The Use of War to Profit

Wyatt Merritt[1]

May, 2011

Introduction

A recent check of the total amount the wars in Iraq and Afghanistan have cost the United States since 2001 revealed that it is approaching  $1.6 trillion (Cost of War, 2011). It is now 2011, and according to Vice President Biden, the United States will be in Afghanistan until at least 2014 (Zengerle, 2011). Regardless of why the US is in these foreign theaters, which are many, the involvement is expensive to those who pay for it. According to Stiglitz and Bilmes (2008), the estimated total amount expected to pay for these two wars is over $3 trillion. This expense is not simply from providing the military funding and expenses to veterans, but it also goes to providing money that is spent by hiring private contractors to support the war effort. In almost every aspect of the war, there is a private contractor available for hire. With the amount of money that is provided by Congress, there is no doubt that there is opportunity for wartime profiteering by companies. Defense contractors’ stocks have risen substantially since the beginning of war. Halliburton’s stock, for example, was about $9 a share in January of 2003 and, as of April, 2011, has risen to about $50 a share. That is an increase of about 400% (“Stock Information,” 2011). Along with the money given to contractors for services provided, there is room for fraud, waste, and overcharging by companies for these services. This is because of the lack oversight by the U.S. government. With the amount of money being dispersed to so many different companies, errors that involve millions of dollars is not uncommon.

          This paper intends to examine the amount of wartime profiteering, fraud, waste, and ethical violations that exist when the military uses private contractors to support the war effort. This type of white collar crime has existed throughout America’s history. There have been however, several legislative acts intended to regulate corporations so that these crimes are minimized. There has also been legislation passed that seems to invite profiteering. This paper aims to illustrate how wartime profiteering has been affected by the legislations intended to regulate corporate profits, to demonstrate to what extent it exists, and to identify which companies are the major players.

Brief History of Wartime Profiteering in America

          Wartime profiteering and the fraud that accompanies it, is not a new phenomenon. Ever since the beginning of the United States there has been involvement with wartime extortion. There is much evidence that wartime profiteering and overcharging took place during the Revolutionary War by both the Americans and Loyalists supplying the war efforts. Everything from food staples to slaves was sold at exuberant prices due to the increased need. There was also many accounts of fraudulent charges taking place that the governments, on both sides of the war effort, did not catch (Fingerhut, 1968). The Civil War saw its share of companies enjoying the profits of war as well. This war purchased more materials than any of the previous wars. It was not uncommon for bribery of officials for munitions contracts to take place. Outright fraud upon the government was to blame for the exuberant prices paid for many materials. However, at this time in history there were no large scale producers of war munitions in the United States.

It wasn’t until the 1880’s, when the Navy began building new vessels, that large scale and important contracts were made with large manufacturers. After paying unreasonable prices for armor for the ships ($574-$671 per ton), Congress passed statutes limiting the amount of money spent on armor to $300 a ton. Armament manufactures refused to make armor for that price; however, the onset of the Spanish-American War forced Congress to raise the limit to $400 a ton (Hensel & McClung, 1944). It became evident that this was indeed wartime profiteering when, in 1896, Congress found Carnegie and Bethlehem Steel companies were selling armor plating to Russia at one-third the price that they were to the U.S. government. The Federal Trade commission demonstrated the extended use of fraud, deception, and the huge profits companies were guilty of in a 1918 report titled “Profiteering” (Udis, 1973).  

World War I, again, found the United States reliant on private manufacturers to supply goods, and again, there were efforts to control the price gouging and fraud that accompanies war. The first few months of WWI were filled with confusion and disorganization in planning. The Army and Navy attempted to purchase materials as they had in peace time by purchasing from the lowest bidder. The demands of the war did not allow for this type of purchasing long. Manufacturers would not give competitive bid figures that were at fixed prices, but instead would give cost-plus contracts. Cost-plus contracts take place when a contractor produces the product at cost of materials plus time and labor to manufacture it. This makes it difficult for administrators and accountants to keep track of how much money is going to producers for costs and for labor. Needless to say, many contractors gave into the temptation to increase their profits by increasing the cost. Congress attempted to curb the excessive profits that companies were experiencing due to the war through several means, but no legislation was successfully passed with which the government and business both benefited (Hensel & McClung, 1944).

Following WWI, the Nye Committee identified “shameless profiteering” and extravagant waste, by companies during this war. The committee predicted that results of concentration of economic power of certain companies would result if industry and the armed services were left to regulate themselves in future wars. In hopes to eliminate the “economic evils” that occur during wartime, the committee supported legislation that would remove those with vested interests in a company’s profits from government service. The war department and the president opposed the bill and no legislation was passed. After war was declared in 1941, as predicted by the Nye Committee, the relations that existed between businesses and the armed services during WWI prepared the way for the “military-industrial complex” of WWII and the Cold War years (Kiostinen, 1970). The military-industrial complex refers to the relationship that exists between the parties that manage wars (the military, the presidential administration, and Congress) and those companies that produce weapons and equipment for war. Dwight Eisenhower first used this term, and warned of it, in his farewell address (sourcewatch.org).

