No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After

Abstract

As a Commissioner on the federal Commission on Wartime Contracting in Iraq and Afghanistan established by Congress in 2008, I have been immersed in the issue of how to control the abuses and injuries of private security contractors. The key incident epitomizing this issue occurred in late 2007, when members of the Blackwater Worldwide (Blackwater) private security firm were escorting a convoy of State Department personnel through Baghdad. At Nisour Square, the Blackwater guards, some of whom claim they faced a threat, opened fire on civilians, killing seventeen Iraqis. Public attention continued as five Blackwater employees were indicted in December 2008, and the case continued in 2009 until the court dismissed the charges due to improper prosecutorial use of the guards’ statements. Negative Iraqi public perceptions of private security contractors continued from 2009 to 2010.

This Article analyzes and builds upon the somewhat successful steps taken by the Department of Defense and the Department of State in 2008–2009 to manage the problem. Analyzing those steps shows a key strand consisting of what may be called the “contract law” approach. In the much expanded form proposed in this Article, the “contract law” approach would use government contract requirements, contracting tools and sanctions, contract-related claims, and distinctive contract-related suits to both control and remedy private security abuses and injuries. This Article continues my prior studies as a professor of government contracting law with a specific interest in the Iraq war.

Keywords: Iraq war, private security contractors, Commission on Wartime Contracting, Blackwater Worldwide, Department of Defense, Department of State, contract law approach, private security injuries and abuses, U.S. Government, accountability issues, military

JEL Classification: K12, K19, K29, K39, K49, H56