11/25/2012 10:52 am ET Updated Jan 25, 2013

Sex, Violence, David Petraues and PSC in Afghanistan

Okay, I have to confess the above title is slightly misleading; there is no sex. But the other things are all there so read on.

For those who work on private military and security contracting (PMSC) issues one longstanding, and still vexing, issue is encapsulated in just three words, "inherently governmental functions" (IGF). Deciding what is IGF, and thus something only the government should do, and what isn't, meaning it is available for private contractors to do is not some arcane definitional issue. It is also a question the answer to which is worth hundreds of millions, even billions of dollars.

And when it comes to whether security contracting, i.e., guys with guns, is an IGF, the vexation factors multiplies by orders of magnitude.

Fortunately, a law journal article published last year offers some guidance and suggestions. Writing in Public Contract Law Journal earlier this year Anthony LaPlaca authored "Settling the Inherently Governmental Functions Debate Once and for All: The Need for Comprehensive Legislation of Private Security Contractors in Afghanistan."

His article highlights the intrinsic problems with using PSCs in war zones, particularly those that are hired to perform inherently governmental functions and concludes that the Government's obscure mandate to keep PSCs from performing IGFs has proven meaningless in the context of the U.S. occupation of Afghanistan, where PSCs regularly assume core military duties.

To understand why, we need to consider, as everyone else in the world has recently been doing, retired Gen. David Petraeus. LaPlaca wroie:

In 2006 American counterinsurgency strategy underwent a remarkable transformation. The War on Terror formerly resembled a campaign of attrition in which the principal strategy was to eradicate terrorist groups from the top down until they became too depleted to fight. This overarching approach changed when General David Petraeus circulated a counterinsurgency manual emphasizing that U.S. success in Iraq is contingent upon U.S. troops living and fraternizing with Iraqi citizens. Colloquially, Petreaus's proposition became known as "winning the hearts and minds" of the people.

When Petraeus spoke, Washington listened. Although civilian rebuilding efforts in Iraq had generally regarded the Iraqi people as a primary asset, soldiers had never shared the same enthusiasm for winning hearts and minds. Beginning in 2006, the focus of American military (as opposed to diplomatic) counterinsurgency centered on earning the trust of the Iraqi people in order to facilitate long-term stability Consequently, the military has transplanted that attitude into Afghanistan. Since Petraeus took command in Afghanistan, the military has set out to eliminate the perception that American forces are the instigators of violence

The dichotomy between the new counterinsurgency strategy and the presence of PSCs in Afghanistan is palpable. There is a rapidly evolving consensus that if the end of the Afghanistan War is to win over the people, then PSCs are not the proper means for doing the job. The Senate Armed Services Committee admonishes the proliferation of PSCs in Afghanistan, asserting that they pose an additional challenge, not a solution, to the counter- insurgency operation. Unsurprisingly, the Afghani Government shares the Committee's concerns.

In LaPlaca's view the current policy on outsourcing in Afghanistan increases the dangers of mixing civilian contractors and military forces in war zones

In theory the critical mechanism for minimizing the hazards of PSCs is the prohibition on IGFs]. In September 2011, the Office of Federal Procurement Policy ("OFPP") promulgated a final policy letter providing a uniform federal definition of IGFs] as prescribed by the Federal Activities Inventory Reform Act (FAIR Act).

The FAIR Act identifies IGFs as those functions "so intimately related to the public interest as to require performance by Federal Government employees. In addition to the FAIR Act, OMB Circular A-76 (A-76) dictates that the executive agencies, including the DoD, exclusively use government personnel to perform IGFs. A-76 instructs all agencies to explicitly distinguish between commercial functions that may be allocated to private contractors and IGFs, which may not.

That seems clear. But the Government Accountability Office's take on IGFs stresses the importance of discretion. When determining whether a contract examiner performed IGFs, the GAO inquires whether the parties engaged in "activities which necessitate either the exercise of discretion in applying government authority or the use of value judgment in making decisions for the government."

Why is this a problem? LaPlaca says:

The ban on outsourcing IGFs encapsulates the intrinsic risks attributed to PSCs. Since IGFs constitute those activities that impact the public interest, it seems counterintuitive to assign such tasks to profit-driven entities, as opposed to soldiers who light out of allegiance to the citizenry. Moreover, because PSCs are not a part of the military chain of command, a lack of coordination between civilian contractors and soldiers can lead to severe tactical repercussions in areas where there is little margin for miscommunication. General Petraeus commented on the negative operational effects of working with PSCs, whose presence sometimes goes completely unnoticed by the ranking military official in the region.

For that very reason the U.S. government considers some functions so inextricably tied to the public interest that it has forbidden DoD from outsourcing them. Department of Defense Instruction 1100.22 establishes the "policies and procedures for determining the workforce mix" of private sector and military personnel. This is perhaps the most detailed document elucidating the boundaries of security contracting. It includes a demonstrative list of IGFs that cannot be outsourced to the private sector, as well as a catalog of functions that are "closely associated" with IGFs.

Yes, despite that the private security industry is everywhere in Afghanistan. The GAO has reported that over 4,200 DoD contractors currently perform jobs that are inherently governmental or unauthorized personal services.

In addition, 45,934 PSCs are involved with activities deemed "closely associated" with IGFs.

According to LaPlaca:

An empirical overview of PSC performance yields the conclusion that "corporate warriors are engaged in military duties that are, in many circumstances, identical to their counterparts in the national armed forces." Persistent ambiguity concerning certain functions allows PSCs to traverse into the sphere of public activities.

LaPlaca thinks that at its core the problems is once of concept, not definition.

The conflicts surrounding PSCs do not suggest that the Government's policy on outsourcing security functions is wrong or misguided. Rather, the continual extension of PSCs into undesired fields of service hints that no set of words and phrases will ever fully constrain security contractors in the way that the Afghani Government and the U.S. Congress have requested. In other words, the problem with IGFs is one of substantive, not definitional, parameters. A fundamental change in how the Government conceptualizes IGFs is in order.

To be fair, this outsourcing of IGF is not just the fault of the companies. "Congress must recognize that legal ambiguity persists because it has sidestepped its duties to define IGFs, allowing the DoD and the OFPP to ordain federal contracting policies," according to LaPlaca

In his view the best hope for alleviating the IGF dilemma is an express legislative demarcation of activities that are inherently governmental, in lieu of reliance on the abstract and ineffectual characterization of IGFs currently in place.

What he calls for is a core competencies model that calls upon Congress to demarcate three categories of security functions: absolute IGFs, commercial functions, and core capabilities

First, if there is a consensus that a particular contractor service is inherently governmental, Congress should explicitly terminate all military outsourcing of said functions. Examples of absolute IGFs would include combat operations, maintenance of weapons systems, and any other role deemed adverse to the public interest.

Commercial functions might include cooking and cleaning at military bases, chaplain services, static security, and any task perceived to pose little or no conflict with public policy.

Finally, "core capabilities" are functions such as guarding convoys, training Afghani forces, or any other job that, depending on the facts and circumstances of the particular contract, belongs in the public sphere.

After delineating which functions are IGFs, which are commercial, and which are core capabilities, Congress needs only to establish guidelines for deciding when it is appropriate to outsource core competencies. Listing criteria for approval or disapproval of a private contract that calls for the performance of core competencies ensures that the DoD consistently follows the prohibition on IGFs in good faith and that similarly situated firms bidding on certain contracts are given fair treatment. The ultimate decision whether to hire a given PSC must depend on a totality of the various factors relevant to each individual contract.