Book Discussion “Outsourcing War and Peace”: Too Much Jurisdiction? – Contractor Liability After Brehm and Ali

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.

Book Discussion “Outsourcing War and Peace”: The Clash of Market and Civic Values and Its Implications

[Allison Stanger is Russell J. Leng '60 Professor of International Politics and Economics and Chair of the Political Science Department at Middlebury College. She is the author of One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy.] This is the first day of our book symposium on Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Related posts can be found below. Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged.  Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way.  While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves. Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home.  The basic pattern is striking.  In 2000, the Department of Defense spent $133.4 billion on contracts.  By 2010, that figure had grown to $367.8 billion, an almost three-fold increase.  In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts.  By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm.  For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.^[1]  Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible. This shift in and of itself does not disastrous consequences make.  But when it is combined with general public distrust of government, Pandora’s box opens.  One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms.  Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self.  It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending.  Government has effectively been hollowed out. There are obviously consequences for public values in this transformation.  As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.”  One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation?  It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity.  Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line?  Who is to ensure that the public interest is upheld under such arrangements?

Book Discussion “Outsourcing War and Peace”: The Rise of Private Military Contractors and the Importance of 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 first post in our discussion of Professor Dickinson's book. Links to the related posts can be found below. I want to thank Opinio Juris for offering me the opportunity to post on some of the central ideas contained in my recent book, Outsourcing War and Peace: Preserving Public Values in an Era of Privatized Foreign Affairs. The book starts from the observation that, over the past two decades, the United States has dramatically changed the way in which it projects its power overseas by outsourcing foreign affairs functions to an arguably unprecedented degree.  At the high point of the combined conflicts Iraq and Afghanistan, the U.S. Government had hired roughly 260,000 contractors—more contractors than troops—to do everything from support tasks, such as delivering meals to soldiers, cleaning their latrines, and maintaining battlefield weapons systems, to more combat-related functions, such as guarding bases, diplomats, and convoys.  At times, contractors even conducted interrogations.  And contractors continue to play a significant role in operating the drones that have become a central tool in our efforts to combat terrorism. All of this contracting poses an enormous threat to what we might call public values.  These values include the core value of human dignity as embodied in international human rights law, as well as the values embedded in international humanitarian law, such as the idea that the use of force is limited even during armed conflict.  In addition, other core values include transparency, democratic participation in decision-making, and accountability (sometimes referred to as the values of global administrative law).