight responsibilities as follows.
* Two in-country Contracting Officer Representatives (CORs) for the
Baghdad Embassy Security Force (BESF).
* A third COR at Headquarters assists with the administrative aspects
of the contract to include a weekly meeting with the contractor,
monthly invoice reviews, and liaison between the Contracting Officer
and in-country CORs, and when requested, personnel deployment to assist
the in-country CORs with their responsibilities.
* Two in-country CORs in support of the Worldwide Personal Protective
Services (WPPS) Iraq task orders who are supported by two CORs at
Headquarters that assist with the administrative aspects of the
contracts to include weekly meetings with the contractors, monthly
invoice reviews, and liaison between the Contracting Officer and in-
country CORs.
* The Department increased its staffing by eight personnel to assist
with compliance issues, invoice approval, and the Synchronized Pre-
Deployment and Operational Tracking System for the WPPS contracts. In
support of contract oversight, DS is hiring six additional training
instructors to enhance oversight of contractor training.
Comments:
Highlights:
"The State Department has completed more than half of 18 actions
recommended in October 2007 by the Secretary's panel tasked with
reviewing that agency's use of private security contractors in Iraq.
Three (3) recommendations are dependent on other agencies or
governments and those remaining will be completed by December 2008."
* The phrase "begun implementing" is misleading to the extent it sounds
like DOS has not actually completed any of the actions. The Department
requests this phrase be corrected and information added in the
Highlights section and on pages 4, 9, and 17. [See comment 1]
Page 2:
"On September 16, 2007, an incident in Nisour Square involving a PSC
firm working for the Department of State resulted in the deaths of
Iraqi civilians in Baghdad."
* This is an ongoing DOJ investigation and the number of casualties is
not definitive. If GAO wishes to use a specific number, it should
provide the source of that information or include a footnote noting the
range of reported numbers. [See comment 2]
Pages 5 and 24:
"Whether a particular law provides extra-territorial jurisdiction over
a criminal act by a PSC contractor depends on the specific facts of the
incident, such as the time, nature, and location of the alleged crime,
nature of the contractors' employment, and the nationality of the
accused."
* The Department requests that factors listed regarding whether a
particular law applies should include "the nature of the contractors'
employment" as this is a very relevant factor to UCMJ and MEJA
jurisdiction. [See comment 3]
Page 19:
"Since the Nisour Square incident, DOD and the DOS have significantly
enhanced communication and coordination on the departments' efforts
related to PSCs in Iraq, and both DOD and DOS are coordinating with the
Government of Iraq on issues related to PSCs on a regular basis." [See
comment 4]
Pages 24-26:
* The Department is concerned that the 18 USC 7(9) -- added to the
Special Maritime and Territorial Jurisdiction (SMTJ) statute as part of
the PATRIOT ACT -- is only mentioned in Footnote 28, but not in the
section discussing SMTJ itself. 18 USC 7(9) is a significant source of
extra-territorial jurisdiction that may potentially apply in the
context of a crime by a PSC in Iraq or elsewhere. By contrast, the
discussion of the case law interpreting SMTJ prior to 2001 seems to be
of less importance than the current state of the jurisdiction and might
be best discussed in a footnote. [See comment 5]
* The description of 18 USC 7(9) in footnote 28 is misleading and
suggests there is a major loophole in the law, but the statute
essentially exempts people who are already subject to MEJA (in other
words, giving preference to MEJA as the source of jurisdiction). [See
comment 6]
Page 30:
"The improvements DOD and DOS have made may reduce the number of PSC
incidents in Iraq, however, it may not eliminate incidents."
* The Department believes the more relevant question is whether the PSC
incidents are minimized to the extent possible and, if they do occur,
are they handled appropriately.
* The term "PSC incidents" is used without defining what that term
means and in a way that sets up a false standard. If the term refers to
any instance involving use-of-force, then the DOS goal would be to
minimize them rather than eliminate them, as PSCs are authorized to use
force under specific conditions. If "PSC incidents" refers to negative
incidents involving use-of-force, then again, it seems unfair to
suggest that they could ever be eliminated in this context. [See
comment 7]
Page 39:
Appendix II:
* The Department requests revisions to this entire narrative based on
comments and technical corrections provided below.
Recommendation 1 - Status of Implementation:
The Department requests this section be replaced with the following.
