This is the third 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 first part one here and part two here.
It seems from what Prof. Dickinson writes in the following that even without hiring and training more auditors and contracting officers, a recommendation that virtually every analyst and group which has studies private military contracting, has been making for years, the government has long had the means to ensure performance and accountability on the part of PMC it hires simply by writing in specific standards into the contracts it issues. Why it hasn't done so is one of life's little mysteries.
Ensuring That Contracts Incorporate Speciﬁc Legal Frameworks
In the domestic setting, contractual provisions that lay out speciﬁc legal regimes and bind the contractor under those legal regimes, either by referring to existing legal frameworks or by laying out speciﬁc rules or standards in the contracts themselves, are commonplace. As a term in their contracts with privately run prisons, for example, many states demand that contractors comply with constitutional, federal, state, and private rules and standards for prison operation and inmates' rights. In addition, contractual agreements may specify that contractors must hold hearings and review contractor actions when aggrieved parties lodge complaints.
The U.S. government's military and foreign aid contracts in Iraq, by contrast, have been strikingly inadequate on this score, and were particularly lacking in the early days of the Iraq war. Of the sixty Iraq contracts publicly available as of 2005, none apparently contained speciﬁc provisions requiring contractors to obey human rights, anticorruption, or transparency norms. The agreements between the U.S. government and CACI International Corporation to supply military interrogators starkly illustrate this point. The intelligence personnel were hired pursuant to a standing "blanket purchase agreement" between the Department of the Interior and CACI, negotiated in 2000. Under such an agreement, the procuring agency need not request speciﬁc services at the time the agreement is made but rather may enter task orders as the need arises. In 2003 eleven task orders, worth $66.2 million, were entered (none of which was the result of competitive bidding). The orders speciﬁed only that CACI would provide interrogation support and analysis work for the U.S. Army in Iraq, including "debrieﬁng of personnel, intelligence report writing, and screening/interrogation of detainees at established holding areas." Signiﬁcantly, the orders did not appear to expressly require the private contractor interrogators to comply with speciﬁc international human rights or humanitarian law rules such as those contained in the Torture Convention or the Geneva Conventions. Likewise, although the contractors were subject to international and domestic laws prohibiting the bribery of government ofﬁcials, as well as the general terms of applicable contracting statutes and regulations, none of the contracts speciﬁcally prohibited the contractors themselves from accepting bribes, an area that remains ambiguous under domestic and international law. Similarly, the contracts did not appear to include terms making it clear that FOIA was applicable to contract activities, a provision that would have helped to make contractor activities more transparent.
It might at ﬁrst seem surprising that these contracts would not contain, as a matter of course, provisions requiring compliance with speciﬁc international law rules (or standards). However, as we saw in Chapter 2, the move to outsourcing occurred through hundreds of small decisions made in different agencies, and until now there has been no high-level analysis or public discussion of how these contracts should be framed. In addition, at least during the George W. Bush administration, there was antipathy toward international (and even many domestic) legal regimes, and outsourcing was used as one way to circumvent these regimes. Finally, although many foreign affairs contracts could fall within the purview of the military judge advocates, overseeing contractors has historically had a low status among military lawyers, and the contracts have not typically received approval or input from the judge advocates in advance. This is in sharp contrast, as we shall see in Chapter 6, with the very active role military lawyers play in advising uniformed commanders on the ground. Thus, the primary military body institutionally committed to a culture of respect for rule of law values has not historically been involved in the drafting and oversight of contracts. Now that the potential problems of the contracting regime have come to light, however, there may be a possibility for institutional change in this regard.
To be sure, the Department of Defense (DOD) and State Department ofﬁcials have now acknowledged serious missteps during the early stages of the conﬂicts in Iraq and Afghanistan. For example, testifying in 2008, Jack Bell, then deputy undersecretary of defense for logistics and materiel readiness, emphasized that, "faced with this unprecedented scale of dependence on contractors, we have confronted major challenges associated with visibility, integration, oversight, and management of a large contractor force working along side our deployed military personnel that, frankly, we were not adequately prepared to address." Secretary of State Condoleezza Rice, testifying in the wake of the September 2007 Blackwater Nisour Square incident described in the Introduction, acknowledged that the State Department should have acted earlier to rein in the security ﬁrm: "I certainly regret that we did not have the oversight that I would have insisted upon."