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

 

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

 

WWII, as with all wars, had significant profits for private manufacturers, but not to the extent that was revealed in the Nye Committee. Congress did allow for cost-plus manufacturing to return if needed, after it had been eliminated after WWI, but it had gone back to the method of purchasing from the lowest bidder (Lorell et al., 2000). Similarly, in the Korean War there were relatively few scandals involving profiteering. This may have been because of the lack of national urgency. In earlier wars there was a sudden need for munitions and services that invited profiteering of all kinds, but wars since then have had a limited amount of such urgency. As technology and sophistication of weapons has progressed, as in the Cold War, the process in which weapons are acquired has become more complicated. There was a greater need for the armed services to align with civilian business in areas of research and development and production. The focus of dissatisfaction in the wars between WWII and the end of the Cold War has been in the inefficiency and waste that is involved in private contractors rather than blatant scandals of bribery and fraud (Udis, 1973). This led to legislation, such as the Truth in Negotiations Act in 1962, the establishment of the Cost Accounting Standards in 1970, and the Packard Commission in 1980’s. The Packard Commission recommended that the Department of Defense (DoD) expand its use of commercial products and institute “commercial-style” competition on the basis of price as well as past performances. The 1984 Competition in Contracting Act partially offset much of these recommendations by allowing equal access to defense contracts for all firms regardless of size and experience. In 1990, Congress passed the National Defense Authorization Act. This lifted many of the regulations that existed and allowed for the DoD to integrate with civilian industry. This was intended to keep costs down and performance up because it did away with many commercial business practices that formally existed. This was further emphasized by the Federal Acquisition Streamlining Act of 1994, which, as the name suggests, made it easier and faster for companies and the military to work together making the gap between companies and the military smaller (Lorell et al., 2000).

Today, in the current wars, the military-industrial complex appears to be alive and well. It is obvious the US has ignored Eisenhower’s warning. It seems that war can be a very profitable for large companies that are able to provide the support asked of by the military and Congress. When there is an effort to combat wartime profiteering with regulation, the regulation enacted is virtually ignored. Even if the company is under suspicion of fraud and waste, the company’s profits do not seem be affected. For example, KBR, a former subsidiary of Halliburton, was under investigation for 32 cases of overbidding, bribery and other violations that took place between 2001 and 2004, and linked to nearly $13 billion in war zone fraud cases in the same time period. However, despite the previous acquisitions, KBR’s revenues in 2009 first quarter revenues were up 27%, and in 2008, had total revenues that were up 33% (Scahill, 2009).

Legal Standing of Private Contractors           

            There is a continuing question about the scope that private contractors are allowed to operate. There are reoccurring issues that involve armed contractors that are hired for security purposes. These are generally known as Private Security Contractors (PSC’s). The Geneva Convention of 1949 identified what constituted illegal combatants (mercenaries), and stated that mercenaries were not guaranteed the right to be prisoners of war, but did not address the issue of employing them.  In 1989, the United Nations passed resolution 44/34, which was titled the “International Convention against the Recruitment, Use, Financing and Training of Mercenaries”, also known as the UN Mercenary Convention. Article 2 of the resolution made it an international offence to employ mercenaries. Mercenaries are defined as persons who are not members of the armed forces of the parties in conflict but participate in direct combat for personal gain. Their allegiance to a party is not conditioned by loyalty or obedience but by monetary gain. However, there is a vague definition of what constitutes “direct combat.”   

          This lack of a concrete definition makes it difficult to draw the line between “direct combat” and contractors simply protecting themselves when situations around them become hostile. Jurisdiction and oversight are two other issues that add to convolution of who PSC’s answer to legally. If a contractor is suspected of engaging in unlawful combat, the question arises of what power they answer to. There is US law and the host nation’s law (e.g. Iraqi law) that private contractors may be liable to answer to. US laws include the War Crimes Act of 1996, Military Extraterritorial Jurisdiction Act (MEJA), Uniform Code of Military Justice (UCMJ), and others. Private contractor employees may be prosecuted under these statues if suspected to be in violation of wartime laws. However, there is a breakdown of jurisdiction when it comes to who can be prosecuted. These laws do not seem to cover third country civilian employees, those from neither countries in conflict, or civilians who are hired from the host country by private contractors (also known as foreign nationals). Each of these groups make up a large number of employees who are under the employment of contractors making it difficult for the US to restrict actions of many employees of US based companies. Iraqi law has very limited control over private contractors. The Coalition Provisional Authority (CPA) has made contractors exempt from Iraqi laws, regulations, and legal process in matters that are related to the terms and conditions of their contract (Elsea, Schwartz, & Nakamura, 2008). This leads to a bigger more general issue in regards to companies themselves. These companies are based in the US with little oversight of their employees on the ground in combat areas. If infarctions do take place, those individuals who committed the violations are the ones who are subject to legal prosecution and not the companies employing them.

