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Sié Chéou-Kang CenterPrivate Security Monitor

A press briefing by the Commission on Wartime Contracting in Iraq and Afghanistan

UNITED STATES

Laws and Regulations

This section contains U.S. federal laws and administrative regulations that regulate private military and security activity, control the government's procurement and use of private military and security services, and subject companies to potential legal liability in U.S. courts. It also contains an explanation of U.S. federal agency use and oversight of private security providers.

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Federal Laws and Regulations

This section contains federal statutes and acquisition regulations applicable to private military and security service providers. Even before the industry's rise, the U.S. had laws in place that provided some regulation of contractors providing military and security services, including the Federal Acquisition Regulations (FAR) and additional agency rules to govern contracts with private security firms. The U.S. also had tools for regulating the export of military services through the International Transfer of Arms Regulations (ITAR) of the Arms Export Control Act. This provided a convenient, if cursory, regulatory structure as the industry took off in the 1990s.

However, the explosive growth in the role of military and security contractors in Iraq and Afghanistan revealed that the U.S. lacked the capacity to effectively control the industry—the U.S. government did not have adequate personnel to oversee contracts with various U.S. agencies or export licenses for contracts between PMSCs and foreign governments. In response to several well publicized incidents in Iraq and Afghanistan involving PMSC personnel, the U.S. took note of failures in its regulatory process and proposed a variety of steps to correct them. Congress used its appropriations powers to demand more information about, and affect the legal status of, contractors on the battlefield. Congress also amended various statutes to extend the jurisdiction of U.S. law (and potential legal liability) over persons serving with or accompanying armed forces in the field. A variety of other legislation has been proposed but not yet passed, including some that would limit the kinds of jobs that private contractors can perform. 

Jurisdictional Statutes

Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000)

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The Torture Victims Protection Act permits civil suits in U.S. courts against persons acting in any official capacity for a foreign nation, for the commission of torture or extrajudicial killing even if committed outside the U.S. The statute requires the plaintiff to show that local remedies (if adequate and available) were exhausted. 

War Crimes Act, 18 U.S.C § 2441

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The War Crimes Act allows U.S. courts to prosecute “grave breaches” of Common Article 3 of the Geneva Conventions committed by or against U.S. nationals or U.S. military members. 

Alien Tort Statute, 28 U.S.C. § 1350

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The Alien Tort Statute (ATS) is a jurisdictional statute that grants U.S. federal courts jurisdiction over “any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.” Generally ATS claims are against individuals and corporations. 

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 804

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The PATRIOT Act extended the Special Maritime and Territorial Jurisdiction (SMTJ, 18 U.S.C. § 7) of U.S. courts to U.S. facilities overseas, including American military bases and embassies, for certain offenses committed by or against U.S. nationals. The U.S. Department of Justice is responsible for prosecuting crimes that apply within the SMTJ. 

Federal Tort Claims Act, 28 U.S.C. 28 U.S.C. §§ 1346(b), 2671-2680

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The Federal Tort Claims Act (FTCA) permits suits against the U.S. government for harm caused by the negligent or wrongful conduct of government employees. Although the FTCA is not directly applicable to contractors, it has been used to bring suit against contractors in federal court. However, the FTCA exempts any claim based on the performance (or failure of performance) of discretionary actions, whether or not the discretion involved was abused. The FTCA also contains a “combatant activities exception,” though U.S. courts disagree about its applicability to contractor cases. 

Uniform Code of Military Justice, 10 U.S.C. §§ 801-946

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The Uniform Code of Military Justice (UCMJ) is the statute that prescribes criminal law applicable to members of the U.S. military. Section 802(a)(10) of the UCMJ extends the Code to “persons serving with or accompanying an armed force in the field” during “declared war or a contingency operation,” meaning civilian contractors involved in U.S. military operations can be court-martialed and subject to military prosecution. 

Federal Torture Statute, 18 U.S.C. §§ 2340-2340B

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This statute criminalizes torture that occurs outside the United States. Pursuant to § 2340A, any person who conspires to commit an act of torture outside the U.S. is also subject to criminal penalties. U.S. courts have jurisdiction over actions criminalized by the Torture Statute when the offender is a U.S. national or the offender—irrespective of the nationality of the victim or offender—is found in the U.S.

Procurement Regulations

Federal Acquisition Regulations

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The Federal Acquisition Regulation (FAR) is a complex set of rules governing the federal government's purchasing and contracting processes. Its purpose is to ensure purchasing procedures are standard and consistent, and conducted in a fair and impartial manner. The government maintains a dedicated FAR website.  Relevant FAR sections related to PMSCs include: Subpart 7.5, Inherently Governmental Functions; Subpart 9.4, Debarment, Suspension, and Ineligibility; Subpart 25.3, Contracts Performed Outside the United States; and 52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States. Acquisition regulations are also promulgated for U.S. federal agencies to supplement the FAR.

