There, the United States is relying heavily, apparently for the first time in an unstable environment, on private firms to supply a wide variety of security services. This report first summarizes available information on the private contractors providing security services under U.S. government contracts in Iraq. 109-364 ). Other companies provide security for convoys or officials traveling throughout Iraq. Members of Congress have also raised questions about the State Department's oversight of its protective service contractors' activities in Iraq. Legal Status and Authorities

Contractors to the coalition forces in Iraq operate under three levels of legal authority: (1) the international order of the laws and usages of war and resolutions of the United Nations Security Council; (2) U.S. law; and (3) Iraqi law, including orders of the CPA that have not been superceded. Under the authority of international law, contractors and other civilians working with the military are civilian non-combatants whose conduct may be attributable to the United States or may implicate the duty to promote the welfare and security of the Iraqi people. Iraqi courts do not currently have jurisdiction to prosecute them for conduct related to their contractual responsibilities without the permission of the Sending State. A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces. However, some contractor personnel who commit crimes might not fall within the statutory definitions described below, and thus might fall outside the jurisdiction of U.S. criminal law, even though the United States is responsible for their conduct as a matter of state responsibility under international law and despite that such conduct might interfere with the ability of the Multi-National Forces in Iraq to carry out its U.N. mandate. Military Extraterritorial Jurisdiction Act (MEJA)

Persons who are "employed by or accompanying the armed forces" overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 for any offense that would be punishable by imprisonment for more than one year if committed within the special maritime and territorial jurisdiction of the United States. Article 2(a)(10), UCMJ, as amended by § 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 ( P.L. The trial of civilian contractors by courts-martial will likely be subject to challenge on constitutional grounds. Military Considerations

Proponents of the use of private security contractors argue that they are as responsible as serving military personnel because many are former soldiers or individuals equally dedicated to the national mission. Section 824 would bar the Department of Defense from allowing contractors to perform inherently governmental functions in a combat area. S. 674 (Obama)—Transparency and Accountability in Military and Security Contracting Act of 2007

S. 674 would require the Secretaries of Defense, State, and the Interior; the Administrator of the U.S. Agency for International Development; and the Director of National Intelligence to provide information to the Congress within 90 days of enactment on U.S. government contractors and subcontractors working in Afghanistan and Iraq, with particularly detailed requirements for information on private security contractors. (This last provision is also included in H.R.
The United States is relying heavily on private firms to supply a wide variety of services in Iraq, including security. From publicly available information, this is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment, although it has previously contracted for more limited security services in Afghanistan, Bosnia, and elsewhere. In Iraq, private firms known as Private Security Contractors (PSCs) serve to protect individuals, transport convoys, forward operating bases, buildings, and other economic infrastructure, and are training Iraqi police and military personnel.
By providing security for reconstruction and stabilization efforts, many analysts and policymakers say, private contractors contribute an essential service to U.S. and international efforts to bring peace to Iraq. Nonetheless, the use of armed contractors raises several concerns, including transparency and accountability. The lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efficiency difficult. The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern.
Contractors working with the Department of State or the U.S. military (or with any of the coalition forces) in Iraq are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States. Section 552 of the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed Forces in Iraq subject to court-martial, but due to constitutional concerns, it seems more likely that contractors who commit crimes in Iraq would be prosecuted under criminal statutes that apply extraterritorially or within the special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial Jurisdiction Act (MEJA). Generally, Iraqi courts do not have jurisdiction to prosecute contractors without the permission of the relevant member country of the Multi-National Forces in Iraq. Some contractors, including those with the State Department, may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq.
This report summarizes what is currently known publicly about companies that provide personnel for security missions in Iraq and some sources of controversy surrounding them. A treatment of legal status and authorities follows, including an overview of relevant international law as well as Iraqi law, which currently consists primarily of Coalition Provisional Authority (CPA) orders that remain in effect until superceded. The various possible means for prosecuting contractors under U.S. law in civilian or military courts are detailed, followed by a discussion of possible issues for Congress, including whether protective services are inherently governmental functions. The report also summarizes pertinent legislative proposals. This report will be updated as events warrant.