Reining Privatized Power: Laura Dickinson

Laura Dickinson is the Foundation Professor of Law at the Arizona State University Sandra Day O’Connor College of Law. She serves also as the Faculty Director of the Center for Law and Global Affairs. Prior to her appointment to ASU, Professor Dickinson was on the faculty at the University of Connecticut School of Law from 2001 to 2008. She served as a Visiting Research Scholar at the Law and Public Affairs Program at Princeton University in 2006-2007. Her forthcoming book, Outsourcing War and Peace is to be published by Yale University Press.

The Politic: You have recently finished Outsourcing War and Peace, which “examines the increasing privatization of military, security, and foreign aid functions of government, considers the impact of this trend on core public values, and outlines mechanism for protecting these values in an era of privatization.” Could you briefly discuss your main argument and observations in this forthcoming book?

LD: In the book, I examine the progressive shift in how we project our power overseas through the use of private contractors. For example, we are now using more contractors than troops in Afghanistan and Iraq. The contractors are doing everything from logistics work, to delivering foreign aid, to guarding diplomats and sites, to conducting interrogation. This is a huge shift in the way we project our power overseas. The starting point for my book is the proposition that this shift poses quite a significant risk to what I call “public law values” – the values embedded in international human rights law, those embedded in international humanitarian law, and other values, such as public participation and transparency. For example, one core value embedded in international humanitarian law is the principle that the use of force is limited in times of armed conflict.

Outsourcing poses serious risks to these values, and there have been many reports in the media which illustrate these risks. The high profile incident involving the Blackwater security guards who fired on civilians in Baghdad’s Nisoor Square is one well-known incident, but there are many others. For the book, I interviewed former military lawyers who served in Iraq and Afghanistan, and a number of them said there were as many as two incidents a week involving excessive use by contractors.

The book examines the nature of these risks and also proposes ways that we can try to protect public values in an era of privatization. The starting point of my argument is that that privatization is here to stay. I think that in the near to medium-term, we are only going to see the government using more and more more contractors. Rather than arguing against this shift, I contend that we ought to take steps to protect public values in this radically different world. To that end, I examine litigation and legislation as well as the terms of the contracts themselves, and I suggest reforms that might better protect public values. I look at mechanisms to promote public participation and transparency. And finally I look at organizational culture: is there a way we might foster a professional culture within these private firms that better promotes the values we care about. Is there a way that we can harness the gains in the military and extend the role of the oversight to private firms?

The Politic: You believe that civil society in the United States holds these public values to high standards in most cases. Could you expand on these values and explain what role the use of private contractors has in changing or threatening these values?

LD: I focus on values embedded in international human rights law, those contained within the law of armed conflict, and other values, such as public participation: the idea that our government is transparent. I show that outsourcing threatens transparency because when you delegate governmental action to agencies, and those agencies then delegate again to contractors, it is very difficult to have a public debate about what is going on. The contractors need not obey the same transparency laws that government agencies must follow. The same rules do not always apply to them because they are private companies. This adds, in a sense, another layer of bureaucracy.

There was a hearing a couple weeks ago in which the Defense Department could not give a complete tally of the number of contractors acting in Iraq and Afghanistan. There are so many different databases, and State Department contractors, for example, are not all entered into the Defense Department database. As a result, we cannot even say exactly how many contractors there are, let alone keep track of what they’re doing. Agencies struggle to hire personnel to monitor the contractors in Iraq and Afghanistan, and those who do take the job are typically shuffled through positions within six months or so, and have very little knowledge of what they are supervising. We have cut way back on the number of contract oversight personnel, and that impedes our ability even to obtain basic facts about what the contractors are doing, let alone assess their effectiveness or ensure that they respect human rights principles.

The Politic: Some people will argue that privatization of foreign policy should have limits. As a legal professional, what limits do you believe the government should impose on itself when it comes to private contractors? Has the government already overstepped this boundary?

LD: Under current policy, the Defense Department does not allow the outsourcing of combat activities, and I believe this is a sensible limit. However, we allow contractors to engage in activities that come awfully close to combat. Many critics argue that we should eliminate all categories of contractors who are authorized to use force, such as security contractors or interrogators. I think that there is a strong case to be made for abolition in these cases because the risks of abuse are high. On the other hand, the reality is that we are so dependent on these types of contractors that it would be difficult to eliminate them.

During her presidential campaign, Senator Hillary Clinton cosponsored legislation that would have eliminated security contractors, yet she backed off from that position when she became Secretary of State. She expressed concern about the use of security contractors but acknowledged that it was not feasible to eliminate them. I suspect she concluded that the Department needs their protection. This example shows how difficult it is, given how far we have come, to eliminate whole categories of contractors. Rather than seeking abolition, I think a better response is to achieve stricter regulation. But perhaps most importantly, we should continue to have a debate about which types of contracts might be eliminated in the long run.

The Politic: What is the accountability framework if a contractor commits an abuse? Are contractors able to act differently than government forces? Is there any legal backing that protects their operations in a warzone?

LD: Media accounts often depict contractors as operating in a sort of law free zone. In fact, there are many laws—both international and domestic—that apply to contractors. Although these laws have grey areas and gaps that should be filled, perhaps a more significant issue is how the law is enforced. For example what happens when a security contractor uses excessive force and kills someone, as many commentators assert took place in September of 2007 when Blackwater guards fired into a crowd in Baghdad’s Nisoor square? What we have seen is that troops who use excessive force are punished, but contractors who use excessive force typically do not face trial.