Federal Activities Inventory Reform Act, P.L. 105-270

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The FAIR Act creates statutory reporting requirements for U.S. federal executive agencies by requiring federal executive agencies to identify activities both “inherently governmental” and those not inherently governmental, and to conduct managed competitions to determine who is best to perform the service. It is often argued that some security and military operations duties performed by contractors are “inherently governmental.” 

OMB Circular A-76, "Performance of Commercial Activities"

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OMB Circular A-76 defines federal policy for determining whether commercial activities should be performed by the private sector or federal government employees, and proscribes outsourcing activities that are “inherently governmental” in nature. Neither the OMB Circular nor its accompanying handbook clearly defines “inherently governmental.”

Defense Base Act, 42 U.S.C. §§ 1651-1654

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The Defense Base Act provides workers' compensation protection to civilian employees working outside the United States on U.S. military bases or under a contract with the U.S. government for public works or for national defense. The Act requires all government contracts and subcontracts to contain provisions requiring the contractor to secure workers' compensation insurance for employees working overseas. Failure to do so will result in fines and possible loss of contract. The U.S. Department of Labor, Office of Workers’ Compensation Programs administers the Defense Base Act

International Traffic in Arms Regulations of 2011

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The ITAR is a set of government regulations that implement the Arms Export Control Act to control the export and import of defense articles and services, including weapons, military technology and training. The U.S. Department of State is responsible for the ITAR and administration of arms export controls. In order to be ITAR compliant, a company, in the U.S. or overseas, must be registered with the State Department’s Directorate of Defense Trade Controls (DDTC).  Contractors are also required to declare contracts over a certain amount, and following a review of the contract, a license for the exportation of arms will be granted or refused.

Local Guard Contracts, P.L. 111-117 § 7006

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Section 7006 of the Consolidated Appropriations Act of 2010 allows the U.S. Secretary of State to award local guard contracts in Iraq, Afghanistan, and Pakistan on the basis of best value as determined by a cost-technical trade-off analysis (as described in Federal Acquisition Regulation part 15.101).  

National Defense Authorization Acts

National Defense Authorization Act for Fiscal Year 2013

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H.R. 4310, or the National Defense Authorization Act for FY 2013, was signed by President Obama on Jan 2nd 2013. The 2013 NDAA discusses private security contractors in regards to the Afghan Public Protection Force (APPF). Section 1531 of the Act provides precise guidelines on the U.S. oversight, use, and contracting of APPF forces for 2013. 

National Defense Authorization Act for Fiscal Year 2014

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H.R. 1960, or the National Defense Authorization Act for FY 2014, was agreed upon in July, 2014. The Act contains stipulations for the fair competition of private contractors and contains provisions regarding the compensation of contractors in Afghanistan.  

National Defense Authorization Act for Fiscal Year 2015

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H.R. 3979, or the National Defense Authorization Act for FY 2015, is the latest NDAA passed on December 2nd, 2014 and signed by President Obama on December 19th, 2014.  The Act discusses the use of private contractors in the context of supporting US military operations around the world. 

National Defense Authorization Act for Fiscal Year 2003

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Section 332 of the NDAA FY 2003 authorizes the Secretary of Defense or the Secretary of a military department to enter into a contract for the performance of security-guard functions at military installations or facilities in the U.S. if, without the contract, members of the Armed Forces are or would be used to perform the increased security-guard functions and the hired security is properly trained and supervised. 

National Defense Authorization Act for Fiscal Year 2005

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Section 851 of the NDAA FY 2005 directed the Secretary of Defense to review Department of Defense polices relating to employees of defense contractors to ensure that DOD contractors are in compliance with the Immigration and Nationality Act. Section 1205 directed the Secretary of Defense to issue guidance on how the Department of Defense shall manage contractor personnel who support deployed forces. Section 1206 required the Secretary of Defense to submit to Congress a report on contractors supporting deployed forces and reconstruction efforts in Iraq. The report was to address such specific issues as chain of command oversight of contractors in the field; disciplinary procedures or criminal sanctions that could be imposed on contractors involved in misconduct in Iraq; the number of serious incidents involving contractors; and the number of contractor fatalities to date.

National Defense Authorization Act for Fiscal Year 2006

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Section 817 of the NDAA FY 2006 mandates the Secretary of Defense to develop a management and organizational policy for contingency contracting during combat operations and post-conflict operations. In Sections 1207 and 1209, the Secretary of Defense is authorized to transfer defense articles and funds to the Secretary of State and to security forces in Iraq and Afghanistan in order to support the efforts to restore and maintain security in those countries. The NDAA FY 2006 also contains the “McCain Amendment,” which prohibits the cruel, inhuman and degrading treatment of persons under custody or control of the United States. 