* The Department of State's Office of the Legal Adviser has actively
engaged with an interagency working group, led by the Department of
Justice, to work with Congress on legislation clarifying the Military
Extraterritorial Jurisdiction Act (MEJA) in order to hold USG private
security contractors overseas accountable for offenses. [See comment 8]
* The Department of Justice is taking the lead on further discussions
of this issue with Senate staff.
* The Department of State's Office of the Legal Adviser will stay
engaged in this process until legislation is passed.
* The Department's actions have met the intent of the recommendation.
This recommendation is complete.
Page 40:
Recommendation 2: "The Department of State should work with the
Department of Defense to determine how to commence discussions with the
Government of Iraq on a new regulatory framework for PPS contractors."
Recommendation 2 - GAO Comment: "The negotiations of the Status of
Forces Agreement and a Strategic Framework Agreement are still being
negotiated. Therefore, we believe that implementation of the
recommendation is still in progress."
* The Department must register disagreement with GAO's interpretation
of Recommendation 2. This recommendation is specifically worded not to
require DOS to create or negotiate a new regulatory framework, but
merely to "commence discussions" with the Government of Iraq on the
subject, which has been done. It would not be proper to hold this
recommendation open, given that it depends on the actions of another
sovereign nation. [See comment 9]
* The Department's actions have met the intent of the recommendation.
This recommendation is complete.
Recommendation 3 - GAO Comment: "Although State Department officials
told us that funding for the positions was in the FY2008 supplemental
request and that they would ask for funding in the Department's FY2010
base budget, the Department indicated it was not included in the FY2009
supplemental request currently being considered by Congress."
* The FY2008 Supplemental Appropriations Act provides funding for the
4th quarter of FY2008 and all of FY2009. The positions have been
regularized in the Department's FY2010 budget request. [See comment 10]
* This recommendation is complete.
Recommendation 5 - Status of Implementation:
* The Department requests the addition of a 4th bullet indicating this
recommendation is complete. [See comment 11]
Page 41:
Recommendation 9 - Status of Implementation:
The Department requests this section be replaced with the following.
[See comment 12]
* To date, video recording systems have been installed into 140 mission
vehicles throughout Iraq. The remaining installations have been funded
and are planned for completion by December 2008.
* Each protective mission now includes a vehicle with video recording
capability.
* Protective vehicle video camera installations have been
institutionalized. All new vehicles are now being hard-wired for video
recording capability in the assembly line process.
* The radio recording system in the RSOs Tactical Operations Center is
operational, and all Embassy radio transmissions are recorded.
* Post implemented long-term recording of all Blue Force Tracker (BFT)
data. BFT data is stored on external hard drives, expanding retention
capabilities.
* This recommendation is complete.
Page 42:
Recommendation 10 - Status of Implementation:
The Department requests this section be replaced with the following.
[See comment 13]
* The intent of Recommendation 10 is to ensure that Private Security
Contractors (PSC) can be easily identified, located, and held
accountable for their actions should it be required. The technical
systems and procedural measures implemented by the Regional Security
Officer (RSO) place Chief of Mission motorcades in full compliance with
the scope of the recommendation.
* Currently, COM motorcade movements are tracked and monitored real-
time by State Department personnel utilizing BFT and Tapestry. COM
motorcade radio communications are recorded and monitored by RSO
personnel in the RSO TOC. Motorcade vehicles are equipped with video
cameras that record and document motorcade movements and events. These
technical measures combined with reporting requirements and established
operational procedures allow for COM motorcades to be monitored and
held accountable.
* This recommendation is complete.
Recommendation 11 - Status of Implementation:
The Department requests this section be replaced with the following.
* The RSO established a dedicated Go Team, referred to as the Force
Investigation Unit (FIU), and reached an agreement with MNF-I for
military security support for investigators as needed.
* The Go Team is currently staffed with 2 full-time DS Special Agents
who are augmented by 4 D5 Special Agents assigned to the Investigations
and Intelligence section. When the need arises this group is augmented
by Special Agents from other sections of the RSO office. [See comment
14]
* Since January 2008, the Go Team has investigated 49 motor vehicle
accidents and 52 escalations of force incidents involving Tier 1 and
Tier 2 contractors -- of those 35 were pen flares and 13 were discharge
of firearms incidents.
* To expand and augment the Go Team, DS awarded a contract on May 22,
2008, to provide additional investigators and translators.
* Six investigators and 2 translators have been hired and are now in
training. They depart for Iraq on July 27, 2008.
* This recommendation is complete.
Page 44:
Recommendation 15 - Status of Implementation:
The Department requests this section be replaced with the following.
* Pattern analysis software was identified, tested, modified, and Beta
tested.
