No Comment, Six Questions — June 6, 2011, 8:54 am

Outsourcing War and Peace: Six Questions for Laura Dickinson

Waging war and engaging in diplomacy would generally be reckoned among the most important powers of any sovereign. Yet as Laura Dickinson argues in her new book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, America has been delegating these responsibilities to private companies over the past decade, and offering them lucrative contracts in exchange. Dickinson argues that this practice poses a threat to core public values of human rights, democratic accountability, and transparency. I put six questions to her about her book:

1. As you note, neoconservatives have objected strongly to the use of international law to constrain military activities. What role, if any, has their ideological perspective played in the accountability crisis you identify surrounding private security contractors?
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I think there is some support for the argument, implicit in your question, that neoconservatives increased the role of contractors in order to circumvent the strictures they believed international law imposed on efforts to combat terrorism. The immunity established by Coalition Provisional Authority Order 17 (which is no longer in effect) may reflect that view.

Yet, I argue in the book that probably a bigger reason for the extraordinary increase in our use of military and security contractors overseas is simply a pervasive ideology of privatization: the belief that the private sector can necessarily perform services more cheaply and efficiently than the public sector. That ideology dominated our political debate about domestic government services in the 1980s and 1990s, and set the stage for the huge increase in foreign affairs contracting we saw over the past decade. It is much easier politically for agencies to add contract positions than to hire additional governmental employees. But nobody actually checked to see whether the premise was correct. So while in some cases privatization may cut costs, in other contexts it does not. Indeed, the Commission on Wartime Contracting recently concluded that lack of contract oversight in Iraq cost taxpayers billions of dollars. The accountability gap, I suggest, stems in part from too much blind faith in the private sector. Moreover, we radically increased the amount of contracting activity without a commensurate increase in resources for contract monitoring. That is a recipe for disaster.

2. In a ruling addressing claims brought by Abu Ghraib torture victims against CACI International, an American security contractor linked by government studies to prisoner abuse, Laurence Silberman, a senior judge on the U.S. Court of Appeals, concluded that the contractor had immunity because it was “integrated into combat activities”—even though military commanders had no jurisdiction over it. Now the Supreme Court is considering reviewing the case. What advice would you give the Court on this question?

In my view, the Silberman opinion in the CACI case takes an overly broad approach to the scope of contractor immunity. By enacting the Federal Tort Claims Act, Congress gave some government actors, in particular soldiers, immunity from tort claims so that federal court litigation would not get in the way of important military and security decisions. But that does not mean this immunity should automatically also apply to all contractors.

I think the district court decision that Silberman overruled actually had the better approach. Essentially, that opinion concluded that where government actors closely supervise contractors, the contractors are effectively operating as an arm of government and are following orders of governmental officials, and so should get the benefit of immunity. But when contractors lack such supervision and oversight, and are therefore operating largely on their own, the immunity should not automatically apply. Thus, the district court judge determined that the contract translators at the prison were entitled to immunity, but the contract interrogators were not.

This sort of nuanced distinction seems to me to be an entirely reasonable and workable approach to immunity issues. I think there is a good parallel in the domestic context, where the U.S. Supreme Court (in Richardson v. McKnight) has allowed tort litigation to proceed against private prison guards based on their discretionary activities. The issue should probably continue to percolate in the lower courts before the U.S. Supreme Court weighs in.

3. You start your book with a notorious incident in Baghdad’s Nisour Square on September 16, 2007, in which Blackwater contractors opened fire after a car engine backfired, leaving seventeen Iraqi civilians dead. After investigations by the FBI and the U.S. military both concluded that the shootings were unjustified, the Justice Department, under intense pressure, opened a criminal case. What has the government’s management of this case told us about the American legal system’s capacity to address the improper use of lethal force by American contractors overseas?

Although privatization may put public values at risk, the very fact of outsourcing—with its hybrid public-private character—may actually open up some new avenues for effectuating and embedding these values and perhaps even extending their reach. And, as we seek these better accountability mechanisms, we must look not only to reforms of formal legal frameworks but also to a wide variety of approaches that harness potential changes in accreditation regimes, political structures, and organizational cultures. Significantly, these approaches do not necessarily rely on governmental action; many can be undertaken by nongovernmental organizations, both domestically and transnationally.—From Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs.
Reprinted by permission of Yale University Press, © 2011 Laura Dickinson.

The difficulties prosecutors have encountered in this case illustrate the serious flaws in the current legal and regulatory regime that governs contractors overseas. Although prosecutors initiated proceedings against five Blackwater guards in December of 2008, a district court judge threw out the case in December of 2009. (The Court of Appeals reinstated the prosecution on April 22, so it seems set finally to go to trial.)
To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident. It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now pending in Congress.

But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report on its efforts.

At the same time, we need better evidence-gathering in the field. It took two weeks for FBI investigators to get to Nisour Square to gather information, and ultimately it was largely the evidentiary problems that caused this case to fall apart. Thus, I support CEJA’s provisions requiring theater-investigative units to gather evidence in cases of abuse.

4. You draw heavily on comments and observations from military lawyers in your book, and you recommend that the JAGs have broader authority to train contractors and oversee their work. Doesn’t this recommendation put you at cross purposes with current DOD contracting practice, which seeks to distance commanders and command authority—and their tools of discipline and enforcement—from contractors?