National Defense Authorization Act for Fiscal Year 2008

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Among other relevant sections, Section 841 established the Commission on Wartime Contracting (CWC). In Section 861, Congress required the Secretaries of Defense and State and the Administrator of USAID to enter into a memorandum of understanding regarding matters relating to contracts in Iraq or Afghanistan, including delineating responsibility for investigating and referring possible violations of the Uniform Code of Military Justice or Military Extraterritorial Jurisdiction Act. Section 862 required the Departments of State and Defense to establish minimum processes and requirements for the selection, accountability, training, and conduct of contractor personnel, and the Federal Acquisition Regulations to be revised to require similar standards in government contracts with private security providers.

National Defense Authorization Act for Fiscal Year 2011

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Sections 831 and 832 of the NDAA FY 2011 revised Section 862 of the NDAA FY 2008 (which required standard regulations for armed contractors in combat operations) in many ways, notably by expanding the requirement for standard regulations to contractors in significant military operations not rising to the level of combat. Section 833 requires the Secretary of Defense to “(1) establish criteria for defining standard practices for the performance of private security functions… and (2) establish criteria for weapons training programs for contractors performing private security functions.” In Section 1219, the Special Inspector General for Afghanistan Reconstruction is asked to issue recommendations on contractor oversight, and to report on the extent to which military and security contractors have been responsible for the deaths of Afghan civilians.

National Defense Authorization Act for Fiscal Year 2010

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Among other relevant provisions, Section 823 of the NDAA FY 2010 authorizes the Department of Defense to deny contracts to companies found to jeopardize the health and safety of U.S. government employees, and Section 1038 bans the use of contractors for interrogation. However, the Executive Office of the President explicitly rejected the NDAA limitation on the use of contractors for interrogation, stating that “in some limited cases, a contract interrogator may possess the best combination of skills to obtain critical intelligence."

National Defense Authorization Act for Fiscal Year 2012

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Section 805 of the NDAA FY 2012 requires the Defense Contract Audit Agency to publicly report its findings. Section 806 requires information on contractor performance to be included in past performance databases used for making contract award decisions. Section 1215 provides detailed guidance for the activities of the Office of Security Cooperation-Iraq (OSC-I), and provides that the Secretary of Defense may support transition activities in Iraq by providing funds for the operations and activities of OSC-I and security assistance teams in Iraq.

National Defense Authorization Act for Fiscal Year 2009

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Among other applicable provisions, Section 832 of the NDAA FY 2009 states that PMSCs should not perform inherently governmental functions in an area of combat operations. Sections 853 and 854 amend the NDAA FY 2008 to add more stringent reporting requirements for contractors of criminal allegations by or against contractor personnel. These provisions do not apply to CIA contracts.

National Defense Authorization Act for Fiscal Year 2004

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Section 1203 of the NDAA FY 2004 requires the Department of Defense to report to Congress on DOD security and reconstruction activities in Iraq. Among other items, Congress mandated that the report discuss progress made to the date of the report by U.S. personnel in providing security in Iraq and in transferring security functions to a reconstituted Iraqi police force and military. The DOD was also asked to assess the ongoing need of personnel and money for security activities in Iraq. 

Proposed Legislation

H.R. 6360 Oversight and Accountability in Wartime Contracting Act of 2012

Author: Rep. John Tierney
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This legislation, introduced in the U.S House of Representatives, would increase accountability in contracts for overseas contingency operations. It is aimed at reducing waste and fraud by the Defense Department and State Department as well as the U.S. Agency for International Development. 

H.R. 2136, Civilian Extraterritorial Jurisdiction Act (CEJA) of 2011

Author: Rep. David Price
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This legislation, introduced in the House, would amend the federal criminal code to grant jurisdiction over and impose penalties on federal contractors and employees who commit certain crimes outside of the U.S. while employed by or accompanying any agency of the U.S. other than the Department of Defense (DOD). Intelligence work for the government is exempted. A similar bill, S. 1145, was introduced in the Senate. 

S.2139, Comprehensive Contingency Contracting Reform Act of 2012

Author: Senators Claire McCaskill and Jim Webb
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U.S. Senators Claire McCaskill and Jim Webb introduced this legislation in the U.S. Senate to overhaul the federal government’s planning, management, and oversight of wartime contracting.  The legislation builds on the recommendations of the U.S. Commission on Wartime Contracting in Iraq and Afghanistan – an independent, bipartisan panel that Senators McCaskill and Webb created through legislation they introduced in 2007.