* Software was tested locally through May 2008 and milestones were met.
The software was deployed to Baghdad on June 19, 2008, and is
undergoing various forms of testing with hardwire and encrypted radio
networks. [See comment 15]
* Based on feedback from the field, deployment of the finalized version
of pattern analysis software from headquarters with full operational
capability is expected by December 2008.
Page 45:
Recommendation 16 - Status of Implementation:
The Department requests this section be replaced with the following.
* The DCM, Embassy Legal Advisor, RSO, and MNF-I have been involved in
discussions with Iraqi officials concerning private security company
licensing and registration processes.
* Currently the Iraqi licensing process involves the Ministries of
Interior and Trade. Security company licenses must be renewed every six
months. WPPS contractors Triple Canopy and DynCorp are currently
licensed by the central government in Baghdad. Blackwater has submitted
an application for a license, which is currently pending. [See comment
16]
* The Department's actions have met the intent of the recommendation.
This recommendation is complete.
The following are GAO's comments on the State Department's letter dated
July 24, 2008.
GAO Comments:
1. The State Department commented that it had completed more than half
of the 18 recommendations made by the Secretary of State's panel. The
department noted that three of the recommendations were dependent on
other agencies or governments and the remaining recommendations would
be completed by December 2008. In appendix II of the report, we note
the State Department's assessment on the status of implementation for
each of the panel's 18 recommendations. This information is presented
verbatim from information provided by the State Department. We also
added an acknowledgement in the report that the State Department has
implemented 11 of the 18 recommendations made by the panel.
2. We revised the report to attribute the number of Iraqi civilian
deaths caused by the September 16, 2007, incident to the report of the
Secretary of State's Panel on Personal Protective Services in Iraq.
3. We revised the report to include "nature of the contractor's
employment" among the factors that could affect whether a particular
law provides extraterritorial jurisdiction in a specific case.
4. While DOD and the State Department have improved communication and
coordination related to PSCs in Iraq, we have no basis to state that
these improvements are significant.
5. The report was revised to accept the suggested change.
6. We are unclear how the language in footnote 28 is misleading or
suggests a loophole in 18 U.S.C. 7(9). We did change the language as
suggested by the State Department to clearly state that "the statute
essentially exempts people who are already subject to MEJA (in other
words, giving preference to MEJA as the source of jurisdiction)."
7. The State Department misinterpreted our conclusions. Our statement
that the improvements made by DOD and the State Department may reduce,
but not necessarily eliminate, incidents is intended to demonstrate
that regardless of the level of oversight provided, in places with
tenuous security situations such as Iraq, incidents involving PSCs may
still occur. As we noted in our conclusions, a strengthened framework
of PSC oversight and coordination in Iraq will enable the U.S.
government to be better prepared to respond effectively when incidents
do occur.
8. While we incorporated the requested updated information into the
status of implementation column of recommendation 1, we disagree that
the State Department has completed implementation of the
recommendation. The State Department noted that the department's Office
of the Legal Advisor was actively engaged in this manner through an
interagency working group led by the Department of Justice. However,
the effort to establish a clear legal basis for holding contractors
accountable under U.S. law is still ongoing. Therefore, we assert that
this recommendation has not been implemented.
9. The State Department commented that it disagreed with our assertion
that the status of implementation of recommendation 2 should be cited
as in progress. In its comments the department noted that the
recommendation was worded not to require that the State Department
create or negotiate a new regulatory framework, but to merely "commence
discussions" with the Government of Iraq on this subject. While
negotiations with the Government of Iraq are ongoing on a Status of
Force Agreement and a Strategic Framework Agreement, it is our
assertion that implementation will be complete when an agreement is
reached.
10. Based on additional information provided to by the State Department
we have changed our assessment of the status of this implementation to
"GAO agrees with the State Department's assessment."
11. While we have incorporated the requested updated information into
the status of implementation column of recommendation 5, we disagree
that the State Department has completed the implementation of this
recommendation. We assert that fully implementing the recommendation
means that the additional personnel should be recruited, trained, and
deployed to Iraq, a process that has not happened yet. Therefore, we
believe that implementation of the recommendation is still in progress.
12. The State Department requested that we incorporate updated
information into the status of implementation column of recommendation
9. While we updated the column, we disagree that the State Department
has completed the implementation of this recommendation because not all
of the department's vehicles have been outfitted with the video
recording systems as recommended by the panel. According to the State
Department, to date the equipment has been installed in 140 of the 233
vehicles it intends to place this equipment in. The State Department
noted that it expects this process to be completed by December 2008. As
such our assessment of the status of implementation is that
implementation is ongoing.
