JSOU Report 06-6 One Valley at a Time Adrian T. Bogart III
Joint Special Operations University

and the Strategic Studies Department

The Joint Special Operations University (JSOU) provides its publications to contribute toward expanding the body of knowledge about 

joint special operations. JSOU publications advance the insights and 

recommendations of national security professionals and the Special 

Operations Forces (SOF) students and leaders for consideration by the 

SOF community and defense leadership. 

JSOU is a subordinate organization of the United States Special 

Operations Command (USSOCOM), MacDill Air Force Base, Florida. 

The JSOU mission is to educate SOF executive, senior, and intermediate leaders and selected other national and international security 

decision makers, both military and civilian, through teaching, outreach, and research in the science and art of joint special operations. 

JSOU provides education to the men and women of SOF and to those 

who enable the SOF mission in a joint environment. 

JSOU conducts research through its Strategic Studies Department 

where effort centers upon the USSOCOM mission and these operational 

priorities: 

• Preempting global terrorist and CBRNE threats

• Enhancing homeland security

• Performing unconventional warfare and serving as a conven-

	 tional force multiplier in conflict against state adversaries

• Conducting proactive stability operations

• Executing small-scale contingencies. 

The Strategic Studies Department also provides teaching and curriculum support to Professional Military Education institutions—the staff colleges and war colleges. It advances SOF strategic influence by its interaction in academic, interagency, and United States military communities.

The JSOU portal is https://jsou.socom.mil. 

Joint Special Operations University

Brigadier General Steven J. Hashem, President

Editorial Advisory Board

John B. Alexander

Ph.D., Education

The Apollinaire Group and 

JSOU Senior Fellow

Joseph D. Celeski

Colonel, U.S. Army, Ret.

JSOU Senior Fellow

Gilbert E. Doan

Major, U.S. Army, Ret.

JSOU Institutional 

Integration Division Chief

Thomas H. Henriksen

Ph.D., History

Hoover Institution Stanford 

Univ. and JSOU Senior Fellow

Russell D. Howard

Brigadier General, U.S. Army, Ret.

Director of the Jebsen Center for 

Counter-Terrorism Studies, The 

Fletcher School, Tufts University 

and JSOU Senior Fellow

George Emile Irani

Ph.D., International Relations

Toledo International Center for 

Peace and JSOU Senior Fellow

John D. Jogerst

Colonel, U.S. Air Force

USAFSOS Commandant

James Kiras

Ph.D., History

School of Advanced Air and Space 

Studies and JSOU Associate Fellow

Brian A. Maher

Ed.D., Education

JSOU Vice President

Michael C. McMahon

Lt Colonel, U.S. Air Force

JSOU Strategic Studies 

Department Director

William W. Mendel

Colonel, U.S. Army, Ret.

JSOU Senior Fellow

Alvaro de Souza Pinheiro

Major General, Brazilian Army, Ret.

JSOU Associate Fellow 

Kenneth H. Poole

Colonel, U.S. Air Force, Ret.

JSOU Senior Fellow 

James F. Powers, Jr.

Director of Homeland Security, 

Commonwealth of Pennsylvania 

and JSOU Associate Fellow

Stephen Sloan

Ph.D., Comparative Politics

University of Central Florida

Robert G. Spulak, Jr.

Ph.D., Physics/Nuclear Engineering

Sandia National Laboratories 

and JSOU Associate Fellow

Joseph S. Stringham

Brigadier General, U.S. Army, Ret.

Alutiiq, LLC and JSOU

Associate Fellow

Joseph A. Stuart

Ph.D., Educational Leadership

JSOU Dean of Academics

J. Paul de B. Taillon

Ph.D., International Affairs

Royal Military College of Canada 

and JSOU Associate Fellow

Graham H. Turbiville, Jr.

Ph.D., History

Courage Services, LLC and 

JSOU Senior Fellow

Jessica Glicken Turnley

Ph.D., Cultural Anthropology/

Southeast Asian Studies

Galisteo Consulting Group 

and JSOU Senior Fellow

William S. Wildrick

Captain, U.S. Navy, Ret.

JSOU Senior Fellow
JSOU Report 07-1

The JSOU Press

Hurlburt Field, Florida

2006

Filling Special

Operations Gaps

with

Civilian Expertise

James F. Powers, Jr.
Comments about this publication are invited and should be forwarded 

to Director, Strategic Studies Department, Joint Special Operations 

University, 357 Tully Street, Alison Building, Hurlburt Field, Florida 

32544. Copies of this publication may be obtained by calling JSOU at 

850-884-2764; FAX 850-884-4732. 

*******

The Strategic Studies Department, JSOU is currently accepting written works relevant to special operations for potential publication. For 

more information please contact Mr. Jim Anderson, JSOU Director of 

Research, at 850-884-1569, DSN 579-1569, james.d.anderson@hurlburt.af.mil. Thank you for your interest in the JSOU Press. 

*******

This work was cleared for public release; distribution is unlimited.

ISBN 1-933749-09-1
The views expressed in this publication are entirely those of 

the author and do not necessarily reflect the views, policy

or position of the U.S. Government, Department of Defense, 

United States Special Operations Command, or the Joint 

Special Operations University.
Previous Publications of the JSOU Press

2004–2005 JSOU/NDIA Essays, April 2005

Special Operations Forces Reference Manual, June 2005

Russian Special Forces, August 2005, Graham H. Turbiville, Jr.

The Evolving Requirements of the Canadian Special 

Operations Forces, September 2005, J. Paul de B. Taillon

Operationalizing COIN, September 2005, Joseph D. Celeski

Theoretical Perspectives of Terrorist Enemies as Networks, 

October 2005, Robert G. Spulak, Jr. and Jessica Glicken Turnley

Logistic Support and Insurgency, October 2005, 

Graham H. Turbiville, Jr.

Dividing Our Enemies, November 2005, Thomas H. Henriksen

The War on Terrorism, December 2005, James A. Bates

Coast Guard SOF, February 2006, Gary R. Bowen

Implications for Network-Centric Warfare, March 2006, 

Jessica Glicken Turnley

Narcoterrorism in Latin America, April 2006, 

Alvaro de Souza Pinheiro

The Changing Nature of Warfare, the Factors Mediating Future 

Conflict, and Implications for SOF, April 2006, John B. Alexander

Civil-Military Operations and Professional Military Education, 

May 2006, James F. Powers, Jr. 

Blogs and Military Information Strategy, June 2006, 

James Kinniburgh and Dorothy Denning

2006 JSOU/NDIA SO/LIC Chapter Essays, June 2006

Executive Report, JSOU First Annual Symposium (2–5 May 2006)

One Valley at a Time, August 2006, Adrian T. Bogart III 

Special Operations Aviation in NATO, September 2006, 

Richard D. Newton

Beyond Draining the Swamp: Urban Development and Counterterrorism in Morocco, October 2006, Stephen R. Dalzell


Contents

Foreword ............................................................................. vii

About the Author .................................................................. ix

1. Introduction ...................................................................... 1

2. Candidates, Historical Examples, and Precedents .............. 3

3. Special Operations Skills and Competencies: 

 Defining the Unconventional .......................................... 13

4. The Legal Basis: Can it be done? What are the costs? ....... 19

5. Practical Solutions for Short-Term Use ............................ 33

6. Summary and Conclusions .............................................. 41

Endnotes ............................................................................. 45

vii

Foreword

The Department of Defense (DoD) Total Force, as described by 

former Secretary of Defense Donald H. Rumsfeld, comprises 

active and reserve uniformed military components, civil servants, and government contractors. These categories of professionals constitute our nation’s warfighting capability and capacity. In

support of our congressionally mandated special operations activities and emerging nontraditional, unconventional tasks and requirements, the United States Special Operations Command (USSOCOM) 

is committed to locating, assessing, selecting, developing, and providing the best mix of people equipped with the right skills at the 

precise moment on the battlefield.

Our military history, documented as far back as the 16th century, is rich with stories of civilians on the battlefield. The numerous

vignettes depicting sutlers furnishing commanders with supplies 

otherwise unobtainable is formidable evidence. Similar examples 

exist in every single military operation since the Revolutionary War. 

The categories of support provided at one time or another during 

this century include food, water, laundry, sanitation, shower service, security, recreation, translator/interpreter service, terminal 

and base camp operations, water and power production, livestock, 

medical service support, safecracking, and oil-fire fighting.

The trend is clear: as technology 

advances and battlefield systems

become more complex, the need 

for civilians increases.

The same factors currently driving requirements for civilian 

expertise will eventually drive requirements for skills and competencies beyond those of current inventories of the uniformed service components of USSOCOM. Not since the World War II Office of

Strategic Services has the need for outsourcing specialized expertise 

been greater. The complexities of today’s battlefield, coupled with the

irregular nature of stateless actors/opponents, are the root causes of 

this new, emerging requirement. Unfortunately, as the need for civilian expertise increases, so does their proximity to the fight and their

The trend is clear: as technology 

advances and battlefield systems 

become more complex, the need 

for civilians increases.
viii

risk of direct involvement in conflict. That portends an altogether

legal issue facing commanders at every level.

This monograph posits using civilians to fill emerging, nontraditional, special operations-related skill and competency gaps. It 

should be of interest to government, military, and industry readers 

who would like to learn about existing international law, U.S. law, 

and DoD policy relating to the use of civilians to accompany U.S. 

Armed Forces in general as well as accessing civilian expertise to fill

emerging special operations requirements in particular.

Michael C. McMahon, Lt Col, USAF

Director, JSOU Strategic Studies Department
ix

About the Author

James F. Powers, Jr. is the Director, Office of Homeland Security for the Commonwealth of Pennsylvania and serves as an 

associate fellow with the JSOU Strategic Studies Department. 

He is the coauthor of Civil Affairs: A Function of Command, Military 

Review (U.S. Army Command and General Staff College, 1995) and 

the author of National Assistance and Civil-Military Operations: The 

Gap in Professional Military Education (U.S. Army War College, 1996) 

and Civil-Military Operations and Professional Military Education (Joint 

Special Operations University, May 2006). As a faculty instructor at 

the U.S. Army War College, he authored three core lessons and five

electives: Special Operations, Civil Affairs, Psychological Operations, 

Civil-Military Operations, and Special Operations Case Studies. 

Before his 2001 retirement from active duty as a U.S. Army 

Special Forces colonel, he served as the Director of Special Operations for the U.S. Army War College. Other military duties included 

command of the U.S. Army’s only active duty Civil Affairs battalion 

and various command and staff assignments in the United States, 

Korea, and Germany. Since his retirement, he has served as a Special 

Operations consultant supporting the Assistant Secretary of Defense 

and a program manager and adjunct faculty instructor for the U.S. 

Army War College.

Mr. Powers is a graduate of the University of Alabama (B.A. 

in German), the U.S. Army Command and General Staff College, and 

the U.S. Army War College. He has a Masters of Public Administration (MPA) from Shippensburg University in Pennsylvania. 

Powers: Filling Special Operations Gaps with Civilians 

1. Introduction

The time has come to consider adaptive techniques in accessing the skills and expertise required for special operations 

mission success. This monograph looks at leveraging civilian personnel outside USSOCOM who possess unusual skills that 

can enhance and support special operations-designated activities. It 

also suggests solutions for bringing these uniquely skilled people in 

for a brief period and addresses using technology to aid in locating, 

assessing, managing, and retaining these experts.

Filling existing and emerging special operations-related gaps in 

skills and competencies with civilian expertise affords the most innovative and cost-effective means of mission support while ensuring 

Special Operations Forces (SOF) remain focused on core competencies and congressionally mandated special operations activities. Specific objectives are as follows:

a. Provide an innovative look at leveraging civilian personnel 

outside USSOCOM who possess certain nontraditional, special operations-related skills and competencies.

b. Determine whether current U.S. law and Department of 

Defense (DoD) policy would permit the use of civilians to alleviate, on a temporary basis, recruiting and retention shortages.

c. Provide some practical solutions on how to contract these 

uniquely skilled civilians for a short time period.

d. Provide a discussion on the use of technology to aid in locating/targeting, recruiting, assessing and selecting, developing/training, managing, and retaining these civilians for 

repeated, case-by-case use.

The personnel management systems currently used by the uniformed services will continue to focus on developing the conventional, 

common skills and competencies required for general war against a 

conventional opponent. That is not the case for USSOCOM, which 

has neither the same missions nor skill and competency requirements as the services. The intent of this paper is to suggest ways 

to increase access to the enormous pool of skills and competencies 

available throughout the civilian sector and thus mitigate emerging 

operational risk due to lack of specific expertise. From a mission


JSOU Report 07-1

analysis perspective this dilemma is stated using the following formula: (Required Skills + Competencies) – (Available Skills + Competencies) = Risk.

To accomplish the four objectives, this monograph identifies four

germane areas of interest. Section 2 establishes a frame of reference for the discussion of categorizing civilians, highlights historical 

examples of civilians accompanying/supporting the armed forces, 

and traces the precedent established by President Roosevelt and 

Major General William J. “Wild Bill” Donovan during World War II 

with the Office of Strategic Services (the precursor to the Central

Intelligence Agency). Section 3 provides a general discussion of the 

general skills and competencies required for emerging and future 

special operations activities. Section 4 provides an in-depth discussion of the legal aspects of civilians while accompanying the armed 

forces, some thoughts on the possibility of using civilians to alleviate recruiting and retention problems, and a discussion of some of 

the major concerns of field commanders having civilians supporting

their units. Section 5 suggests some practical solutions for shortterm use as well as using technology for locating/targeting, recruiting, assessing and selecting, developing/training, managing, and 

retaining these civilians for future, case-by-case use.

The author would like to express his sincere gratitude for the 

assistance and advice provided by Colonel W. Hays Parks (U.S. 

