The arrest this week of five guards accused in relation to the Nisoor Square incident has served to highlight both the US Attorney’s overwhelming optimism in the face of prosecutable facts, and the alarming indication that, yet again, the Administration and Congress are addressing the symptoms rather than the disease.

You may recall that during an incident in Nisoor Square in September 2007, a Blackwater team tasked with providing security for State Department personnel became engaged in what was described as a prolonged fire fight.  Civilians were killed and injured, diplomatic relations were severely hampered, and fundamentalist Muslim groups worldwide were given new recruiting ammunition.

I have railed at length about the requirement for the activities of the PMCs to be aligned with the diplomatic, political and military intent.  The Diplomatic Security Contract with Blackwater was a clear lesson in how not to do it – the contract placed the lives of State Department personnel at a higher value than anything else, which encouraged Blackwater and other PMCs tasked with their protection to take extreme, mission-attiring action to meet the demands placed upon them.

When Nisoor Square happened, we saw a rush to react by those most proficient at headline grabbing, and yet Congress was unable to enact legislation that was designed to address, even in the short term, the problem.  The legislation did not pass.  In the meantime, the military in Iraq has assumed authority for the PMC operational control, including those supporting the State Department, and the PMCs that were incentivized to act irresponsibly have been brought into the mainstream.

Certainly the conduct that I have deplored in the past I still deplore.  PMCs must act in a manner that is in keeping with the overall mission; they must not antagonise the local population, rather treat them in the same way, or better, than the military does.  PMCs who act negatively recruit supporters for dissidents – these supporters are likely to turn their attention not to the PMC that antagonized them, but to the US and its representatives on the ground, the military.

What does the current state of affairs mean for the future?  PMCs are a matter of fact. The recent paper that suggested turning all responsibility for close protection in active theatres over to the State Department’s Diplomatic Security Bureau appears to have merit, but DS was designed for low to medium threat, not for high threat environments.  Diplomatic Security was not designed for short-term recruitment.  The report’s other alternative, turning the task back to the military, is the appropriate one, particularly as escort tasks in high-threat theatres are not ‘close protection’ or ‘executive protection’ tasks at all – they are fighting patrols conducted under special circumstances.  Having commanded a small organisation on these tasks in Iraq, I speak not from an armchair, but from experience.  Fighting patrols are the business of soldiers and should be overseen through every element of the command chain by soldiers – whether the task remains outsourced or is brought back into the government, it is the military who must retain responsibility and accountability for it.

PMCs may operate where the government does not yet have a role.  Unsurprisingly, Blackwater are seeking to create a naval platform for counter-pirate activity and there are a myriad of PMCs operating in Kenya, South America and other locations protecting oil and other natural resource locations.  The US Government MUST have a system in place for ensuring that the activities of US PMCs are human rights compliant and do not compromise the political and diplomatic intent.  This can only be achieved by Congress passing legislation that addresses the root cause of the problem; enforcing compliance with US criminal law when no other law is in effect.

Prosecuting Blackwater guards is a token gesture – what is required is decisive and effective legislative action.