This is the fifth and final excerpt 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.
In her book Prof. Dickinson make numerous trenchant and insightful points about the current process of ensuring oversight and accountability of private military and security contractors. But anyone can make a criticism; proposing solutions to solve problems is more difficult. To her credit Prof. Dickinson makes numerous suggestions, which are listed below.
While PMC trade associations will be pleased that she recommends adopting codes of conduct and best practices, the practices they most often cite as a key achievement, note that it is the very last one she makes in a very long list of recommendations.
A Multifaceted Agenda for Reform
Enforcing International Legal Norms
• Governments, international organizations, and NGOs should clarify standards of conduct and develop best practices for contractors.
• Courts and tribunals should clarify that in the case of gross violations of international human rights and humanitarian law, a nexus to state action is either not required or is satisfied in the situation of a government contractor.
• Courts should clarify that gross violations of international human rights and humanitarian law are actionable under the Alien Tort Statute.Enforcing Domestic Criminal Law
• Congress should eliminate current ambiguities by expanding the Military Extraterritorial Jurisdiction Act to apply to all contractors accused of committing federal crimes, no matter which government agency is the contracting party and no matter where in the world the criminal acts occurred.
• Congress should require the Department of Justice to establish a dedicated office for investigating and prosecuting criminal cases involving contractors abroad. This office should be required to report regularly on the status of contractor investigations and prosecutions.
• Congress should require the FBI to establish "theater investigative units" to deploy in theater to work in partnership with military investigators in cases involving allegations of serious abuses.
• The military should use its new authority to pursue criminal enforcement actions under the Uniform Code of Military Justice against contractors serving with or accompanying an armed force in the field.
• The various governmental agencies employing contractors should do a better job tracking the total number of contractors employed and logging and investigating any serious incidents involving possibly unlawful uses of force.Enforcing Domestic Civil Law
• Courts should clarify that civil tort suits against contractors do not implicate the political question doctrine.
• Courts and/or Congress should clarify that the Federal Tort Claims Act does not immunize contractors from suit or preempt civil suits unless the contractors are operating within the military chain of command.Reforming Contracts
• Agencies should explicitly incorporate public law standards into contractual terms, including references to specific legal frameworks and provisions for training. Likewise, agencies should ensure that these terms are included in contractors' agreements with subcontractors.
• The executive branch should make contract monitoring, oversight, and coordination a higher priority. Ideally, the president should establish a high-level interagency working group to ensure increased staffing and training of contract management personnel, greater consistency of standards for contractors working for different agencies, and monitoring of contracts for all kinds of law compliance, not just financial waste or fraud. In addition, this entity should require contract oversight personnel from different agencies to work together in teams on the ground in the theater of operations.
Agencies should ensure that contracts include performance benchmarks and self-evaluation requirements.
Agencies should require contract firms to receive accreditation from independent organizations, and nongovernmental organizations should create accreditation bodies applying uniform standards.
Agencies should make sure that contracts include third-party beneficiary provisions and should require their contractors to create private grievance mechanisms.
If agencies do not implement the reforms listed above, Congress should mandate such reforms.
Congress should expand whistleblower protections and the availability of qui tam actions with regard to contractor employees.Enhancing Public Participation
• A new federal office of Rule of Law Operations should be created to provide unified policy direction and management supervision of all police and security contractors, and the office should be required to report regularly to Congress on the activities of contractors, including any problematic uses of force.
• Legislation should require automatic release of all contract terms not implicating national security concerns, so that members of Congress and watchdog agencies can scrutinize the agreements and raise objections if necessary.
• Legislation should make it more difficult for government officials awarding and administering contracts to move to jobs with those same contractors.
• Contracts should require that those affected by the performance of a contract be consulted in order to help shape contract terms beforehand and evaluate efficacy afterward, at least as much as possible given security concerns.
• Contracts should be structured as three-way trust relationships where possible, with the government as settlor, the contractor as trustee, and the affected population as beneficiary.
• Agencies employing contractors should issue regular public reports on the extent to which contractors are complying with core public values.Reforming the Organizational Structure and Culture of Private Security Firms
• Judge Advocates should be given broader authority to train contractors, advise on security-related missions, and oversee contract performance in theater.
• Military commanders should be vested with greater authority to supervise and discipline noncompliant contract personnel.
• Private military and security contractors should be required, through contract or regulation, to create a legal corps that would be embedded with operational troops and have authority to enforce core rule-of-law norms.
• Private military and security contractors should adopt comprehensive codes of conduct and best practices.