Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs
by Laura A Dickinson
Yale University Press, $40.00, 288 pages
I could not have written the following 20 years ago, when the number of books on the modern private military and security contracting sector could be counted on one’s fingers with digits left over, but there are now so many books that it constitutes a veritable library; some much better than others.
The latest entry is by Laura Dickinson, a law professor at Arizona State University who has been writing on the legal aspects of contracting for years. Happily, her book is one of those that is clearly better than others.
Professor Dickinson’s focus is on the legal and public policy reforms that might increase accountability of private military contractors (PMC). By accountability she also explicitly includes the public values of human dignity, public participation, and transparency
One of her first points, which seems at first arguable given the now voluminous legal literature on private military contractors, is that international law scholars have not addressed outsourcing in a comprehensive way. By that she means that while scholars have applied international legal norms to non-state actors in general the category is too broad because a private contractor is far different from a guerrilla soldier.
Her book surveys four broad mechanisms of accountability: pursuing litigation under international and US domestic law; reforming both the contracts themselves and the entire contract oversight and enforcement regime; fostering public participation; and addressing organization structure and culture.
It is the second mechanism, in her view, which shows the most promise, although the last one, in which she outlines ways in which the organizational structure and culture of private firms might be reformed, similar to the ways in which military lawyers in the Judge Advocate Corps (JAG) strengthen the development of organizational constraints, is exceptionally insightful, drawing as it does on extensive interviews with JAG members. Indeed, she believes that drawing on organizational theory private entities can develop internal norms of behavior.
But there are also a number of other points, mentioned casually, that bear emphasis. Notably that for the US, even though their numbers were officially small, private contractors were an important part of the Vietnam War. Back then, “outsourcing of military operations appears to have been a way for government officials to try to evade accountability by decreasing outside oversight of military and intelligence operations”.
In actuality the numbers were far larger than appreciated. Tens of thousands of Vietnamese and other nationals, organized in units like the Civilian Irregular Defense Group, were essentially hired by the US government to fight the Vietcong. At the very least they could be considered “quasi-contractors”.
Although the program was initiated by the Central Intelligence Agency it was turned over to Army Special Forces to run who, ironically, gave it much more oversight than you see in contemporary military contracting. Yet the rational for their use matches up almost exactly with what one hears today. Dickinson writes:
Colonel Harold R Aaron, the commander of all Special Forces in South Vietnam in 1968, reported that “we put them in the field for six bucks a day. It costs a lot more than that to put a South Vietnamese soldier in the field. And they figure about $30 a day for an American soldier.”
Another example of what could be characterized as private military contractor use was Operation Phoenix, through which the US government trained and paid a cadre of Vietnamese nationals to engage in counterinsurgency tactics to “neutralize” the South Vietnamese Vietcong political infrastructure.
Another point, especially relevant as it runs counter to one of the standard arguments for private contractor use, is that when the privatization took hold in the US back in the Ronald Reagan administration is that it did not decrease the government workforce:
As the work of Paul Light and others has shown, the massive privatization trend in this period did not in fact shrink government; instead it expanded it. Whether mentioned by number of workers or amount of money expended, the downsizing and outsourcing movement in fact led to a larger governmental workforce. And while studies suggest real efficiency gains and innovations in some areas, and in many cases actual cost savings from outsourcing remains elusive. Moreover, the market has not always functioned well. Indeed, a case could be made there is no really competitive market for many government contracts.
However, through the 1980s the privatization of government was largely confined to domestic affairs. Contrary to popular wisdom it was not until the Democratic administration of Bill Clinton that privatization began to seep into the Pentagon and other parts of the national security and foreign policy bureaucracy.
Tellingly, privatization did not advance during this time because of a grand political design or high-level process. Instead it happened one position at a time for a variety of reasons; cheaper politically to use contract labor, more readily available funding, less rules in place to impede hiring someone quickly, contractors perceived as having greater expertise in servicing complex weapons systems, and congressional acquiescence.
Meanwhile contractors themselves were creating niche services, making themselves indispensable, ie, KBR in logistics, Vinnell and Bechtel on military infrastructure, DynCorp in police training et cetera. Regardless of the reason though the bottom line was that once a position was turned over to the private sector it was difficult to bring it back into the bureaucracy.
After this historical section Dickinson moves on, in chapter three, to the current international and domestic legal frameworks governing private contractors. In language similar to that one hears in the gun control debate she argues that “we cannot solve the accountability problem simply by enacting more federal statutes to allow for criminal prosecution of contractors … there are some jurisdictional holes in the law, and Congress could, and should, address these deficiencies. But the real problem is that neither civilian nor military prosecutors have thus far done much to enforce these statutes.”
Echoing the same point, albeit more pointedly, that private military contractor advocates frequently make, she asks, “Why have so few contractors faced punishment for serious abuses? Part of the problem is that the same executive branch that may have authorized actions leading to abuse in the first place is then responsible for pursuing prosecutions.” In other words, lack of political will.
But more importantly, lack of political will does not explain the difference in the way uniformed soldiers and contractors are treated. The way a handful of low level enlisted men and women were punished for the human-rights violations at Abu Ghraib prison in Iraq, but not a single contractor from Titan or CACI, is just one example
In chapter four Dickinson explores the use of contract, as opposed to criminal or tort, law to improve accountability of contractors and serve as vehicles to promote public law values. She makes the underappreciated point that contractual law is particularly important in the foreign affairs context, “because many of these contracts are negotiated in secret, without competition, based on exceptions to the normal contracting requirements”.