H.R. 2606: Stabilization and Reconstruction Integration Act of 2013

Author: Rep. Steve Stockman
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This bill is to establish the U.S. Office for Contingency Operations in order to protect the national security of the U.S. by providing effective means to plan for and execute stabilization and reconstruction operations in foreign countries and to provide for unity of command, and thus achieve unity of effort, in the planning and execution of operations. Any Federal department or agency with any public or private sector entity in any geographic area shall be administered in partnership with the newly created Office.

H.R. 3660, Contingency Operations Oversight and Interagency Enhancement Act of 2011

Author: Rep. Russ Carnahan
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This bill, introduced in the U.S. House of Representatives, would establish as an independent entity the United States Office for Contingency Operations, which shall report to the Department of Defense and the State Department. This new Office would monitor the need for mobilizing U.S. and international assistance for the stabilization and reconstruction of a foreign country or region and develop contingency plans and procedures to mobilize and deploy civilian and military personnel to conduct these operations.

S.3037, Enhancing Oversight and Security at United States Missions Act of 2010

Author: Senator Claire McCaskill
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This legislation directs the Secretary of State to submit a plan to Congress to increase oversight of private security contractors by U.S. government personnel at U.S. missions where the Armed Forces are engaged in combat operations in order to ensure that security functions are appropriately performed. Under the Act the Secretary is also required to: (1) periodically review the performance of such contractors to ensure that security functions are performed in a manner that is consistent with plan requirements; and (2) report annually to Congress, in each of 2011 through 2015, on the results of the most recent performance review.

S.2234, To Prevent Human Trafficking in Government Contracting

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The proposed law would require a contractor with contracts of over $1 million to implement compliance plans to prevent trafficking and related abuses such as destroying or confiscating passports, fraudulently misrepresenting wages or work location, and using labor brokers who charge exorbitant recruiting fees. The legislation would improve accountability by requiring a contractor notify the Inspector General if he or she receives “credible evidence” that a subcontractor has engaged in prohibited conduct, and Inspector General would be required to investigate. The bill also improves enforcement of anti-trafficking requirements by expanding the criminal prohibitions that prevent fraudulent labor practices typically associated with human trafficking of third country nationals to include employees on overseas contracts and by codifying the range of remedial actions available for violations of anti-trafficking requirements, including the removal of an employee or the suspension or debarment of the contractor. This law is identical to House Bill H.R. 4259.

Appendix:

The CBO followed up S.2234 with a cost estimate for implementing it across federal agencies. By incorporating the proposed regulations into existing training, and anticipating that additional investigations will be few, the CBO estimates the bill costing 500,000 USD over 5 years. 

Read the CBO estimate

S. 1428, Stop Outsourcing Security Act

Author: Senator Bernard Sanders
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This bill, introduced in the Senate, directs the Secretary of State to ensure that only U.S. government personnel provide diplomatic security services to personnel working on behalf of the United States at U.S. diplomatic or consular missions in areas of: (1) contingency operations; and (2) other significant military operations, other than combat operations, where security personnel may be called upon to use deadly force.

S.1145, Civilian Extraterritorial Jurisdiction Act (CEJA)

Author: Senator Patrick Leahy
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This legislation was initiated in the U.S. Senate, and if passed would amend the federal criminal code to grant jurisdiction over and impose penalties on federal contractors and employees who commit certain crimes outside of the U.S. while employed by or accompanying any agency of the U.S. other than the Department of Defense. Crimes covered include (1) arson, (2) bribery of public officials and witnesses, (3) use of a firearm in a violent or drug trafficking crime, (4) genocide, (5) murder, (6) kidnapping, (7) money laundering, (8) robbery or burglary, (9) sexual abuse, and (10) import or export of a controlled substance. Contractors carrying out intelligence activities for the U.S. government would be exempted. A similar version was introduced in 2010.

S. 235, the Lieutenant Colonel Dominic ‘Rocky’ Baragona Justice for American Heroes Harmed by Contractors Act

Author: Senator Claire McCaskill
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This legislation introduced in the U.S. Senate would amend the Federal Acquisition Regulation (FAR) to: (1) permit the debarment or suspension of U.S. government contractors for evading service of process in civil or criminal proceedings brought against them by a U.S. citizen or national in connection with a contract obligation, or for failing to appear in federal court in such proceedings; and (2) require such contractors performing federal contracts of $5 million or more outside the U.S. to consent to personal jurisdiction over them by the federal courts in any future action brought by the U.S. alleging wrongdoing associated with contract performance and in any future civil action alleging a rape or sexual assault of or serious bodily injury to a member of the Armed Forces, a federal civilian employee, or an employee of a company performing work for the United States who is a U.S. citizen or national.

H.R. 2825, Safety in Defense Contracting Act

Author: Rep. Carol Shea-Porter
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This bill, introduced in the U.S. House of Representatives, would require the Secretary of Defense to debar from contracting with the Department of Defense any company found to have jeopardized the health or safety of government personnel or found guilty of contract fraud, and for other purposes.

