As the cost involved in raising and maintaining a fighting force in the field has increased exponentially in the last few decades, the number of contractors has increased as well. However, such use is hardly new, as private military contractors have served in key support areas since the Revolutionary War.
General George Washington’s army was about 18% contractors, and that percentage remained relatively constant in the Mexican-American War and in the American Civil War. Most of the men who fought in these engagements were volunteers, and hiring private cooks, quartermasters, medics, and other “camp followers” was much less expensive than giving such duties to fighting soldiers; as a bonus, the “camp followers” also raised moral, because then as now, no one liked KP duty.
Things began to change in the later 19th and early 20th Centuries. Industrialization brought steamships, railroads, and other items that made armies in the field somewhat less dependent on support personnel. At the same time, due to the rise of conscription laws, it became cheaper to draft medics and put uniforms on them, and it also became easier to have soldiers do their own camp chores. So, during the two World Wars, the contractor percentage dropped precipitously. By the time the Vietnam War rolled around, dynamics started changing again, and the contractor ratio went back up to 16%.
The last twenty years have been a mixed bag. American forces in the Gulf War were 2% contractors, largely because of the limited mission (kick Saddam Hussein out of Kuwait) and the presence of forward operating bases in Saudi Arabia. Later that decade, however, the American peacekeeping force in the Balkans was 50% contractors, due to the uncertain mission duration and the relative lack of facilities.
In Iraq, contractors peaked at 15,000+ in 2009, or roughly 50% of the total force. Some served in strictly service roles, while others escorted convoys, protected dignitaries, and provided technical support. For various reasons, a few politicians started talking about “insourcing,” or taking jobs away from contractors and giving them to military servicemembers. But these calls quickly dissipated once the real costs became apparent, and it seems like contractors will serve an important role in the next war, as well.
Armed and Unarmed Contractors
During the early Industrial Revolution, some government agencies employed armed strikebusters to break up labor activists, and not surprisingly, blood was shed. To halt these outbursts, Congress passed the 1893 Anti-Pinkerton Law forbade the U.S. government from using anyone “employed by the Pinkerton Detective Agency, or [any] similar organization.” This law basically codified what was already in practice, which was that military contractors could not be deployed in combat operations and therefore were mostly unarmed support specialists.
Then, after the Fifth Circuit questioned the Anti-Pinkerton Law’s applicability, the government’s General Accounting Office announced in a 1978 decision that private military contractors were not “substantially similar” to the Pinkerton strikebusters, and therefore any such employment contracts were lawful. Because of the inactivity of the late Cold War period, as well as the narrow scope of the Persian Gulf war, the new mandate did not fully take effect until the mid-1990s.
Eligibility for Compensation
A little over 30 years before the GAO opened the private military contractor floodgates, a forward-thinking Congress passed the Defense Base Act. This law provides Federal workers’ compensation insurance benefits that cover lost wages, medical bills, rehabilitation costs, and other out-of-pocket expenses. Although the two systems are rather similar, there are several differences between DBA insurance and workers’ compensation, chief among them is that victims do not have to be injured while they are “on the clock” to receive DBA compensation. So, a contractor who is hurt in a militant attack while he returns to the barracks after a sentry shift has suffered a covered injury. Furthermore, a person does not have to be a U.S. government contractor to receive benefits. Some contractors who work for sympathetic foreign governments are also covered, as are aid volunteers, USO performers, and other unpaid foreign service workers.
Victims must immediately report their injuries to their supervisors; the best practice is to report all injuries whether or not they appear to be work-related because of the DBA’s broad applicability. This initial notice does not need to give many details other than date, location, a brief description of the event, and the nature of the injuries. Later, victims must provide more in-depth formal written notice.
If benefits are not provided voluntarily, and they often are not, there is a full adversarial hearing before an administrative law judge. In addition to reviewing the paper medical records, the ALJ will hear live testimony from witnesses, consider any additional relevant evidence from the parties, and entertain the arguments of counsel. In some cases, victims can appeal these administrative decisions in federal court, although by this time, the parties have often arrived at a fair compromise.
For prompt assistance with a DBA claim, contact Barnett, Lerner, Karsen & Frankel.