Aram Roston’s Buzzfeed article reads almost like a novel. American special operators, hired by “a charismatic Hungarian Israeli security contractor,” went to work as mercenaries for the government of the United Arab Emirates. The men, as employees of a private military company called Spear Operations Group, ran “a targeted assassination program in Yemen” on behalf of the government for years, according to the article. For his part, Abraham Golan, the Hungarian in question, seems not to disagree.
“I was running it. We did it. It was sanctioned by the UAE within the coalition,” he told Roston. In what will certainly become a future case study for students of public relations, one of the other participants, former Navy SEAL Isaac Gilmore said, “Once this comes out there’s no way that I’m going to stay out of it, so I’d prefer to own it. And I’m not going to try to hide from what I did.”
I won’t rehash the article here. It’s an excellent piece of reporting and you should read it. But one question raised after its publication was, “How could a company like this legally exist in the United States?” The answer is that given the way Congress wrote the laws, most of what Spear Operations Group did falls short of being illegal – especially given the nature of the conflict in Yemen.
What makes a mercenary?
The first issue, as I have written before, is the definition of “mercenary.” Under international law, a person is a mercenary if they are “motivated to take part in the hostilities essentially by the desire for private gain,” and are paid “material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party.” The Americans on the team were getting $25,000 a month. So yeah, private gain.
They must also, importantly, not be a member of the armed forces of the country they’re fighting for. But according to the story, one condition of Spear’s contract was that the team be given official rank in the UAE military. They thought that would give them legal cover.
Regardless of that detail (or the fact that neither the U.S., UAE, or Yemen are parties to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries), it’s hard to see how these guys were anything but. Contractors, even security contractors, who accompany the U.S. military and diplomatic corps to war zones are not there for offensive operations. They are there to support, and if necessary defend, but not to go looking for a fight.
Are the Spear Operations Group’s actions against U.S. Law?
Generally speaking, it is not against the law to travel overseas and joint a foreign military of fight in a foreign war. Technically, it’s not illegal to do this as a group, either. There are several laws, mostly found in Chapter 45 of title 18 of the U.S. Code, however, that make it a crime to conspire to do some of these things while on U.S. soil. Title 18 is often called “the criminal code” since it is the section of Federal law that enumerates most of the Federal crimes.
Section 956 of Title 18 makes it a crime to conspire inside the U.S. to commit “murder, kidnapping, or maiming” overseas. The actual murder isn’t the crime, since it happened in a place where the U.S. lacks jurisdiction. Planning the act in the U.S. is the crime. But if you’re a member of a foreign military acting on the instructions of that government, is killing a man in Yemen, amidst an international conflict, really murder? Probably not.
The team was doing what they called “targeted killings,” essentially assassinations of high-value targets. The U.S. has not performed “assassinations” since President Jimmy Carter signed executive order banning the practice in 1978. But operationally, there seems to be little difference between killing a foreign leader with a sniper rifle or poison powder and killing an ISIS commander with a Hellfire missile fired from a Predator.
Accepting a foreign commission is illegal…maybe
Similarly, 18 USC 958 makes it a crime to accept a commission in a foreign military to fight against a country “with whom the United States is at peace.” In this case, since the U.S. supports the UAE and Saudi Arabia efforts to drive the Houthi rebels from power, and has put (limited) troops on the ground there, can it really be said that the country is “at peace” with Yemen? Again, the Spear Operations Group seems to escape on a technicality.
However, it is possible the men could lose American citizenship, since the Immigration and Naturalization Act, at 8 USC 1481, says that anyone who accepts a commission in a foreign military “shall lose his nationality.” Apparently it’s been a long time since the law was enforced, but it seems fairly clear. Since Golan was made a colonel, and Gilmore a lieutenant colonel, in the UAE’s army, they accepted commissions.
At the very least, the two members of the team identified as a Special Forces soldier in the Maryland National Guard and a SEAL in the Navy Reserve will have some tough questions to face when it comes time for their security clearance periodic reinvestigation.
It still wasn’t a very smart move
Since the UAE gave at least some of the men officer rank, they also seem not to have run afoul of 18 USC 959, since the men in question did not technically “enlist” in a foreign military – but others on the team might be in jeopardy there. On the other hand, many Americans voluntarily serve in the Israeli Defense Force, and some even join organizations like the French Foreign Legion, without penalty. Like so many things with this issue, nothing seems cut-and-dried.
Lastly, going back to the argument that the U.S. is not at peace with Yemen, the men did not violate 18 USC 960, which makes it a crime to organize an overseas military expedition from the U.S., provided there isn’t already a war the country is involved in. They clearly organized a military expedition on U.S. soil, but again, it’s Yemen. Most of the rules seem not to apply.
The bottom line is, to almost any outside observer, these guys crossed the line between what are and are not legal activities for security contractors. But I doubt any of it would hold up in court, except for the two guys still in the U.S. military. Mercenaries have existed almost as long as wars have existed. But in the modern era, they can really foul things up. Spear’s actions were irresponsible, and could have serious damage to U.S. interests had things gone wrong (more than they did).
There’s more to national strategy than just killing really bad dudes, and Golan didn’t think through the implications of his scheme. But he did get paid.