H.R. 2880, Contingency Operation and Emergency Oversight Act of 2011

Author: Rep. John Tierney
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This bill, introduced in the U.S. House of Representatives, would establish the Office of the Special Inspector General for Overseas Contingency Operations. This new office would conduct audits and investigations of government activities funded or undertaken outside the U.S. by the Department of Defense and either the Department of State or USAID, to: (1) build or rebuild physical infrastructure; (2) establish a political, security, or societal institution; (3) provide products or services to people of a foreign country; and (4) respond to emergencies, destabilization, armed conflict, or other circumstances requiring rapid response.

S.341, No Contracting with the Enemy Act of 2011

Author: Senator Scott Brown
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This legislation initiated in the U.S. Senate would require the Federal Acquisition Regulation (FAR) to be amended to prohibit the awarding of a federal contract to an enemy of the United States and to provide that any such contract shall be null and void and may be immediately terminated or rescinded. It defines "enemy of the United States" as any person or organization determined by the Secretary of Defense or State to be hostile to U.S. forces or interests or providing support to any person or organization hostile to U.S. forces or interests during the time of a declared war, peacekeeping operation, or other military or contingency operation. In practice, it would likely prevent the U.S. from hiring local nationals as security contractors. 


Agency Regulations

In addition to U.S. and host nation laws, private military and security contractors hired by U.S. government agencies are subject to agency-specific regulations and policy. U.S. federal agencies are endowed with broad policy-making powers and promulgate rules and procedures related to their substantive missions. There are three executive departments that issue rules, policy and regulations concerning PMSCs: the Departments of Defense, Justice, and State. One federal agency created by Congress—USAID—has implementing partners that utilize PMSCs and thus USAID also issues regulations related to the use of private security services. One of the most important agency rules is 32 C.F.R. 159, "Private Security Contractors Operating in Contingency Operations" which implements the statutory requirements of Section 832 of NDAA 2011. In July 2012, the DOD proposed an amendment to the FAR to implement these requirements government-wide and establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions outside the U.S. 

To supplement departmental rules, U.S. government agencies have attempted to coordinate their use of PMSCs through Memorandums of Understanding in 2007, 2008, and 2010. Those MOUs can be found below. Other federal agencies tasked with oversight of agency activity have weighed in too, issuing audits, reports, and recommendations about PMSCs to assist government decision-makers. The output of oversight agencies can be found in the section U.S. Research and Oversight Bodies.  

Department of Defense

The U.S. Department of Defense (DOD) has employed more private military and security contractors than any other U.S. government agency. Publicly available instructions, policy and initiatives to manage PMSCs in support of DOD operations appear on the dedicated Department of Defense page of the Private Security Monitor site. 

Department of Justice

The International Criminal Investigative Training Assistance Program (ICITAP) is an office within the Criminal Division of the Department of Justice (DOJ) that provides training for foreign law enforcement agencies in new and emerging democracies and assists in the development of police forces relating to international peacekeeping operations.
Since its creation in 1986, ICITAP has conducted training programs in numerous countries throughout the world, including Haiti, Bosnia, Kosovo and Iraq. Because ICITAP performs the majority of its work in foreign countries, it utilizes a combination of federal employees and contractor support.

On March 28, 2011, the DOJ awarded an ICITAP program support contract to the private security company MPRI. MPRI previously held a contract with the DOJ to perform similar services. Under the new contract, MPRI contractor personnel will furnish administrative, logistical, professional, and technical labor. The contract includes a base period of performance of one year with six additional option periods of one year each for a total period of performance of seven years. Although the contract is not public, the government-issued Statement of Work is available, and it provides insight into the security sector training and capacity-building work MPRI will perform.

The contract with MPRI likely includes terms to control and constrain MPRI's operations. This is known by reference to the publically-available Request for Proposals that was issued by the DOJ when it was seeking contractors to carry out ICITAP training. The DOJ will monitor contract compliance and MPRI's compliance with applicable U.S. laws.

As an additional precaution, ICITAP's contractor personnel are also vetted by the DOJ Criminal Division's security program staff before they are authorized to participate in any program activity. However, this has not always been a successful safeguard. In 2003, ICITAP, at the request of the DOD, established a program through which it provided subcontractor advisors and trainers to assist with the reconstruction and development of the Iraqi police and prison systems. The program was paid for by the Department of State. Contractors involved in the Iraq ICITAP program were accused of misconduct, and U.S. government officials accused the DOJ of failing to properly screen its contractors. The report on these findings, issued by the DOJ Office of Inspector General, A Review of ICITAP's Screening Procedures for Contractors Sent to Iraq as Correctional Advisors (February 2005) reviews the procedures in place at the time and provides a glimpse into ICITAP's use of contractors.