Military lawyers, embedded with troops in combat and consulting regularly with commanders, have internalized and seek to operationalize the core values inscribed in the international law of armed conflict, in particular the imposition of limits on the use of force. To be sure, the lawyers are not always successful, and it would be simplistic to assume that their accounts prove that the U.S. military always obeys international law. But their stories support the idea that the presence of lawyers on the battlefield can—at least sometimes—produce military decisions that are more likely to comply with international legal norms…. [By contrast,] contractors largely fall outside this organizational accountability framework. While they may receive some training in the rules regarding the use of force, that training does not typically include updated advice on the battlefield about how the rules apply in specific scenarios likely to arise on that battlefield. Contractors also do not receive ongoing situational advice from military lawyers or even from private lawyers employed by the firm itself.… Finally, the accountability system that has applied to troops has not, at least until recently, been extended to contractors. Thus… many crucial, though subtle, mechanisms of compliance with public values are significantly weakened in the privatization process.—From Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs.
Reprinted by permission of Yale University Press, © 2011 Laura Dickinson.

The interviews I conducted with uniformed military lawyers demonstrate the critical role that these lawyers play on the battlefield, integrating public values into military decision-making by training troops in the laws of war and advising commanders on issues such as whether a particular targeting decision is a “good shoot or a bad shoot.” Contractors, including security contractors and others authorized to use force, operate in highly dangerous settings without comparable guidance. As you note, in the book I argue that one solution is to give the uniformed lawyers more of a role in advising contractors. They might do more training of contractors authorized to use force and provide consultation or supervision in the field. And they might take a more active role in recommending punishment from within the military justice system for contractors accused of committing abuses. Indeed, Congress enacted legislation several years ago that expanded the power of military courts to try contractors.

You are quite right that some within the military have been reluctant to take on this kind of expanded authority, leading some commentators to describe it as “the gift the military didn’t want.” My sense is that many within the military view the option primarily as a backstop against failure by civilian authorities to handle cases. They also worry about the expanded resources required to exercise greater authority over contractors. Yet I do think such expanded authority is essential.

At the same time, I believe we should require the contract firms themselves to install internal accountability agents with a role comparable to that of the uniformed lawyers in the military. Perhaps the decision by Xe services (formerly Blackwater) to appoint former Attorney General John Ashcroft as their lead ethics agent is a step in this direction.

5. You conclude that notwithstanding his campaign rhetoric, Barack Obama is poised to rely just as heavily, if not more heavily still, than his predecessor, on contractors. What has Obama done on his pledge to pursue accountability for them?

Obama has moved the ball forward, but not enough. As we draw down troops from Iraq, the number of contractors there will likely soar—the Commission on Wartime Contracting reports that the State Department would need to double its contractor force to handle its needs there. President Obama has continued the efforts initiated late in the Bush Administration to harmonize the rules applicable to contractors working for different agencies, to improve the contract terms to better spell out contractor obligations regarding training and the use of force, and to develop an accreditation body for security contractors. This entity, currently under development, will include representatives from civil society, industry, and government, and will set standards for firms as well as evaluate compliance. It will be an important oversight and accountability tool, though how well it works will depend on details that must still be decided.

Nevertheless, the administration could, and should, do more. As a senator, Obama co-sponsored a bill that resembles CEJA, and the administration should do more to ensure that Congress enacts this critical piece of legislation. The administration should also make contractor operations more transparent, by mandating disclosure of key contract terms and other data as well as reporting on all cases of contractor abuse. The administration should increase oversight by placing more contract monitors in the field, and ensure that those monitors are properly trained. Contract firms should be required to more rigorously vet and train employees. And the administration should establish a high-level interagency group to address all such matters. The issue has slipped a bit to the back burner. We shouldn’t have to wait for another Nisour Square incident before it gets the attention it deserves.

6. Blackwater founder Erik Prince is reported to have concluded a half-billion-dollar contract to create a private mercenary army for the United Arab Emirates, and to be importing former special forces soldiers from Colombia, South Africa, and other largely Christian nations, while noting that “Muslims need not apply.” In theory, an American engaged in activities like these would have to secure permits and licenses, but there is no evidence yet that Prince has done so. What do initiatives like this tell you about the future of military outsourcing in this volatile region?

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I suspect we are going to see more and more outsourcing by governments. Without effective domestic and international oversight, such reliance on contract security personnel may exacerbate conflicts and undermine the laws of war, as well as the fundamental values that animate international human rights and humanitarian law.

Because the United States wields such enormous military and economic power globally, we can influence this trend if we improve our own regulatory regime. At the same time, we can’t tackle the problems that will arise without a more effective global regime. The Swiss government—in partnership with the International Committee for the Red Cross and with the support of the United States and other governments—has taken steps in this direction by seeking to clarify standards and best practices. But we will need more tools on the international level, such as a workable treaty regime that includes licensing and oversight. And civil society organizations must also become more involved in this issue by setting standards for contractor behavior and putting pressure on governments and international organizations only to hire responsible firms. In short, military contracting is here to stay, and instead of simply decrying the trend, we must use every regulatory tool available—domestic, international, non-governmental—to try to ensure adherence to core values.

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