Questionable Actions    

          PSC’s are the second highest armed force in Iraq. Only the US military has more armed personnel in the area. Many of the operations and security details require contractors to enter areas that are of high risk in order to fulfill contracts. While they are not “armed combatants,” as outlined in the Geneva Convention, they are very well armed (Iraq for Sale, 2006). There have been several occasions where the line of defending one’s self and engaging in combat has become hard to determine. One of the more notorious incidents was when 5 employees of Blackwater Worldwide, one of the largest U.S. private security contractors, shot and killed 17 and wounded 24 Iraqi citizens in Nisour Square, in 2006. This brought much scrutiny toward the company. The employees claimed they fired in self-defense when they believed that they had come under attack. Charges of manslaughter were indicted against them, but in 2009, the charges were dismissed. This case has, however, reopened in April of 2011, after the Department of Justice won an appeal from a three judge panel that disagreed with the lower court’s judge’s ruling (“Blackwater Worldwide,” 2011).

This is not the first time that Blackwater employees have been under legal investigation. The Moonen case in 2006 involved a Blackwater employee, Andrew Moonen, who was accused of killing a guard assigned to the Iraqi vice president. There was also an incident, September of 2007, where murder charges were brought against two Blackwater guards killing two Afghan civilians. Both of these cases have been dismissed because of lack of evidence. Besides the issue of jurisdiction and the virtual legal vacuum private contractors operate in, the justification of self-defense is hard to disprove beyond reasonable doubt in court. There is very little collection and preservation of evidence in a war-zone. A civil suit was brought against Moonen and Blackwater by the family of the guard that was killed; however, the case was also dropped after there was a financial settlement (Risen, 2010).

Incidents that would court martial any armed service member simply sends a private security contractor home. Transparency is yet another issue since companies, Blackwater in particular, refuse to release information about employees or actions that they commit (DPC, 2010). Only those incidents that are major, and that the media are able to portray, are noticed by the general public. PSC’s routinely practice aggressive firing at vehicles and run cars off the road if they are thought of as a “threat” (“Iraq’s Guns for Hire”, 2007)  Below are a few incidents that the New York Times reported on that were uncovered by WikiLeaks (Glanz & Lehren, 2010):

·         May 14, 2005, a Blackwater security detail “shot up a civilian vehicle” killing a father and wounding his wife and daughter (p.3).

·         May 2, 2006, an Iraqi ambulance was struck by a roadside bomb. The driver was killed by “uncontrolled small arms fire” by Blackwater guards (p.3).

·         August 16, 2006, Blackwater contractors traveling southbound on a highway were struck by an I.E.D. In response, the contractors shot and killed an Iraqi in the back seat of a vehicle in the northbound lane (p.3).

Other than the blatant killing of Iraqi civilians, private contractors have been involved in other actions that seem to breach ethical lines that should be reserved for military forces. Nearly 50% of all interrogators in Iraq are employed by companies. For example, CACI, typically an information/technology company that is involved in intelligence and security, received a $60 million contract to conduct interrogations of Iraqi prisoners. This creates a conflict of interest where a company makes a profit based on the extraction of information from individuals. Again, there is a limited chain of command with no direct supervision allowing company executives to separate themselves from their employees. This has led to instances such as what took place at Abu Ghraib involving CACI employees. This again brings into question what are the appropriate uses of private contractors (Iraq for Sale, 2006).  

The actions of private security companies negatively impact the reconstruction efforts in Iraq and Afghanistan. There is a clear message that is sent to the people of those countries where US private security contractors operate. That message is “our lives are worth infinitely more than yours.” When companies, such as Blackwater, fire upon a vehicle that is simply in the wrong spot at the wrong time, it portrays a clear disregard of human life that is not received well, which adds to the tension and further destruction (DPC, 2010). 

 

 

 

Services Received From Private Contractors and the “Costs” Associated

U.S. Dependence on Private Contractors

          At the end of 2010, there were nearly 200,000 private contractor employees in Iraq and Afghanistan. In comparison to U.S. military troop numbers, this makes almost an even ratio since for every military personnel there is one private contractor employee. While there is no single definitive number on the amount of funds going to private contractors for their services, the official number from the Commission on Wartime Contracting (CWC) in Iraq and Afghanistan (2011) is nearly $177 billion at the end of 2010. This breaks down to $407 million per congressional district or $1,505 per U.S. household. Private contractors have become the “default option” for the DoD. Contractors once seen as a supplemental and temporary fix for problems, are now relied upon almost to the point where the military could not achieve their goals without them. The lack of government expertise in numerous areas, along with short-term rotations of government personnel which makes contractors local resident experts, has led to this reliance on contractors.

          The lack of oversight, expertise, and poor planning has opened the door for significant amounts of waste and fraud to occur. The confirmed official estimate for the amount of fraudulent billing by contractors is as high as $12 billion. This means that about 7% of all revenue going to private companies is lost to fraud. The last estimate of the amount of waste by the Special Inspector General of Iraq Reconstruction, in 2009, was to be between $3 and $5 billion. There is a risk that an additional $11.4 billion will be at risk for waste because of inadequate planning for construction by contractors. Many believe that the actual sum of waste is much higher than the official estimate. There are suggestions that tens of billions in taxpayers’ dollars have failed to achieve their intended use in Iraq and Afghanistan (Commission of Wartime Contracting in Iraq and Afghanistan, 2011).