Other information about ICITAP contractors could not be found. For more information about ICITAP generally, visit the ICITAP website.

Department of State

The Bureau of Diplomatic Security of the State Department is responsible for the protection of State Department personnel and facilities in the U.S. and abroad. The State Department has become increasingly reliant on the private sector; approximately 90 percent of all Diplomatic Security personnel are contractors. In addition to hiring contractor protective service details for U.S. and foreign government high-level officials, the State Department uses security contractors to protect embassies, other government offices, and U.S. installations abroad.Information about how the State Department oversees its private security contractors appears on the dedicated State Department page of the Private Security Monitor site. 

Department of Commerce

The Department of Commerce and the Department of State jointly provide oversight and controls for United States export regulations. The two agencies exercise separate jurisdiction over categories and types of products, and carry out the work through their specific administrative divisions tasked with export control. Particularly relevant to U.S. private military and security companies operating abroad are the regulations covering "dual use" items, commercial items that could have military applications -- items like truck parts, electronic components and computers.

The Department of Commerce oversees its area through the Bureau of Industry and Security (BIS), which ensures effective export control by enforcing U.S. Export Administration Regulations. In the area of dual-use export controls, the Bureau will vigorously administer and enforce such controls to stem the proliferation of weapons of mass destruction and the means of delivering them, to halt the spread of weapons to terrorists or countries of concern, and to further important U.S. foreign policy objectives.

The Department of State's Directorate of Defense Trade Controls (DDTC) has jurisdiction over defense articles and services. This includes rifles and handguns and certain optical sighting devices.

The current system operates using two separate 'control lists' from each agency, each with different approaches to identifying and controlling products. The Department of State administers the Munitions List, which includes items specifically designed for military applications and uses fairly broad and general terms. The Commerce Department administers the Commerce Control List, which is a far more specific list of mostly dual use items.

USAID

The U.S. Agency for International Development (USAID) is an independent agency that provides economic, development and humanitarian assistance around the world in support of the foreign policy goals of the United States. To carry out its mission, USAID operates in countries recovering from conflicts or disasters, and contracts with other U.S. agencies, international organizations, and the private sector to provide humanitarian assistance and aid. These entities, called "implementing partners" by the USAID, often procure security services from private companies to assist with operations in complex environments. Thus, USAID does not usually maintain any direct contracts with private security companies, and implementing partners have primary oversight responsibilities for their security providers. Nevertheless, in managing its contracts and grant agreements, USAID has some degree of oversight for private security activities. And, in recent years, the U.S. Congress has mandated that USAID change its "hands off" approach and adopt regulations for PMSCs employed by implementing partners. 


Oversight by Contract

Pursuant to clause 44.2 of the Federal Acquisition Regulations contracting agencies must consent to the use of subcontractors. Therefore, when a USAID implementing partner seeks to subcontract a security provider, a USAID contracting offer must provide or deny consent for this action after an independent review of the subcontractor and its business practices (see FAR 44.202-2). Additionally, as of March 2008, FAR clause 52.225-19must be included in contracts that require contractor personnel to perform outside the U.S. in support of a diplomatic mission designated as a danger-pay post. The clause provides general and specific operational requirements for security contractors, including use of force, uniform specifications, and compliance with all applicable U.S. and host nation laws and regulations. Because USAID operations in Iraq and Afghanistan are part of the missions defined in clause 52.225-19, these requirements are to be included in all USAID contracts with implementing partners.


Oversight Required by Federal Law

Sections 861 and 862 of the National Defense Authorization Act for Fiscal Year 2008, as amended, require USAID and other federal agencies to undertake significant reforms related to contracting in Iraq and Afghanistan. NDAA FY 2008 section 861 directed the Secretaries of Defense and State and the Administrator of USAID to execute a memorandum of understanding about interagency cooperation on security contracting procedures, the establishment of a common database to track contractor personnel, and accountability for government PMSCs. This MOU was effectuated in July 2008. NDAA FY 2008 section 862 required future government contracts for security services to contain clauses on the selection, training, equipping, and conduct of personnel performing private security functions. Agencies were also required to establish a system for incident reporting.

In addition, 32 CFR Part 159.4(c), Private Security Contractors Operating in Contingency Operations, 11 August 2011 required the Chief of Mission in a designated area of combat to issue Mission-wide instructions for non-DOD PMSCs.

