1.Short title; table of
contents
(a)This Act may be cited
as the Transparency and Accountability
in Military and Security Contracting Act of 2007
.
(b)The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Reports on Iraq and Afghanistan contracts.
Sec. 4. Department of Defense report on strategy for and
appropriateness of activities of contractors under Department of Defense
contracts in Iraq, Afghanistan, and the global war on terror.
Sec. 5. Requirements related to personnel performing private
security functions under Federal contracts during contingency
operations.
Sec. 6. Improved coordination between the Armed Forces and
contractors performing private security functions in contingency
operations.
Sec. 7. Legal status of contract personnel.
Sec. 8. Federal Bureau of Investigation investigative unit for
contingency operations.
Sec. 9. Definitions.
Sec. 10. Effective date.
2.Congress makes the following
findings:
(1)United States
Government agencies, including the Department of Defense, the Department of
State, the Department of the Interior, the United States Agency for
International Development, and the intelligence community of the United States
Government, are increasingly relying on private contractors to perform duties,
including the provision of security and other traditionally military and
governmental functions, in Iraq, Afghanistan, and other contingency
operations.
(2)Estimates of the
number of contract personnel in Iraq, including private security contractors,
vary widely. The United States Central Command estimated the number to be
100,000 in 2006, and the Government Accountability Office concluded in 2005
that the Department of Defense (DOD) estimated at least 60 private
security providers were working in Iraq with perhaps as many as 25,000
employees. In March 2006, the Director of the Private Security Company
Association of Iraq estimated that approximately 181 private security companies
were working in Iraq with just over 48,000 employees
.
(3)The various
functions carried out by these personnel have entailed great danger to these
personnel, but exact numbers of casualties are unknown. Estimates suggest that
some 770 contractors have died, and thousands more have been wounded, in Iraq
since 2003.
(4)The multinational
character of private security contracting poses oversight and accountability
challenges. In addition to Iraqi and United States security contractors working
in Iraq, contractors also included citizens from Australia, Chile, Colombia,
Croatia, Fiji, India, Nepal, New Zealand, Nicaragua, Russia, Serbia, South
Africa, Sri Lanka, and the United Kingdom, among other countries.
(5)In June 2006, the
Government Accountability Office reported that private security
providers continue to enter the battle space without coordinating with the U.S.
military, putting both the military and security providers at a greater risk
for injury
.
(6)According to
published accounts and government studies, the assignments being given private
security contractors are often sensitive, including the protection of United
States military bases, interrogation of detainees, maintenance and technical
assistance to weapons systems, logistics and base operations functions, escort
of United States convoys, and protection of key United States Government
personnel.
(7)A recent report
by the Congressional Research Service found that new [Department of
Defense] contracts have characteristics that make oversight
difficult
.
(8)Contractors are
playing an expanded role in the national security operations of the United
States and the manner in which the United States supports its troops in the
field, especially in contingency operations, and therefore contracting
practices and policies must be subject to improved and transparent oversight
and management.
3.Reports on Iraq
and Afghanistan contracts
(a)Not later than 90
days after the date of the enactment of this Act, the Secretary of Defense, the
Secretary of State, the Secretary of the Interior, the Administrator of the
United States Agency for International Development, and the Director of
National Intelligence shall each submit to Congress a report that contains the
information, current as of the date of the enactment of this Act, as
follows:
(1)The number of
persons performing work in Iraq and Afghanistan under contracts (and
subcontracts at any tier) entered into by departments and agencies of the
United States Government, including the Department of Defense, the Department
of State, the Department of the Interior, the United States Agency for
International Development. and the elements of the intelligence community,
respectively.
(2)The companies
awarded such contracts and subcontracts.
(3)The total cost of
such contracts.
(4)The total number
of persons who have been killed or wounded in performing work under such
contracts.
(5)A description of
the military equipment and safety equipment provided for the protection of
contractors under such contracts, and an assessment of the adequacy of such
equipment.
(6)The policies and
procedures through which the departments and agencies of the United States
Government instruct and inform contractors under such contracts of the
applicability of law to their activities under such contracts, including the
laws of the United States, Iraq, and Afghanistan, and other applicable
laws.