          There are numerous individual instances that demonstrate some of the fraud, waste, and overcharging that occurs by private contractors. For example, KBR, a Halliburton subsidiary, bills the government nearly $100 per load of laundry, and charges about $45 for a 6-pack of soda. Halliburton was contracted to supply water for bathing and drinking for the troops, however, the water tested to be contaminated in 63 of the 67 treatment plants because they neglected to chlorinate the water (DPC, 2010; “Iraq for Sale,” 2006). There have also been reports that trucks that are used for the transportation of goods are at times not fitted with oil filters and when the engines seize, the company (KBR ) destroys the vehicle, counts it as a loss, and bills the government for a new one (“Iraq for Sale,” 2006). Billing for meals that are not served, serving expired and spoiled meals, doubling head counts, and billing for serves that were never completed are common occurrences by Halliburton/KBR. There have even been reports that KBR and Halliburton employees have stolen military weapons and materials and hide them in the companies’ “lay down” yards.  The list of these types of practices keeps going, but in total, the Defense Contracting Auditing Agency (DCAA) documented that KBR, who receives 43% of the contractor government funds, is responsible for the “vast majority” of the suspected fraud cases that could total more than $13 billion in ”unsupported” costs the government. Similarly, Halliburton has more than $1.4 billion in “questionable and unsupported” costs (Chatterjee, 2009; DPC, 2008; Scahill, 2009).

          These actions are not limited to Halliburton and KBR. Custer Battles, a security company, was found to have submitted over $10 million in false claims to the US government. Parsons, a construction company, failed to build 122 of 142 health clinics even though they had received $200 million of the $243 million contract to do so. Parsons also received a $31 million contract to build a prison in Kahn Bani Sa’ad but never completed it. When the project was transferred to the Iraqi government, they abandoned it because of the terrible condition it was in. CAPE, another construction company, charged $7 million for a road that was never built (DPC, 2008). DynCorp International, a security and training company, received a $6 billion for police training in Afghanistan. It was reported that the program was nearly a complete failure. The six week training course, that the police recruits received, has resulted in inadequate training, corruption, and poor police retention (Knutsen, 2010).

 Much of the waste and overcharging stems from the current form of contracting called “cost-plus.” Cost-plus contracts, as mentioned earlier, involves the government paying a company the cost of materials and services plus some extra in order the company to make a profit. This is compared to a fixed-fee contract where the two parties negotiate for one a single dollar amount that the company is required to complete the job within. The idea of cost-plus contracts is so contractors do not cut corners for a profit, but in reality, it gives the companies little incentive to save on spending. When the lack of oversight by the US government is combined with companies receiving a percentage of their spending as profit, it creates a system were corruption is almost expected to happen (“Iraq for Sale,” 2006).         

Supporting Our Enemies: Host Nation Trucking

          Aside from what has been discussed above, there is another issue that should be noted about problems that arise from hiring private contractors. Use of contractors has helped financially support the instability being seen in Iraq and Afghanistan. The U.S. military needs a substantial amount of resources to operate. The problem is that many of the locations that the military is in are very difficult to reach. This is especially true in Afghanistan compared to Iraq. Instead of taking man power and resources from the US military, contracting to private companies has been used for logistic purposes.

             Afghanistan is a landlocked country whose neighbors vary from uneasy US allies, such as Pakistan and Uzbekistan, to outright adversaries, such as Iran. In the past thirty years, war has devastated the little infrastructure Afghanistan had. People in the east are scattered and separated by mountains, while in the south, they are separated by deserts. The harsh environment has presented the most complex logistical operation ever undertaken by the US military. With over 100,000 troops in Afghanistan, plus an additional 38,000 allied forces, there is a demand for food, water, shelter, weapons, ammunition, and fuel to be delivered. To put the amount of resources needed into perspective, U.S. and NATO forces needed 1.1 million gallons of fuel per day in 2009, and military and contractor planes delivered 187,400 tons of cargo. Ten times that amount was delivered overland, making 80% of goods delivered reach Afghanistan by land. Because of its location on the Persian Gulf and several US allies, Iraq does not have near the problems of transporting war materials to troops as Afghanistan.

          There are two main land routes into Afghanistan, one from the south through Pakistan and the other is from the north through Central Asia. The southern route is more dangerous, but is the most often used because it passes through “the Pashtum tribal lands” where there are groups that are led by unseated Afghan Taliban. The northern route is safer, but it is longer and significantly more expensive. There is an additional 10-20 days of travel that costs two to three times the cost of the southern route. While being the fastest, bringing supplies in by air accounts for only 20% of cargo being brought into the country because of the cost associated with it and the lack of sufficient airports.