According to reports by the USAID Office of Inspector General, the requirements of NDAA FY 2008 and 32 CFR 159 have not been fully implemented in Iraq or Afghanistan. In Afghanistan, USAID/Afghanistan has drafted but not yet issued instructions to oversee the qualifications and conduct of all private security contractors employed by the Agency. Moreover, no standardized process for incident reporting exists. In Iraq in 2008, USAID/Iraq issued a Mission-wide notice to all contractors specifying incident reporting procedures. Existing contracts were amended to reflect this new policy. However, the USAID OIG reported that this notice does not comply with the incident reporting requirements of NDAA FY 2008 or 32 CFR Part 159.4(c).

U.S. Agency Memorandums of Understanding

Memorandum of Agreement between the Department of Defense and the Department of State on USG Private Security Contractor

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The purpose of the MOA is to improve coordination and accountability of private security contractors working for the Departments of State and Defense in Iraq. The Secretaries of State and Defense agree to work together to develop standards to manage PMSC personnel, and per the Annex to the agreement set out concrete rules related to possessing firearms, use of force, and incident response and investigation, among others. 

Memorandum of Understanding relating to Contracting in Iraq and Afghanistan

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This MOU implements Section 861 and related provisions of the National Defense Authorization Act (NDAA) of 2008, which mandated that the Departments of State, Defense and USAID collaborate to prescribe regulations on the selection, training, and conduct of PMSCs. As per the NDAA, the MOU also states that the agencies will use the Department of Defense Synchronized Predeployment and Operational Tracker (SPOT) to collect contractor data and track contractor use. 

Memorandum of Understanding between Department of Defense, Department of State and U.S. Agency for International Development Relating to Contracting in Iraq and Afghanistan

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This MOU is substantially similar to the 2008 MOU relating to contracting in Iraq and Afghanistan entered into by these agencies. It implements Section 861 and related provisions of the National Defense Authorization Act (NDAA) of 2008 and Section 854 of National Defense Authorization Act (NDAA) of 2009.  Per the 2009 NDAA, the MOU adds sections X, XI, and XII to the 2008 MOU and in so doing commits to establish mechanisms—including amending the federal acquisition regulations—to  ensure contractors are required to report offenses committed by or against contractors, and to protect the victims and witnesses of such offenses.


Status of Forces Agreements

A U.S. Status of Forces Agreement (SOFA) is entered into by the president with a foreign government to set the legal protections and rights of U.S. military forces and Department of Defense personnel operating in that foreign country. These agreements are entered into during peacetime and war. The U.S. has more than 100 agreements with other countries that may be considered SOFAs, though some are classified.

To learn more about the U.S. SOFAs, read the U.S. Congressional Research Service report Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized? by R. Chuck Mason (5 January 2011).

Afghanistan

The U.S. is participating in two military operations in Afghanistan, with separate mandates and SOFAs for each operation. U.S.-led coalition forces and personnel that are part of the 2001 "Operation Enduring Freedom" are covered by an exchange of notes between the U.S. government and Afghanistan. Personnel of the International Security Assistance Force (ISAF), a NATO-led coalition, are covered by a Military Technical Agreement concluded between ISAF and the Afghan government.


 

Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan

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The Military Technical Agreement between the ISAF and the Afghan Interim Authority gives ISAF the authority to use military force in pursuit of its UN-mandated mission. The Agreement also provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their own governments and are immune from arrest or detention by Afghan authorities.

T.I.A.S. Exchange of notes September 26 and December 12, 2002 and May 28, 2003

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In 2003, the U.S. and the Islamic Transitional Government of Afghanistan (ITGA), through an exchange of diplomatic notes, concluded a status of forces agreement applicable to U.S. military and Department of Defense civilian and contractor personnel in Afghanistan. The subsequently elected Government of the Islamic Republic of Afghanistan assumed responsibility for the ITGA’s legal obligations and the U.S.-Afghan SOFA remains in force. 

Colombia

Supplemental Agreement for Cooperation and Technical Assistance in Defense and Security between the Governments of the United States of America and the Republic of Colombia

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This agreement relates to cooperative efforts between the U.S. and Colombia for conduct counter-narcotics and counter-terrorism purposes. U.S. personnel working in Colombia in furtherance of the agreement are granted the same privileges and immunities that are afforded to diplomatic staff under the Vienna Convention on Diplomatic Relations. In Section XII, U.S. is granted the authority to enter into contracts for goods and services that can be executed in Colombia to further this security agreement. 

Agreement Between the United States and Colombia Regarding the Surrender of Persons of the United States to the International Criminal Court

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This “Article 98” agreement is meant to prevent the transfer of U.S. nationals covered by the agreement to the International Criminal Court (ICC). According to the agreement, without the express permission of the U.S. government, U.S. military personnel and contractors (among others) cannot be transferred to the ICC by Colombian authorities. 