(7)The policies and
procedures through which the departments and agencies of the United States
Government monitor contractors under such contracts on their adherence to
applicable law, including the laws of the United States, Iraq, and
Afghanistan.
(8)The laws, if any,
determined to have been broken in the performance of such contracts, including
laws of the United States, Iraq, and Afghanistan, and other applicable
laws.
(9)A description of
the disciplinary actions that have been taken against persons performing work
under such contracts by the contractor concerned, the United States Government,
or the Government of Iraq or the Government of Afghanistan.
(b)Elements of the
intelligence community definedIn this section, the term
elements of the intelligence community means the elements of the
intelligence community specified in or designated under section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
4.Department of
Defense report on strategy for and appropriateness of activities of contractors
under Department of Defense contracts in Iraq, Afghanistan, and the Global War
on Terror
(a)Not later than 180 days after the date of the enactment
of this Act, the Secretary of Defense shall submit to Congress a report setting
forth the strategy of the Department of Defense for the use of, and a
description of the activities being carried out by, contractors and
subcontractors in support of Department missions in Iraq, Afghanistan, and the
Global War on Terror, including its strategy for ensuring that such contracts
do not—
(1)have private
companies and their employees performing inherently governmental functions,
emergency essential activities, or mission critical activities;
(2)place contractors
in supervisory roles over United States Government personnel; or
(3)threaten the
safety of contractor personnel or United States Government personnel.
(b)Emergency
essential activities or mission critical activities definedIn
this section, the term emergency essential activities or mission critical
activities means any activities as follows:
(1)Activities for
which continued performance is considered essential to support combat systems
and operational activities.
(2)Activities whose
delay, absence, or failure of performance would significantly affect the
broader success or failure of a military operation.
5.Requirements
related to personnel performing private security functions under Federal
contracts during contingency operations
(a)Accountability
for Personnel Performing Private Security Functions Under Federal Contracts
During Contingency Operations
(1)Provision of
certain information about personnel performing private security
functionsEach covered contract shall require the contractor to
provide to the contracting officer for the contract, not later than 5 days
after the award of the contract, the following information regarding private
security functions to be performed under the contract:
(A)The approximate
number of persons to be used to perform the private security functions.
(B)A description of
the process used to hire such persons, including the method by which and the
extent to which background checks regarding such persons are conducted.
(C)A description of
how such persons are trained to carry out tasks specified under the contract
relating to such functions.
(D)A description of
each category of activity relating to such functions required by the
contract.
(2)The information provided under paragraph (1) shall be
updated by the contractor during contract performance as necessary.
(3)The head of each agency awarding a covered contract
shall take such actions as are necessary to protect any information provided
under paragraph (1) that is a trade secret, or commercial or financial
information, from disclosure to persons outside the Government.
(4)Each
covered contract shall include the following requirements:
(A)Upon award of the
contract, the contractor shall provide to the contracting officer cost
estimates of salary, benefits, insurance, materials, logistics, travel,
administrative costs, and other costs of carrying out private security
functions under the contract.
(B)Before contract
closeout (other than closeout of a firm, fixed price contract), the contractor
shall provide to the contracting officer a report on the actual costs of
carrying out private security functions under the contract, in the same
categories as provided under subparagraph (A).
(5)Quarterly
reports on staffingEach covered contract shall require the
contractor to submit to the contracting officer on a quarterly basis a report
on the number of personnel performing private security functions under such
contract during the preceding 90 days and on the location or locations in which
such personnel performed such functions.
(6)Before
a covered contract is awarded, the head of the agency awarding the contract
shall ensure that sufficient resources are available to enable contracting
officers of the agency to perform oversight of the performance of private
security functions under the contract, including oversight inspections of
facilities and operations.
(7)
(A)The
head of the agency awarding a covered contract may waive a requirement of this
subsection with respect to a contract in an emergency or exceptional situation,
as determined by the head of the agency. Any such waiver shall be limited to
the requirements that are impossible or impracticable to implement because of
the emergency or exceptional situation.
