Army May Be Misusing Contractors
• Regulation says commanders can't directly supervise individual civilian contractors; policy prohibits civilians from gathering, analyzing intelligence.

By Leon Worden
Signal City Editor

Tuesday, June 15, 2004

ilitary regulations cast uncertainty on whether the Army is properly handling civilian contract workers in general, and whether they should be used for intelligence gathering in particular.
    John B. Israel, a translator from Canyon Country, and Steven A. Stefanowicz, an interrogator from Philadelphia, are accused of sharing responsibility with their two military commanders for the abuse at Abu Ghraib prison.
    On the ground at Abu Ghraib and elsewhere, civilian contractors "fall in line with the current command structure" and are treated just like regular Army personnel, said Lt. Col. Pamela Hart, an Army spokeswoman in Washington.
    Stefanowicz's employer, CACI International Inc., made a similar statement in a letter to The Signal last week.
    "All CACI employees work under the monitoring and supervision of the U.S. military chain of command in Iraq," the letter said. "CACI employees are monitored and are under direct supervision of the U.S. Army."
    But Army Regulation 715-9, titled "Contractors Accompanying the Force" and approved Oct. 25, 1999, specifies that "contractor employees are not under the direct supervision of military personnel in the chain of command."
    Instead, the regulation says both the Army and the private company are supposed to designate an "on-site liaison" to communicate with each other. The company's liaison then directs the activities of the company's workers.
    "Commercial firms providing battlefield support services will supervise and manage functions of their employees, as well as maintain on-site liaison with functional U.S. organizations," the regulation says.
    Dan Guttman, an expert in government contracting policy at John Hopkins University, likens the situation to hiring a contractor to build a home.
    "If you get somebody to build you a house, you don't tell the (individual) workers what to do," he said.
    The regulation's stated purpose was to set "policies and responsibilities for using contractors on the battlefield."
    An Army spokesperson didn't have immediate answers about the regulation's implementation in Iraq but said, "There is no liaison with command on the practical side of things, from what I've seen."
    Both CACI and the holder of Israel's contract, Titan Corp., are believed to have several management-level employees in Iraq, but their precise role is not known.
    "Our employees are assigned by the military to their postings and are under operational control of the military," Titan spokesman Ralph "Wil" Williams said without elaborating.
    In its letter, CACI said the Army's supervisory capacity at Abu Ghraib has been "exactly as set forth in (CACI's) services contract to the Army, and CACI has carried it out faithfully."
    Guttman said the Army intelligence contracts "may be flat-out illegal."
    "The contractors are supposed to be separated from the work force of the government, not integrated into it," he said.
    Companies like Titan and CACI have become little more than "employment agencies" for the government, Guttman said.
    It happens "all too frequently in government, where we're just hiring bodies" to fill what should be government positions. It's done to avoid accusations of padding civil service payrolls, he said.
    But it's "illegal to have a personal services arrangement," he said. "There's a difference between a contract and an employment relationship."
    Federal regulations identify personal service contracts as an employer-employee relationship between the government and contract personnel where the contractor is "under relatively continuous supervision and control" by a government employee.
    Such relationships are generally prohibited.
    "The government is normally required to obtain its employees by direct hire under competitive appointment or other procedures required by the civil service laws," according to a report in March by the Defense Department Inspector General, who examined a wide variety of military contracts awarded from February to November 2003 for the Coalition Provisional Authority in Iraq.
    The Inspector General found that in 10 of the 24 contracts examined, "contracting officers inappropriately awarded personal services contracts."
    The Inspector General's report said the contracting problems were "primarily attributed to the need to react quickly to the rapidly changing situation in Iraq in early 2003, and that acquisition support was an afterthought."
    Interior Department spokesman Frank Quimby said the Army hired CACI interrogators and intelligence analysts for Abu Ghraib in 2003 under a broader 2001 CACI contract for information technology services because it could be done quickly. The Interior Department manages CACI's Army contract and is conducting its own inquiry to determine whether it was the appropriate mechanism.
    Guttman points to another Army policy indicating that it wasn't.
    In a Dec. 26, 2000 memo, the Army's assistant secretary for manpower and reserve affairs ordered that "the gathering and analysis of intelligence" at the tactical level is "an inherently governmental function barred from private sector performance."
    Civilians aren't appropriate for intelligence field work, Assistant Secretary Patrick T. Henry determined, because value judgments must be made about the information gleaned through interrogation sessions — value judgments that can lead to a military response.
    "Intelligence at the tactical level is integral to the application of combat power by the sovereign authority" and "requires the exercise of substantial discretion in applying government authority," he wrote.
    Henry determined that civilians also should not be used in less time-critical intelligence work, such as training, "on the basis of risk to national security."
    For one thing, their loyalty can be compromised.
    "Private contractors may be acquired by foreign interests, acquire and maintain interests in foreign countries, and provide foreign support to foreign customers," he wrote.
    Henry acknowledged the separateness of contract workers on the one hand, and military personnel and government civil service employees on the other.
    "The contract administration oversight exerted over contractors is very different from the command and control exerted over military and civilian employees," he wrote. "Therefore reliance on private contractors poses risks to maintaining adequate civilian oversight over intelligence operations."
    The only time an exception can be made to the rule, he said, is "where a contractor provides the sole capability for gathering or analyzing intelligence."
    Hart, the Army spokeswoman, said Army intelligence personnel would have been aware of Henry's orders.
    "Anytime the leadership within a field publishes a memo, it's disseminated throughout that field," she said.
    Hart said the shortage of military intelligence personnel in Iraq met Henry's criteria for the exception.
    "If you don't have enough military personnel, there is no alternative but to use the resources available," which means contract employees, she said.
    Guttman disagreed with the justification.
    "CACI plainly didn't have the 'sole capability' (for gathering intelligence)," he said. "CACI put an ad in the newspaper (seeking employees). That isn't a 'sole capability' for anything."
    He said there's a process for deciding to make an exception from an Army rule.
    "You can't have an exception without justification somewhere," he said. "The Department of Defense hasn't told the White House that something that is inherently a government function is being contracted out."
    Henry, in his memo, said making any exception is "predicated on the Army retaining, or growing, a sufficient core capability" to oversee civilian intelligence contractors.
    Hart said the number of graduates who've gone through training to qualify as a "human intelligence collector" at Ft. Huachuka, Ariz., more than doubled from 237 in 2003 to an expected 539 in 2004.