Iraq

In the initial period following the US invasion of Iraq agreements in place exempted contractors from Iraqi laws and legal processes. Those agreements have by superseded by the U.S.-Iraq Withdrawal Agreement, under which contractors are subject to the jurisdiction of Iraqi authorities and courts. The Withdrawal Agreement is commonly referred to as the SOFA between the United States and Iraq.


 


Contracts

The relationship between private military and security companies and their clients is usually set forth in a contract, unfortunately few contracts are publicly available. Some general information about contractual arrangements is already online, particularly from the Department of Defense. The DOD discloses all contracts valued at 6.5 million dollars or more, but the legal documents for each contract are rarely posted.  

Many of the contracts currently available are the result of Freedom of Information Act requests by think tanks,  investigative NGOs and the media (for example, the Center for Public Integrity). A listing of publicly available U.S. government contracts is below.

Department of State Contracts

DynCorp Peacekeeping Support in Africa (S-LMAQM-03-C-0034)

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This contract outlines the U.S. Department of State's award for peacekeeping support services for DoS funded operations in Africa. The contract awards DynCorp a minimum of USD 5 million and a max of USD 100 million. Work for DynCorp is determined by DoS task orders, to be issued subsequent to the contract. Note in the amendment that the max dollar value of the contract increased from 100 million to 500 million. 

  1. Amendment to DynCorp Peacekeeping Contract (S-LMAQM-03-C-0034)

ArmorGroup - Local Guard Services, Kabul (S-AQMPD-07-C-0054)

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In this contract with Armor Group North America, the Department of State awarded AG the guard services contract for 24 hour deterrence against threats to embassy personnel and buildings. The 41 million per year contract was for one base year, with four additional option years the estimated grand total was USD 190 million.

  1. Exhibits A-V

U.S. Department of State Worldwide Personal Protective Services I Contract

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In March 2000, the Department developed and awarded the first iteration of the WPPS contract to DynCorp International to provide protective services in areas of  the former Yugoslavia, and was subsequently expanded to provide protective services in the Palestinian Territories (July 2002) and Afghanistan (November 2002).  In 2004, task orders under the WPPS contract were issued to provide for personal protective services for Embassy Baghdad when it opened in July 2004. DynCorp was unable to meet the full requirements of the expanding mission and a second service provider was established through a contract with Blackwater USA. Subsequently, a contract was awarded to Triple Canopy to provide protection at the Regional Embassy Office in Basra, Iraq. 

DynCorp - Civilian Peacekeeping (S-LMAQGM-04-C-0030)

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This contract to DynCorp by the Department of State awards the company a base year + 4 options of 350 million USD/year, for a total of 1.7 billion USD over 5 years. DynCorp will maintain 2,000 potential police and peacekeeping forces for the U.S. to deploy at its peacekeeping missions around the world. 

  1. Payments

Triple Canopy - Personal Protective Services (S-AQMPD-05-D-1100)

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This award (USD 1.2 billion maximum) from the Department of State to Triple Canopy Services falls under the Worldwide Personal Protective Services contract. The DoS contracted Triple Canopy to provide guards to all areas where it operates, and uses individual task orders to determine specific, per embassy and country assignments.

  1. Amendments

Department of Defense Contracts

Restore Iraqi Oil Contract to Kellogg, Brown and Root (No. DACA63-03-D-0005)

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This contract awarded to Kellogg, Brown and Root eventually included 10 distinct task orders for the company and had a ceiling price of 7 billion dollars. The contract documents were obtained through a Freedom of Information Act request by the Center for Public Integrity, they highlight the changes to Task Order #5, which was amended 21 times and changed in cost from 24 million to 887.37 million. 

Documents from the KBR contract:

  1. Original Contract from 8 March 2003
  2. 10 task orders and their modifications

Linguist Service Contract to MPRI (No. DASW01-03-F-0677)

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MPRI was awarded this contract to provide 20 interpreters to the Office of Reconstruction and Humanitarian Assistance in Iraq. The 1.9 million dollar contract covered a period of 120 days, with options for renewal. 

LOGCAP III Contract to Kellogg, Brown and Root (No. DAAA09-02-D-0007)

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KBR won the first LOGCAP (Logistics Civil Augmentation Program) contract in the mid 1990s, only to lose out on the second LOGCAP to DynCorp. KBR re-won the 10 year LOGCAP III contract in 2001, and subsequently was the central contractor for Iraq and Afghanistan. One initial consequence was that KBR won the Iraqi Oil Restoration Contract on a no-bid basis because it was initially under the umbrella of LOGCAP. 

Iraqi Army Reconstruction Contract to MPRI (No. GS-10F-0256M)

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In order to assist in the Iraq reconstruction effort, MPRI won this contract to rebuild and integrate the Iraqi army into the reconstruction work. The 625 million dollar contract was amended one month later to increase costs by 81 million dollars. Both the original work order and the amendment are included in the document here.