Now That’S Charity: Bill Exempts Nonprofits From Wartime Oversight

There’s some curious language in the annual Pentagon budget bill that passed the US House of Representatives last Friday, and awaits Senate approval.

Section 832 of the fiscal year 2011 National Defense Authorization Act is titled “extension of regulations on contractors performing private security functions to areas of other significant military operations.” In some ways, it’s not an “extension” of those regulations, but a rollback.

The spending bill for 2008 created a basic level of accountability over mercenaries on the American payroll, requiring the military to “establish a process” for keeping track of the “selection, training, equipping, and conduct of [private security] personnel” in designated “areas of combat operations.”

At a minimum, the rules require the military to generate sufficient paperwork to identify scapegoats in the event that one of its guns-for-hire gets caught doing something horrible.



[/visitor]The 2008 rules contained a single exception. They did not apply “to contracts entered into by elements of the intelligence community in support of intelligence activities.”

But the new language broadens that exception to any and all “intelligence activities”—which could include covert actions carried out by the military or civilian agencies.

This regulatory “extension” also ads another loophole. Here is the wording:

NONGOVERNMENTAL ORGANIZATIONS- The requirements of this section shall not apply to a nonprofit nongovernmental organization receiving grants or cooperative agreements for activities conducted within an area of other significant military operations if the Secretary of Defense and the Secretary of State agree that such organization may be exempted. An exemption may be granted by the agreement of the Secretaries under this paragraph on an organization-by-organization or area-by-area basis. Such an exemption may not be granted with respect to an area of combat operations.

I’m no lawyer, but from what I can tell, this means a mercenary company paid with money funneled through a non-profit organization will not be subject to the same level of oversight as a company hired by the Army to do the exact same work.

Think that’s a stretch? Development organizations hire private security contractors as a matter of course. Check the recent audit report that documented abuses by the security subcontractors to a USAID-funded NGO working in Afghanistan.

Recent US State Department contracts with Blackwater front companies in Iraq might conceivably slide through this new loophole. So might mercenaries hired for other “war on terror” fronts, such as Yemen. Here’s how.

Since President Obama’s mission accomplished decree, Iraq will no longer be “an area of combat operations.” However, it must certainly constitute an area of “other significant military operations.” That will permit security contractors hired by NGOs there to be exempt from oversight, under the language above.

Also, within 180 days of its enactment—roughly next summer—the new spending bill requires the Pentagon to declare whether combat or “other significant military operations” are ongoing in the following three places:

(A) The Horn of Africa region. (B) Yemen. © The Philippines.

Published reports—including some drawing on Bradley Manning’s leaked State Department cables—make clear that the US military has been waging a secret war in Yemen for some time now. So when the Obama administration finally gets around to admitting that “significant military operations” are ongoing there, any “development” subcontractors who happen to carry assault rifles will have a readymade legal exemption from regulation.

There may well be a perfectly benign rationale behind the NGO exemption in the new spending bill, but a loophole is a loophole, and this one is bound to be exploited. Besides, the US and Yemeni governments haven’t been publicly truthful about the nature of American involvement there, so extreme skepticism is warranted.

Since late 2001, the US government—chiefly through the State Department—has signed over 1,300 contracts for work in Yemen, worth approximately $216 million. That includes a $12 million land mine “abatement” contract with DynCorp, a large US mercenary firm, signed two years ago.

Landmine removal sounds innocuous enough. It is certainly a worthy cause. But it is dangerous work, and not just for the obvious reason. According to a 2009 State Department audit of demining programs in Afghanistan, contractors are

frequently attacked, killed, kidnapped, and robbed by the variety of armed groups and criminals… In the last two years, some 27 deminers were shot dead…

If the contractors shoot back, though, remember: it’s definitely not a “combat operation.” War is for Congress to declare. Everyone knows that.