It is outrageous that almost no American contractors have been held criminally liable for conduct in Iraq or Afghanistan, but hundreds of soldiers have been court-martialed. You can't blame this shortcoming on the security firms; they don't have the power to send their own employees to jail.At this point, we really have only two options. First, we could try to dramatically reduce our reliance on military contractors. This would require massive restructuring of our command and control operations as well as a substantial increase in the size of the Army and the other services, but it's not impossible. After all, our reliance on large numbers of combat-zone contractors is still of fairly recent vintage. They aren't that entrenched yet.
The problem is that there is a gray zone in the law when it comes to contractors on foreign battlefields. Congress has passed legislation to make clear that contractors fall within the Uniform Code of Military Justice as well as civilian law (the Military Extraterritorial Jurisdiction Act), but neither the Department of Justice nor the Judge Advocate General's Corps has shown much enthusiasm for enforcing these rules. That needs to change.
Beyond that, we need to do a better job of integrating contractors with military units so as to avoid mix-ups such as the one that occurred in 2004 when four Blackwater employees were killed in Fallouja, triggering a Marine offensive. Malcolm Nance, a veteran intelligence operative who has worked as a contractor in Iraq, makes an intriguing suggestion in the Small Wars Journal: Create a "force protection command" within the U.S. military that would be responsible for overseeing contractor operations. This would help make contractors more useful to military commanders.
Still, it's pretty unlikely. The alternative, then, is to integrate them more thoroughly into the military command. Have them report to field commanders, not the State Department. If they're combat personnel, have them follow the same rules of engagement as enlisted soldiers. Insist that they be subject to the UCMJ and the regular rules of military discipline. Maybe outside a combat zone we don't need to insist on this. But inside a combat zone, whoever's making the decisions should know that anyone carrying a gun is going to follow orders. Right?