This is the fourth of five excerpts from law professor Laura Dickinson's book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. . Find previous parts in the archive here.
Private military contactors and their advocates generally say they are all for transparency and willingly comply with all government requirements dealing with that. Many of them say this with an utterly straight face and, in fact, at least some of them are genuinely sincere about it. But is just an undeniable fact that for the average member of the public, when it comes to getting information about a private sector company, their task just became orders of magnitude more difficult. Bear in mind that while companies frequently, if not routinely, use the "confidential business information" as a dodge there are cases when they would be willing to release the information but their client, the taxpayer supported federal government, will assert the excuse, even when the company wouldn't, simply because the government doesn't want the information made public.
And woe betides the rare PMC employee who sees something going wrong and out of conscience goes public with it. Usually that ends up being an example of no good deed goes unpunished.
Here we ﬁnd that the work of contractors performing foreign affairs functions for the U.S. government is far more opaque, and employees of contract ﬁrms have far fewer protections if they decide to come forward with information about abuse. The result is that citizens are far more likely to hear about, and be aware of, the acts of governmental entities abroad than they will be about similar acts performed by private contractors. Indeed, even the public research entity that provides information to Congress, the Congressional Research Service, reports that "the lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efﬁciency difﬁcult."
Weaknesses in the sunshine laws, as they apply to contractors, are part of the problem. While FOIA does give individuals the right to request information about the activities of foreign affairs contractors, its reach over the contractors is more limited than its reach over government actors. First, FOIA confers a right to view only government materials and not private business documents. Thus, in any case involving a contractor, there is a threshold question as to whether the documents even qualify as government documents. Second, in addition to any national security restrictions on government materials related to contractor activities, the statute grants an additional exception for "conﬁdential business information." Thus, any government documents that might involve "trade secrets and commercial or ﬁnancial information obtained from a person and privileged or conﬁdential" are exempt. As a result, any contract terms that could qualify as "conﬁdential business" matters would not be open to public scrutiny.
Accordingly, although citizens and organizations have used FOIA to obtain information about foreign affairs contractors, the information available is more limited than is information about agency conduct. Indeed, even members of Congress have complained about the difﬁculty of obtaining information about contractors. Representative Jan Schakowsky of Illinois, for example, has said that she was repeatedly thwarted in efforts to review State Department audit reports of DynCorp contracts because the department was bent on protecting DynCorp's commercial secrets. According to a DynCorp spokesperson, releasing government audit reports would make public cost-per-employee ﬁgures that could help competitors undercut DynCorp in future bids. Yet, as Schachowsky notes, the result is that "there seems to be no real interest in overseeing or reporting or holding accountable any of these contractors. And we're talking about billions of dollars of taxpayer money."
Whistleblower statutes also provide weaker protections for contract employees than they do for government employees. For example, although federal law does prohibit reprisals against contractor employees who speak up about misconduct, the information disclosed must "relate to a substantial violation of law related to a contract." Federal employees, by contrast, are protected when they speak up about violations of rules as well as laws, and even when they complain about gross misconduct that does not rise to the level of lawbreaking. In addition, federal employees may disclose the information in question to the general public, while contractor employees are protected only if they limit their disclosures to members of Congress, authorized agency ofﬁcials, or the Department of Justice. Finally, contractors have weaker options for enforcing their rights. If they believe they have suffered retaliation, they may complain to the inspector general of the contracting agency, but it is up to the agency head to decide whether to pursue a remedy against the contractors. Federal employees, by contrast, may complain before administrative tribunals and seek judicial review of those decisions. And although contractor employees may bring suits under the False Claims Act, just as federal employees may, these suits are limited to cases of fraud and do not include other types of misconduct.