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.

Adequately resourcing MEJA prosecutions is also a much better option than broadly extending court-martial jurisdiction over civilian contractors, as Laura suggests as a complementary alternative to MEJA. The reality is that the military services’ Judge Advocates General (TJAGs) have never sought this expansion of UCMJ jurisdiction and were not particularly pleased when Senator Lindsay Graham (Colonel, USAF Reserve JAG, and a former judge on the AF Court of Criminal Appeals) pushed through an amendment to the UCMJ to this effect in 2006. (The truth be told, I recall the TJAGs not being particularly pleased when MEJA was introduced in 1999 either. The legislative history of MEJA can be found here.) Historically, the TJAGs have not wanted the increased scrutiny – media, public, or Congressional – that a lot of civilians being tried at courts-martial would inevitably entail. And their fear of scrutiny is not unjustified; the once very similar British court-martial system has been systematically dismantled by the European Court of Human Rights due to very legitimate concerns over the impartiality and independence of courts-martial. (See, e.g., Findlay v. U.K..) But that is hopefully for another discussion in the future.

One of the more powerful and convincing parts of Laura’s book is her examination of possible contractual mechanisms that could be used, with little or no need for legislative or regulatory changes, to force contractors to operate in compliance with public law norms and to offer some form of administrative process for impacted populations to have input into the nature and extent of contractor activities and to redress their grievances resulting from those activities. This is a highly innovative approach that could yield real and significant improvements in the sort- to medium-term. Her recommendations deserve wider discussion and consideration for implementation. Here again, however, I would have liked to have seen deeper analysis of the overarching structural problems confronting any contract-based reform initiatives.

First and foremost, Laura ignores a very inconvenient baby elephant in the Government contracting room – it’s really, really hard for agencies to pull the trigger on the one thing that will lend teeth to any such reforms. That is, agencies seldom – really almost never – cancel a contract for failure to perform provisions of the statement of work. In federal acquisition parlance, this is the infamous “termination for default” or T for D. Many agencies, in particular State and USAID, but also DoD – simply lack the capacity and often the competence to do so. It is very difficult for State, for example, to get even initial contract awards out the door. For example, DoS’s Bureau of International Narcotics and Law Enforcement Affairs (known widely as State INL), recently made final awards for its main multi-year indefinite quantity contract, the Criminal Justice Program Support (CJPS) IQC. While working as the managing partner of a rule of law and development contractor that implemented INL projects, I first commented on the draft request for proposals (RFP) for CJPS in September of 2009 – and final awards were made in April of 2012. That means this contract took over three years (including all the work before the draft RFP was released) to award from beginning to end. As another example, I served as chief of party/senior justice advisor on State INL’s largest-to-date rule of law project in Iraq from its launch in July 2008 to July 2009. When that task order under CJPS’s predecessor contractor was awarded, the statement of work was already over 18 months old – and this is in post-war Iraq remember, where 18 months is an eternity by any measure – and it took us 10 months to get the first uniformly supported and completely unobjectionable contract modification approved. (And this was a contract mod to save the Government several million dollars.) This is not the kind of acquisition structure able to handle truly innovative contract clauses, complex new monitoring systems, effective oversight, or meaningful sanctions for lackadaisical or malevolent contractors.

So although Laura’s contract-based innovations are intriguing and I support the discussion of any and all such ideas enthusiastically, we should not delude ourselves into believing they would easy, cheap, or enforceable. But this issue, too, would be a fine subject for future blog discussion.