13. While we have incorporated the requested updated information into
the status of implementation column of recommendation 10, we disagree
that the State Department has completed the implementation of this
recommendation. As noted in appendix II, the panel recommended that the
State Department place a readable number on the right rear door of each
vehicle utilized, to enable anyone wishing to question its mode of
operation to identify the unit to the Regional Security Office. The
systems and measures being implemented by the State Department may
assist the monitoring of these vehicles by U.S. government officials.
However, these systems do not enable any person, such as an Iraqi
citizen standing on a street corner, to identify the unit to the
Regional Security Office.
14. We incorporated the requested updated information into the status
of implementation column for recommendation 11. Based on this
additional information we now agree with the State Department that the
recommendation has been implemented.
15. We incorporated the requested updated information into the status
of implementation column for recommendation 15.
16. While we incorporated the requested updated information into the
status of implementation column of recommendation 16, we stand by our
initial assertion that the recommendation is ongoing and therefore not
complete. According to information provided by the State Department,
officials from the department have had numerous conversations with
officials from the government of Iraq regarding the licensing and
registration of PSCs in Iraq and had established a working group.
However, officials were unable to provide a written account for these
discussions when asked and stated that it considered the recommendation
completed because the intent of the recommendation was to start holding
talks and not to have necessarily improved the licensing process.
[End of section]
Footnotes:
[1] According to DOD officials from August 2004 to February 2008, the
Department launched 19,268 supply convoys. These convoys moved
reconstruction supplies as well as logistic supplies for the Iraq
Security Forces and were protected by PSCs.
[2] DOD made this estimate based on the analytical framework of a CBO
study, Logistics Support for Deployed Forces, 2005.
[3] GAO, Rebuilding Iraq: Actions Needed to Improve the Use of Private
Security Providers, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-
05-737] (Washington, D.C.: July 2005).
[4] GAO, Rebuilding Iraq: Action Still Needed to Improve the Use of
Private Security Providers, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-06-865T] (Washington, D.C.: June 13, 2006).
[5] Additionally, PSCs are hired by many other non-U.S. government
affiliated organizations operating in Iraq such as the government of
Iraq, the United Nations, private companies, various non-governmental
organizations, and the media.
[6] A Memorandum of Agreement between DOD and State Department signed
December 5, 2007, identifies their authorities as derived from 10
U.S.C. §164 (2007) and 22 U.S.C. §4802(a)(1)(A)(2007).
[7] 22 U.S.C. §4802(a)(1)(A)(2007).
[8] The Armed Contractor Oversight Division was previously known as the
Contractor Procedures Oversight Division.
[9] The Armed Contractor Oversight Division is only responsible for
providing oversight to PSCs, and is not responsible for providing
oversight over other DOD contractors.
[10] We were unable to determine if the Armed Contractor Oversight
Division had met its goals because it was still in the process of
standing up when we traveled to Iraq.
[11] This information was provided by the Armed Contractor Oversight
Division and GAO did not independently verify it. Additionally, other
factors, such as the increase in the number of U.S. troops in Iraq may
have led to the decrease in weapons discharges. As such, we cannot
reasonably conclude that this decrease was solely caused by the
office's strengthened oversight.
[12] The fragmentary order defines a serious incident as a weapons
discharge including negligent discharges, traffic accidents, and
criminal acts including but not limited to murder, kidnapping, theft,
and assault.
[13] The memo also implemented a process known as the Theater Business
Clearance Process. Under this process JCC-I/A reviews all contracts
being written by DOD contracting offices outside of Iraq to ensure that
the contracts conform to CENTCOM and MNF-I policies, directives, and
fragmentary orders.
[14] The remaining DCMA personnel were deployed to Afghanistan, Kuwait,
and Qatar. In addition to private security contracts, DCMA provides
oversight for the Army and Air Force's logistics support contracts.
[15] Commission on Army Acquisition and Program Management in
Expeditionary Operations, Urgent Reform Required: Army Expeditionary
Contracting (October 31, 2007).
[16] Congress has taken steps to increase the quality and quantity of
acquisition professionals in DOD's workforce. For example, the Congress
recently provide additional funds to add 200 more contracting officers
at DCMA to help with the added workload.
[17] Congressional Research Service, Defense Contractors in Iraq:
Issues and Options for Congress (Washington, D.C.: May 21, 2008).