Specifically, she details four practices that could be used:
Explicitly incorporating public law standards in contractual terms in contractual terms;
Enhancing contractual monitoring and oversight, including contractual terms providing for performance benchmarks and self-evaluation, as well as increased staffing and training of contract management personnel
Requiring contractors receive accreditation from independent organizations; and
Expanding contractual enforcement options.
As the cliché goes, that’s so crazy it might just work. Certainly something needs to be done, given the current, pathetic, state of contract monitoring. It is a sad indictment of the contracting status quo that the average military contract does not lay out clear benchmarks against which to measure contract compliance, as is the case with most domestic contracts, in areas as disparate as private prisons and privatized welfare programs. Dickinson notes that of the publicly available Iraq contracts for military services it is striking that none contains clear benchmarks or output requirements.
For example, a contract between the US government and Military Professional Resources, Inc (MPRI) to supply translators for government personnel simply states that interpreters will be provided. The agreement says nothing about whether the interpreters must be effective or how effectiveness might be measured.
Chapter five explores how foreign affairs contracting impacts public participation and transparency, which are obviously critical values for a healthy democracy. Other academics, notably Deborah Avant, have explored this issue but Dickinson does a good job in detailing how it negatively impacts oversight. In particular, the part in which she discusses how oversight problems are even worse for the populations in the host nations who are directly affected by contractors wielding the power granted to them by foreign states or international organizations is spot on. Her recommendations include writing provisions into contracts, as the World Bank does, allowing for individual complaint mechanisms. Once contracts are written to provide such rights to third parties they become very much like trust agreements. In fact, she advocates using three-way settler-trustee-beneficiary trusts. She writes:
Structuring foreign affairs privatization agreements as trusts, rather than as contracts, holds certain advantages stemming from the inherent three-way nature of the relationship built into the trust as a form. If the government funding a contract were conceived as the settler, and the private organization fulfilling that contract were conceived as the trustee, with those affected deemed beneficiaries, the obligations of the trustee, with those affected deemed beneficiaries, the obligations of the trustee to the beneficiary would be encoded in the relationship itself.
The final chapter, examining how Judge Advocate General (JAG Corps) officers, i.e., military lawyers, operate on the battlefield, is unquestionably the most useful chapter of the book. To understand why this is so consider one of the standard arguments made by private military contractor advocates, namely, that most private military, and especially security, contractors, by dint of their own past military service, bring to their jobs a discipline and professionalism that is rarely found among other civilians or even by many first or second term military personnel.
Only people who have never actually served in the military, as are often the case with many of the PMC trade associations, would seriously say, let alone, believe this. People who have been in the military knows that professionalism, especially under fire, is a result of constant ongoing training, excellent leadership, and people who can provide advice to ensure the use of force by combatants complies with the limits that the laws of war place on soldiers.
The profit motivation of PMC serves to ensure constant training is the exception, not the rule. Excellent leadership among PMC is also problematic. In the military, producing good leaders is a career long process. The PMC industry has yet to produce anything remotely equivalent. And insofar as having people advise on the use of the force, which is the function of the JAG lawyers on the battlefield, there simply aren’t any. To be sure private military companies have lawyers back at headquarters who may draft company codes of conduct and hire outside lawyers to defend against various lawsuits but they have nothing like JAGS.
Furthermore, military JAGs have amassed an enviable record of defending the stated US commitment to international human-rights law and humanitarian law, even when it was unpopular to do so. Does anyone seriously imagine that if a PMC lawyer had chided their bosses on employees violating human rights of Abu Ghraib prisoners that they would still have a job? As Dickinson notes, JAGS spend a great deal of time training troops on the use of force both before and during deployments. At best a PMC devotes a few hours or a few days during training before their personnel are deployed.
JAGs are also considered an integral part of the battlefield team and have the ears of their commanders. To earn that trust JAGs go out on battlefield missions with their troops. You are not going to find an in-house counsel doing the same thing with a protective security detail from DynCorp or Triple Canopy.
JAGs are also willing to report such incidents to higher authorities. They understand that on the battlefield there is no such thing as attorney-client privilege. Their primary ethical obligation is to the army, not to the individual unit. PMC have no equivalent. As an illustration consider that of all the cases of actual or possible unjustified force used by private security contractors in Iraq and Afghanistan since 2001 not a single cases was originally reported by a company lawyer.
All of the above serves to illustrate that given the lack of a JAG equivalent PMC largely fall outside the accountability paradigm, and consequently, their professionalism suffers. As Dickinson notes:
While they may receive some training in the rules regarding 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. Indeed, although the contract firms do employ lawyers, these lawyers do not generally spend time on the battlefield and do not have the same opportunity to invoke the advice and backing of more senior uniformed lawyers in the command hierarchy.
Dickinson makes numerous recommendations to improve the situation, not the least of which would be to give JAGs more authority over contractors. As the use of PMC will likely increase in the future they will have an even more strategic impact on US national security. Ensuring that they enhance, and not diminish, the respect for human rights that American troops have painstaking learned over the decades since the Vietnam War is, to use military parlance, a mission critical capability. One can only hope that policymakers will read Dickinson’s book as they grapple with how to accomplish that.