United States of America[edit
The Anti-Pinkerton Act of 1893 (5 U.S.C. § 3108) forbade the U.S. government from using Pinkerton National Detective Agency employees, or similar private police companies. In 1977, the United States Fifth Circuit Court of Appeals interpreted this statute as forbidding the U.S. government’s employing companies offering mercenary, quasi-military forcesfor hire. United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 462 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978). There is a disagreement over whether or not this proscription is limited to the use of such forces as strikebreakers, because it is stated thus:
The purpose of the Act and the legislative history reveal that an organization was “similar” to the Pinkerton Detective Agency only if it offered for hire mercenary, quasi-military forces as strikebreakers and armed guards. It had the secondary effect of deterring any other organization from providing such services lest it be branded a “similar organization.” The legislative history supports this view and no other.
In the 7 June 1978 Letter to the Heads of Federal Departments and Agencies, the Comptroller General interpreted this decision in a way that carved out an exemption for “Guard and Protective Services”.
A U.S. Department of Defense interim rule (effective 16 June 2006) revises DoD Instruction 3020.41 to authorize contractors, other than private security contractors, to use deadly force against enemy armed forces only in self-defense. 71 Fed. Reg. 34826. Per that interim rule, private security contractors are authorized to use deadly force when protecting their client’s assets and persons, consistent with their contract’s mission statement. One interpretation is that this authorizes contractors to engage in combat on behalf of the U.S. government. It is the combatant commander’s responsibility to ensure that private security contract mission statements do not authorize performance of inherently governmental military functions, i.e. preemptive attacks or assaults or raids, etc..
Otherwise, civilians with U.S. Armed Forces lose their law of war protection from direct attack if and for such time as they directly participate in hostilities. On 18 August 2006, the U.S. Comptroller General rejected bid protest arguments that U.S. Army contracts violated the Anti-Pinkerton Act by requiring that contractors provide armed convoy escort vehicles and labor, weapons, and equipment for internal security operations at Victory Base Complex, Iraq. The Comptroller General reasoned the act was unviolated, because the contracts did not require contractors to provide quasi-military forces as strikebreakers. Yet, on 1 June 2007, the Washington Post reported: “A federal judge yesterday ordered the military to temporarily refrain from awarding the largest security contract in Iraq. The order followed an unusual series of events set off when a U.S. Army veteran, Brian X. Scott, filed a protest against the government practice of hiring what he calls mercenaries, according to sources familiar with the matter.” Though Scott had filed the protest at the Court of Federal Claims, the court order was the result of other bidders intervening in the case. Scott did not submit a bid, however, when the bidders who did submit a bid tried to protest at GAO, their GAO bid protests were dismissed due to the fact that Scott had filed a case at the court and deprived GAO of further jurisdiction in the matter. Scott’s case had been dismissed at GAO and was eventually dismissed at the court. The court order was in response to one of the legitimate contractors and Brian X. Scott had no role in obtaining that order.
The contract, worth about $400 million, calls for a private company to provide intelligence services to the U.S. Army and security for the Army Corps of Engineers on reconstruction work in Iraq. The case, which is being heard by the U.S. Court of Federal Claims, puts on trial one of the most controversial and least understood aspects of the Iraq war: the outsourcing of military security to an estimated 20,000 armed contractors.