Book Discussion “Outsourcing War and Peace”: Executive Power and Foreign Affairs Contracting

by Chris Borgen

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

On behalf of all of us at Opinio Juris, I’d like to thank Laura (and our guest bloggers) for joining us this week to do a discussion about her timely new book, Outsourcing War & Peace. As someone who teaches National Security Law and Contracts, I was particularly struck by an observation she made early in the chapter on contracting: “although typically conceived as the quintessential private law form, contracts… might be a tool to instill broader public values—in short, to ‘publicize’ the process of privatization.”

This is, as Laura notes, an inversion of the classic story that we tell about contracts: that they allow for private ordering among parties, setting new rules that might be different than “public” rules that apply to all. (I am thinking, for example, of Lisa Bernstein’s scholarship on the diamond industry.)

But Laura is looking at contracts as a means to apply public law rules on private actors that undertake quasi-governmental activities in foreign affairs. It is a suggestion that opens up many possibilities for better regulation of prvate military contractors, foreign aid providers, intelligence shops, and so on. Laura describes the details of the types of requirements that can be made via better contracting including the incorporation of human rights and humanitarian law standards, and baseline training requirements. She also tackles the difficult issue of how to monitor contractual compliance. But I want to focus on a different impediment: how do we shift from the current habit of lax contracting standards in foreign affairs contracting to this new form that incorporates international and domestic public law standards?

One possible impediment is whether the U.S. government actually wants public law standards in its foreign affairs contracting. Laura notes the antipathy of the Bush Administration to international law but could there be something else that would make any administration, Republican or Democrat, leery of explicitly inserting certain international or constitutional standards in such contracts?

One issue may be the leeway that the Executive Branch claims it must maintain in foreign affairs. Laura notes on page 75 of her book that public law standards are common place in domestic contracting over privately run prisons, for example, but that this is not the case in foreign affairs contracting. I would expand on this observation with the more general point that Congressional statutory oversight (not to mention judicial oversight) is much tighter and more specific in the purely domestic context than in the realms of foreign affairs and intelligence activities. It is not surprising that this is also the case regards to how many public norms are included in foreign affairs contracts. If a President maintains and expansive reading of the Constitution’s Foreign Affairs and Commander in Chief clauses, giving him broad leeway in the types of activities he orders overseas, then he may not want his agencies to enter into contracts win which the room for manuever of the contractors they employ are significantly curtailed. Perhaps Congress can use its budgetary powers to demand that such rules be written into foreign affairs contracts. But such full-contact Constitutionalism in the fields of foreign affairs and intelligence operations has not been Congress’ strength for many years.

Similarly, there may be a concern that certain types of regulations included in private contracts may be viewed as state practice (and maybe even opinio juris) for the purposes of customary international law. A President may be concerned that he may be binding himself and future Presidents in inadvertent ways by putting various international law standards into foreign affairs contracts.

I completely agree with Laura that  public law norms should be incorporated into foreign affairs contracts. But, given the interest of the United States government, and particularly of the Executive, in maintaining broader “room for maneuver” in foreign affairs intelligence contracting, the gap between “should” and “would” is daunting.

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