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elief systems, disconnections between policy theory and “on the ground” reality, and a variety
of legal and regulatory hurdles.
A key aspect of the commander’s ability to control the forces in his theater, uniformed
military or civilian contractor, is the ability to direct available forces to perform the most critical
tasks when necessary. In a combat zone, the performance of critical tasks may involve activities
that constitute or approach “direct participation” in combat. This is not an issue for uniformed
military personnel; every soldier can be made a rifleman when necessary. However, civilians
who directly participate in combat risk becoming illegal combatants under international law,
compromise their potential status as prisoners of war, and potentially become subject to criminal
sanctions. Civilian contractors may find themselves participating directly in combat because
their contract work calls for such action (e.g., certain weapons system or security contractors) or
due to exigent circumstances.
As pointed out in the author’s earlier work, there are a number of issues concerning
contractors in combat scenarios that need to be resolved. Policy developments have addressed
many of these issues in a variety of ways. Progress continues to be made in a number of areas.
Recent developments have not, however, assured that the theater commander has effective
control over contractor personnel in his area of responsibility. Current policy purports to prohibit
direct participation in combat by contractors; but, there seems to be no rigorous method to
ensure that contractors (either as part of contract work or due to exigent circumstances) do not
actually participate in combat. Moreover, the concept of “direct participation” is not fixed in
international law but is still evolving.
This research aims to examine both these areas and, if possible recommend policies
and approaches that will assure that the theater commander and his subordinates effectively
control civilian contractors that support them; and, that only uniformed military personnel will
actually participate in combat. Both “participation” and “combat” itself may be more amorphous
in a war on terrorism than in some other conflicts. A corollary to the commander’s control of the
activities of contractor personnel is the concern that civilian contractors that are exposed to the
risks of combat receive the same force protection, administrative support, and amenities
afforded to soldiers under similar circumstances.
CONTRACT SUPPORT IN COMBAT AND OPERATIONAL DEPLOYMENTS:
1995-2005
Pervasiveness and importance of contract support for operational deployments.
Many recent commentaries on the subject of contract support for combat and other contingency
operations begin with a brief historical reference that goes something like: “Contractors have
always been on the battlefield; George Washington’s army relied on civilian wagon drivers.” 19
Comments such as that do not convey the improvements wrought by adoption of the contract
supply system for the Continental Army nor do they highlight the importance of civilians
(primarily seamen on privateers) in combat during the Revolutionary War. Washington’s wagon
19 For example, a comment to that effect was by made David G. Ehrhart, Brig. Gen. (USAF) at the
American Bar Association Public Contract Law Section’s Federal Procurement Institute held at Annapolis,
Maryland,March 3, 2006 (hereafter cited as FPI/Annapolis). Some commentators also mention the
improvement in supply to the Continental Army after adopting the contract system. See for example,
Ferris & Keithly. (2001, September-October). Outsourcing the sinews of war: Contractor logistics, Military
Review, 72.
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