Are Contractors in War Zones Above the Law?

In January of 2008, Staff Sgt. Ryan Maseth, 24, was electrocuted while showering in his Baghdad barracks. His death prompted last week's congressional report concluding that defense contractor KBR, (until a year ago a subsidiary of the oil services giant Halliburton) was well aware that the electrical system in Maseth's complex was faulty. An accident like this, the report found, was bound to happen. But this report also now raises a larger and thornier question about military defense contractors: can they be held legally liable for their actions -- or inactions? Will anyone be held responsible for Maseth's death?

This is an increasingly important question as the U.S. government hires ever more military contractors to do work that used to be done by U.S. soldiers. The war in Iraq has already involved more outsourcing of military functions than any previous war in American history. An estimated 180,000 civilian contractors now work in Iraq and Afghanistan to support the U.S. government there. They do everything from guard U.S. officials and dignitaries to truck fuel, food and other supplies to military bases -- all jobs that used to be done by soldiers.

Private contractors operating in Iraq are not subject to U.S. military authority, or to U.S. or Iraqi law. Their employees are not subject to the rigors of Army basic training; and their superiors are not held to the strict rules and ethics that apply to the U.S. military. As a result, notes Peter W. Singer, a senior fellow at the Brookings Institution, in his book, "Corporate Warriors: The Rise of the Privatized Military Industry," "When the means of security are privatized, certain mechanisms of moral hazard and adverse selection might lead firms astray. Just as in the rest of commerce, war is business where nice firms do not always finish first."

Indeed, whistle-blowers at these companies run the risk of being fired. In 2007, shortly after one KBR electrician reported to a defense contracting agency official that logs were being created to make it appear that nonexistent electrical safety systems at the base were working properly, he lost his job, according to The New York Times. Another employee "said his KBR bosses mocked him for raising safety issues."

Yet, the Pentagon inspector general's interim report provided to the House Oversight Committee on July 28 said it "has not found any credible evidence that representatives from KBR were aware of imminent, life-threatening hazards" in Maseth's complex prior to his death. This is despite that fact that the Army itself had issued an urgent bulletin (pdf) in 2004 warning soldiers of the threat.

Of course, the Pentagon may have an interest in protecting its contractors. The Defense Dept. indicated, in a 2006 review, that it intends to increase its reliance on private military companies and other outsourced support services. Its handling of the death of Maseth certainly suggests that the Pentagon is defensive on the subject: the soldier's mother, Cheryl Maseth, was originally told that her son had carried an electrical appliance into the shower.

As of January, more than 1,000 private civilian contractors -- including 110 KBR employees -- had been killed in Iraq, and another 13,000 wounded. Deaths of American soldiers in battle, meanwhile, have climbed to more than 4,100. So what happens when the military contracting companies themselves are to blame for the deaths? For years now, KBR and other military contractors have argued that as a matter of law, regardless of the circumstances, they are not responsible. As government contractors, they say, just like the military, they're immune from legal suits. That's been KBR's defense in a series of cases over the past few years when the company has been accused of knowingly sending unarmed civilian employees into active combat zones -- sometimes to their deaths.