(B)Commencing 180 days after the date of the
enactment of this Act, and continuing every 90 days thereafter, each head of an
agency who has, during the preceding 90 days, waived a requirement under this
subsection with respect to a covered contract shall submit to the committees of
Congress referred to in subparagraph (C) a report that—
(i)describes each
such waiver by the head of the agency, including the contract involved and the
emergency or exceptional situation that justified such waiver; and
(ii)contains a plan
for bringing each such contract into compliance with the waived requirements as
soon as possible or an explanation of why such waiver needs to be
permanent.
(C)The committees of
Congress referred to in this subparagraph are the following:
(i)The
Committees on Appropriations, Armed Services, Oversight and Government Reform,
and Foreign Affairs of the House of Representatives.
(ii)The
Committees on Appropriations, Armed Services, Homeland Security and
Governmental Affairs, and Foreign Relations of the Senate.
(b)
(1)During a contingency operation, the head of each agency
with any covered contracts in effect shall submit to Congress reports on such
contracts in accordance with this subsection.
(2)Each report required by paragraph (1) shall include the
following information:
(A)Total number of
covered contracts awarded by the agency with respect to the contingency
operation.
(B)The total number of contracting officers
overseeing the covered contracts reported under subparagraph (A).
(C)The most current
information available under subsection (a)(5) with respect to each covered
contract.
(D)The number of
covered contracts awarded since the last report.
(E)The total number
of contract personnel working on the covered contracts reported under
subparagraph (D).
(F)The total value of
awards for covered contracts reported under subparagraph (D).
(G)A detailed
catalogue of activities performed under covered contracts reported under
subparagraph (D).
(3)The
head of an agency shall submit an initial report as required by paragraph (1)
within 90 days after first awarding a covered contract, and shall issue
additional reports thereafter every 90 days.
(4)The
report required by paragraph (1) shall be submitted to the Committees on
Appropriations and Armed Services of the House of Representatives and the
Senate.
(5)The
report required by paragraph (1) shall be submitted in unclassified form, but
may include a classified annex.
6.Improved
coordination between the Armed Forces and contractors performing private
security functions in contingency operations
(a)
(1)Not later than 15 days
after the date on which a contingency operation is initiated, the Chairman of
the Joint Chiefs of Staff shall issue rules of engagement regarding the
circumstances under which force may be used by contract personnel performing
private security functions within the area covered by the contingency operation
and the types of force authorized. Each covered contract shall require contract
personnel to adhere to the rules of engagement issued under this
subsection.
(2)The
commander of the combatant command whose area of responsibility includes the
theater of operations of a contingency operation shall communicate the rules of
engagement for the contingency operation to contract personnel in accordance
with subsection (c).
(3)Exceptions and
special rulesAs appropriate, the Chairman of the Joint Chiefs of
Staff may provide exceptions or special rules in the rules of engagement for
specific contractors.
(b)Hiring,
Training, and Equipment Standards Relating to Private Security
Contractors
(1)Not
later than 30 days after the date on which a contingency operation is
initiated, the head of each agency awarding a covered contract shall prescribe
in regulations minimum standards (appropriate for the agency) for contract
personnel performing private security functions within the area covered by the
contingency operation, including minimum training and certification standards.
The standards may vary based on the duties of personnel, but must address
criminal records, security clearance requirements, and other issues that the
head of the agency determines may lead to security or performance
concerns.
(2)The head of each agency awarding a covered contract
shall issue guidance (appropriate for the agency) on equipment used for private
security functions under covered contracts with the agency, including
appropriate uniforms and levels of body armor and equipment armor, and a
recommended list of re-armorers and weapons and armor manufacturers for
complying with such guidelines.
(3)Consultation
with secretary of defenseThe head of each agency shall consult
with the Secretary of Defense in developing regulations and guidance under this
subsection.
(c)Improved
Coordination and Communication Between the Armed Forces and Contractors
Performing Private Security Functions
(1)Designation of
Theater Security Contract Coordinating OfficerFor each
contingency operation in which contract personnel performing private security
functions are active, the Chairman of the Joint Chiefs of Staff shall designate
a member of the Armed Forces or civilian employee of the Department to act as
the coordinating officer on security contracts in the theater of operations of
such contingency operation. The individual so designated shall be known as the
Theater Security Contract Coordinating Officer
for the theater
of operations of such contingency operation.