          In order to get resources to American troops in over 200 forward operating bases, the US military relies on eight companies to transport over 70% of the materials and goods to US troops. These combined companies are known as Host Nation Trucking (HNT). These companies, mostly US based, split a $2.16 billion contract to deliver goods. A crucial component of the contract with HNT is that the companies are responsible for the cargo they carry. All the security is the responsibility of the contractor, and convoys are independent of military escorts, unless otherwise determined by the U.S. military (House of Representatives, 2010).

          The outsourcing of the supply chain in Afghanistan to contractors has had unintended consequences. The HNT contract fuels “warlordism”, extortion, and corruption as well as a possible significant source of funding for insurgents. Given the perilous security conditions in Afghanistan, US and allied contractors in Afghanistan have little choice but hire private security companies. Of the armed guards used by the contractors in Afghanistan 95% are local nationals, as opposed to third country nationals or U.S. citizens. According to a detailed House of Representatives report, titled Warlord, INC. (2010), the security for the U.S. supply chain is principally provided by warlords. A clear example is Commander Ruhullah who is the largest security provider for the US supply chain leading a small army of over 600 armed guards. Local villagers along the road refer to him as “the Butcher” because of his quick use of arbitrary violence. There has been a strong push from the Afghan and US government to disarm “illegally armed groups” (warlords, commanders, and militias); however, the disarmament has failed because warlords and militias have evaded the governments’ efforts by becoming private security companies for the coalition. Warlords have long been a part of war-torn Afghanistan and will continue to be centers of political, economic, and military power adding to the instability and hurting the reconstruction effort long after the US and allies have withdrawn and the US supply chain is not needed. The hiring of warlords, as private security companies, only strengthens them and solidifies their position of influence in Afghanistan. Tens of millions of dollars go to local warlords for “protection.” Commander Ruhullah, for example, charges between $1,500 to $3,500 a truck and more if the situation calls for “special security.” Similar to the protection that was offered by the mafia, those contractors that operate a convoy without “protection” do so at their own peril. Companies who do not pay local warlords for their protection experience many attacks and intimidation from “private security companies.” The warlords exploit the lack of military control along the routes they operate.

          While there is no direct evidence, the US House of Representative report Warlord, INC. suggests that there is a high probability that the convoy security commanders pay Taliban insurgents for safe passage through areas where the Taliban has strong support and freely operate. Interviews and statements of employees of HNT companies have led to strong suspicion that this is in fact what is going on. Rather than firefights occurring because of protection purposes, they occur because of failure in negotiations. Notes from a meeting of all the project managers from all the HNT companies and military logisticians estimates that $1.6 - $2 million a week was going to the insurgency (p. 36). In December of 2009, Secretary Clinton acknowledged “that a major source of funding for the Taliban was protection money from U.S. contractors (p.37).” Afghan officials report that the Taliban and local warlords typically take between 10-20% of the value of any project as the price for protection. This would suggest that “the U.S. and the international community are unintentionally fueling a vast political economy of security corruption in Afghanistan (p. 38).”

Harmful but Profitable

             Private contracting companies that participate in the “reconstruction” effort in both Iraq and Afghanistan not only affect the American taxpayer in their pursuit for profit, but in some cases the employees that work for them are affected. Employees of contractor companies in many cases are not protected as well as they should be and are placed in hostile situations that are more dangerous than should be expected. The employees of KBR gave it a nickname of “Kill’em, Bag ’em, and Replace ’em” because of the lack of sympathy or concern for their employees. There is relatively little armor on trucks that drivers use to deliver materials. Ambushes are common in many areas of Iraq and Afghanistan, but KBR is severely lagging in the armoring of their vehicles (Burnett, 2006). KBR has also sent convoys of trucks down known hostile roads, known as “red” and “black” roads (meaning ‘no civilians’), in order fill contracts. Many times the trucks are minimally loaded, and at times not loaded at all, but the drivers are told to go anyway so the company can bill the government for the trip. The companies are essentially risking the drivers’ lives in order to make profit. Another example potentially harmful and inefficient practice of KBR is not to serve meals on a 24 hour bases. Troops line up and wait for more than an hour to be served, because KBR only serves meals at certain times a day to save money. This is not only inefficient and inconvenient for troops, but potentially dangerous because it groups them together in one location making the vulnerability for attack much higher (“Iraq for Sale,” 2006).

          The incident that put private contractors into public view also involved a company cutting corners for profit. It involved four Blackwater employees who were escorting a convoy to pick up materials in March of 2004. The men were killed in an ambush by insurgents and their bodies were taken, burned, and hung from a bridge. Blackwater’s protocol stated that the men should have been in a fully armored vehicle with a guard in the back acting as a rear gunner to protect form attack. The families have argued that the evidence suggests that this was not the case, and Blackwater cut corners by not armoring the vehicles and not sending more men to be in the gunner position. The family sued Blackwater in order to get the detailed information of what happened, because unlike military deaths, private contractor deaths do not have official reports about the circumstances. “Blackwater denies the allegations and has filed a $10 million counterclaim. It says the families violated employment contracts that prohibit the men or their estates from suing the company” (Parker, 2007). At the beginning of 2011, the lawsuit was rejected by a federal judge, because neither side was paying the cost of the process. The families could not continue to afford the costs of the lawsuit (“Suit against Blackwater,” 2011).

