The large contingent of military contractors in Afghanistan and Iraq led many pundits in Congress and the media to briefly call for “insourcing,” or giving these jobs to regular service members, especially after a few high-profile incidents. But such calls overlook the long history of military contractors.
According to many, that history really goes back to the 18th century, when field commanders dispensed with the large number of “camp followers” who accompanied campaigning armies. Prior to then, an “army” in the field might consist of only 10 to 20% soldiers, and the rest were servants, general laborers, and other individuals who made life out in the field, which was very rough, more palatable, especially for officers. Conscription and industrialization in the 19th century reinforced the emerging trend of making soldiers do their own non-combat work.
In the United States, the War Department/DoD began hiring significant numbers of contractors in the 1960s, and their proportion has varied greatly according to the army’s mission. In Vietnam, due to the long-term deployment, contractors accounted for about 16% of the fighting force. Fast forward to the Gulf War, where due to the limited mission and the participation of friendly Gulf State governments, contractors made up less than 2%. Subsequently, about half the American troops participating in the 1990s Balkan peacekeeping mission were contractors, not only because of the long-term deployment, but also to reduce the political fallout commonly associated with peacekeeping missions.
So, large contractor numbers are not really a recent innovation, but rather the continuation of a longstanding trend.
The Rise of U.S. Contractors
Up until Reconstruction following the Civil War, the U.S. government used military contractors in varying degrees, but the proportion usually hovered around 15%. Of course, it is hard to determine how many of these individuals were armed contractors, how many were strictly support personnel, and how many were a mixture of both (e.g. cooks who could also handle guns if the need arose).
Then, on May 4, 1886, the Pinkerton Detective Agency, along with some Chicago police officers, violently suppressed a labor demonstration near the city’s Haymarket Square. Eight people were killed, and the incident is remembered as May Day in many countries.
Subsequently, in 1893, President Benjamin Harrison signed the Anti-Pinkerton Act, a law which targeted the Pinkertons but was broadly interpreted to include any other paramilitary organizations. The law forbids federal employment of any “individual employed by the Pinkerton Detective Agency, or similar organization.”
For the better part of a century, all contractors were pariahs. For example, the American Expeditionary Force in World War I had only 4% contractors, a stark reversal from 19th century conflicts. Contractor percentages began to rise in subsequent decades, as these individuals drove trucks, washed clothes, and performed other pure support tasks.
That changed in 1980, when the General Accounting Office issued a letter that ended the Anti-Pinkerton Act’s broad interpretation. “It, in our belief that a review of the Act’s legislative history. . .leaves no doubt but that whatever may have been the overriding policy considerations leading to enactment of this legislation almost 90 years ago, they do not have much, if any, bearing on the current practice of the Government in contracting for guard services,” according to GAO Special Counsel Milton Socolar.
In 1948, given the increasing use of military contractors, and the growing U.S. overseas presence, lawmakers passed the Defense Base Act. This law gives injured contractors access to the benefits they need to not only recover from injury, but also provide for their families while they are unable to work. However, just because these benefits are available does not mean that the insurance company gives them away.
First, the injury must occur in a war hazard area. In everyday terms, a “war zone” means a place where there is concerted enemy activity and bullets are flying. But for DBA purposes, a war hazard area is essentially any region where there is at least one DoD installation, no matter how big or small it is. Moreover, in some cases, contractors who work for some foreign governments are also eligible for DBA compensation.
Second, the injury must be related to the contractor’s employment. This rule is different from the one in workers’ compensation matters because in that context, the injury must occur at work and during work hours. But for DBA purposes, the victim must only show a nexus between injury and work, so for example, individuals who are ambushed on their way back to the barracks are still eligible for compensation.
Compensation in DBA cases includes money for lost wages and medical bills. Typically, both amounts are calculated from the date of injury, so in many cases, victims are entitled to retroactive benefits. Moreover, injured contractors can pick their own doctors.
To learn more about the compensation available, contact Barnett, Lerner, Karsen & Frankel.