Marine Corps, Retired), the legal counsel for International Affairs 

Division, Office of General Counsel, DoD. His enthusiasm for this

project, prior research, advice, opinions, and experience were invaluable. Colonel Parks’ understanding of international law and the implications on the morphing nature of U.S. military policy and doctrine 

towards civilians accompanying the armed forces provided unparalleled insight. 
Powers: Filling Special Operations Gaps with Civilians 

2. Candidates, Historical 

 Examples, and Precedents

Whether military egos accept it or not, there are times when 

the best education, planning, equipment, training, and 

physical prowess simply fall short. Life’s events cannot 

be forecasted. In war, sometimes situations require skills that are 

beyond those of a uniformed force. Notwithstanding recruiting slogans, the military cannot be prepared to do everything, at any place, 

at any time. And it is not about leadership or warrior ethos—it is 

about physics. When mission requirements exceed available assets, 

risk occurs. Leveraging civilian expertise to fill gaps in available special operations skills can afford the USSOCOM an immeasurable 

pool of talent and a wide range of possibilities and reduces the risk. 

The categories of civilians used in this discussion comprise domestic 

and foreign, government and nongovernment, government consulting employees, and consultants and contractors. Section 2 includes 

a discussion of these categories of potential candidates, provides 

historical examples and trends, and highlights some vignettes of the 

Office of Strategic Services.

Using a macro approach, the discussion separates all potential 

civilian candidates into two groups: U.S. legal citizens and foreign 

nationals.1

U.S. Citizens as Candidates

The first group is not only broad but also has complicating legal

implications. Within the group are two categories: a) those currently employed by the Federal Government, hereafter referred to as 

government employees2 and b) those not currently employed by the 

Federal Government, hereafter referred to as nongovernment civilians. The second category is the larger of the two, covering all other 

U.S. citizens, without regard for their particular avocation or how 

they classify themselves. 
JSOU Report 07-1

Government Employees. Establishing a baseline for subsequent discussions, and clarifying what legally constitutes a government employee, 

requires a definition from Title 5 United States Code (USC), section

2105.3 For the purpose of this title, employee, except as otherwise 

provided or when specifically modified, means an individual who is:

a. Appointed in the civil service by one of the following acting in 

an official capacity—the President, a member(s) of Congress

or the Congress, a member of a uniformed service, an individual who is an employee under this section, the head of 

a government-controlled corporation, or an adjutant general 

designated by the Secretary concerned

b. Engaged in the performance of a Federal function under 

authority of law or an executive act

c. Subject to the supervision of an individual named in (a) above 

while engaged in the performance of the duties of his position

d. A DoD employee hired under the provisions of Title 10 USC4

e. An expert and/or consultant—that is, when authorized by 

an appropriation or other statute, the head of an agency may 

procure by contract the temporary (not in excess of 1 year) or 

intermittent services of experts or consultants or an organization thereof.5

Nongovernment Civilians. This category comprises all other legal U.S. 

citizens and potentially affords USSOCOM the largest pool of candidates having nontraditional, unconventional, and/or special operations-enabling skills and competencies. Presented here are terms 

and definitions related to the civilian work force in general.

Government 

employee

Federal employee—civilian employed by a U.S. Government 

department

Expert and consultant—civilian employed by a government 

on a retained and/or contractual basis

Nongovernment 

civilian

Independent contractor/consultant—civilian providing 

services on a contractual basis

Noncontractor/consultant—civilian providing expertise on 

an ad hoc, contractual basis


Powers: Filling Special Operations Gaps with Civilians 

Foreign Nationals as Candidates

The second group is referred to generally as host nation and third 

country nationals.

7 Unlike U.S. citizens, they may not have the legal 

constraints prohibiting contracting. With the current focus on cultural awareness, language, and cross-cultural communications 

skills, there is probably greater need for foreign nationals than U.S. 

citizens.

Historical Examples

Leveraging civilian expertise and having civilians accompany the military during armed conflict is neither a new nor innovative concept.

If current operations are any indication, this concept will not stop 

any time soon. But most of these examples depict civilians performing combat support or combat service support functions vice taking 

a direct part in hostilities. To understand the legal aspects of these 

various roles, one needs to understand State practice—that is, what 

laymen refer to as history. What historians know, and what most 

laymen do not, is that civilians have played a variety of roles in support of military forces, including taking a direct part in hostilities. 

What follows are examples from the 17th century through the reign 

of Saddam Hussein in Iraq:

a. The hired [meaning contracted military] Norwegian armies of 

the 17th and 18th centuries, lacking the necessary organic 

logistical infrastructure to sustain operations, brought 

their own support communities: civilian contractors, wives, 

Independent 

contractor/

consultant

A general rule is that the payer has the right to control or 

direct only the result of the work done by an independent 

contractor, not the means and methods of accomplishing 

the result.

Common-law 

employee

Under common-law rules, anyone who performs services 

for you is your employee if you can control what will be 

done and how it will be done. This is true even when you 

give the employee freedom of action. What matters is that 

you have the right to control the details of how the services 

are performed.6

Statutory 

employee

If workers are independent contractors under the 

common-law rules, such workers may nevertheless be 

treated as employees by statute.


JSOU Report 07-1

children, men, and prostitutes—all essential to sustaining 

the force.8

b. During the American Revolution, General George Washington used civilian wagon drivers to haul military supplies. 

c. During the 19th century, civilian trappers such as Kit Carson 

were hired by the U.S. Army as foragers, scouts, and fighters

in various campaigns.9

d. In 1863, the U.S. Army published General Orders No. 100, 

also known as The Lieber Code (Article 50), establishing the 

legality of civilians accompanying the armed forces.10

e. First Aid Nursing Yeomanry (FANY), formed in 1907 as a voluntary civilian women’s organization, served with the British Special Operations Executive around the world, providing 

planning, intelligence, operations, logistics, research, security, cryptology, transport, and administrative support.11

 f. In 1941 on Wake Island, 1,150 civilian contractors were employed in construction of the U.S. naval base. When Japanese 

forces began their assault in December, the civilian construction workers aided the armed forces in the island’s defense. 

Those civilians captured were treated as prisoners of war, 

whether having taken a direct part in hostilities or not.12

g. The American Volunteer Group, an aviation unit popularly 

known as the Flying Tigers, took a direct part in hostilities 

while under contract to Central Aircraft Manufacturing Company of China. In support of British and American forces, 

they flew combat operations against the Japanese in Burma

and China from 20 December 1941 to 10 July 1942.13

h. Using various resistance groups comprising the indigenous 

Kachin peoples of northern Burma, the Office of Strategic

Services coordinated and contracted these tribes into Allied 

guerrilla units known as the Kachin Rangers.

14

i. The Shetland Bus (World War II) was a fleet of Britishrecruited, Norwegian fishing boats manned by Norwegian

refugees. The refugees were paid a bonus for each trip made 

to Norway to infiltrate or extract British military, Norwegian resistance members, and/or supplies for either. The 

boats and their crews were armed, although their weapons 

were concealed. The crews initially wore civilian clothing, but 


Powers: Filling Special Operations Gaps with Civilians 

subsequently wore Norwegian naval uniforms obtained by 

the British. For all intents and purposes, they were a private 

military company.15

j. By the Korean War, contractors were hired by the DoD to 

stevedore, perform road and rail maintenance, and transport 

troops and supplies. 

k. During the Malaya Emergency, 1948–1960, British-hired 

Borneo headhunters tracked and assisted in hunting down 

units and members of the insurgent Malaya Communist 

Party (MCP). Armed with blowpipes with poisonous darts, 

the headhunters also were used against MCP sentries. These 

Borneo headhunters were private contractors, not members 

of the British forces.16

l. In Vietnam, contractors moved into logistics by providing base 

construction and operations, water, and ground transportation, fuel, and high-tech system maintenance and support. 

m. With the end of the Cold War, outsourcing skills and services 

accelerated in the U.S. and in other nations as governments 

sought a peace dividend by reducing the size of their large 

standing military forces.17

n. During the Persian Gulf War, 9,200 contractors deployed 

in support of the U.S. forces and provided maintenance of 

high-tech equipment, water, food, construction, and other 

services. Serving in crucial combat support/combat service 

support roles during the buildup, deployment and sustainment phases were DoD civilians, civilian contractors, and 

other nonmilitary personnel.18

Before and following the 1991 conflict, there was

interest in improving the “teeth to tail” ratio of 

uniformed combat arms personnel over combat 

support and combat service support. The U.S. Congress mandated increased reliance upon outsourcing within the DoD in lieu of uniformed military 

forces.19

o. The Balkans contingency provided field-testing for new outsourcing techniques via the Logistics Civil Augmentation 

Program whereby civilians performed combat service support 


JSOU Report 07-1

missions. Unfortunately the Balkan contracting experience 

was viewed as a template for future operations, without bearing in mind possible Law of War implications.20

p.	 During the conflict between Eritrea and Ethiopia, 1997–

1998, an Ethiopia-hired Russian private military company 

(PMC) operated Sukhoi-27 Fitter combat aircraft for operations against Eritrea. The Russian PMC provided the aircraft, 

aircrew, maintenance and support staff, and command and 

control personnel to plan the combat missions. The Ethiopian General Staff also hired a number of former Russian 

Army flag officers who directly assisted the General Staff in

planning and executing Ethiopian military operations.21

q. During the Kosovo contingency, Kellogg, Brown & Root Co. 

provided $1 billion worth of logistics support for the military. 

Their contract activities included engineering, construction, 

base camp operations and maintenance, structure maintenance, transportation services, road repair, vehicle maintenance, equipment maintenance, cargo handling, railhead 

operation, water production and distribution, food services, 

laundry operations, power generation, refueling, hazardous 

materials and environmental services, staging and onward 

movement operations, fire fighting, and mail delivery.22

r. When U.S. forces were committed to Afghanistan in 2001, 

civilian contractors played a significant but customary role

maintaining, servicing, and in some cases operating highly 

technical equipment. And the contracting was not confined

to U.S. civilians. As one participant has commented, “You 

cannot buy an Afghan’s loyalty, but you can rent it.”23 Tribes 

aligned with the Taliban regime were hired away to join either 

the Northern or Southern Alliance. In each case, these were 

civilian fighters hired to take a direct part in hostilities against

tribes with which previously they had been allied. They, too, 

were private military companies.24

s. Things took on a different twist following the defeat of Saddam 

Hussein’s government in Iraq during Operation Iraqi Freedom, 2003. Following the defeat of the Iraqi military, coalition 

forces found themselves in the legal role of occupying power. 

And with this role came a new responsibility prescribed in 
Powers: Filling Special Operations Gaps with Civilians 

Article 43 of the Annex to the 1907 Hague Convention IV of 

an occupying power:

The authority of the legitimate power having in 

fact passed into the hands of the occupant, the 

latter shall take all the measures in his power to 

restore and ensure, as far as possible, public order 

and safety while respecting, unless absolutely prevented, the laws in force in the country. ... This 

history is broader than the meaning of what constitutes taking a “direct part in hostilities.” It is offered 

for an appreciation of the overall picture. The experience prompted the DoD to reassess and update 

the role of outsourcing vis-à-vis use of uniformed 

military forces. There were other reasons for a reassessment, including statutory changes that necessitated determining precisely what roles could be 

performed by the private sector.25

The international implications of becoming an occupying power 

eventually led DoD officials to realize that the Law of War had indeed

become a part of the process. Two questions surfaced regarding civilians accompanying the U.S. Armed Forces:

a. To what extent should current military duties be outsourced 

to civilian contractors? As part thereof, what military and DoD 

civilian positions are inherently governmental and therefore 

not to be contracted?

b. At what point would a position that is converted from military to civilian (or civilian contractor) be regarded as taking a 

“direct part in hostilities”? 26

With the transfer of authority for infrastructure buildup passing 

to the Coalition Provisional Authority, the focus within DoD remained 

on military transformation. But when insurgent/ criminal elements 

began targeting foreign civilians and civilian objects, including the 

offices of the United Nations, the International Committee of the Red

Cross, and other private organizations, the focus returned to the 

question of “direct part in hostilities.” 27

DoD policy had to be developed consistent with domestic 

law and U.S. international law obligations, including the 

Law of War. With regard to the latter, a general guide was 
10

JSOU Report 07-1

the Law of War principle of distinction, obligating each government to distinguish between the civilian population and 

combatants.28

Development of DoD policy involved a phalanx of lawyers 

representing a variety of fields of expertise—acquisition law,

personnel law, military justice, international law (Law of 

War, status of forces agreements, and other areas). It necessitated review of existing statutory and treaty law as well as 

relevant regulations. From a Law of War standpoint, State 

practice was essential in suggesting not only how governments had employed civilians in previous conflicts but also

how enemy governments had treated civilians accompanying the armed forces when captured.29

The research and education process necessitated learning 

more about current trends in outsourcing the military. Fortunately, several scholarly works on the issue of outsourcing the military have been produced in recent years.30

Lawyers and others involved in the decision-making process relating to outsourcing would be remiss without this background knowledge. These works and others identified two important trends: 31

a. The practice of outsourcing the military is global rather than 

unique to recent U.S. operations in Afghanistan and Iraq. 

Governments historically have relied upon civilians and civilian contractors and increasingly are turning to outsourcing 

of duties previously regarded as exclusively military.32

b. Trends reported in these scholarly works show that civilian contractors, PMC (sometimes referred to private military 

firms) or private security contractors increasingly are being

employed by governments (ministries of foreign affairs, military departments, and other government agencies), nongovernment organizations, private industry, and the United 

Nations.33

The legal community appears to agree that modern conflicts will

follow the pattern of uniformed forces of a government facing uniformed forces of an opposing government.

I have found no evidence that civilians authorized to accompany the armed forces who took a direct part in hostilities 
11

Powers: Filling Special Operations Gaps with Civilians 

and were captured were denied prisoner-of-war status, 

much less classified as unprivileged belligerents. ... they

may be attacked ... [when] ... taking a direct part in hostilities. But in an international armed conflict, civilians authorized to accompany the armed forces do not relinquish their 

entitlement to prisoner-of-war status if captured.34

The ongoing conflicts in both Afghanistan and Iraq continue to

provide historians and doctrine writers with new vignettes depicting 

creative ways to incorporate nonmilitary civilians into military operations. As creative ideas emerge and become more commonplace in 

field operations, military forces will gain a better feel for former Secretary of Defense Donald Rumsfeld’s description of the Total Force.

35

The Precedent: The Office of Strategic Services (OSS)

There was, however, a World War II organization whose very existence 

and modus operandi were based on a nonstandard, unconventional 

approach to strategic-level tasks for which there was no clear, existing military structure. The OSS, like the British Special Operations 

Executive (SOE), developed profiles required for tasks, then recruited

candidates possessing those qualities desired.

In World War II the OSS was created to provide a variety 

of agents for special, typically covert, tasks—for example, 

undercover activities, creation of propaganda, translation, 

recruitment, and radio operators. General William J. “Wild 

Bill” Donovan employed thousands of officers and enlisted

men seconded from the armed services, and he also found 

military slots for many of the people who came to OSS as 

civilians. U.S. Army [and Army Air Forces] personnel comprised about two thirds of its strength, with civilians from 

all walks of life making up another quarter; the remainder 

was from the Navy, Marine Corps, or Coast Guard.36

The success of the OSS depended on the quality and ingenuity of 

the people it recruited (Rhodes scholars, lawyers, paratroopers, and 

even debutantes). For special skills, safecrackers were sprung from 

prisons. German prisoners of war were even recruited to penetrate 

the Reich.

Seeing war as a nationally supported task led the OSS to analyze 

every aspect of the German war effort. The Research and Analysis 
12

JSOU Report 07-1

Branch made one of its biggest contributions in its support to the 

Allied bombing campaign in Europe. Analyses by the Enemy Objectives Unit, a team of Research and Analysis economists, sent Allied 

bombers toward German fighter aircraft factories in 1943 and early

1944. After the Luftwaffe’s interceptor force was weakened, Allied 

bombers could strike German oil production, which the Enemy 

Objectives Unit identified as the choke-point in the Nazi war effort.

When American bombers began hitting synthetic fuel plants, Ultra37

intercepts quickly confirmed that the strikes had nearly panicked

the German high command. Although the fighting in Normandy that

summer delayed the full force of the oil offensive, in the autumn 

of 1944 Allied bombers returned to the synthetic fuel plants. The 

resulting scarcity of aviation fuel greatly hindered Hitler’s Luftwaffe, 

and by the end of the year, diesel and gasoline production had also 

plummeted, immobilizing thousands of German tanks and trucks.

On 28 September 1945, General Donovan bade farewell to his troops 

in a converted skating rink down the hill from his headquarters.

We have come to the end of an unusual experiment. This 

experiment was to determine whether a group of Americans 

constituting a cross-section of racial origins, of abilities, 

temperaments, and talents could meet and risk an encounter with the long-established and well-trained enemy organizations. ...You can go with the assurance that you have 

made a beginning in showing the people of America that 

only by decisions of national policy based upon accurate 

information can we have the chance of a peace that will 

endure.38

Donovan had demonstrated great skill in accessing a wide variety 

of skilled civilians who could contribute to the military mission. Section 3 specifically addresses special operations.
13

Powers: Filling Special Operations Gaps with Civilians 

3. Special Operations 

 Skills and Competencies:

 Defining the Unconventional

Section 2 dealt with the potential candidates, historical examples of civilians accompanying and supporting military operations, and a brief but pertinent overview of how these lessons 

learned coupled with the need for a strategic-level solution to fill

wartime gaps in unconventional skills culminated in the activation of 

the OSS. This section addresses the most salient questions relating 

to unconventional skills and competencies:

a. What are the critical special operations skills and competencies?

b. Who is the designating authority?

c. Is there a trend based on the last 10–15 years?

d. Do gaps currently exist?

e. How long are these gaps projected to remain?

f. How do we plan for unknown gaps?

In general, the conventional armed forces have designated certain military specialties, based on the required skills and competencies supporting general military operations. But in this nonlinear, 

asymmetric, irregular warfare environment, requirements for nonstandard expertise are beginning to emerge that are not currently 

found within the inventories of the 

uniformed services. When these 

nonstandard and unconventional 

requirements emerge, USSOCOM 

should assume the responsibility 

to provide them based on its charter to provide expertise beyond the 

capabilities of conventional armed 

forces. Since it is difficult to forecast these unconventional requirements, a general assessment needs 

to be performed in an array of categories in order to establish a pool 

of candidates. Notwithstanding our best efforts, we must admit that 

... in this nonlinear, asymmetric, 

irregular warfare environment, 

requirements for nonstandard 

expertise are beginning to 

emerge that are not currently 

found within the inventories of 

the uniformed services.
14

JSOU Report 07-1

we do not know what we do not know—no one knows what gaps in 

skills and competencies will exist in 20 years or beyond.

However, in order to establish a framework for discussion, three 

distinct categories are provided:

a. Those skills and competencies linked to the congressionally 

mandated special operations activities currently defined by

Title 10 USC, section 16739

b. Emerging special operations activity-related skills and competencies for which there exist no USSOCOM service component skill-producing training courses

c. Emerging skills and competencies perceived by the uniformed services as beyond the scope of conventional forces 

and for which there is no uniformed-service specialty, rating, 

or occupational specialty.

The third category raises an interesting question: Does the declaration alone thrust the responsibility upon USSOCOM? Many believe 

so, using the argument that USSOCOM was established to execute 

those missions beyond the capability of the conventional uniformed 

services. Hence the reason for Title 10 USC section 167. Using current and forecasted special operations unit manning levels through 

fiscal year 2011, required core competencies, school matriculation

trends, Operations Tempo, Personnel Tempo, and retention and 

recruiting indicators, one might reasonably derive and validate the 

following assumptions:

a. Current core competencies will remain valid based on wartime operational indicators.

b. Requirements for nonstandard/unconventional skills and 

competencies will continue to emerge as the battlefield

becomes more complicated. 

c. It will not be cost effective to develop, on an ad hoc basis, a 

training course to meet every nonstandard/unconventional 

skill and/or competency requirement. The primary constraints are lack of skilled instructors and time.

d. Nonstandard/unconventional skills do exist in some form 

within the civilian/private sector. Aside from actual combat 

skills (excluding tactical police units), every current military 

specialty is replicated in the civilian sector.
15

Powers: Filling Special Operations Gaps with Civilians 

e. Accessing/leveraging the required expertise residing within 

the civilian sector is a more cost-effective and efficient

method than attempting to replicate it with active duty training courses. 

Category 1

One logical method to ensure coverage of each congressionally 

mandated (Title 10 USC section 167) special operations activity (see 

table, first column) is to directly link them: a) to a specific USSOCOM

service component and force and b) to a service-owned, individual 

skill-producing course/school. 

Tracking and linking each congressionally mandated special operations mission activity directly to a specific USSOCOM service component and further to a force within that component identifies gaps,

capability redundancy, and thus where adjustments are required.40

But an analysis of this type would also surface the requirement to 

provide more specificity to the USSOCOM commander regarding special operations activity No. 10 (e.g., some idea of the unit capability 

and supporting individual skill/competency required).

From both a macro and micro perspective, it is reasonable to 

conclude that the USSOCOM service components have adequately 

prepared both units and individuals for special operations activities 

Special Operations Activity, 

Service and Force

Required Unit 

Capabilities

Supporting Individual 

Skills and Competencies

(1) Direct Action

 Army

 Special Forces

Synergistic 

coordination 

of individual 

skills and 

competencies

Examples: C2, operational 

planning, intelligence synthesis, communications, ground 

tactics, weapons systems, 

construc­tion techniques, 

demolitions and explosives, 

and emergency medical 

procedures

(10) Such other activities 

as may be specified by the 

President or the Secretary 

of Defense

Unknown Unknown
16

JSOU Report 07-1

1 through 9. That has not been the case, however, for No. 10 because 

no activity parameters can be set in advance by those that craft U.S. 

policy.

No. 10 presents a real concern because it exposes a gap in 

USSOCOM’s existing and adaptive human resource system—a 

system that must be capable of rapidly identifying and accessing 

civilian expertise when both conventional and unconventional skills 

are either not available or do not exist in the U.S. Armed Forces. 

Sadly, what occurs most often is an attempt to pit an available asset 

against a mission requirement vs. tailoring the force to the mission 

requirements. True and unbiased mission analysis will produce valid 

requirements. And any attempt to fill a valid personnel requirement

with less than the right person directly affects the mission and adds 

one more constraint. Too easily forgotten is the military planner’s 

mantra: The requirement is the requirement, regardless of what 

is available to fill it. Clearly what is needed is a system facilitating

access to any required skill and/or competency outside USSOCOM 

and DoD (which will be discussed in Section 5).

Category 2

A second category comprises the future capabilities of the uniformed 

services to address emerging battlefield requirements. The ongoing

operations in Afghanistan and Iraq have led the Army to establish 

several working groups chartered to study irregular challenges—that 

is, the challenges outside the normal range of conventional operations and tasks. The charter provides for addressing current U.S. 

Army capacities and recommending initiatives to improve land component effectiveness in addressing the threat. Analyzing every type of 

contingency, these working groups examine capacities and capabilities and identify gaps in coverage. 

The goal is to produce a new set of capacities for which the Army 

must prepare. And this will, in turn, produce a new list of skills and 

competencies. To be sure, these newly defined Army capacities will

include skills and competencies in language training, cultural and 

regional awareness, foreign internal defense, and counterinsurgency 

training and operations. The identification of these required uniformed-service capacities, if approved and incorporated into legislation, may subsequently produce a domino effect within USSOCOM. 
17

Powers: Filling Special Operations Gaps with Civilians 

In essence, the analysis performed by the uniformed services may 

indirectly produce additional special operations activities and thus 

new required skills and competencies.

But can USSOCOM afford to wait until the services decide which 

missions and activities they will undertake and those they will 

declare as a special operations activity simply because the skills, tactics, techniques, and procedures are beyond their current capability? The new capacities required of SOF may generate additional skill 

and competency requirements. When finished with its own analysis,

USSOCOM may too conclude that new and/or greater capacities and 

capabilities are required in one existing special operations activity 

while others remain sufficient.

Category 3

The third category of skills and competencies have yet to reveal themselves—that is, there are few signs and indications as to what they 

might comprise. This category presents the greatest enigma because 

it taunts the professional planner and strategist. There are those 

never-say-die military planners who refuse to give in to uncertainty. 

But the facts remain indisputable—things do occur with no prior 

indications or warnings.

Thus military planners and strategists will inevitably arrive at 

the same nexus of uncertainty. If micro analysis cannot define the

unknowns, perhaps a macro solution is the answer. Rather than 

attempting to determine the myriad of unknown, uncertain, contingent details, why not develop a system predicated on expeditious access to civilian-based skills and competencies? Could it be 

that the lack of individual, service-trained skills and competencies 

presents an opportunity to provide a better and more cost-effective 

solution? Could civilian expertise fill that gap? A reasonable person

would assume that civilians are as experienced in their particular 

vocations as the military personnel are in theirs. 

Civilian-Based Skills and Competencies. Too easily forgotten or taken for 

granted are the inherent skills and competencies of civilians. Civilians 

recruited from nontraditional pools of candidates will be operators of 

some kind, albeit different than fully qualified special operations personnel, but operators in their own fields nonetheless.41
18

JSOU Report 07-1

Attempts to Determine Required Skills and Competencies. There are some 

indications derived from working groups (such as the Army’s irregular challenges previously mentioned) that future force capabilities 

must include the ability to synthesize the cultural and psychological 

profiles of our potential adversaries. The idea of accessing and contracting cultural and social anthropologists, psychiatrists, city managers, bankers, and teachers are neither ill-conceived nor focused 

solely on current events. It reflects the sentiments of many viewing

the current military operations—military and civilians—as necessary for stability and support operations and eventually transferring 

responsibility for operations to host nation civilian authority.

Regardless of how our strategists and planners derive the potential special operations activities, the lists developed from Categories 

1, 2, and 3 will remain incomplete. There will always exist the caveat 

to conduct other special operations activities as determined by the 

Secretary of Defense and the President of the United States.

No national leader—civilian, industry, and/or military—has any 

idea what will be required during the next war, conflict, or crisis.

Is it not prudent then to devote time now on how to acquire the 

unknown skills and competencies once the requirement is known? 

One step towards developing a process for acquiring requisite talent 

is to resolve legal issues associated with the initiative. Section 4 

addresses the legal basis. 
19

Powers: Filling Special Operations Gaps with Civilians 

4. The Legal Basis: Can it be done? 

 What are the costs?

Using the previous discussion of civilian candidates, historical 

examples, and general skills and competencies as a frame 

of reference, this section addresses legal issues affecting the 

concept. In an attempt to dispel any previously conceived notions, it 

is necessary to review some historical and legal myths and popular 

issues. The discussion then addresses the conflict spectrum and its

relevance to the issue, according to the legal community. A discussion of the new DoD Instruction (DoDI) 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces (the “bible” for 

this particular subject), follows. Section 4 concludes with a discussion of whether or not civilians are authorized to temporarily contribute toward alleviating recruiting and retention shortages, followed by 

responses to questions that commanders typically ask.

