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).

In order to see the risks posed by outsourcing, one need only consider some of the high profile incidents involving alleged abuse of force in Iraq, such as the notorious 2007 Nisour square shooting, in which State Department security guards working for the firm Blackwater (now Academi) reportedly fired into a crowd, or the key role contract interrogators and translators played in brutalizing detainees at Iraq’s Abu Ghraib prison.  But many more incidents involving contractors do not receive this sort of public attention.  In researching the book, I conducted interviews with uniformed military lawyers who served in Iraq and Afghanistan, and these lawyers reported that in some areas of conflict there were as many as two incidents a week involving alleged abuses of force committed by security contractors.  And, while outsourcing is often touted for creating greater efficiency and cost-saving, the Commission on Wartime Contracting has concluded that more than 30 billion taxpayer dollars were lost to waste and fraud in Iraq and Afghanistan.

To be sure, these examples do not in any way lead to the conclusion that all contractors are committing abuses or wasting money or that these cases are typical.  Moreover, as the recent, tragic case of Sergeant Bales highlights, it is not only contractors but also uniformed troops who are capable of abuses.  (The recent Secret Service scandal also reveals that highly trained federal agents are not necessarily models of virtue). And there is a largely hidden story of contractor deaths and injuries in our recent conflicts – my colleague at George Washington Law School, Steve Schooner, and one of our students, Collin Swan, have documented more than 2,000 contractor deaths since the beginning of these conflicts, a quarter of all casualties.

But nonetheless, the threat to public values is real. When troops commit egregious violations, there is a military justice system available to punish them, but we still have no comparable accountability framework for contractors.  The Abu Ghraib scandal is a case in point.  Twelve soldiers were prosecuted for their role, but to date no contractors have faced punishment.

In responding to this gap in accountability and oversight, I start from the perhaps controversial premise that foreign affairs contracting is here to stay and that it is therefore not realistic to argue that we should stop all military outsourcing.  Certainly it is worth considering whether Congress should prohibit outsourcing of particular functions, such as security and interrogation.  But we also need to move past that debate and think more seriously about how best to ensure that contractors respect these public values in the conflict zones and post-conflict settings where I believe they will be operating for the foreseeable future.

Accordingly, the book focuses on four mechanisms of accountability and constraint that could be better harnessed to respond to a world of privatized foreign affairs: (1) using litigation (both criminal and civil) to hold contractors responsible for malfeasance; (2) reforming the language of the government contracts themselves to mandate compliance with public values and providing for better contract monitoring to ensure this new contractual language is effective; (3) creating better transparency mechanisms regarding outsourcing decisions; and (4) creating a web of formal and informal constraints by tweaking the organizational structure and institutional culture of the contract firms themselves.  A common theme that runs through all four of these mechanisms is the idea that the law on the books cannot protect these values alone, but rather we have to consider the law in action—the actual mechanisms of enforcement—and think about how we can redesign our institutions to be more effective in coping with the expanded role for private actors.  Future posts will address these mechanisms of accountability and constraint in more depth.