[18] GAO, Military Operations: Implementation of Existing Guidance and
Other Actions Needed to Improve DOD's Oversight and Management of
Contractors in Future Operations, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-08-436T] (Washington, D.C.: January 24, 2008).
[19] GAO, Rebuilding Iraq: Actions Needed to Improve the Use of Private
Security Providers, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-
05-737] (Washington, D.C.: July 2005).
[20] However, according to the memorandum of agreement, when the battle
space commander determines there is a need for a PSC to alter routes or
abort missions, PSCs are directed to comply with the recommendations of
the battlespace commander. While final authority for U.S. Embassy moves
rests with the Chief of Mission, he or she will generally honor the MNF-
I recommendation.
[21] 18 U.S.C. §§ 3261-3267 (2008).
[22] 10 U.S.C. §§ 801-941 (2008).
[23] Equal Employment Opportunity Commission v. Arabian American Oil
Co., et al., 499 U.S. 244, 248 (1991).
[24] The U.S. Supreme Court has taken this position to avoid
encroachment on foreign sovereignty and to protect against unintended
clashes between U.S. laws and those of other nations, which could
result in international discord. American Banana Co. v. United Fruit
Co., 213 U.S. 347, 356 (1909) and Equal Employment Opportunity
Commission v. Arabian American Oil Co., et al., 499 U.S. 244, 248
(1991).
[25] 18 U.S.C. § 2441 (2008). On November 21, 2001, the President
issued a military order, which stated, among other findings, that
international terrorists had created a state of armed conflict.
President Issues Military Order: Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism, [hyperlink,
http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html], last
visited 6/24/08.
[26] 18 U.S.C. § 7(3) (2008).
[27] USA PATRIOT Act, Pub. L. No. 107-56, § 804.
[28] In 2000, a federal circuit court refused to interpret 'special
maritime and territorial jurisdiction' to include a housing complex
leased by the U.S. military on a military base in Germany where a
sexual assault was committed by one military dependent upon another.
U.S. v. Gatlin, 216 F. 3d 207, 209 (2nd Cir. 2000). Later that year, a
federal judge in a different circuit interpreted the jurisdiction to
include an American citizen tried for a crime that occurred in a
private apartment building rented by the U.S. embassy for the use of
its employees. U.S. v. Corey, 232 F.3d 1166, 1169 (9th Cir. 2000).
[29] Effective October 28, 2004, the definition of "employed by the
Armed Forces outside the United States," was revised from DOD
employees, contractors, and contractor employees, to those of DOD and
any other federal agency or any provisional authority to the extent
their employment relates to the DOD mission overseas. Ronald Reagan
National Defense Authorization Act for Fiscal Year 2005, Pub. L. No.
108-375, § 1088.
[30] 32 C.F.R. Part 153 and DOD Instruction 5525.11, "Criminal
Jurisdiction Over Civilians Employed By or Accompanying the Armed
Forces Outside the United States, Certain Service Members, and Former
Service Members," March 3, 2005.
[31] 32 C.F.R. §153.4 (a) & (b).
[32] The House Judiciary Committee has stated this legislation is
needed to make contractors not affiliated with DOD accountable for
their criminal conduct. House Report 110-352 to accompany H.R. 2740,
MEJA Expansion and Enforcement Act of 2007, at 5, Sept. 27, 2007.
[33] "In the field" has been judicially interpreted to refer to the
nature of the military's engagement, as opposed to a matter of
location. Hines v. Mikell, 259 Fed. 28, 34 (4th Cir., 1919). As such,
even after the 2007 amendment, the applicability of the UCMJ to
civilians accompanying the armed forces would be limited to those
contingency operations where the armed forces are engaged in an
existing conflict. See Reid v. Covert , 354 U.S. 1, 34 (1957) (where
the Court, in rejecting the government's assertion that the conditions
of world tension present in 1957 permitted military trial of civilians
accompanying the armed forces overseas in an area where no actual
hostilities were under way, stated "The exigencies which have required
military rule on the battlefront are not present in areas where no
conflict exists.").
[34] Beginning with a 1957 U.S. Supreme Court case, courts have
interpreted the phrase "in time of war" to mean wars declared by
Congress. Reid v. Covert, 354 U.S. 1 (1957), Robb v. U.S. 456 F. 2d 768
(Ct. Cl. 1972).
[35] Department of Defense Directive 2311.01E, "DOD Law of War
Program," May 9, 2006.
[36] DFARS 252.225-7040(d).
[37] FAR 52.225-19(d).
[End of section]
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