Although the OSS had success using civilians in World War II, 

the international laws that emerged in its aftermath and some current DoD constraints may hinder USSOCOM from following suit. The 

current conflict in Iraq has surfaced the question: To what degree

may civilians and, in particular, civilian contractors form a part of 

participating military forces? Incredible as it sounds, the role of civilian contractors increased dramatically as the coalition moved from 

the decisive operations phase into the stabilize phase as the occupying power on or about 1 May 2003. The situation has caused the 

DoD to take a long and hard look at the issues raised.42

Historical and Legal Myths

Myths and urban legends abound concerning U.S. and international 

law and military justice. Before stomping through the legal minefield

associated with this issue, it is important to dispel or validate what 

knowledge we think we have. When DoD began its analysis of civilian contractors accompanying the armed forces, it concluded that, 

from a Law of War standpoint, one of the first things that had to be

accomplished was addressing various military, historical, and legal 

myths. Among these myths are:
20

JSOU Report 07-1

a.	 All wars are international armed conflicts.

b.	 Most wars are fought on linear battlefields, some on nonlinear battlefields.

c. Civilians provide only logistics and combat service support 

well behind friendly lines.

d. Civilians accompanying military forces may not be armed.

e. The Law of War prohibits a civilian from taking a direct part 

in hostilities.

f. A civilian accompanying the armed forces who takes a direct 

part in hostilities is an unprivileged belligerent if captured.

None of the above is correct.43

Historical Basis for Protection of Civilians. Beginning with Operations 

Desert Shield/Storm, DoD’s review of the Law of War concluded that 

the provisions have been consistent. Regardless of the pundits and 

their social beliefs, the evidence and legal basis are clear as cited 

below. Civilians who accompany the armed forces in the field are

entitled to prisoner-of-war status. 

Article 50, U.S. Army General Orders No. 100 (1863) (The 

Lieber Code): Citizens who accompany an army for whatever purpose ... if captured, may be made prisoners of war.

Article 13, Annex to Hague Convention IV (1907): Individuals who follow an army without directly belonging to it, such 

as ... contractors, who fall into the enemy’s hands ... are 

entitled to be treated as prisoners of war ....

Article 4, paragraph A(4), Geneva Convention Relative to the 

Treatment of Prisoners of War (1949): Prisoners of war ... 

[include] persons who accompany the armed forces without 

actually being members thereof, such as civilian members 

of aircraft crews ... supply contractors ....

Article 4, paragraph A(5), Geneva Convention Relative to the 

Treatment of Prisoners of War (1949): Members of crews ... 

of the merchant marine and the crews of civil aircraft of the 

Parties to the conflict ....

Article 85, Geneva Convention Relative to the Treatment of 

Prisoners of War (1949): Prisoners of war prosecuted under 

the laws of the detaining power for acts committed prior to 
21

Powers: Filling Special Operations Gaps with Civilians 

capture shall retain, even if convicted, the benefits of the

present Convention.

Article 51, paragraph 3, 1977 Additional Protocol I: Civilians are protected from attack “unless and for such time as 

they take a direct part in hostilities.” 44

The Popular Issues

Assessing the legality ofusing civilians to fill special operations-related

gaps can be a daunting task. Deciding to actually do it presents an 

altogether different challenge when considering public reaction. But 

the general public is usually supportive when the argument, facts, 

and laws are clearly rendered. In this section some pertinent facts 

about civilians working for the Federal Government are provided.

The primary source for the employment and control of all government employees is Title 5, USC. The individual sections having 

applicability to this monograph are too numerous to list here. To 

understand the holistic issue regarding use of civilians, one must 

recognize the supporting and relative aspects of the issue. What follows are the more relative ones:

a. Authority of the President of the United States to run the government

b. Deployment as a condition of the job

c. Government employees with exceptions

d. Direction of Federal employees to perform their jobs.

The Constitution. The President of the United States uses the cabinet heads (each Secretary) to help run the government. In simplistic 

terms, this means that the heads of Federal agencies (including the 

Secretary of Defense) can order any Federal employee to do anything 

that is legal. The employee has the choice to either obey or disobey 

that order by walking out, thus suffering the consequences (e.g., 

firing). He may choose to challenge the order, but will not stand a

chance as long as the order is legal.45

Classification of Federal Employees. All Federal employees are considered Title 5 USC government employees. Although civilians, they are 

referred to throughout Title 5 USC as civilian, federal, and government employees. Civilians hired under specific sections of other titles

(e.g., Title 10 USC) are sometimes referred to as Title 10 employees, 
22

JSOU Report 07-1

but still considered Title 5 USC government employees (as previously 

mentioned in Section 2).46

Deployment as Condition of the Job. As one would expect, uniformed 

military personnel have to deploy when ordered. For the most 

part, civilians do not, says Peter Grier (in “Civilians in Harm’s Way,” 

Air Force Magazine, July 2005). The underlying question here is 

whether government employees are aware of their own employment 

provisions.

DoD civilian employees are not required to go to Iraq or to 

deploy anywhere else they might be in harm’s way, unless 

they have already accepted the possibility of such a deployment as a condition of a job.47

Consultants and Contractors. The same stipulation applies to consultants/contractors if the accepted Statement of Work indicates that 

the job is contingent upon being able to deploy to do the work. The 

terms of the deployment would normally be specifically stated in

clear and unambiguous terms (e.g., to a combat zone to accompany 

the armed forces, to Afghanistan to support the American Embassy, 

and to world-wide locations in order to conduct physical security 

assessments).48

Categories of Duties Performed. The use of civilians to support the 

armed forces is also affected by the category of work performed. 

And the type of work changes in relation to the surrounding circumstances. An example follows.

In consideration of the role of civilians and contractors 

accompanying the military, several problems [have been] 

identified [thru scholarly research]. First, categories of duties

performed by the military are far from static. For example, 

there are three general categories of military duties: combat, 

combat support, and combat service support. Consider the 

role of a U.S. Air Force military policeman. If the individual 

is performing air base law enforcement duties, he or she 

is in a combat service support role. If he is guarding enemy 

prisoners of war, he is in a combat support role. And if he 

is engaged in air base defense, he is in a combat role. Military duties do not always and consistently fall into neat 

boxes.49
23

Powers: Filling Special Operations Gaps with Civilians 

Terminology Conflicts. Were legal terms and categories not enough to 

confuse commanders, DoD discovered that each category of specialists (e.g., personnel law, acquisition law, Law of War, and military 

doctrine writers) use different terminology even when speaking the 

same language. Where the Law of War refers to combatants, noncombatants, civilians who accompany the force, and civilians, the personnel and acquisition law practitioners refer to emergency-essential 

(civilian) personnel, civilian contractors, and positions “inherently 

governmental.”

Where are we on the conflict spectrum?

The Law of War issue of where one is and what one is doing along the 

spectrum of conflict is yet another consideration facing USSOCOM

human resource planners and commanders considering whether to 

use civilians. The legal community generally sees this continuum 

differently than the military where the spectrum is simply bounded 

by peace and war. Whether military doctrine phasing should consider international law implications or ignore it is not germane to 

this monograph, yet worth noting to understand the implications. 

And of course, the international legal community is under no obligation to mirror or follow any nation’s military doctrine or political science tenets. Thus, each instance of a civilian on the battlefield must

be analyzed for all the hidden factors, considerations, and potential 

pitfalls.

The international law community generally sees the conflict

spectrum as broad; see graphic depiction. The range is from peace 

through peace operations, internal conflict (which includes providing what the U.S. terms foreign internal defense (FID) assistance in 

training and providing other assistance to the military of a nation 

faced with an internal conflict) through pre-conflict (i.e., the period

of buildup to participation in an international armed conflict, such

as the U.S. and its coalition partners experienced prior to the 1991 

liberation of Kuwait) into international armed conflict, and eventually returning to peace. In purely strategic terms, there are separate 

phases in an international armed conflict. That is not to say, however, that every operation in the conflict is in the same phase; individual units and individuals within units may be in separate phases 
24

JSOU Report 07-1

along this continuum depending on their specific tasks in relation to

the overall effort underway.

Using recent terminology and the graphic, the first phase involving uniformed forces of one government engaging the uniformed 

forces of another government is termed by the legal community as 

major combat operations.

50 Entitlement to prisoner-of-war status is 

applicable only in this phase of international armed conflict when

the military forces of two or more governments are engaged against 

one another.

However, once the belligerent occupation phase ends, there 

is usually a transition phase in which the State party that 

previously was the occupying power retains forces at the 

request of the new government as part of stability operations. [Such is the new focus on stability and support operations within U.S. military and State Department doctrine.] If 

there remains some instability as the new government takes Desert Shield (1990-1991) POW status Iraq, 1 May 03 Iraq, 28 Jun 04

International Armed Conflict

Peace Military Ops. 

Other Than 

War/ Peace 

Ops.

Internal 

Conflict 

and FID

PreconflictMajor 

Combat 

Ops.

OccupationTransition 

and Stability 

Ops.

Peace

Security threats: banditry, terrorism, insurgency

If the military forces of one State party to the conflict defeat its opponent 

and formally occupy the territory of its former adversary, the belligerent 

occupation phase begins. As indicated earlier, the government assuming the 

role of occupying power assumes new responsibilities under both Hague and 

Geneva law. Civilians supporting the belligerent occupation and assisting 

the occupying power in the lawful discharge of its responsibilities may not 

be regarded as taking a direct part in hostilities in the same sense as they 

might have been during the major combat operations phase.

Used by permission from W. Hays Parks
25

Powers: Filling Special Operations Gaps with Civilians 

hold and assumes its responsibilities, civilians supporting 

the remaining military forces may not be regarded as taking 

a direct part in hostilities in the same sense as they might 

have been during the major combat operations phase.51

Research performed by W. Hays Parks and other notable authorities on this subject have attempted to synthesize the myriad of legal 

documents and opinions and formulate, in clear and concise terms, 

the essence of the issue.

Research of the Law of War and State practice suggests 

answers to several questions. Neither Article 51, paragraph 

3 of Additional Protocol I nor Article 13, paragraph 3 of Additional Protocol II prohibits a civilian from taking a direct part 

in hostilities. If a civilian accompanies the armed forces, he 

or she may be subject to lawful direct attack for such time 

as he or she is taking a direct part in hostilities. ... the issue 

of whether a civilian may be regarded as taking a direct part 

in hostilities must be viewed not only from the standpoint 

of the government employing the civilian but also how the 

civilian and his or her duties may be viewed by an enemy. 

Put another way, were a government to employ a civilian in 

a position or duty previously performed by a soldier, and 

an enemy sniper were to attack that individual, would the 

sniper be subject to prosecution for a war crime for making 

this civilian the object of a direct attack? More importantly, 

would the prosecution be able to sustain its burden of proof 

that a war crime had been committed? 52

Developing U.S. DoD Policy

As indicated by Parks, the process of developing DoD policy was of 

value in gaining clarity on these seemingly ambiguous and arguable 

points; some became clear early in the deliberative process. At least 

at the DoD level, policy-drafters and advisors are not currently looking to substitute civilian employees or contractors in traditional warfighting roles (e.g., infantry, artillery, armor, combat engineers, flying

combat aircraft, or command and control of naval vessels).

To the extent outsourcing is under consideration, it is in support roles, often distant from the battlefield. In the ground
26

JSOU Report 07-1

forces, there is an appreciation that rear area security 

remains a military mission, even on a linear battlefield.53

DoD policy development has centered on several documents. One 

has been promulgated as DoDI 3020.41; another is DoDI 1100.22, 

“Guidance for Determining Workforce Mix” (7 September 2006), and 

its summary follows:

a. Implements policy in DoD Directive 1100.4 for determining the 

appropriate mix of manpower (military and civilian) and private sector support necessary to accomplish Defense missions 

consistent with applicable laws, policies, and regulations.

b. Provides the Manpower Mix Criteria and guidance for risk 

assessments to be used when identifying and justifying activities that are inherently governmental (IG), commercial but 

exempt from private sector performance, and commercial 

and subject to private sector performance. 

c. Provides the Manpower Mix Criteria to designate activities for 

DoD civilian or military performance. Manpower authorities 

shall use the Manpower Mix Criteria to distinguish between 

functions that are IG and commercial. The Manpower Mix 

Criteria also shall be used to identify which IG and commercial functions shall be performed by military personnel and 

which shall be performed by DoD civilian personnel.

d. Provides guidance to support strategic planning and daily 

management of the Defense workforce. By understanding 

the underlying rationale for the workforce mix of an activity, 

Defense officials can assess the risk that manpower shortfalls have on IG responsibilities, readiness, workforce management, and mission accomplishment.

When work may be outsourced. The first issue states when work may

be outsourced. It requires the use of the least costly form of personnel consistent with military requirements and other needs of the 

DoD, while identifying commercial activities that are exempt from 

private sector performance based on the readiness and management 

needs of the DoD.

There are clear distinctions between what a government official or member of the military may do compared to a private sector 

contractor. There are differences as to what may be demanded of a 
27

Powers: Filling Special Operations Gaps with Civilians 

military member and any civilian, whether a government employee 

or a private contractor. DoDI 3020.41 acknowledges that in combat, 

only military forces provide the appropriate authorities and controls 

(command and discretion­ary decision authority), discipline, weapons, equipment, training, and organization to execute combat missions on behalf of the U.S. Government.54

How work may be outsourced. The second issue explains how work 

may be outsourced once the when has been decided. It provides 

greater elaboration of longstanding DoD practices as to processing 

DoD civilian employees and private sector contractors prior to their 

deployment into a theater of operations, to include Law of War training. It prohibits a civilian (whether a Federal Government employee 

or private contractor) from possessing a privately owned firearm or 

ammunition. A weapon for personal self defense may be issued to 

either category of person only upon the express approval of the combatant commander and satisfaction that the person can handle the 

weapon safely and responsibly. DoDI 3020.41 also states that “contractors shall be used cautiously ... where major combat operations 

are ongoing or imminent.” 55

The approach taken by DoDI 3020.41 is conservative towards 

outsourcing. Many duties that may be regarded as taking a direct 

part in hostilities are restricted due to necessities for their performance by uniformed military personnel. (The details of DoDI 3020.41 

are worthy of further study and analysis and far more complex than 

this summary.) Issues such as these have been under scrutiny and 

analysis by the DoD for at least the last 2 years. Examining exactly 

what constitutes “direct part in hostilities” raises many questions 

without necessarily providing all the answers.56

While DoD analysts have reached their own conclusions, other 

scholars and analysts sought different approaches. Dr. Robert 

Spulak, director of Strategic Studies at Sandia Labs posits: “Since 

these nontraditional recruits will be operators of some type, participating in military missions and potentially placing their lives at risk 

and engaging the enemy, they must become military personnel.” 57

Many others indeed share this same view. 

