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Letter to The Honorable Condoleezza Rice, Secretary of State

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Date:
Location: Washington, DC


Letter to The Honorable Condoleezza Rice, Secretary of State

Biden Questions Grants of Immunity to Blackwater Employees

Chairman of the Senate Foreign Relations Committee, Joseph R. Biden, Jr. (D-DE) sent the following letter today to Secretary of State Condoleezza Rice, asking for specific answers regarding the Blackwater investigation and about the Department's reliance on security contractors in Iraq and elsewhere:

October 30, 2007

The Honorable Condoleezza Rice
Secretary of State
Washington, DC 20520

Dear Secretary Rice:

I write regarding the use of personal security contractors, particularly in Iraq and Afghanistan. Currently, three security firms - Blackwater USA, DynCorp, and Triple Canopy - operate under the "Worldwide Personal Protective Services Program (WPPS)" administered by the Bureau of Diplomatic Security (DS).

The use of these security firms raises serious oversight issues, including the accountability of such contractors, and whether we should expand the ranks of Diplomatic Security rather than continue to rely so heavily on contractors. I appreciate your prompt action to implement several of the recommendations of the panel that you appointed to examine this issue. I would expect that Ambassador Kennedy, who served as the Executive Secretary for the panel, will be questioned on these issues during the hearing on his nomination, scheduled for later today, to be Under Secretary of State for Management.

As the Committee considers this issue, I request that the Department provide information and responses on the following:

1. Duration of the WPPS program/whether to hire more DS special agents. The number of security contractors used by the Department for personal security (not including contractors who provide perimeter security at posts worldwide) is now comparable to the entire contingent of DS special agents worldwide. It is difficult to conclude, however, that this will remain an interim arrangement. The security situation in Iraq has not materially improved. The requirement for extensive personal security to protect the employees of the U.S. mission will continue for several years to come - regardless of the number of U.S. forces in Iraq. Does it make sense, therefore, to continue to consider this a temporary program? In other words, should the Department not examine whether it would be more cost effective, and beneficial to the overall mission, to expand the number of DS agents available worldwide, rather than rely so extensively on contractors? In your judgment, what are the factors relevant to this decision?

In any event, I expect that the Department will need additional DS agents to maintain the level of oversight in Iraq that you have just ordered. Therefore, I encourage you to begin planning to hire additional agents over attrition in the coming years, beginning with the FY 2009 budget.

2. Liability issues. The shooting incident last month involving Blackwater USA has focused increased attention on the question of liability for criminal wrongdoing. Possible gaps in law may make it difficult to prosecute criminal acts. Please answer the following questions:

a. Press reports today indicate that DS agents offered grants of immunity to Blackwater employees after the September 16 shooting incident in Baghdad. Are these reports accurate? If so, who authorized these grants of immunity? Was there consultation with the Department of Justice prior to such grants of immunity?

b. Has the Department, and the Departments of Defense and Justice, examined the status of security contractors in Iraq and Afghanistan under the law of armed conflict? If so, what is their status?

c. Is the United States responsible for ensuring that its contractors (while acting in Iraq) comply with the law of armed conflict? And is the United States responsible for taking disciplinary steps against contractors responsible for violations of the law of armed conflict?

d. To what degree is the War Crimes Act (18 U.S.C. 2441) applicable to contractors who are U.S. nationals?

e. With regard to the broader question of liability, do you agree with the recommendation of your panel that additional laws are necessary to permit prosecution in the United States of criminal acts committed by contractors overseas, whether or not such crimes constitute a war crime? Should such laws also be extended to direct hires (who would usually have immunity overseas)?

3. Oversight and costs of security contractors. The rapid expansion of contracts under the WPPS program raises several issues. I request responses to the following:

a. The Committee has already received data on expenditures under the WPPS contract for FY 2001 through 2006. Please provide information on the amount expended in FY 2007 and projections for FY 2008

b. Have the task orders under WPPS been audited in the last three fiscal years, either by the contracting office, the Office of the Inspector General, or the Special Inspector General for Iraq Reconstruction? Please provide specific information, and copies of any completed audits.

c. What is the annual average cost, per contractor, under the WPPS contract? What is the annual average cost of a DS agent assigned (i) domestically; and (ii) overseas?

d. As contract expenditures have grown under WPPS from $50 million in FY 2003 to $613 million in FY 2006, have there been commensurate increases in the number of personnel in DS and, as appropriate, in the Bureau of Administration, to supervise and monitor the contracts? Please provide specific information about increases in authorized positions during the last three fiscal years, and whether such positions are filled.

4. Oversight of operations/operational impact. Please answer the following questions:

a. What specific mechanisms are in place for the reporting and review of incidents in which weapons are discharged? Are written reports required in each instance? To which office(s) are they submitted? What is the level and scope of the review of these reports?

b. What specific mechanisms are in place for oversight of compliance by the contractors with (i) vetting of personnel; (ii) provision of armor and equipment to the personnel; (iii) operational procedures requiring coordination with Department of Defense elements and with other civilian security personnel?

c. What are the rules of engagement for DS contractors, and how do they compare for the rules applicable to DS personnel, DoD personnel, or DoD contractors engaged in similar duties?

d. What is being done to coordinate those rules of engagement and to foster better communication between DS contractors and DoD in theater?

e. What incidents involving DS contractors under WPPS have led to investigations by DS, OIG, or other entities? Did any of these lead the Department to believe that wrongdoing or negligence had occurred on the part of DS contractors? Did DoD reach different conclusions in any cases?

f. In light of those cases, what approach should be taken to instituting accountability and some means to enforce rules of engagement or rules of conduct, other than just by reassigning, firing, and/or lifting the security clearances of wayward personnel?

g. Section 871 of H.R. 1585 (the National Defense Authorization Act for Fiscal Year 2008), as passed by the Senate, requires the Secretary of Defense to "prescribe regulations on the selection, training, equipping, and conduct of personnel performing private security functions under a covered contract or covered subcontract in an area of combat operations." Paragraph (d)(1) of this section states: "The term 'covered contract' means a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense...." If this section is enacted into law, will it apply to DS contractors? If so, what are the Department of State's views regarding this section?

h. Does your instruction for DS agents to accompany private security details constrain the ability of U.S. diplomats to travel outside of the International Zone? Are there adequate numbers of DS agents available to deploy to Iraq to perform this function? From where would they be drawn?

I appreciate your attention to this request.

Sincerely,

Joseph R. Biden, Jr.
Chairman


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