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

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.

But more than ten years after the conflict in Afghanistan began, huge problems remain. Just a few weeks ago, on March 29, 2012, the Special Inspector General for Afghanistan Reconstruction (SIGAR) Trent testified that 90% of the roughly 24,000 private security contractors (PSCs) hired by Defense and USAID in Afghanistan have not been vetted properly. Despite the increasing dependence on PSCS, Trent said that “neither USAID nor [DOS] systemically tracks information on PSC personnel,” a point that a Government Accountability Office Report last fall hammered home as well when it criticized State, Defense, and USAID for failures stemming from the Synchronized Predeployment Operational Tracker (SPOT Database): “SPOT does not provide a reliable means of obtaining information on orders and subawards.”(at 23) The SIGAR also emphasized that our government fails to systematically track or report the civilian deaths caused by PSCs working for State, Defense, or USAID (at 14). Furthermore, efforts to recruit, train, and deploy sufficient numbers of contract management personnel, in particular the contract officer representatives who are the eyes and ears of the contracting officer on the ground, remains a perennial problem. In other words, we still can’t get an adequate handle on what our contractors are doing, how many people they are harming, and indeed how many of them are dying—and we don’t have enough well-trained government personnel to provide adequate oversight.

On the bright side, I do think that we are seeing an innovative public-private partnership emerge for security contractors.  In the book, I highlight domestic examples of accreditation, in which private sector groups, partnering with the government, can set standards and effectively give report cards to contractors.  Multi-stakeholder efforts, involving representatives of civil society and government beyond industry (such as we’ve seen in the health care arena with examples such as the National Committee on Quality Assurance), are, I argue, more effective than purely industry-dominated initiatives (as in the private prison context).  I touted such initiatives in the foreign affairs arena, and now the International Code of Conduct for Private Security Contractors, developed by human rights groups, governments, and industry, now boasts more than 200 members.  Moreover, the initiative will include a governance mechanism that will require all firms to be certified to core standards, submit to periodic audits by independent auditors, and agree to allow for the possibility of dispute resolution through a grievance mechanism.  To be sure, the initiative is still in its infancy, and the efficacy of the mechanism will depend in part on how meaningful the audits are, as well as how the now mostly inchoate grievance mechanism takes shape.  Furthermore, the United States has not yet said that it will require membership before a firm may receive a contract – in my view a development that would significantly strengthen the efficacy of the mechanism.

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Benjamin Davis
Benjamin Davis

Why are there proposals for at most soft law solutions for private contractors and no hard law solutions in the West,  but hard law solutions for government officials in Eastern Europe (Mladic) and Africa (Taylor)?  Accountability is a broad multidimensional possibility – in line with the range of remedies available for violations of international law.  But, in the absence of criminal prosecution for high-level civilians or generals in the West, I doubt serial violations will be averted through contract.  Contract after all contains within it the notion of an efficient breach and the remedies do not include punitive damages in the US – have to find a tort level series of facts.  Even with those tort level or even criminal level facts – the efforts to immunize contractors that are done suggest remedies through those spaces are extremely unlikely (but see Abu Ghraib but compare Jeppesen) and no criminal action will be pursued by the government that countenanced the action.  The absence of CEJA along with MEJA is an example of a legal “empty space” being purposely left open by the powers that be to precisely shield the military contractors.  Mumblings in legal spaces are window dressing.  We have to… Read more »