The difference between DoD and outside researchers seems to be 

in the details—the use and definition of the word operator. Although 

civilians most assuredly will arrive fully qualified in their selected field
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JSOU Report 07-1

and may even be referred to by their employer as true operators, the 

term and definition are not mutually shared by DoD. As previously

mentioned, the term operators generally implies a person holding an 

inherently government position for which participation in hostilities 

may be required. Secondly, these civilians may not all be operators 

in either sense. Some skill/expertise requested by USSOCOM may 

comprise scientific skills and competencies. In these cases, use of

the term operators would seem inappropriate. 

Alleviating Recruiting and Retention Shortages

An ancillary issue of the monograph was to determine the feasibility 

of USSOCOM alleviating certain recruiting and retention shortages 

with civilian expertise. Although much has changed since the days 

of the OSS and more legal constraints exist today than in World War 

II, the question is still moot.

Recruiting shortages implies a lack caused by insufficient candidates to fill entry level special operations positions (usually grades E-5

and O-3). The intent of this question is to determine whether civilians 

can be used temporarily to fill those vacant operations positions.

Retention shortages implies a lack caused by departure of 

trained personnel in special operations-coded positions from either 

USSOCOM or the uniformed-service components. The intent of this 

question is to determine whether civilians can be used temporarily to fill those vacant operational positions (e.g., either a position

vacant due to personnel departing military service or to a position 

vacant due to the incumbent assuming a higher position within the 

system—i.e., promoted to a higher grade). In these cases, filling the

vacated position would appear to be more difficult than filling an

entry level position.

Recruiting and retention herein refer solely to uniformed military 

(not civilian) positions; civilians filling designated government civilian positions is beyond argument. Secondly, the intent of the law 

stated previously and the direction provided in DoDI 3020.41 do not 

permit filling inherently governmental functions (positions) with civilians. DoDI 1100.22 now completes the picture. We now understand 

how current law and the other DoDI affect this issue. The effects on 

USSOCOM and its potential ability to use civilians to fill the aforementioned positions are indicated here:
29

Powers: Filling Special Operations Gaps with Civilians 

a. USSOCOM comprises units having both operational and support functions.58

b. USSOCOM units can be categorized by type, based on their 

intended purpose, as combat arms, combat support, and 

combat service support.

c. The intent of DoDI 3020.41 is to provide for and facilitate 

civilian contractors accompanying the armed forces in other 

than combat roles and functions; it does not endorse civilians 

fulfilling combat roles.

d. DoDI 110.22 requires the uniformed services and USSOCOM 

to designate which functions are to be coded as inherently

governmental functions.

e. Inherently governmental functions require the use of uniformed military personnel. Thus, functions not designated as 

inherently governmental are authorized for fill by civilians.

Commander’s Concerns

Now that DoDI 110.22 has been published, commanders will likely 

ask two key questions at the center of this issue and relevant to their 

current and future operations:

a. What is the legal status of these civilians accompanying my 

force?

b. By what process do I hold them accountable for their 

actions?

Regarding international law and legal status, DoDI 3020.41 specifically states:

Under applicable law, contractors may support military 

operations as civilians accompanying the force, so long as 

such personnel have been designated as such by the force 

they accompany and are provided with an appropriate identification card under the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War (1949). 

If captured during armed conflict, contingency contractor

personnel accompanying the force are entitled to prisonerof-war status.59
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JSOU Report 07-1

Regarding the effect of host nation (HN) and third country (TCN) laws, 

DoDI 3020.41 states:

Subject to the application of international agreements, contingency contractor personnel must comply with applicable 

HN and TCN laws. They may be hired from U.S., HN, or 

TCN sources. Their legal status may change depending on 

where they are detailed to work by their employer under the 

contract. DoD component commanders shall ascertain how 

HN and TCN laws may affect contract support, to the extent 

feasible, and consider any limiting factors in both deliberate 

and crisis action planning and in the development of applicable contracts, in coordination with their planners and 

contracting officers and with the assistance of the servicing

legal office. Limiting factors may include workforce and hour

restrictions; medical, life, and disability insurance coverage; 

taxes, customs and duties; cost-of-living allowances; hardship differentials; and danger pay.60

Regarding the right to inherent self defense, DoDI 3020.41 states:

Contingency contractor personnel may support contingency 

operations through the indirect participation in military 

operations, such as by providing communications support, 

transporting munitions and other supplies, performing 

maintenance functions for military equipment, and providing security services according to subparagraph 6.3.5 and 

logistic services such as billeting and messing. Contingency 

contractor personnel retain the inherent right of individual 

self-defense as addressed in subparagraph 6.3.4.61

Accountability. The issue of contractor accountability will continue to 

draw attention from both the media and military. How that accountability is handled will receive even greater scrutiny, but these isolated 

instances of misconduct are to be expected. It would be unreasonable 

to expect otherwise. Armed conflict affords the unscrupulous many

opportunities; it does not solely attract the honorable. In addition, as 

new cases emerge, international legal bodies will review existing policies and jurisdictional authorities to determine whether development 

of new policies and laws are required to ensure civilians who commit 
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Powers: Filling Special Operations Gaps with Civilians 

crimes—and in particular, violate the Law of War—are brought to 

justice. 

The five questions and answers that conclude this section were

derived from interviews with military legal advisors familiar with 

these issues. They offer insight into the thought process regarding 

accountability of contractor actions when accompanying the armed 

forces.62

Q: How does the military legal community generally view these 

violations of the Law of War?

A: General DoD policy is that the requirement for order and discipline of the U.S. Armed Forces outside the U.S. extends 

to civilians employed by or accompanying the U.S. Armed 

Forces, and that such persons who engage in conduct constituting criminal offenses shall be held accountable for their 

actions as appropriate. Such civilians remain subject to U.S. 

laws and regulations and must also comply with applicable 

host nation and third country national laws (subject to the 

application of international agreements).63

Q:	 Can contracts be written to ensure the contracting firm and/

or its subcontractors are considered to be subject to the laws 

under 10 USC (Uniform Code of Military Justice)?

A: Congress creates and establishes Federal criminal jurisdiction. Parties to a contract may comment on their understanding of the applicable existing Federal laws in the contract, but 

contracting parties cannot create Federal criminal jurisdiction over citizens. The creation of Federal criminal jurisdiction 

rests with the empowered sovereign state and its legislative 

branch (not private corporations, Federal agencies, or departments of the sovereign state). 

Q: Since the contractors are civilians, why not refer the charges 

to the DoD Contracting Office and deal with them either

through the host nation channels or U.S. civilian laws?

A: For minor offenses, alternative administrative measures 

may be sufficient—for example, loss of security clearance

or employment, removal from the country, barring from any 

future employment associated with the Federal Government 

or its contractors, and hiring provisions by the contractor 

that result in forfeiture of pay. The requirements of good 
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JSOU Report 07-1

order and discipline (e.g., deterrence, protection of other persons and property, accountability for wrongful conduct, and 

U.S. setting the example for the host nation) demand workable solutions for exercising criminal jurisdiction and imposing punishment on accompanying or employed civilians who 

engage in misconduct that would constitute felony offenses 

within U.S. territory. The U.S. Federal Government cannot 

overlook the impact of felony offenses.

Q: If none of the relevant parties to the act (e.g., U.S., HN, and 

TCN) lists the act as a chargeable offense, what needs to be 

done?

A: If the conduct does not constitute a violation of U.S. Federal criminal law or the criminal law of any applicable foreign 

country where the conduct occurred, a criminal act probably does not exist. If the conduct is considered improper 

or bad judgment with adverse consequences but not criminal, administrative measures may be a satisfactory course of 

action. 

Q: Does the new DoDI 3020.41 address any solutions for these 

emerging violations? 

A: Yes, to some extent. However, DoDI 5525.11 (3 March 2005) 

implements the policies and procedures resulting from the 

Military Extraterritorial Jurisdiction Act and is more instructive on the specific issue of criminal jurisdiction.64

Having considered a number of legal issues in the hiring of civilians to fill military needs, Section 5 offers some solutions for finding

and recruiting skilled civilian personnel. 
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Powers: Filling Special Operations Gaps with Civilians 

5. Practical Solutions for 

 Short-Term Use

Presenting background data, the general nature of special 

operations-related skills and competencies, and an overview 

of pertinent international and domestic legal statues/policy 

directives is of course easier than providing a solution. However, 

depending on the method selected and human resource systems 

used, USSOCOM could begin accessing skilled civilians immediately. 

Presented in this section are some practical solutions and courses 

of action for leveraging current technology to target, locate, market, 

recruit, assess, manage, train, and retain these nonstandard specialists in support of SOF.

Existing Human Resource Management Systems. Within the U.S. Government, there are two entities by which USSOCOM can set this concept 

into motion—that is, develop a synergy otherwise not attainable:

a.	 The Office of Personnel Management

b. The human resource/personnel commands of the uniformed 

services.

Office of Personnel Management (OPM). In simple terms, the OPM is 

the government’s human resource and personnel services agency—

the locator, marketer, recruiter, assessor, and manager of talent.

OPM works with the President, Congress, departments 

and agencies, and other stakeholders to implement human 

capital policies that assist Federal agencies in meeting 

their strategic goals. The implementation is accomplished 

by recruiting citizens to Federal service, by serving as the 

main portal for employment information, and connecting job applicants with Federal agencies and departments. 

OPM connects people and their skills and talents to Federal 

agencies that need specific human resources and provides

these agencies with policies and guidance that enable them 

to capitalize on these skills and talents.65

Human Resource/Personnel Commands of the Uniformed Services. The 

uniformed services perform their human resource functions through 
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JSOU Report 07-1

organic recruiting and management commands/ centers. Each has 

the responsibility to identify, recruit, assess, and manage personnel. 

Thus each could serve as surrogate recruiters to identify and recruit 

potential candidates for USSOCOM.66 Two that are often forgotten 

yet also sources for highly skilled candidates are the Public Health 

Service and the commissioned officer corps of the National Oceanographic and Atmospheric Administration. 

Solutions/Courses of Action (COA)

The solutions/COA derived for this concept produced both short- and 

long-term categories—that is, some ideas, although valid, would take 

longer to implement than others. While the focus here is on some 

potential solutions for short-term use, each can be used to effectively 

sustain the program indefinitely. In addition, each solution provides a

different degree of control and oversight and addresses the marketing, 

recruiting, assessment and selection, vetting, training, maintenance 

of skills, and retention functions. The best solution for USSOCOM 

may even be a hybrid of those depicted. The commonalities of all COA 

are provided first, followed by the recommended COA.

Concepts Common to All COA. There should exist, at the DoD level, a 

primary point of contact to provide oversight, ensure standardization across the uniformed Services, interface with other DoD and 

U.S. Government agencies, and deconflict legal and other potential

issues. This focal point should be the Assistant Secretary of Defense 

(ASD) for Special Operations/Low Intensity Conflict, who provides:

Overall supervision of Special Operations (SO) and Low 

Intensity Conflict (LIC) activities of DoD, including oversight

of policy and resources. Principal civilian advisor to Secretary of Defense on SO/LIC matters.67

As the primary point of contact, the ASD (SO/LIC) would monitor 

all public relations aspects of candidate recruiting, but would defer 

to USSOCOM and its service component commands for handling specific queries, assessment and selection, vetting, clearances, training,

management, and retention issues.68 This focus could be managed 

within USSOCOM by a Special Operations Human Resources Directorate (SOHRD) vice the current Special Operations J1 staff directorate that exists to perform joint personnel management and plans, 
35

Powers: Filling Special Operations Gaps with Civilians 

not individual service-specific management policies and procedures

as depicted herein.69

Once approved, USSOCOM service components would forward 

vetted/approved candidate applications to USSOCOM SOHRD for 

contracting via OPM or the ASD (SO/LIC). Once contracted, SOHRD 

would then execute the normal personnel management process (e.g., 

medical care, post-contract medical care for injuries/conditions 

incurred during the contract, pay, weapons status, shots, and trainup period). 

Use of Technology for Locating, 

Assessing, Managing, and Retaining

The physical and mental techniques and systems used by the OSS to 

identify, recruit, and assess men and women are no less sound today 

than during World War II. Although today’s technology affords the 

Internet and vast arrays of databases upon which to draw information, 

the physical process of face-to-face meetings cannot be overstated. 

Equally important are the budgetary and manpower constraints 

placed on USSOCOM and the uniformed services. From a cost-benefit

perspective, why should USSOCOM develop a new system? Why not 

leverage the knowledge and systems used by marketing and recruiting experts to identify highly talented civilians? Unless there are 

underlying reasons for creating and managing such a system within 

the confines of USSOCOM, why not let the experts do it?

COA 1 OPM administers and DoD—ASD (SO/LIC)—monitors program 

to ensure standardization across the services; USSOCOM provides 

assessment and selection system to identify approved candidates for 

contractual hire by OPM.

COA 2 DoD—ASD (SO/LIC)—oversees program to ensure standardization 

across the uniformed services. USSOCOM administers the entire 

program through its service components.

COA 3 DoD—ASD (SO/LIC)—provides oversight of program to ensure 

standardization across the uniformed services but outsources the 

marketing, recruitment, application, and database functions process to 

a civilian company specializing in personnel services (prime contractor). USSOCOM provides assessment and selection system to identify approved candidates for contractual hire by the prime contractor.
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JSOU Report 07-1

Targeting, Locating, Marketing, and Recruiting. Targeting and locating 

potential candidates for any job is difficult. Marketing and recruiting are less cumbersome once the target audience has been defined.

Every organization desires bright, innovative, creative people. Given 

the strengths of professional agencies used to locate creative talent, 

USSOCOM should consider both the U.S. Government (OPM) and 

outsourcing to locate, market, and recruit. The start-up costs—time, 

effort, and resources—would greatly hinder USSOCOM from taking 

on this task with the same degree of expertise currently exercised by 

either OPM or civilian headhunting/personnel services firms.

Assessing, Selecting, and Training. At the heart of this concept is a 

USSOCOM assessment and selection program—the key to culling the 

potentials from the risks. Although USSOCOM currently has and executes rigorous, service-specific selection and assessment programs,

the one proposed in this concept is of another type—nonmilitary. 

USSOCOM and its service components will develop an assessment 

and selection program unlike any currently used because they will 

not necessarily be looking for a candidate possessing the same 

degree of physical stamina and ability as current service members. 

Like the OSS, they will have to adjust their assessment tools to find

the desired skills and competencies. Rather than start from scratch, 

USSOCOM should learn from the OSS recommendations after analyzing its own procedures and adjudged defects:

At the end of their report on the OSS program, Assessment 

of Men, the OSS staff gave recommendations that they hoped 

would remedy some defects of the assessment programs as 

practiced in the OSS .... While the recommendations were 

formulated as definite rules, they were no more than a set

of hypotheses to be tested in the planning and operating of 

hopeful subsequent assessment centers.

1. Select a staff of suitable size and competence, diversified

in respect to age, sex, social status, temperament, major 

sentiments, and specific skills but uniform in respect to a

high degree of intellectual and emotional flexibility.

2. Before designing the program of assessment procedures, 

conduct a preliminary study of the jobs and job holders of 

the organization.
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Powers: Filling Special Operations Gaps with Civilians 

2.1 Make an adequate functional analysis of each of the 

roles for which candidates are to be assessed, as well as an 

analysis of the environments in which each role must be 

fulfilled.

2.2 Obtain from members of the organization a list of personality attributes that, in their opinion, contribute to success or failure in the performance of each role.

2.3 After a careful survey, analysis, and classification of the

information obtained by these observations and interviews 

(recommendations 2.1 and 2.2), make a tentative list of the 

personality determinants of success or failure in the performance of each role. These determinants will constitute the 

variables which, if possible, will be measured by the assessment procedures.

2.4 Define, in words that are intelligible to members of the

organization, a tentative rating scale for each personality 

variable on the selected list and for the overall variable, Job 

Fitness.

2.5 Devise a satisfactory system for appraising the performance of members of the organization both at this time and 

later.

2.6 Obtain appraisals of a properly distributed sample of 

the present members of the organization.

2.7 Examine the defects of the appraisal system as revealed 

in practice (recommendation 2.6) and correct these by 

revising, where necessary, the lists of variables, definitions,

rating scales, or other elements.

2.8 Obtain the figures necessary for a brief numerical statement of the personnel history of the organization over the 

last 4 or 5 years.

3. Design a program of assessment procedures that will 

reveal the strength of the selected variables; for assessing 

these variables, set up scales that conform to the rating 

scales defined for the purpose of appraisal.

4. Build a conceptual scheme in terms of which formulations of different personalities can be made.
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JSOU Report 07-1

5. Assess candidates for a long trial period without reporting ratings for decisions to the organizations.70

Managing. Depending on which course of action USSOCOM selects, 

OPM, USSOCOM (SOHRD), or the selected civilian headhunting/

personnel services firm could manage approved candidates. Of the

two governmental agencies, OPM is better-suited because it is operating and functionally designed to perform the management function; USSOCOM would have to further structure (e.g., establish a 

human resource department). The livelihood of civilian firms likewise depends on their ability to identify, target, recruit, and manage 

candidates. This strength, like that of OPM, would place them in 

a better position to perform this function than any newly created 

human resource department within USSOCOM.

Retaining. The human resource department of an organization also 

typically focuses on cultivating the candidate’s desire to continue. 

Every unit within USSOCOM will share this co-responsibility because 

that is where the sense of belonging and desire to continue will be 

instilled. Where there is no support and sense of camaraderie, there 

will be no desire. Regardless of how USSOCOM chooses to manage 

its civilian, nontraditional, nonuniformed warriors, it bears responsibility for cultivating a sense of teamwork. In reality, both parties 

need each other.

The Final Suggestion: Research and Analysis Branch. Inclusive to this 

concept of contracting for civilian expertise, USSOCOM might 

also consider resurrecting a concept used by the OSS referred to as 

the Research and Analysis Branch. This branch would comprise a 

council of strategic advisors, brought together when required under 

a Strategic Research and Analysis Branch of the USSOCOM Director of Intelligence. As civilians they would be unencumbered by the 

A Lesson Worth Remembering

During the first year of its operation, there were three channels of entry 

into the OSS: recruitment of military personnel by the Personnel Procurement Branch, recruitment of civilians by the Civilian Personnel Branch, and 

recruitment of both military and civilian personnel through the initiative of 

individual OSS members.71
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Powers: Filling Special Operations Gaps with Civilians 

military decision-making process—free thinkers. Like their predecessors in the OSS, this branch would be comprised of nonmilitary

experts, scholars, and scientists having expertise in analyzing people, 

history, and events relevant to a specific region (e.g., cultural anthropologists, social anthropologists, psychologists, sociologists, clergy, 

geologists, archeologists, geographers, educators, government policy 

writers, law (local) experts, philosophers, political scientists, business (marketers), financiers, history (regional experts), economists,

scientists, and other scholars as required.

Staffing Research and Analysis was not a problem. The

branch recruited from many disciplines, but especially 

favored historians, economists, political scientists, geographers, psychologists, anthropologists, and diplomats. Professors all over America welcomed the chance to serve the 

war effort with their academic skills.72

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Powers: Filling Special Operations Gaps with Civilians 

6. Summary and Conclusions

By now, most everyone with access to any form of news media 

is aware that the Total Force of the U.S. Armed Forces comprises active and reserve military, civilian, and contractor 

personnel. Former Secretary of Defense Donald Rumsfeld emphasized this point especially when queried about the duration of combat 

operations, length of tours, end-strength, and contractors on the 

battlefield. But too little attention has been given to the expertise

available in the civilian sector, whether contractor or otherwise. For 

USSOCOM, this untapped pool of nontraditional expertise affords 

an unlimited source for skills and competencies not accessible by 

uniformed SOF.

The concept of leveraging personnel outside of USSOCOM organic 

units, specifically civilians, encompasses civilians from every avocation. Domestic and foreign, government employees and nongovernment civilians, government consulting employees, and consultants 

and contractors all have some inherent skill and/or ability that may 

be of use to SOF.

The historical examples of civilians supporting and accompanying the armed forces, too numerous to list in this monograph, provide clear evidence as to their validity and usefulness to the Total 

Force. At a time when there seemed to be less regulations and constraints, the OSS found a way to access the very strengths required 

for mission success. Perhaps it was a combination of national strategic leadership, fear, and necessity. Regardless of the considerations 

and factors affecting the concept, the OSS proved to be the special 

operations manifestation of forward-thinking, creativity, innovation, 

and skill profiling to locate and use the right person, for the right job,

at the right time.

Any attempt to analyze which particular skills and competencies 

(traditional and nontraditional) might be appropriate for outsourcing 

will eventually conclude that while it is relatively easy to compare 

and contrast congressionally mandated special operations activities 

with service component specialties and ratings, it will become apparent that trying to forecast what might be required in the future is 

impossible. Therefore, a systemic approach to accessing any skill is 

far better than attempted fortune telling. 
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JSOU Report 07-1

The legal aspects of this concept afford opponents a wealth of 

ammunition. Arguments based on myth and legend will be many, yet 

few will be germane to the constantly changing landscape of international law and how the community views its approach to civilians 

accompanying armed forces. Add to this confusion caused by the 

military terminology of each nation and it is no wonder commanders 

at every level question whether the overall concept is a valid idea or 

not. “Better safe than sorry” say many, and that translates to uncertainty of legality and eventually to not worthy of pursuing the issue. 

However, U.S. policy has recently changed, and when read in concert 

with international law, it affords the opportunity for the combatant commands and services to access talent residing in the civilian 

sector. The administrative effort may be great, but the rewards will 

outweigh the effort.

Perhaps the dilemma in this concept is how to make it happen—

that is, what kind of system is required to actually engage the civilian expertise and use it to augment SOF. Part of that dilemma and 

USSOCOM’s decision is whether to create something new or use an 

existing system.

Conclusions

Although the transformation of the conventional U.S. Armed Forces 

continues, their inherent skills and competencies will remain 

focused on defeating an opponent’s conventional (not unconventional) forces.

The intent and implications of international law can be puzzling. 

When reviewed against U.S. law, U.S. policy, DoD directives, DoD 

instructions, and DoD policies, it can become a quagmire. In addition, ground truth is changing daily as new policies are developed. 

Some general conclusions can be derived, however, from existing 

State practice, Law of War treaties, and emerging U.S. DoD policy:

a.	 Civilians may accompany the military in armed conflict.

b. Civilians authorized to accompany the armed forces in armed 

conflict are entitled to prisoner-of-war status if captured.

c. The Law of War does not prohibit civilians accompanying the 

armed forces from taking a direct part in hostilities.
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Powers: Filling Special Operations Gaps with Civilians 

d. Civilians accompanying the armed forces are subject to attack 

for such time as they take a direct part in hostilities, but do 

not relinquish their entitlement to prisoner-of-war status.

e. Private civilians are subject to attack for such time as they 

take a direct part in hostilities.

f.	 The classification of “unprivileged belligerent” historically

has been reserved for private citizens (other than members 

of a levee en masse) who engage in unauthorized combatant 

acts.

g. Recruiting and retention are terms referring to uniformed military, not civilian, positions. The intent of U.S. DoD policy, at 

least currently, does not permit filling of inherently governmental functions (positions) with civilians.

h. Until USSOCOM concludes an analysis of inherently governmental functions it will be difficult to discern which positions

civilians are authorized to fill.

The practical solutions for short-term use indicate a delineation of roles and responsibilities along functional lines, with ASD 

(SO/LIC) providing oversight:

a.	 OPM or a civilian firm should manage the administrative

functions—targeting, marketing, recruiting, vetting, managing, and retaining candidates.

b. USSOCOM and its components should perform the operational and training functions—assessing, selecting, training, 

and appraising performance.

The lessons derived from military history and the OSS recruitment and assessment techniques provide the following conclusions:

a. A gap will always exist between required skills and competencies and available skills and competencies.

b.	 Civilians have always been on the battlefield accompanying

military forces.

c. USSOCOM should routinely look to civilian expertise when 

mission requirements exceed available resources. 

45

Powers: Filling Special Operations Gaps with Civilians 

Endnotes

1. Citing the U.S. Constitution’s 14th Amendment, “All persons born 

or naturalized in the United States, and subject to the jurisdiction 

thereof, are citizens of the United States and of the State wherein they 

reside.” Although the Constitution provides the framework for the law, 

the law fills in the gaps via Title 8 USC.

 Per 8 USC section 1401, the following are declared citizens of the 

United States at birth:

a. Anyone born inside the United States

b. Any Indian or Eskimo born in the United States, provided being a 

citizen of the U.S. does not impair the person’s status as a citizen 

of the tribe

c. Anyone born outside the United States, both of whose parents are 

citizens of the U.S., as long as one parent has lived in the U.S.

d. Anyone born outside the United States, if one parent is a citizen 

and lived in the U.S. for at least 1 year and the other parent is a 

U.S. national

e. Anyone born in a U.S. possession, if one parent is a citizen and 

lived in the U.S. for at least 1 year

f.	 Anyone found in the U.S. under the age of five, whose parentage

cannot be determined, as long as proof of noncitizenship is not 

provided by age 21

g. Anyone born outside the United States, if one parent is an alien 

and as long as the other parent is a citizen of the U.S. who lived in 

the U.S. for at least 5 years (with military and diplomatic service 

included in this time)

h.	 A final, historical condition is a person born before 24 May 1934

of an alien father and a U.S. citizen mother who has lived in the 

U.S.

	 2.	 The Internal Revenue Service provides clarification regarding an

employee. A general rule is that anyone who performs services for you 

is your employee if you can control what will be done and how it will 

be done.

3. U.S. Congress, Title 5 USC 2105, Government Organization and 

Employees (Washington, DC: 6 April 2006), Part III, Subpart A—General Provisions, available from www4.law.cornell.edu/uscode/html/

uscode05/usc_sup_01_5_10_III.html (accessed 23 April 2006).

4. Title 10 USC employees, as General Service (GS), are considered government employees under 5 USC because the legal aspects and regulations regarding their employment are governed by Title 5 USC, not 

Title 10 USC.

 Per 10 USC 113, the term personnel means members of the Armed 

Forces of the United States and civilian employees of the DoD. 
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JSOU Report 07-1

 Per 10 USC 4021 (chapter 373, 12 July 2005), the Secretary of the 

Army may employ as many civilians as professors, instructors, and 

lecturers at the Army War College or the United States Army Command and General Staff College as the Secretary considers necessary. 