(2)Responsibilities
of Theater Security Contract Coordinating OfficerThe Theater
Security Contract Coordinating Officer for a theater of operations of a
contingency operation shall, for such theater of operations—
(A)establish
regulations providing for reliable lines of communications between contract
personnel performing private security functions and the Armed Forces;
(B)maintain a current
database on the contract personnel performing such functions, including their
employing contractors, nationalities, backgrounds, and training, and the nature
of their activities;
(C)communicate the
rules of engagement established under subsection (a) to contractors and
contract personnel performing such functions;
(D)take any actions
authorized by the Chairman of the Joint Chiefs of Staff for purposes of this
subsection to ensure the compliance of contractors in the theater of operations
with the requirements of paragraph (3);
(E)communicate other
critical information, including guidance on Department of Defense
responsibilities for force protection of contract personnel and guidance on
equipment, to contractors and contract personnel; and
(F)as appropriate, communicate up-to-date
information about the security environment that may be relevant to contract
personnel.
(3)Requirements for
contractors relating to Theater Security Contract Coordinating
OfficerEach contractor in a theater of operations of a
contingency operation shall be required to—
(A)register with the
Theater Security Contract Coordinating Officer for the theater of operations
and keep the Officer currently informed on the number, nationality, background,
and training of the contract personnel assigned to perform private security
functions under a covered contract;
(B)report any
incidents in which contract personnel performing such functions use force or
are attacked by hostile forces;
(C)report to the Theater Security Contract
Coordinating Officer any casualties suffered by covered contract
personnel;
(D)communicate to the Theater Security
Contract Coordinating Officer, in accordance with the regulations issued under
paragraph (2)(A), tactical information, such as information on the movement of
contractor personnel performing such functions into and out of a battle space;
and
(E)communicate to the Theater Security
Contract Coordinating Officer relevant information, including intelligence,
reports of hostile activity, or information relevant to military
planning.
7.Legal status of
contract personnel
(a)Clarification of
Military Extraterritorial Jurisdiction Act
(1)Subsection (a) of
section
3261 of title 18, United States Code, is amended—
(A)by striking
or
at the end of paragraph (1);
(B)by striking the
comma at the end of paragraph (2) and inserting ; or
; and
(C)by inserting after
paragraph (2) the following:
(3)while employed
under a contract (or subcontract at any tier) awarded by any department or
agency of the United States Government, where the work under such contract is
carried out in a region outside the United States in which the Armed Forces are
conducting a contingency
operation,
.
(2)Section 3267 of
title 18, United States Code, is amended by adding at the end the
following:
(5)The term
contingency operation
has the meaning given that term in
section
101(a)(13) of title
10.
.
(b)Sense of
Congress on investigation and prosecution of abuses by private security
contractors and othersIt is the sense of Congress that—
(1)if there is
probable cause to believe that an individual assigned to perform private
security functions under a covered contract, any other contractor personnel, or
any contractor has violated
section
3261(a) of title 18, United States Code, except in situations
in which the individual is prosecuted under chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), or under other law, the
Department of Defense should use the authority provided in
section
3262 of title 18, United States Code, to arrest and detain such
individual. personnel, or contractor and transfer such individual, personnel,
or contractor to civilian authorities for prosecution; and
(2)the Secretary of Defense should issue
guidance, as soon as possible after the date of the enactment of this Act, on
how the amendment made by section 552 of the John Warner National Defense
Authorization Act of 2007 (Public Law 109–364; 120 Stat. 2217)
to section
802(a)(10) of title 10, United States Code (article 2(a)(10) of
the Uniform Code of Military Justice), will be implemented.
(c)Department of
Justice Inspector General Report
(1)Not later than 30 days after the date of the enactment
of this Act, the Inspector General of the Department of Justice shall submit to
Congress a report.
