Security Contractors Left Out of Iraq Status of Forces Pact

DAN SAGALYN, NewsHour with Jim Lehrer: Iraqis may have mixed feelings about U.S. troops patrolling their streets and countryside.

But from the highest official to the lowliest citizen, Iraqis agree that one group of Americans needs to come under a tighter Iraqi thumb: and that's the hundreds of private contractors paid by the U.S. government for a variety of security missions.

And by most accounts, the new Status of Forces Agreement negotiated between the U.S. and Iraqi governments was supposed to put contractors under Iraqi law.

But it appears the fine print may tell a different story than has appeared in many U.S. news accounts.

For the past four years the U.S. government has maintained that American contractors were immune from the Iraqi legal system, by virtue of Coalition Provisional Authority order No. 17 signed by U.S. Administer Paul Bremer in June 2004.

This legal immunity has been a sore spot for the Iraqi government. Since the U.S. invasion of Iraq there have been numerous reports of instances of American security contractors firing on and killing Iraqis.

A congressional committee investigation that reviewed internal incident reports by Blackwater -- the security contractor with the largest presence in Iraq -- revealed that between 2005 and Sept. 12, 2007, 16 Iraqis were killed, and there were 162 incidents of property damage.

The U.S. government has said it would investigate, and if need be prosecute any wrongdoing. However, so far there have been no prosecutions of American contractors involving Iraqi deaths.

David Tafuri recently returned from 15 months in Iraq. He traveled all over the country as the State Department's rule of law coordinator. He says security contractors are well trained and are crucial for American success.

DAVID TAFURI, former rule of law coordinator: They provide the protection when you travel outside of the Green Zone, they often provide the protection when you travel in cities outside of Baghdad. They provide armored vehicles, and security professionals who are trained to protect diplomats. It's necessary for diplomats and reconstruction advisors to get out and to meet with Iraqis. Were contractors, security contractors not to be there, the U.S. military would have to take over those responsibilities, which would require even more U.S. soldiers to be in country.

DAN SAGALYN: But Feisal Istrabadi sees it differently.

FEISAL ISTRABADI, law professor: They do play an important role, they do provide security. That's why were generally have held our noses and accepted their rather obnoxious presence in the country.

DAN SAGALYN: Istrabadi was Iraq's deputy representative to the United Nations from 2004 to 2007. He's now a professor of law at Indiana University-Bloomington.

FEISAL ISTRABADI: They drive through cities with arms, with machine guns literally sticking out of windows of the vehicles they're in. They shoot at random. They don't have the kind of discipline and control and training that U.S. regular armed forces do. They're not under any kind of military code, whereas U.S. forces, of course, come under the Uniform Code of Military Justice. These people are simply a law unto themselves, and they behave that way. They're detested by the Iraqis.

DAN SAGALYN: The most notorious incident involving American security contractors took place on Sept. 16, 2007 at a busy intersection in Baghdad. Guardsmen from Blackwater USA were escorting American diplomats and thought they were being fired upon. They shot at what they thought were hostile Iraqis. When the dust settled 17 Iraqis were killed.

According to Laith Kubba, a former spokesman for the Iraqi prime minister in 2005 and 2006, that particular incident had a powerful effect. It stiffened the Iraqi government's resolve to demand that contractors fall under Iraqi law.

LAITH KUBBA, former Iraqi government spokesman: That, of course, was not the only incident, but that was the incident that galvanized public opinion against the presence of these security firms. When I was in Iraq, I saw how they conduct themselves. They are above the law and absolutely no self-respecting nation would accept the presence of these troops loose out there with guns. Irrespective of whatever guidance they're given, at the end of the day, they're above the law. So yes, that incident galvanized public opinion and I think there is a strong sentiment against them.

DAN SAGALYN: For months the press has reported that the U.S. agreed to the Iraqi demand that American contractors lose their immunity, and fall under Iraqi law.

The latest draft of the agreement, which was leaked to the Iraqi media, says that "Iraq has the primary legal jurisdiction over contractors with the U.S. and their employees."

However, it also defines U.S. contractors as "U.S. citizens who are in Iraq to supply goods, services or security to the U.S. forces." In other words security contractors supporting the U.S. military would be covered, but not those under contract to the State Department. A U.S. government official e-mailed the NewsHour that "As it currently stands, the SOFA does not cover non-DOD contractors." And that "this is an aspect of the agreement that remains under discussion." Because the talks are in a sensitive stage, the State Department refused to address this issue on the record.

There are currently around 640 American contractors providing security to U.S. diplomats in Iraq and another 1,350 working for the Defense Department. So only about one-third of American security contractors would be affected by the Status of Forces Agreement as it now stands.

To Feisal Istrabadi this is a problem. He says, most if not all Iraqis believe the agreement will cover all security contractors.

FEISAL ISTRABADI: It cannot appear after the fact that the U.S. was not participating in these negotiations in good faith. And that is the way it will appear in Baghdad. And if there is some sort of a technical flaw that these contractors are actually contractors with the State Department and not the Defense Department, that's a kind of a technical over the legalistic argument, and I doubt that members of Parliament believe that this agreement allows Blackwater to have impunity for acts such as were committed in Iraq in September of 2007.

DAN SAGALYN: But to David Tafuri, there is good reason to not have these contractors subject to Iraqi law.

DAVID TAFURI: The Iraqi legal system is getting stronger and is maturing, but there are still problems with the Iraqi legal system. And it would be very costly and very difficult for a contractor company to defend one of its employees if that employee ended up in an Iraqi detention center. The courts have not operated at full capacity in many places, courts were not able to operate at all for several years because of the security situation. So there's been enormous strain on the legal system.

DAN SAGALYN: But Feisal Istrabadi says it's better to have security contractors subject to the Iraqi legal system than to no system at all.

FEISAL ISTRABADI: The United States Department of Justice gave the Iraqi judicial system its seal of good housekeeping, No. 1. In fact, it is a modern, reasonably sophisticated judicial system. And if the choice is between a legal system and absolutely no law whatsoever, in which these private contractors behave in Iraq as though Iraq were the old West and they are the law because they have guns. I'll take an imperfect judicial system over that lawless state of nature.

DAN SAGALYN: As the United States and Iraqis continue to negotiate the Status of Forces Agreement, how the issue of immunity for the State Department's private security men will be resolved remains to be seen.

For the Online NewsHour, this is Dan Sagalyn.