 Per 10 USC 1595 (paragraphs a through c, 12 July 2005, regarding civilian faculty members at certain DoD schools, their employment and compensation): Authority of Secretary—The Secretary of 

Defense may employ as many civilians as professors, instructors, and 

lecturers at the institutions specified in subsection (c) as the Secretary

considers necessary. Covered Institutions—This section applies with 

respect to the following institutions of the DoD: The National Defense 

University, The Foreign Language Center of the Defense Language 

Institute, The George C. Marshall European Center for Security Studies, The English Language Center of the Defense Language Institute, 

The Asia-Pacific Center for Security Studies, and The Western Hemisphere Institute for Security Cooperation.

5. Per 5 USC 3109 and for the purpose of this monograph, agency has the 

section 5721 meaning and includes a military department. Employee

means an individual employed in or under an agency. Continental 

United States means the several states and the District of Columbia, 

but not Alaska or Hawaii. Government means the government of the 

United States and the government of the District of Columbia. Appropriation includes funds made available by statute under section 9104 

of Title 31. United States means the several states, District of Columbia, Commonwealth of Puerto Rico, Commonwealth of the Northern 

Mariana Islands, territories and possessions of the United States, 

and areas and installations in the Republic of Panama that are made 

available to the United States pursuant to the Panama Canal Treaty 

of 1977 and related agreements (as described in section 3(a) of the 

Panama Canal Act of 1979). Foreign Service of the United States means 

the Foreign Service as constituted under the Foreign Service Act of 

1980. 

	 	 Pursuant to this section, the Office of Personnel Management shall

prescribe regulations necessary for the administration of this section. 

Such regulations shall include criteria governing the circumstances 

in which it is appropriate to employ an expert or consultant under the 

provisions of this section, criteria for setting the pay of experts and 

consultants under this section, and provisions to ensure compliance 

with such regulations. Available from www.law.cornell.edu/uscode/

html/uscode05/usc_sec_05_00003109----000-.html (accessed 19 

October 2006).

	 	 Each agency shall report annually to the Office of Personnel Management the number of days each expert or consultant was employed 

by the agency and the total amount the agency paid these persons 

for such work during the period. Available from www.law.cornell.

edu/uscode/html/uscode05/usc_sec_05_00003109----000-.html 

(accessed 19 October 2006).
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Powers: Filling Special Operations Gaps with Civilians 

6. To determine whether an individual is an employee or independent 

contractor under the common law, the relationship of the worker and 

the business must be examined. All evidence of control and independence must be considered. In an employee-independent contractor 

determination, all information that provides evidence of the degree of 

control and degree of independence must be considered.

 Facts that provide evidence of the degree of control and independence 

fall into three categories: behavioral control, financial control, and the

type of relationship of the parties.

 In determining whether the person providing service is an employee 

or an independent contractor, all information that provides evidence 

of the degree of control and independence must be considered. As far 

as this monograph is concerned, the agency requesting the work will 

ultimately be the U.S. Government. It is critical that the U.S. Government (OPM, the services, and USSOCOM) correctly determine whether 

the individual providing the service is an employee or independent 

contractor. Generally, all employers (U.S. Government included) must 

withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. 

An employer does not generally have to withhold or pay any taxes 

on payments to independent contractors. Available from www.irs.gov/

businesses/small/article/0,id=99921,00.html (accessed 10 January 

2006).

7. The term foreign government—as used in 18 USC 11 (3 August 2005) 

except in sections 112, 878, 970, 1116, and 1201—includes any government, faction, or body of insurgents within a country with which 

the United States is at peace, irrespective of recognition by the United 

States.

 Both host nation and third country nationals can be contracted as 

well. As cited in DoD Instruction 3020.41, Contractor Personnel 

Authorized to Accompany the U.S. Armed Forces (Washington, DC: 

Under Secretary of Defense for Acquisition, Technology, and Logistics, 

3 October 2005), 1:

Under the authority of references (a) and (b), this instruction establishes and implements policy and guidance, 

assigns responsibilities, and serves as a comprehensive 

source of DoD policy and procedures concerning DoD 

contractor personnel authorized to accompany the U.S. 

Armed Forces. Includes defense contractors and their 

employees and subcontractors at all tiers under DoD 

contracts, including third country national and host 

nation personnel, who are authorized to accompany the 

U.S. Armed Forces under such contracts. Collectively, 

these persons are referred to as contingency contractor 

personnel of which one significant subcategory—contractors deploying with the force—is subject to special deploy-
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ment, redeployment, and accountability requirements 

and responsibilities.

8. W. Hays Parks, “Evolution of Policy and Law Concerning the Role of 

Civilians and Civilian Contractors Accompanying the Armed Forces” 

paper summarizing an informal PowerPoint presentation offered at 

the Third Meeting of Experts on “Direct Participation in Hostilities” 

(Geneva, 25 October 2005), 7.

9. Fremont Expeditions (1842–1845), the Bear-Flag Rebellion (1846), the 

Mexican-American War (1846), the U.S. Civil War (1861–1863), and 

various wars against the Navajo (1863–1864).

10. “Moreover, citizens who accompany an army for whatever purpose, 

such as sutlers, editors, or reporters of journals, or contractors, if 

captured, may be made prisoners of war and be detained as such. The 

monarch and members of the hostile-reigning family, male or female, 

the chief, and chief officers of the hostile government, its diplomatic

agents, and all persons who are of particular and singular use and 

benefit to the hostile army or its government are, if captured on belligerent ground and if unprovided with a safe-conduct granted by the 

captor’s government, prisoners of war.” Available from www.civilwarhome.com/liebercode.htm (accessed 9 February 2006).

 Thus begat a question key to this monograph: At what point would a 

civilian accompanying U.S. forces be regarded as taking a direct part 

in hostilities and therefore subject to lawful attack? While the concept 

of punishment of unprivileged belligerents was codified in the 1863

U.S. Army General Orders No. 100, one of two Law of War documents 

prepared by Francis Lieber, a clear distinction was drawn between a 

private citizen illegally engaging in unauthorized attacks and a civilian accompanying the military and fighting alongside them. (Parks,

Geneva), 5.

11. Thirty-seven members parachuted clandestinely into German-occupied France on armed missions in support of the French resistance. 

Thirteen captured were murdered under the authority of Hitler’s decree. 

The most famous case was the Trial of Wolfgang Zeuss and Others (The 

Natzweiler Trial), V War Crimes Trials (1949). Three of the four Natzweiler victims were FANY. See also Sarah Helm, A Life in Secrets: The 

Story of Vera Atkins and the Lost Agents of SOE (U.K.: Little, Brown, 

2005), which details the investigation of murders of the female SOE 

agents. FANY personnel recognized that as members of a voluntary 

civilian organization (rather than military), their chances of claiming 

prisoner-of-war status were slim. In 1999, FANY was renamed the 

Princess Royal’s Volunteer Corps (PRVC) and now referred to as FANY 

PRVC (Helm, 78 and Parks, Geneva, 2). For further details of FANY in 

World Wars I and II, see www.fany.org.uk/about/index.html (accessed 

19 October 2006).

12. Gregory J. W. Urwin, “The Wake Island Militia,” Naval History (November/December, 1997), 39–44. Ninety-eight civilians retained on the 

island to operate heavy construction equipment were murdered on 
49

Powers: Filling Special Operations Gaps with Civilians 

8 October 1943 by their captors as U.S. forces prepared to recapture 

the island. Their murder had nothing to do with whether or not they had 

taken a direct part in hostilities in the 1941 defense of the island. The 

Japanese commander, Rear Admiral Shigimatsu Sakaibara, was tried, 

convicted, and executed after the war for his war crimes. (Ibid.), 5.

13. The Flying Tigers were a voluntarily discharged group of former U.S. 

military personnel (pilots and ground support personnel). For more 

information, see www.flyingtigersavg.com/ (accessed 19 October

2006).

14. Predominantly Kachins, but also Karens, Chins, Kukis and Nagas.

15. Refugee members of the Shetland Bus remained civilians rather than 

become members of the Royal Navy or Norwegian Navy. David Howarth, The Shetland Bus: A WWII Epic of Escape, Survival, and Adventure (New York: The Lyons Press, 1951), pp. 13, 16, 51, 61. For more 

information on the Shetland Bus, see www.shetland-heritage.co.uk/

shetlandbus/ (accessed 19 October 2006).

16. Parks, Geneva, 9.

17. Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military 

Industry (Ithaca, NY: Cornell University Press, 2003), 259. “One of 

fifty Americans deployed to the [Persian] Gulf in 1990 [for Operations

Desert Shield and Desert Storm] was a privately employed civilian. By 

the time of the Bosnia deployment in 1995–1996, the ratio was down 

to 1 in 10.” 

18. DoD, Final Report to Congress: Conduct of the Persian Gulf War (April 

1992), Appendix N, pp. 599–604. (W. Hays Parks, “Evolution of Policy 

and Law Concerning the Role of Civilians and Civilian Contractors 

Accompanying the Armed Forces,” 2005.) 

19. For example, the 1996 DoD Authorization Act directed DoD to convert 

10,000 uniformed positions into civilian jobs by 30 September 1997; 

see Public Law 104-106, section 1032, 110 Stat. 186. (W. Hays Parks, 

“Evolution of Policy and Law Concerning the Role of Civilians and Civilian Contractors Accompanying the Armed Forces” paper presented to 

the Expert Workshop for the Swiss Initiative with the International 

Committee of the Red Cross with regard to Private Military/Security 

Companies, see Hotel Sonne, Küsnacht am Zürichsee, Switzerland, 

16–17 January 2006.)

20. But this was not unique to DoD. The Department of State relies upon 

private security contractors for personal security details and protection of U.S. embassies and missions abroad. Such peacetime reliance 

continued into the armed conflicts in Afghanistan and Iraq without

full appreciation for potential Law of War issues. (Parks, Geneva), 2.

21. Singer, Corporate Warriors, n. 2, at 11, 173.

22. Karen L. Douglas “Contractors Accompanying the Force: Empowering Commanders with Emergency Change Authority” Air Force Law 

Review, Spring, 2004, available from www.findarticles.com/p/articles/mi_m6007/is_55/ai_n8585594 (accessed 30 November 2005).
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23. Gary Schroen, First In: An Insider’s Account of How the CIA Spearheaded the War on Terror in Afghanistan (New York: Presidio Press, 

2005), 359.

24. Parks, Geneva, 9.

25. Belligerent occupation by democracies in modern history has been a 

responsibility relinquished by military commanders to civilian control, 

and to civilian employees, as a model of restricted exercise of military 

power. In the 1918 Allied administration of the Rhineland and in the 

Allied occupation of Germany following World War II, transformation 

of the occupation from military to civilian control was rapid and substantial. Hence Iraq was not a first-time experience. See, for example,

Ernst Fraenkel, Military Occupation and the Rule of Law: Occupational 

Government of the Rhineland 1918–1923 (1944), at 10; and Earl F. 

Ziemke, The U.S. Army in the Occupation of Germany 1944–1946

(1975), at 404. (Ibid.), 3.

26. Article 51, paragraph 3 of the 1977 Additional Protocol I states: “Civilians shall enjoy the protection afforded by this Section, unless and for 

such time as they take a direct part in hostilities. Although the United 

States is not party to Additional Protocol I, this phrase is regarded as 

a useful general threshold for the point at which a civilian loses his 

or her immunity from direct attack. It was important to examine the 

issue not only from a U.S. standpoint but also of a potential adversary. 

Thus while it might be argued that a government may hire a civilian 

contractor to service a combat aircraft on the flight line in a theater

of operations, an enemy sniper might regard that civilian as taking 

a direct part in hostilities and thus subject to lawful attack.” (Parks, 

Geneva), 4.

27. Ibid.

28. Ibid., 7.

29. Ibid., 5.

30. David Shearer, Private Armies and Military Intervention (Adelphi Paper 

316, 1998); Singer, Corporate Warriors, n. 2; and Deborah Avant, The 

Market for Force (2005). (Ibid.)

31. Parks, “Evolution of Policy and Law Concerning the Role of Civilians 

and Civilian Contractors Accompanying the Armed Forces” (Copyright 

2005), 5. 

32. Singer, Corporate Warriors, at 19–39. 

33. Ibid., 6.

34. Ibid., 9.

35. Former Secretary of Defense Rumsfeld provides a clear and unambiguous definition of the Total Force and its place within the National Military

Strategy in the recent Quadrennial Defense Review (DoD, Washington, 

DC: Office of the Secretary of Defense, 6 February 2006), 75:

The Department’s Total Force—its active and reserve 

military components, its civil servants, and its contractors—constitutes its warfighting capability and capacity.
51

Powers: Filling Special Operations Gaps with Civilians 

The Department and military services must carefully 

distribute skills among the four elements of the Total 

Force (active component, reserve component, civilians, 

and contractors) to optimize their contributions across 

the range of military operations, from peace to war. In a 

reconfigured Total Force, a new balance of skills must

be coupled with greater accessibility to people so that 

the right forces are available at the right time. Both uniformed and civilian personnel must be readily available 

to joint commanders. 

36. “What Was OSS?” available from www.cia.gov/cia/publications/oss/

art03.htm (accessed 25 April 2006), OSS Assessment Staff, Assessment of Men (New York: Rinehart and Co., Inc., 1948) and Michael 

Warner, CIA History Staff, May 2000, available from www.cia.gov/cia/

publications/oss/art04.htm (accessed 12 January 2006).

37. Ultra was the British name for intelligence resulting from decryption 

of German communications in World War II.

38. “What Was OSS?” (See endnote 35 for listing.) 

39. For purposes of this section, special operations activities include each 

of the following: a) direct action, b) strategic reconnaissance, c) unconventional warfare, d) foreign internal defense, e) civil affairs, f) psychological operations, g) counterterrorism, h) humanitarian assistance, 

i) theater search and rescue, and j) such other activities as may be 

specified by the President or the Secretary of Defense. (U.S. Congress,

Title 10 USC 167(j), 12 July 2005.)