(2)The report shall include—
(A)a description of
the status of Department of Justice investigations of abuses alleged to have
been committed by contract personnel performing private security functions,
other contract personnel, or contractors under covered contracts, which shall
include—
(i)the
number of complaints received by the Department of Justice;
(ii)the
number of investigations into complaints opened by the Department of
Justice;
(iii)the number of
criminal cases opened by the Department of Justice; and
(iv)the
number and result of criminal cases closed by the Department of Justice;
and
(B)findings and
recommendations about the capacity and effectiveness of the Department of
Justice in prosecuting misconduct by such contract personnel.
(3)The
report shall be submitted in unclassified form, but may include a classified
annex.
8.Federal Bureau of
Investigation investigative unit for contingency operations
(a)Establishment of
Theater investigative unitFor each theater of operations established
in connection with a contingency operation in which contract personnel are
carrying out work under a covered contract, the Federal Bureau of Investigation
shall establish a Theater Investigative Unit, which shall be responsible for
investigating allegations of criminal misconduct under
section
3261 of title 18, United States Code, by contract
personnel.
(b)Responsibilities
of theater investigative unitThe Theater Investigative Unit established
for a theater of operations shall—
(1)investigate
reports that raise reasonable suspicion of criminal misconduct by contract
personnel;
(2)investigate
reports of fatalities resulting from the use of force by contract personnel;
and
(3)upon conclusion of
an investigation of alleged criminal misconduct, refer the case to the Attorney
General of the United States for further action, as appropriate in the
discretion of the Attorney General.
(c)Responsibilities
of federal bureau of investigation
(1)The Federal Bureau of Investigation shall
ensure that each Theater Investigative Unit has adequate resources and
personnel to carry out its responsibilities.
(2)The Federal Bureau of Investigation shall
notify Congress whenever a Theater Investigative Unit is established or
terminated under this section.
(d)Responsibilities
of other federal agenciesAn
agency operating in a theater of operations in which a Theater Investigative
Unit is established shall cooperate with and support the activities of the
Theater Investigative Unit. Any investigation carried out by the Inspector
General of an agency shall be coordinated with the activities of the unit as
appropriate.
9.In sections 5 through 8 of this Act:
(1)The term covered contract
means—
(A)a prime contract awarded by an agency, if
the work to be performed under the contract includes private security
functions;
(B)a subcontract at any tier under any prime
contract awarded by an agency, if the work to be performed under the
subcontract includes private security functions; or
(C)a task order issued under a task or
delivery order contract entered into by an agency, if the work to be performed
under the task order includes private security functions.
(2)Private security
functionsThe term
private security functions
, with respect to activities carried
out under a covered contract in a theater in which the United States is engaged
in a contingency operation, means any activity as follows:
(A)Any activity for
which personnel are allowed to carry weapons in the performance of the
contract.
(B)The performance
of—
(i)military logistics
for operations;
(ii)maintenance or
arming of weapons systems;
(iii)interrogation of
prisoners;
(iv)convoy
security;
(v)guarding vital
facilities and personnel;
(vi)tactical security
work; or
(vii)local force training.
(C)Any other activity
in support of the contingency operation, as determined by the Theater Security
Contract Coordinating Officer for the theater of operations of the contingency
operation as designated under section 6(c)(1).
(3)The
term agency
has the meaning given the term Executive
agency
in section 105 of title 5, United States
Code.
(4)The term contingency operation
has the
meaning given the term
section
101(13) of title 10, United States Code.
(5)The
term contractor
means an entity performing a covered contract
(including a subcontract at any tier).
(6)The term contract personnel
means
persons assigned by a contractor (including a subcontractor at any tier) to
perform work under a covered contract.
10.
(a)The
provisions of this Act shall apply to the following:
(1)All covered
contracts and all covered contract personnel in which the work under the
contract is carried out in a theater in which the United States is currently
conducting contingency operations.
(2)In the event that
the United States begins new contingency operations, all covered contracts and
all covered contract personnel in which the work under the contract is carried
out in a theater in which the United States is conducting such contingency
operations.
(b)The provisions of this Act shall enter into effect
immediately upon the enactment of this Act.
(c)With
respect to covered contracts and covered contract personnel discussed in
subsection (a)(1), the United States Government shall have 90 days following
the enactment of this Act to ensure compliance with the provisions of this
Act.