          Another common way to gain profits, which is used by virtually all contractors, is the use of foreign nationals. As mentioned earlier, third country nationals and host country nationals are hired to a great extent. While American employees make well over $100,000 a year in many cases, employees from lesser developed countries make significantly less. One private security company, Torres, currently is paying the guards they employ form Sierra Leon a low of $250 a month, about the same as a local Iraqi security guard. Other private security contractors have been reported as paying Peruvians $1,200 a month and $800 a month for Ugandans (Chatterjee, 2010). During 2010, there were roughly 150,000 Iraqi/Afghan nationals and third-country nationals employed by contractors compared to about 47,000 U.S. nationals (Commission on Wartime Contracting, 2010).   

Legal Sanctions and Connections of Private Contractors

Political Connections

With all the documentation of abuses, fraud, and waste that occurs with private contractors, it seems surprising that the same companies that are under investigation continue to get contracts. Many of these contracts are predetermined or consist of sole source bids, meaning there is an only one company that bids. Government officials explain the lack of competition by a lack of suitable company that can fill the contract. For example, Blackwater recently received a $120 million contract, in June of 2010, to guard U.S. consulates in Iraq, even though Blackwater is banned from operation in Iraq by the Iraqi government. The reason they are still in operation and receiving contracts there is because Iraqi law does not dictate private contractors. Other contractors that applied for the contract were deemed to be inadequate (Chatterjee, 2010). KBR has received and continues to receive contracts, many in the billions of dollars, as sole source bids with no competition despite the constant practice of overcharging and fraudulent billing (“Iraq for Sale,” 2006).

          The question remains, how do companies that are constantly under scrutiny for numerous illegal acts continue to receive government funding? There are two main possible answers for this question. First, companies have a very incestuous relationship with lawmakers in Washington, and second, companies hire PR firms and lobbyists to advocate on their behalf, especially when an unethical incident has become publically known. The most well-known example is former vice president Dick Cheney and his connection with Halliburton. Prior to his role as vice president, he was the CEO of Halliburton for five years (1995-2000). He was picked to be CEO not because of business experience, which he had very little of, but for his connections with powerful people around the world that he had made during his time as Secretary of Defense. Needless to say, Halliburton was very profitable in the years Cheney was their CEO, and in the years he was vice president. Prior to Cheney’s command of Halliburton, the company only received $100 million in government contracts, but in the five years he was CEO they received more than $1.5 billion. After Cheney left Halliburton to serve as vice president, he still had financial ties to them. In addition to the $44 million he received as salary for serving as the companies CEO, he retrained nearly $18 million in stock, which would more than quadruple in value in the years after the wars started, and received deferred compensation of approximately $150,000 a year (Mayer, 2004). Since the start of the war, Halliburton and their subsidiaries have received more than $38 billion in government contracts. The current CEO who took over after Cheney, David Lesar, received $13.7 million in compensation in 2010 and has received $114 million in compensation in the last five years (Forbes, 2011). Another way Halliburton, and many other companies, find favor with lawmakers is through political campaign donations. They are very strategic on who they give money to. Mostly Republicans who are on committees that involve national security and natural resources seem to receive the bulk of Halliburton’s contributions (Beckel, 2010).  

          Another example of a company having political connections is Blackwater. The former director of the CIA’s counterterrorism center, Cofer Black, and former Pentagon inspector general, Joseph Schmitz, are among Blackwater’s executives. Fred Fielding, a White House counsel member now, was once a part of Blackwater’s legal team (Parker, 2007). After the 2004 Fallujah incident, where four employees were killed, Blackwater immediately hired a PR firm and met with several congressional members within 48 hours of the incident to protect the interests of the company (“Iraq for Sale,” 2006).   

Legal Sanctions Against Private Contactors

          There are relatively limited legal actions that are taken against private contracting companies and relatively no criminal charges are filed against company executives. If any criminal charges are brought, they are against the employees, because the executives have distanced themselves and claim not to be accountable for the actions of their employees. An example of charges being an administrative matter opposed to a criminal matter is a recent Blackwater settlement. Blackwater reached a settlement with the U.S. government for $42 million, not for fraud, waste, or abuses by employees, but for illegal weapons exports to Afghanistan. The company and the government opted to treat the issue as an administrative matter, and avoided criminal charges, so that it would allow Blackwater to continue to obtain government contracts. The company is still under federal investigation for Blackwater officials bribing Iraqi government officials and the excessive use of force that their employees consistently use, however, no charges involving these allegations have been filled (Risen, 2010).

