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Book Discussion “Outsourcing War and Peace”: A View from Practice

[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John's University School of Law] 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. With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts. Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here. I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.

Book Discussion “Outsourcing War and Peace”: Government Contracts Can Be a Tool to Help Protect Public Values

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] 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. While they are not often viewed in this way, government contracts can serve as a tool for implementing public values such as human rights or humanitarian law principles.  In the domestic setting, with privatized prisons, health care, and welfare-to-work programs, we actually have some experience writing public values into contracts and including them in the contract management and oversight regime.  In the book, I compare domestic contracts of this sort and foreign affairs contracts – and the foreign affairs contracts fall short. The contracts, in my view, fail to specify with sufficient precision terms that would require appropriate and meaningful training in particular human rights and humanitarian law principles, as well as vetting of potential contractor employees for problematic human rights records and other issues.  In the wake of the Nisour square shooting, for example, a State Department report noted that while the U.S. Embassy in Iraq “provides comprehensive guidance on permissible uses of deadly force and the circumstances under which deadly force can be used,” that guidance is less explicit on how deadly force should be used.” (at 6).  The report emphasized the discrepancies in rules applicable to state department and defense department contractors.  And at the time of the Abu Ghraib prison abuse scandal, military reports emphasized the poor vetting and training of contract interrogators and translators. To be sure, since then the Bush administration and the Obama administration have made strides to improve the contracts.  A Memorandum of Understanding harmonized key differences in contract terms among the agencies.  Defense recently implemented a rule that laid out much better training requirements for security contractors.

Book Discussion “Outsourcing War and Peace”: Private Security Contractors and Public Accountability

This is the second 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. One of the many things I like about Professor Dickinson's book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson's book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient. Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.

Book Discussion “Outsourcing War and Peace”: Too Many Gaps – The Need for a Better Accountability Framework for Private Military and Security Contractors

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the second 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. In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values.  The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses. With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects.  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 in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people.  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 languishing in Congress despite support from the administration and industry. 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 more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.