Foreign Relations Law

Book Discussion “Outsourcing War and Peace”: Laura Dickinson responds to Steve Vladeck

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the sixth 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. Steve Vladeck's post focuses on the interesting question...

Book Discussion “Outsourcing War and Peace”: Outsourcing and Organizational Culture

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the fifth 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 previous posts, I have identified three mechanisms of accountability and constraint.  In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all:  the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups. To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade.  This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made.   He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there.  If you are involved, everyone can see the value added.  The staff and the commander see you as part of the team rather than a weenie lawyer.”  Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.” These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values.  The existence of accountability agents, such as uniformed military lawyers, is important.   So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse. As I note in the book:

Book Discussion “Outsourcing War and Peace”: Contractor Accountability as a Barrier to SOFAs

[Scott Horton is a Contributing Editor of Harper's Magazine and a Lecturer-in-Law at Columbia Law School.] This is the fourth 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. It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective.  Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States.  She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward.  But there are other sovereign players in the game, and their attitudes have significant ramifications. Both Iraq and Afghanistan furnish good examples.  In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops.  That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris. In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA).  Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues.  However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors.  The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA.  The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel.  They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts.