Is Erik Prince Right? Should We Fight ISIS with Defense Contractors?

Is Erik Prince, the ex-Blackwater CEO, right?  Should the United States use Defense Base Act contractors to fight ISIS?  On his blog for Frontier Services Group, Mr. Prince wrote a post entitled, “Chairman’s Column – Thoughts on Countering ISIS,” which I’ve reproduced in full below:

As someone who spent many years operating in Iraq, Afghanistan, and other underdeveloped countries facing existential security threats, I was recently asked about my reaction to President Obama’s plan for fighting ISIS.

My immediate response is that the President’s current plan seems half-hearted at best. American air power has significant reach and accuracy, but ultimately will be unable to finish the job of digging ISIS out of any urban centers where they may seek shelter amongst the populace. Clearing operations ultimately fall to the foot soldier. The Iraqi army is demonstrably inept after billions spent on training and equipping them. Providing them more gear is a high risk endeavor. When ISIS first attacked, the Iraqi army folded, quickly providing ISIS with five heavy divisions of US weaponry (tanks, howitzers, armored vehicles and even helicopters) and three logistic support units’ worth of equipment and munitions.  The Kurds, once a lean and strong fighting force that routinely rebuffed Saddam’s forces, now find themselves outgunned, under-equipped, and overwhelmed. But they do fight, and they fight bravely. The Kurds’ biggest problem is the US State Department blocking them from selling their oil and from buying serious weaponry to protect their stronghold and act as a stabilizing force in the region.

Unfortunately, the DOD has mastered the most expensive ways to wage war, adding only very expensive options to the president’s quiver. Flying off of an aircraft carrier in the north end of the Persian Gulf may be a great demonstration of carrier air power suitable for a high tempo war, but the costs will quickly become staggering, far higher than they need be for what will quickly become a counter-insurgency effort.

As I explain in my book, “Civilian Warriors: The Inside Story of Blackwater and the Unsung Heroes of the War on Terror,” the private sector has long provided nations around the world with innovative solutions to national defense problems in a variety of ways, from the kinetic to the background logistical support necessary to keep militaries humming. If the old Blackwater team were still together, I have high confidence that a multi-brigade-size unit of veteran American contractors or a multi-national force could be rapidly assembled and deployed to be that necessary ground combat team. The professionals would be hired for their combat skills in armor, artillery, small unit tactics, special operations, logistics, and whatever else may be needed. A competent professional force of volunteers would serve as the pointy end of the spear and would serve to strengthen friendly but skittish indigenous forces.

The American people are clearly war-fatigued. Defeat was already snatched from the jaws of victory by the rapid pullout of US forces in 2009. Afghanistan will likely go the same way after never truly defeating the Taliban. Now the danger of a half-baked solution in Iraq is that if ISIS isn’t rightly annihilated, they will portray their survival as a victory over the forces of civilization; thus, there is no room for half-measures. The longer ISIS festers, the more chances it has for recruitment and the danger of the eventual return of radical jihadists to their western homelands. If the Administration cannot rally the political nerve or funding to send adequate active duty ground forces to answer the call, let the private sector finish the job.

Mr. Prince’s message is simple: defense contractors are the cheaper option for combating terrorists, both financially and politically.  Not surprising, those comments have garnered media attention.  For instance, the Washington Post published at article entitled, “Let contractors fight the Islamic State, Blackwater founder Erik Prince says.”

But is Mr. Prince right?  In my opinion, yes.  And, more likely than not, the United States agrees.  Consider the May 2013 Congressional Research Service report, “Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress,” where the CRS did a good job of explaining the importance of defense contractors:

DOD has long relied on contractors to support overseas military operations.  Post-Cold War defense budget reductions resulted in significant cuts to military logistics and other support capabilities, requiring DOD to hire contractors to “fill the gap.”  Recent operations in Iraq and Afghanistan, and before that in the Balkans, have reflected this increased reliance on contractors supporting U.S. troops–both in terms of the number of contractors and the type of work being performed.  According to DOD data, contractors, on average, represented just over half of the force in the Balkans, Afghanistan, and Iraq.

As of March 2013, there were approximately 108,000 DOD contractor personnel in Afghanistan representing 62% of the total force.  Of this total, there were nearly 18,000 private security contractors, compared to 65,700 U.S. troops.  Over the last six fiscal years, DOD obligations for contracts performed in the Iraq and Afghanistan areas of operation were approximately $160 billion and exceeded total contract obligations of any other U.S. federal agency.

US Jury Convicted Blackwater Contractors of Manslaughter

Today, four United States contractors were found guilty of the manslaughter of a group of unarmed Iraqi civilians.  The contractors, all of whom were former Blackwater employees, were involved in the Nisour Square massacre that occurred in September 2007.  Seventeen Iraqis were killed and twenty were seriously injured.  Additional news coverage can be found through the following links:

Matt Apuzzo, Former Blackwater Guards Convicted in Iraq Shooting.