Halliburton and KBR have also reached settlements with the U.S. government. According to HalliburtonWatch.org, in 2002, the SEC investigated the allegations against Halliburton’s former directors and their accounting firm, Arthur Anderson LLP. Arthur Anderson’s accounting firm was the same accounting firm involved with the Enron scandal. To increase profit, by inflating their stock value, the company counted their cost overruns as revenue instead of losses. Halliburton argued that their accounting firm approved the numbers that made them appear more profitable than they really were. In 2004, Halliburton paid a $7.5 million dollar fine to settle the issue. As far as allegations of fraud and waste, Halliburton has been absolved from virtually any. They have tried to distance themselves from their controversial former subsidiary, KBR, by claiming they are their own company. However, when KBR recently admitted to paying $180 million in bribes to the government of Nigeria and was required to pay a $382 million in fines, Halliburton did not hesitate to pay off the settlement with the U.S. Department of Justice (Chatterjee, 2009).  

KBR is very familiar with lawsuits against them. However, relatively few of the lawsuits have involved the blatant practice of fraud and waste. It was not until recently, April of 2010, that the Justice Department filed a lawsuit against KBR for overcharging the U.S. government. KBR has filed a countersuit that claims the lawsuit by the Justice Department is an attempt to avoid payment that the company is owed (Akre, 2010). The majority of the lawsuits involve civil liability cases where peoples’ lives and health are at risk. Examples of these are burn pits operated by KBR to dispose of garbage that spread toxins in the air, electrocutions in buildings that were shoddily built and maintained by KBR, and exposing workers and troops to deadly toxins at water treatment plants (Isenberg, 2010). 

Conclusion

          The wars the U.S. is currently fighting are the most privatized wars that our country has ever had (“Iraq for Sale,” 2006). There has been an over dependence on the use of private contractors to do jobs that have historically been done by military personnel. Contractors are a quick fix to a deficiency that the military is experiencing; however, it comes with a price. Contractors are only concerned about profit, regardless of the PR campaigns that the companies run advocating their position in the reconstruction effort of Iraq and Afghanistan. They have consistently shown they are willing to commit fraud against the U.S. government, waste tax payer money, and put their own employees at risk, all in the name of increasing their revenue. They do so in an environment without much fear of legal allegations. This is so, not only in actions of private security employees such as Blackwater’s, but for those executives who run companies as well. Indictments of fraud and waste hardly ever materialize into actual legal sanctions against companies, and if they do, all companies fear is a fine. There is virtually no fear of criminal charges being brought against them. A company might as well participate in actions that will increase their profit, regardless of ethical and legal barriers, because of the limited legal response to their actions.

          Lack of oversight on the government’s part is largely to blame for the extent in which companies are able to commit such actions. One of the highest recommendations of the Commission on Wartime Contracting (2011) is more oversight and accountability for contractors. Currently, Pentagon and DoD officials continue to pay contractors regardless of the evidence of overcharging. This may be because of the connections these companies have made with officials or just by the sheer size of size and availability of the company to meet military needs at a moment’s notice. In any case, the current process of using and paying contractors in warzones to the extent that we are is detrimental to our mission and effort to reconstruct Iraq and Afghanistan, and waste of taxpayers’ money. In sum, we are more dependent on private contractors than we ever have been, and it as if the warnings of Dwight Eisenhower never existed. Regardless of legal action and legislation that is enacted private contractors continually commit illegal actions in search of profit, and there seems to be no sign in stopping.

 References

Akre, J. (2010). U.S. lawsuit accuses KBR of overcharging in war. Injury Board National News Desk, April 2. Retrieved from http://news.injuryboard.com/us-lawsuit-accuses-kbr-of-overcharges-in-war.aspx?googleid=279954 

Beckel, M. (2010). Halliburton continues to flood lawmakers with contributions after oil spill. Open Secrets Blog, July 9. Retrieved from http://www.opensecrets.org/news/2010/07/halliburton-continues-to-flood-lawm.html

 

Blackwater Worldwide. (2011). New York Times, April 25. Retrieved from http://topics.nytimes.com/top/news/business/companies/blackwater_usa/index.html?inline=nyt-org

 

Burnett, J. (2006). The trucker’s war: On the road in Iraq. National Public Radio, May 25. Retrieved from http://www.npr.org/templates/story/story.php?storyId=5431088

 

Chatterjee, P. (2009). Is Halliburton forgiven and forgotten?. Huffington Post, June 2. Retrieved from http://www.huffingtonpost.com/pratap-chatterjee/is-halliburton-forgiven-a_b_210326.html

 

Chatterjee, P. (2010). U.S. Congressional Wartime Commission targets armed contractors. CorpWatch, June 23. Retrieve from http://www.corpwatch.org/article.php?id=15604

 

Cost of War (2011). www.costofwar.com

 

Democratic Policy Committee. (2008). Major findings: DPC oversight hearings on waste, fraud, and corruption in Iraq. Retrieved from http://dpc.senate.gov/dpcdoc.cfm?doc_name=sr-

110-2-155

 

Elsea, J. K., Schwartz, M., & Nakamura, K. H. (2008). CRS report of Congress: Private Security Contractors in Iraq: Background, legal status, and other issues. (Order Code RL32419).Retrieved from Congressional Research Service:

www.fas.org/sgp/crs/natsec/RL32419.pdf

 

Fingerhut, E. R. (1968). Uses and Abuses of the American Loyalists’ Claims: A critique of quantitative analyses. The William and Mary Quarterly, 25(2), 245-258.