Ofﬁcials have also taken steps to improve contractual language. For example, the DOD ﬁnally, in 2005, issued a document providing general instructions on contracting practices that required contractors to comply with existing law and policy. By the end of 2007, the DOD Joint Contracting Command for Iraq and Afghanistan included the more sweeping requirement that all contracts had to include a provision mandating that contractors, subcontractors, and personnel "comply with all existing and future U.S. and host nation laws, federal and DOD regulations, and U.S. Central Command [CENTCOM] Orders and directives, including rules on the use of force . . . applicable to personnel in Iraq." Moreover, individual contractor and subcontractor employees were required to "provide written acknowledgement that they understand the penalties for noncompliance, [which] include criminal and civil actions, revocation of weapons authorization, and contract termination." Thus, not only does this provision include a broader reference to future laws, regulations, and directives, it includes subcontractors as well as prime contractors, makes speciﬁc reference to rules on the use of force, and mandates that contractors afﬁrm their understanding of these rules.
Despite these reforms, signiﬁcant problems remain. As late as September 2007, four years after the beginning of the Iraq War and six years after the beginning of the conﬂict in Afghanistan, the DOD and the State Department had strikingly different contracting practices. Indeed, a 2007 report produced by the Secretary of State's Panel on Personal Protective Services in Iraq observed starkly after two weeks of on-the-ground interviews that security contractors in Iraq were still operating "in an environment that is chaotic, unsupervised, deﬁcient in oversight and accountability, and poorly coordinated." Moreover, the report noted a lack of "parallelism" with the CENTCOM rules on the use of force by contracted security in Iraq, and in particular urged the State Department to revise its rules to clarify that "if an authorized employee must ﬁre his/her weapon, he/she must ﬁre only aimed shots; ﬁre with due regard for the safety of innocent bystanders; and make every effort to avoid civilian casualties." Since then, the DOD and the Department of State have hashed out a Memorandum of Agreement to harmonize their approaches to standards for private security contractors as well as contract management more broadly. This effort has earned the praise of watchdogs such as the Government Accountability Ofﬁce (GAO) and the Special Inspector General for Iraq Reconstruction (SIGIR). Yet the fact that the rules regarding the use of force for contractors were so different for so long is troubling. In addition, the Memorandum of Agreement covers only security contractors and not other contractors, such as interrogators, translators, or self-defense, and who therefore might use force. Moreover, the contract language remains relatively broad and vague. More useful terms would refer to particular obligations under international law, such as speciﬁc human rights or humanitarian law treaties, as opposed to the general command to obey applicable law. Furthermore, although setting forth principles regarding the use of force for contractors is critical, principles on their own are insufﬁcient without including the legal frameworks that spell out those principles. References to speciﬁc bodies of law would therefore be especially useful.
In addition to laying out a speciﬁc set of legal rules (or standards) for the contractor to follow, more speciﬁc and comprehensive contractual terms would have the added beneﬁt of clarifying that certain legal regimes would indeed bind the contractors, regardless of ambiguities in the legal regimes themselves. For example, as discussed in Chapter 3, certain legal norms, both under international and under domestic law, may not apply to private contractors because the so-called state action doctrine and other similar doctrines render a variety of norms only enforceable against governmental entities. Thus, as we have seen, the Convention Against Torture bans all torture but deﬁnes torture as consisting of certain acts committed at the "instigation of or with the consent or acquiescence of a public ofﬁcial or other person acting in an ofﬁcial capacity." Accordingly, explicit contractual terms applying the norms of the convention would obviate the need to show that the private actors were functioning as an extension of government so as to satisfy any state action requirement. Instead, the norms applicable to governmental actors would simply be part of the contractual terms, enforceable like any other provisions, regardless of state action.