Dan Roberts, US jury convicts Blackwater guards in 2007 killing of Iraqi civilians.

Spencer Hsu, Victoria St. Martin and Keith Alexander, Four Blackwater guards found guilty in 2007 Iraq shootings of 31 unarmed civilians.

Ben Mathis-Lilley, Jury Convicts Four in 2007 Blackwater Iraq Massacre Case.

Doctors Were Not Entitled to Intervene in Defense Base Act Case at the OALJ

Claimant was injured while working as a linguist in Iraq.  His claim was referred to the Office of Administrative Law Judges (“OALJ”) for adjudication, in part because of a medical payment dispute.  Employer paid some of the medical bills in question after it received itemized statements.  Believing that the disputed medical payment issue was resolved, Claimant and Employer/Carrier submitted Stipulations which outlined Claimant’s injury, medical treatment, entitlement to benefits, and Claimant’s responsibility to provide itemized invoices and statements for medical expenses.  The Administrative Law Judge (“ALJ”) then remanded the claim to the district director at the Division of Longshore and Harbor Workers’ Compensation.

While the parties were resolving their issues, but before the ALJ remanded the claim, two doctors attempted to intervene in the Defense Base Act litigation.  The doctors alleged that they had not been paid for their treatment of Claimant’s work injuries.  After the ALJ remanded the claim, the doctors filed a motion for reconsideration which the ALJ ultimately denied.  Remand was appropriate where only a “billing” dispute existed and the doctors could present their complaints to the district director.  See, e.g., 20 C.F.R. §§ 702.413-414(c).  Thus, the ALJ denied the doctors’ request for reconsideration and attorney’s fees.  The doctors appealed, arguing that they were entitled to intervene at the OALJ level to secure payment of their bills.

The Benefits Review Board disagreed.  There are two types of intervention contemplated by Rule 24 of the Federal Rules of Civil Procedure: an intervention of right and a permissive intervention.  An intervention of right is permitted if the intervenor has an interest in the property or transaction of the litigation which may be impaired and the putative intervenor’s interest is not adequately  represented.  Here, the doctors were not entitled to an intervention as a matter of right.  The parties to the case stipulated that Employer was liable for benefits, thus there was no further factual dispute on that issue.  The doctors did not demonstrate the existence of any additional issues for the ALJ to resolve.  Plus, the ALJ correctly decided that the district director was the appropriate individual to consider payment of the doctors’ fees.

A court may grant the second type of intervention–a permissive intervention–if there is a timely motion, a common question of law or fact with the main litigation, and there will not be any undue delays or prejudice.  Here, the doctors were not entitled to a permissive intervention.  Again, after the parties stipulated that Employer was liable for medical benefits, no remaining factual disputes existed regarding the payment of medical treatment.  Any recourse for the doctors would have to come from the district director.

Younan v. Global Linguist Solutions, BRB No. 13-0594 (Aug. 19, 2014).

Benefits Review Board Accepts Electronic Filings

This following notice is posted on the Benefits Review Board’s home page.

Notice Regarding Availability of Electronic Filing and Electronic Service

All parties to appeals before the Benefits Review Board (BRB) may now use the Board’s Electronic File and Service Request (EFSR) system.  The EFSR portal allows parties to file new appeals electronically, receive electronic service of Board issuances, file briefs and motions electronically, and check the status of existing appeals via a web-based interface accessible 24 hours every day in lieu of paper documents.

The EFSR system is open to any party to an appeal before the Board.  An e-Filer must register as a use and must be validated by the Board before e-filing any document.  An e-Filer will complete an online registration form.  A valid e-mail address is required to register as an e-Filer.  Once registered, an e-Filer will be able to use the EFSR for electronic filing (eFile), which is the submission of forms and documents to the Board through the Internet instead of using postal mail and fax.  After the Board has accepted an e-Filing, it is handled just as it would be had it been filed in a more traditional manner.  e-Filers will also have access to electronic service (eService), which is simply a way to receive documents issued by the Board through the Internet in lieu of mailing paper notices/documents.

Information regarding registration for access to the EFSR system, as well as a step by step user guide and FAQs can be found at: https://dol-appeals.entellitrak.com

If you have any questions or comments, please contact us at: Boards-EFSR-Help@dol.gov

This is great news for Longshore and Defense Base Act cases.  Electronic filing saves costs and time.  The Federal Judiciary has used electronic filing for years via the PACER system.  Immediate docket updating and printing is very helpful for litigation.

The BRB’s e-filing registration process is quick and painless.  You provide contact information, establish a security question, and the confirm receipt of an e-mail from the e-Filing system.  Done and done.