 

Forbes Magazine. (2011). CEO compensation. Retrieved from

http://www.forbes.com/lists/2011/12/ceo-compensation-11_David-J-Lesar_EBC3.html

 

Glanz, J., & Lehren, A. W. (2010, October 23) Use of contractors added to war’s chaos in Iraq. New York Times. Retrieved from http://www.nytimes.com/2010/10/24/world/middleeast/24contractors.html?ref=blackwaterusa&pagewanted=1

 

Greenwald, R. (Director). (2006). Iraq for sale: The war profiteers [DVD]. Available from http://movies.netflix.com/WiMovie/Iraq_for_Sale_The_War_Profiteers/70055245?trkid=2361637#height1551

 

HalliburtonWatch. (2011). Retrieved from http://www.halliburtonwatch.org/about_hal/chronology.html

 

Hensel, H. S., & McClung, R. G. (1944). Profit limitation controls prior to the present war. Law and Contemporary Problems, 10(2), 187-217.

 

Isenberg, D. (2010). Strike two on ‘just following order’ defense.  Huffington Post, September 9. Retrieved form http://www.huffingtonpost.com/david-isenberg/strike-two-on-just-follow_b_711095.html

 

Knutsen, R. (2010). US: Senators call for changes to troubled, costly Afghan police training program. CorpWatch, April 15. Retrieved from http://www.corpwatch.org/article.php?id=15566

 

Koistined, P. A. (1970). The “industrial-military complex” in historical perspective: The inter-war years. Journal of American History, 56, 819-839. 

 

Lorell, M., Lowell, J., Kennedy, M., & Levaux, H. (2000). Cheaper, faster, better? Commercial approaches to weapons acquisition. Santa Monica, CA: RAND.

 

National Geographic. (Producer). (2007) Iraq’s Guns for Hire [DVD]. Available from http://movies.netflix.com/Movie/National-Geographic-Iraq-s-Guns-for-Hire/70144618#height1049

 

Parker, L. (2007). What exactly happened that day in Fallujah?. USA Today, June 10. Retrieved From http://www.usatoday.com/news/world/iraq/2007-06-10-fallujah-deaths_N.htm

 

Risen, J. (2010). Efforts to prosecute Blackwater are collapsing. New York Times, October 20. Retrieved from http://www.nytimes.com/2010/10/21/world/21contractors.html

 

Risen, J (2010). Blackwater reaches deal on U.S. export violations. New York Times, August 20. Retrieved from http://www.nytimes.com/2010/08/21/world/21blackwater.html?ref=blackwaterusa

 

Scahill, J. (2009). US War Privatization Results in Billions Lost in Fraud, Waste, and Abuse-Report. Retrieved from www.commondreams.org website: http://www.commondreams.org/headline/2009/06/10-5

 

Source Watch (2011). Retrieved from: http://www.sourcewatch.org/index.php?title=Military-industrial_complex

 

Shahzad, S. S. (2003). The face of Afghanistan’s resistance. Asia Times Online, August 26. Retrieved from http://www.atimes.com/atimes/Central_Asia/EH26Ag01.html

   

Stiglitz, J. E., & Bilmes, L. J. (2008). Three trillion dollar war: The true cost of the Iraq conflict. New York, NY: W.W. Norton & Company.Stock Information (2011, May 5). Retrieved from

http://ir.halliburton.com/phoenix.zhtml?c=67605&p=irol-stockquotechart

 

Suit against Blackwater in 4 deaths is ended. (2011). Boston Globe, January 26. Retrieved from http://articles.boston.com/2011-01-26/news/29341666_1_jerry-zovko-katy-helvenston-blackwater

 

U.S. House of Representatives, Commission on Wartime Contracting in Iraq and Afghanistan. (2011). At what risk?: Correcting over-reliance on contractors in contingency operations. Retrieved from http://www.wartimecontracting.gov/index.php

 

U.S. House of Representatives, Subcommittee on National Security and Foreign Affairs. (2010). Warlord, INC. Washington, DC: Retrieved from

http://tierney.house.gov/index.php?option=com_content&view=article&id=874:national-security-subcommittee-hearing-are-us-taxpayer-dollars-funding-afghan-warlords-&catid=47:press-archives&Itemid=115

 

Udis, B. (1973). The end of overrun: Prospectus for the high technology defense industry and related issues. The Annals of the American Academy of Political and Social Science, 406, 59-72.

 

Zengrele, P. (2011). Biden: U.S. could stay in Afghanistan beyond 2014. Reuters, January 11. Retrieved from http://www.reuters.com/article/2011/01/11/us-afghanistan-biden-idUSTRE7093S220110111     


 

[1]  Wyatt Merritt is a graduate student in the Department of Criminal Justice at UNLV.  This is a revision of a paper done for a graduate class.