Transparency and Accountability in Military and Security Contracting Act of 2007 - Requires reports to Congress by specified federal officials on information with respect to federal military and security contracts being performed in Iraq and Afghanistan. Requires a separate report from the Secretary of Defense on Department of Defense (DOD) strategy and activities with respect to contractors and subcontractors in support of DOD missions in Iraq, Afghanistan, and the Global War on Terror.
Requires each contract, subcontract, or task order awarded or issued by a federal agency that includes private security functions (covered contract) to require the contractor to provide to the agency contracting officer specified information, including the number of persons to perform the security functions and the hiring and training process for such employees. Requires agency oversight in the performance of the covered contract.
Directs the Chairman of the Joint Chiefs of Staff (JCS) to issue rules of engagement regarding the circumstances under which force may be used by contractor personnel performing private security functions within the area covered by a contingency operation, and the types of force authorized. Provides for: (1) hiring, training, and equipment standards relating to private security contractors; and (2) coordination and communication between U.S. Armed Forces and contractor personnel.
Provides for the legal status of contractor personnel with respect to investigations and prosecution of abuses by private security contractors.
Requires the Federal Bureau of Investigation (FBI), for each theater of operations established in connection with a contingency operation in which contract personnel are carrying out work under a covered contract, to establish a Theater Investigative Unit to investigate allegations of contractor personnel criminal misconduct.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 674 Introduced in Senate (IS)]
110th CONGRESS
1st Session
S. 674
To require accountability and enhanced congressional oversight for
personnel performing private security functions under Federal
contracts, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 16, 2007
Mr. Obama introduced the following bill; which was read twice and
referred to the Committee on Armed Services
_______________________________________________________________________
A BILL
To require accountability and enhanced congressional oversight for
personnel performing private security functions under Federal
contracts, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Transparency and
Accountability in Military and Security Contracting Act of 2007''.
(b) Table of Contents.--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.
SEC. 2. FINDINGS.
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.
SEC. 3. REPORTS ON IRAQ AND AFGHANISTAN CONTRACTS.
(a) Reports Required.--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 Defined.--In 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)).
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.
(a) Report Required.--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
Defined.--In 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.
SEC. 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 functions.--Each 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) Updates of information.--The information provided under
paragraph (1) shall be updated by the contractor during
contract performance as necessary.
(3) Safeguarding information.--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) Accounting.--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 staffing.--Each 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) Oversight.--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) Waiver authority.--
(A) Waiver.--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) Report.--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) Committees of congress.--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) Reports Required.--
(1) In general.--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) Matters covered.--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) Deadlines.--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) Committees.--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) Form.--The report required by paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
SEC. 6. IMPROVED COORDINATION BETWEEN THE ARMED FORCES AND CONTRACTORS
PERFORMING PRIVATE SECURITY FUNCTIONS IN CONTINGENCY
OPERATIONS.
(a) Rules of Engagement.--
(1) Requirement to issue.--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) Notification.--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 rules.--As 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) Regulations.--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) Guidance for equipment.--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 defense.--The 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
officer.--For 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 officer.--The 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 officer.--Each 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.
SEC. 7. LEGAL STATUS OF CONTRACT PERSONNEL.
(a) Clarification of Military Extraterritorial Jurisdiction Act.--
(1) Inclusion of contractors.--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) Definition.--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 Others.--It 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) Report required.--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) Content of report.--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) Form.--The report shall be submitted in unclassified
form, but may include a classified annex.
SEC. 8. FEDERAL BUREAU OF INVESTIGATION INVESTIGATIVE UNIT FOR
CONTINGENCY OPERATIONS.
(a) Establishment of Theater Investigative Unit.--For 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 Unit.--The 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) Resources.--The Federal Bureau of Investigation shall
ensure that each Theater Investigative Unit has adequate
resources and personnel to carry out its responsibilities.
(2) Notification.--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 Agencies.--An 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.
SEC. 9. DEFINITIONS.
In sections 5 through 8 of this Act:
(1) Covered contract.--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 functions.--The 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) Agency.--The term ``agency'' has the meaning given the
term ``Executive agency'' in section 105 of title 5, United
States Code.
(4) Contingency operation.--The term ``contingency
operation'' has the meaning given the term section 101(13) of
title 10, United States Code.
(5) Contractor.--The term ``contractor'' means an entity
performing a covered contract (including a subcontract at any
tier).
(6) Contract personnel.--The term ``contract personnel''
means persons assigned by a contractor (including a
subcontractor at any tier) to perform work under a covered
contract.
SEC. 10. EFFECTIVE DATE.
(a) Applicability.--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) Immediate Effectiveness.--The provisions of this Act shall
enter into effect immediately upon the enactment of this Act.
(c) Implementation.--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.
<all>
Introduced in Senate
Read twice and referred to the Committee on Armed Services.
Sponsor introductory remarks on measure. (CR S12354-12355)
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