40. USSOCOM forces, by component include Army (Special Forces, 

Ranger, Special Operations Aviation, Civil Affairs, and Psychological 

Operations), Navy (SEAL Teams, SEAL Delivery Vehicle Teams, and 

Special Boat Teams), Air Force (primary and supporting aerial weapons and personnel delivery systems, Para-Rescue Jumpers, Combat 

Control, and Foreign Internal Defense), and Marine Corp (Foreign 

Internal Defense).

41. Dr. Robert G. Spulak, Jr. provided an excellent treatise on “Perspectives 

on Recruit Selection from Nontraditional Sources for Special Operations Forces (SOF) for Life (S4L)” 15 June 2003, in a paper prepared 

for USSOCOM Future Concepts Working Group Meeting. Included in 

the research was the concept of utilizing former and retired special 

operations personnel beyond their uniformed service years to continue to support the USSOCOM in nonuniformed ways. Recruiting, 

selecting, assessing, and training could therefore be tailored to avoid 

lengthy, standardized train-up program of instruction. In some cases 

they may even have a greater degree of technical expertise than a military-trained, fully qualified special operations service member.

42. Interview with W. Hays Parks, telephone conversation 10 February 

2006. His comments and findings were delivered in “Evolution of

Policy and Law Concerning the Role of Civilians and Civilian Contrac-
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tors Accompanying the Armed Forces” at the Third Meeting of Experts 

on “direct participation in hostilities” (Geneva, 25 October 2005). 

43. Ibid.

44. The interviews with Parks surfaced the following information: 

a.	 Attendees at the first meeting of experts on the meaning of “taking

a direct part in hostilities” were introduced to the hypothetical “Bob 

the truck driver.” Hypothetical Bob was a civilian truck driver in a 

convoy of military trucks carrying military supplies and ammunition to military positions. The driver of the first truck in the convoy

was a uniformed soldier. Bob was driving the ammunition-laden 

second truck and was followed by a truck driven by a soldier, who 

in turn was followed by a military truck driven by another civilian, 

and so on. The question was whether Bob was taking a direct part 

in hostilities and could be lawfully targeted. 

Some argue Bob was taking a direct part in hostilities and therefore could be targeted. Others argue that as Bob was a civilian 

(whether regarded as taking a direct part in hostilities or not), he 

could not be targeted, but was at risk of injury or death as a result 

of direct attack of the truck he was driving.

More importantly, the debate over whether Bob the truck driver 

could be targeted is not new. Parks suggested it began more than 

30 years ago between two members of the U.S. delegation to the 

Diplomatic Conference—Waldemar (Wally) A. Solf and Richard 

(Dick) Fruchterman—as the “direct participation in hostilities” 

provision and other Additional Protocol I language was under consideration. Parks witnessed their discussion of Bob on more than 

one occasion. He raised it anew in a meeting of Canadian, British, 

New Zealand, and U.S. military Law of War experts at Old Sarum 

in November 1989. Parks concludes there is nothing to suggest 

that Bob’s status would be other than a prisoner of war, as articulated in Article 4, paragraph A(2), Geneva Convention Relative to 

the Treatment of Prisoners of War (1949).

This information is related to the “unprivileged belligerent” status 

issue raised in efforts against international terrorism since the Al 

Qaeda attack of September 11, 2001. Members of Al Qaeda captured by coalition forces have been characterized as unprivileged 

belligerents, an historic classification for private citizens who

engage in combatant activities not authorized by a government. 

Denial of combatant and prisoner-of-war status to private citizens—again, other than a levee en masse—has a very long history. 

It is separate and apart from the issue of when a civilian lawfully 

may be targeted as a result of acts regarded as taking a direct part 

in hostilities. Parks also highlighted that the focus of the meeting 

of legal experts has so far been solely on ascertaining when a civilian may be regarded as taking a direct part in hostilities and lawfully targeted—whether a private citizen, a civilian employee of a 

government that is a State party to an armed conflict, or a civilian
53

Powers: Filling Special Operations Gaps with Civilians 

contractor hired by a State party to an armed conflict. Assessing

whether Bob the truck driver is taking a direct part in hostilities 

and therefore may be the object of direct attack is separate and 

apart from his status if captured. 

b. Parks stressed that within the DoD, the meaning of the phrase 

“taking a direct part in hostilities” was considered primarily from 

the standpoint of the degree to which outsourcing might be done. 

Whether as a matter of policy it should be done was a separate 

issue altogether. 

45. Interview with William B Wiley, October 2005. In addition to his law 

degree, Mr. Wiley has a M.S. in Organizational Psychology from San 

Francisco State University. For his additional background, see Interagency Connection (Oklahoma City: Oklahoma Federal Executive 

Board, February 2006), 11, available from www.oklahoma.feb.gov/

Forms/2006FebNews.pdf (accessed 19 October 2006).

46. Ibid.

47. Peter Grier, “Civilians in Harm’s Way,” Air Force Magazine, July 2005 

(Vol. 88, No. 7), available from www.afa.org/magazine/July2005/

0705civil.html (accessed 21 January 2006).

48. Interview with Wiley, October 2005.

49. Interview with Parks, 10 February 2006.

50. Currently U.S. military doctrine describes the phases as follows: 0, 

Shape; I, Deter; 2, II, Seize the Initiative; III, Dominate; IV, Stabilize; 

and V, Enable Civil Authority. U.S. DoD, Joint Operation Planning, 

Revision Third Draft (3), Joint Publication 5-0 (Washington, DC: Joint 

Chiefs of Staff, 10 August 2005), iv-31.

51. The phrase direct part in hostilities also is used in Additional Protocol II (Article 13, paragraph 3). This suggests attention to its original 

intent—that is, to address the issue of the farmer by day, guerrilla by 

night, and when he or she may be lawfully targeted as an exception to 

provisions in Additional Protocols I and II prohibiting making civilians 

the object of attack (Article 51, paragraph 2, Additional Protocol I, and 

Article 13, paragraph 2, Additional Protocol II). The road to clarity and 

specificity has proved challenging; there is no bright line. At the same

time, the phrase as used in Additional Protocols I and II was intended 

only to address when a civilian lawfully may be the object of direct 

attack. From interview with W. Hays Parks, 10 February 2006.

52. Parks, “Evolution of Policy and Law Concerning the Role of Civilians 

and Civilian Contractors Accompanying the Armed Forces.”

53. Ibid.

54. Due to differences in roles and missions of the U.S. military services, 

implementation responsibility is entrusted to each individual service. 

See DoDI 3020.41, “Contractor Personnel Authorized to Accompany 

the U.S. Armed Forces” (Washington, DC: Secretary of Defense, 3 

October 2005) for additional details. 
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55. Parks, “Evolution of Policy and Law Concerning the Role of Civilians 

and Civilian Contractors Accompanying the Armed Forces.”

56. Ibid.

57. Spulak, “Perspectives on Recruit Selection from Nontraditional Sources 

for Special Operations Forces (SOF) for Life (S4L).”

58. Operational functions include the units designated specifically to

execute those special operations activities (see endnote 38 for listing) 

mandated in 10 USC 167. Support functions to these units include 

the units and personnel designated specifically to provide admin. and

maintenance.

59. DoDI 3020.41, “Contractor Personnel Authorized to Accompany the 

U.S. Armed Forces” (Washington, DC: Secretary of Defense, 3 October 

2005), 6-7.

60. Ibid., 7.

61. Ibid.

62. Interviews with Colonel Mike Hoadley (a U.S. Army Judge Advocate 

General officer assigned to the U.S. Army War College, Carlisle Barracks, PA) 1-10 February 2006 and W. Hays Parks.

63. COL Hoadley highlighted four germane cites to this opinion:

a. DoD policy (DoDI 5525.11 [March 3, 2005]) and Federal law state 

basically that civilians employed by or accompanying the U.S. 

Armed Forces outside the U.S. who commit felony offenses while 

outside the U.S. are subject to U.S. Federal criminal jurisdiction 

as applicable under the Military Extraterritorial Jurisdiction Act 

(MEJA) of 2000 (18 USC 3261 through 3267). Recognizing that 

MEJA applies to only certain Federal criminal offenses committed 

outside U.S. territory and does extend jurisdiction to all potential 

criminal acts, there are other legal bases for exercising jurisdiction.

b. Federal criminal jurisdiction may also apply to conduct that constitutes a violation of the Law of War when committed by a U.S. 

civilian national under the War Crimes Act (18 USC 2441).

c. Further, if the criminal conduct is committed on a military installation or facilities in a foreign country, Federal criminal jurisdiction may exist under 18 USC 7.

d. There is a long-standing U.S. policy of maximizing U.S. jurisdiction over U.S. citizens. Employed or accompanying civilians do 

remain, however, subject to the domestic criminal laws of the host 

nation or foreign country they are in (absent a status of forces 

agreement or other international agreement or diplomatic notes to 

the contrary). Under certain circumstances, U.S. citizens may be 

delivered to the authorities of a foreign country for trial because 

their conduct violated that foreign country’s criminal laws.

64. DoDI 3020.41, p. 7, states that contingency contractor personnel 

remain subject to U.S. laws and regulations. For example, contingency contractor personnel fulfilling contracts with the U.S. Armed
55

Powers: Filling Special Operations Gaps with Civilians 

Forces may be subject to prosecution under Federal law, including but 

not limited to the MEJA, 18 USC 3261, reference (k), which extends 

U.S. Federal criminal jurisdiction to certain DoD contingency contractor personnel, for certain offenses committed outside U.S. territory. 

For such cases, the DoD regulations to be followed for complying with 

MEJA are contained in DoDI 5525.11, reference (l). Pursuant to the 

War Crimes Act, 18 USC 2441, reference (m), Federal criminal jurisdiction also extends to conduct that is determined to constitute a violation of the Law of War when committed by a civilian national of the 

United States. In addition, when there is a formal declaration of war 

by Congress, DoD contingency contractor personnel may be subject 

to prosecution under the Uniform Code of Military Justice, reference 

(n). Other laws may allow prosecution of offenses by contingency contractor personnel, such as 18 USC 7(9), reference (o), which may provide for prosecution of U.S. nationals who commit offenses on military 

facilities in foreign countries. Immediate consultation with the servicing legal office and the contracting officer is required in all cases of

suspected criminal conduct by contingency contractor personnel.

	 65.	 Office of Personnel Management Web site, www.opm.gov/html/goals.

asp (accessed 13 May 2006). OPM oversees the Federal work force and 

provides the American public with up-to-date employment information. OPM also supports U.S. agencies with personnel services and 

policy leadership including staffing tools, guidance on labor-management relations, and programs to improve work force performance.

66. During the course of the recruitment process the uniformed service 

recruiting commands will identify civilians who may not meet their 

specific recruiting needs, goals, and skill sets, but may, however, be

what is required by USSOCOM. When this occurs, the names of the 

individual could be provided to USSOCOM recruiters.

67. ASD/SOLIC Web site, www.defenselink.mil/policy/sections/policy_

offices/solic/index.html (accessed 13 May 2006).

68. The service components of USSOCOM include the U.S. Army Special 

Operations Command, U.S. Naval Special Warfare Command, U.S. Air 

Force Special Operations Command, and U.S. Marine Special Operations Command.

 USSOCOM should consider forming and conducting an OSS-like 

assessment using a panel of psychologists and sociologists. This 

assessment would matriculate a pool of graduates suitable for employment/deployment once the specific details of the requested requirements were defined. Once approved, these candidates could return

home until called for employment.

69. To ensure the SOF truth that humans are more important than hardware, USSOCOM should develop a system that manages warriors, 

both traditional and nontraditional, for selection for entry level, promotions, assignments, professional military education (not a separate school), experience identifiers to track SOF personnel, education,

training, and language. Special operations enabling personnel (intelli-
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gence, communications, and logistics or the others who support SOF) 

also need to be educated, tracked, and grown in the unique requirements of SOF operations. 

70. OSS Assessment Staff, Assessment of Men (New York: Rinehart and 

Company, 1948). Donald W. MacKinnon, How Assessment Centers 

Were Started in the United States (Bridgeville, PA: Development Dimensions International, Inc., 1974), 14-15, available from www.ddiworld.

com/pdf/ddi_HowAssessmentCentersWereStarted_mg.pdf (accessed 

19 October 2006). 

 During World War II, Dr. MacKinnon was a member of the assessment 

board and from June 1944 to August 1945, he was director of Station 

S in the Office of Strategic Services (the precursor to the Central Intelligence Agency). From 1947 until his retirement in 1970, Dr. MacKinnon served as director of the Institute of Personality Assessment and 

Research on the University of California, Berkeley campus. Dr. MacKinnon was the author of several scientific articles and coauthor of two

books: Assessment of Men, a report of the OSS’s assessment program 

during World War II, and Experimental Studies in Psychodynamics. 

Dr. MacKinnon was the American Psychological Association’s 1962 

Walter Van Dyke Bingham Memorial Lecturer. In 1967 he received the 

American Psychological Association’s Richardson Creativity Award in 

recognition of his research in creativity. Dr. MacKinnon died in 1987.

71. MacKinnon, How Assessment Centers Were Started in the United 

States, 2. (See endnote 69 for listing.) 

72. The Research and Analysis roster reads like a Who’s Who of two generations of scholars. Arthur Schlesinger, Jr.; Walt W. Rostow; Edward 

Shils; Herbert Marcuse; H. Stuart Hughes; Gordon Craig; Crane Brinton; John King Fairbank; Sherman Kent; Ralph Bunche; and a host of 

distinguished colleagues and students joined the branch. The branch 

veterans included seven future presidents of the American Historical 

Association, five of the American Economic Association, and two Nobel

Laureates. See Michael Warner, CIA History Staff, May 2000, available from www.cia.gov/cia/publications/oss/art04.htm (accessed 12 

January 2006).