Under the Military Extraterritorial Jurisdiction Act (MEJA), our federal courts have the power to consider cases involving contractors employed by the U.S. government who commit federal crimes (e.g. murder or assault) in foreign countries. The statute is worded in such a way that it covers contractors that are supporting a Department of Defense mission. The Blackwater contractors were working for the State Department. Would they be covered under the Act? It is an open question: the State Department and the Bush administration initially took the position that these contractors would not fall within the statute. Yet, you could make an argument that they are covered. Although they were working for the State Department, they are more widely supporting a Department of Defense mission. Ultimately they were indicted, though the federal district court has now thrown out the indictments for other reasons. In any event, the scope of MEJA is a question the courts will have to answer at some point.

A bill that passed in the House but stalled in the Senate would have closed this gap in wording and resolved all ambiguity, giving federal courts jurisdiction over contractors working for any agency overseas. But I would contend that even more than closing that gap, we need to reform our system of enforcement. It took two weeks for FBI investigators to get to Iraq to investigate the Nisoor Square shootings. We ought to require that investigators get to the scene in a timely manner. Another issue is that the responsibility to bring these cases has fallen on the lawyers in the U.S. attorney offices spread around the country. They do not necessarily have expertise in these areas or the incentive to bring these cases. They are difficult cases, as you can imagine. We need to centralize enforcement in the Department of Justice and build up a cadre of lawyers whose main job is to bring these kinds of cases.

The Politic: Blackwater has served as a high profile case in which the U.S. federal courts have taken on the role of prosecution. What other methods of prosecution exist and to what extent can they be utilized?

LD: Contractors could be potentially prosecuted in international courts, although there are no international courts that have jurisdiction. If contractors use excessive force during armed conflict, they could be prosecuted for war crimes. The same would be true if contractors tortured detainees. There is some precedent for the prosecution of non-state actors for war crimes and crimes against humanity at Nuremberg and in the International Criminal Tribunal for the Former Yugoslavia.
Contractors could also be prosecuted in the host country. For a while, Coalition Provisional Authority Order 17 granted contractors immunity from prosecution in Iraq. That order is no longer in effect. But the problem with criminal prosecution in Iraq and other countries where abuses might take place is that the courts are not really in position to handle these cases.

The Politic: The United States has not always been so dependent on private contractors to execute foreign policy and military goals. What is driving the heightened use of military contractors?

LD: First, I should day there has been a significant shift if you compare the use of contractors today to the use of contractors thirty, forty, or fifty years ago, but if you go back even further in our history we did use contractors in many ways. What is causing this modern shift? One of the main factors is what I call the ideology of privatization, the idea that the private sector can do the government’s work better, more cheaply, and more efficiently. The privatization of our foreign affairs function is an outgrowth of the privatization of our domestic governance functions.

In the 80s and 90s we saw a huge shift in how we provide a whole range of services from education, to healthcare, to prison management. We saw a shift on the part of governmental entities including state and local governments from public employment to the use of private contractors, and we had a big debate about that. The ideology that was driving that debate drove the outsourcing of foreign policy actions in the late 90s and the beginning of the 2000s. I use the term ideology because, particularly in the foreign policy context, it was an idea that had no data to support it. It may or may not be cheaper to outsource military and security functions. We just do not have the data. But it was politically much easier to justify adding contract labor positions than adding governmental employee positions. And this happened incrementally in thousands of small budget decisions, almost under the radar screen. While we had a big public debate about the outsourcing of domestic governance functions, we never really had a public debate about the outsourcing of foreign affairs functions. And now we find ourselves in a radically different world.

There were a other factors too. The use of contractors reduces the political costs of war because when contractors are killed (more than a thousand have died in Iraq and Afghanistan), the tally is not included in the number of troops killed. Likely for this reason, the number of contractors grew dramatically during the conflict in Kosovo (under President Clinton). It fit in with the strategy of using air warfare—instead of using troops on the ground—in order to reduce casualty counts. This trend has continued in the conflict in Iraq and Afghanistan under President George W. Bush and as well as President Obama’s administration.

The Politic: Following the Nisoor shooting in 2007 involving Blackwater security guards firing on civilians, the company and private contractors in general have received criticism. How does this impact perceptions of the United States and our foreign policy objectives?

LD: I think it has certainly had an impact on our relationship with Iraq. The incident involving Blackwater has been a great source of concern within Iraq. And many of our own troops and the uniformed military lawyers I have interviewed said the lack of accountability for contractors jeopardizes our ability to promote the rule of law in Iraq and stable governance. More broadly, the lack of accountability when contractors commit abuses—not the use of contractors per se—threatens to harm our reputation and interfere with our foreign policy objectives. It undermines the image of the United States as a nation that respects certain values. To the extent that we care about those values, and that we pursue a values-based foreign policy, a failure to hold contractors accountable for wrongs they commit can undermine our goals.

The Politic: In the future, what steps should the United States take to remedy issues regarding accountability and regulation of contractors?

LD: We need to have broader public debate. Part of the problem is that so much of this has happened under the radar screen. We are starting to have a little bit more of a public conversation about foreign policy contractors, but people do not fully realize the significance of the changes that have taken place. I think part of the debate is whether or not we should be doing this at all. Yet now that we are so far down this path, we also need to focus on regulating contractors, holding them accountable, and ensuring sufficient oversight. If we get hung up on trying to figure out which type we should ban, the train will not only be moving down the track, it will be off on another planet. We cannot waste any time. I think it is a concern that some good bills have stalled in Congress. I know the administration is coping with a log of issues, from the financial crisis to health care reform. Still, we should make the regulation of military and security contractors a higher priority issue.

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