THE BLOG
05/09/2010 05:12 am ET Updated May 25, 2011

The Politic on PMSC

As much of the public discussion, including college campuses, of private military and security contracting (PMSC) is, unfortunately, noted for its inaccurate characterization of contractors as mercenaries, and frequently over the top characterizations of companies as war profiteers, or extreme right wing Christian crusaders (a not so subtle reference to the presumed religious beliefs of Eric Prince of what was Blackwater, now Xe Services) it is refreshing, indeed, a bit astonishing, to find a student publication that actually tries to take a level headed, dispassionate look at the subject.

But now one has. The publication is The Politic, a bi-monthly Yale University undergraduate journal of politics. In its current issue it has various articles on the subject worth taking a look at.

Graduate students Hannah Meyers and Ruta Nimkar discuss the risks of utilizing PMCs and difficulties of regulating contractors' behavior.

Retired U.S. Army Lt. General Steven Arnold provides a countering view, discussing the substantial logistical and tactical advantages of utilizing PMCs and the unfair treatment of the practice by the media.

Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institute, Peter W. Singer, reveals the hidden monetary and human costs of PMCs and the measures that the government must take to ensure oversight and accountability for contractors.

Laura Dickinson, Professor of Law at Arizona State University and Faculty Director of the Center for Law and Global Affairs, discusses the consequences of utilizing PMCs for "public law values," or those values embedded in international human rights law, international humanitarian law, public participation, and transparency. Her forthcoming book, Outsourcing War and Peace is to be published by Yale University Press.

Eugene Fidell, Senior Research Scholar in Law and Lecturer in Law at Yale University and president of the National Institute of Military Justice, discusses the criminal and civil litigation brought against the Blackwater personnel from Nisour Square and the possibility of achieving justice for the 17 Iraqis killed.

Also, .J. J. Messner of the International Peace Operations Association (IPOA), an advocacy and research group representing 60 PMCs worldwide, explains the role of the IPOA 'Code of Conduct' in regulating the behavior of member companies and ensuring high standards of behavior and accountability for contractors. While my personal experience with IPOA's Code of Conduct leave me doubtful that it is capable of ensuring high standards of behavior, given its lack of in-house ability to thoroughly investigate allegations of violations, plus the fact that it lacks the incentive, given that its funding comes in large part from its member companies it's worth taking a look at the argument.

Not all these articles are currently online, at least not without subscribing, but let's consider a few nuggets from those that are. Bear in mind that all the below people believe PMSC are here to stay.

Interview with Laura Dickinson:

In the book, I examine the progressive shift in how we project our power overseas through the use of private contractors. For example, we are now using more contractors than troops in Afghanistan and Iraq. The contractors are doing everything from logistics work, to delivering foreign aid, to guarding diplomats and sites, to conducting interrogation. This is a huge shift in the way we project our power overseas. The starting point for my book is the proposition that this shift poses quite a significant risk to what I call "public law values" - the values embedded in international human rights law, those embedded in international humanitarian law, and other values, such as public participation and transparency. For example, one core value embedded in international humanitarian law is the principle that the use of force is limited in times of armed conflict.
Outsourcing poses serious risks to these values, and there have been many reports in the media which illustrate these risks. The high profile incident involving the Blackwater security guards who fired on civilians in Baghdad's Nisoor Square is one well-known incident, but there are many others. For the book, I interviewed former military lawyers who served in Iraq and Afghanistan, and a number of them said there were as many as two incidents a week involving excessive use by contractors.
The book examines the nature of these risks and also proposes ways that we can try to protect public values in an era of privatization. The starting point of my argument is that that privatization is here to stay. I think that in the near to medium-term, we are only going to see the government using more and more contractors. Rather than arguing against this shift, I contend that we ought to take steps to protect public values in this radically different world. To that end, I examine litigation and legislation as well as the terms of the contracts themselves, and I suggest reforms that might better protect public values.

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I focus on values embedded in international human rights law, those contained within the law of armed conflict, and other values, such as public participation: the idea that our government is transparent. I show that outsourcing threatens transparency because when you delegate governmental action to agencies, and those agencies then delegate again to contractors, it is very difficult to have a public debate about what is going on. The contractors need not obey the same transparency laws that government agencies must follow. The same rules do not always apply to them because they are private companies. This adds, in a sense, another layer of bureaucracy.
There was a hearing a couple weeks ago in which the Defense Department could not give a complete tally of the number of contractors acting in Iraq and Afghanistan. There are so many different databases, and State Department contractors, for example, are not all entered into the Defense Department database. As a result, we cannot even say exactly how many contractors there are, let alone keep track of what they're doing. Agencies struggle to hire personnel to monitor the contractors in Iraq and Afghanistan, and those who do take the job are typically shuffled through positions within six months or so, and have very little knowledge of what they are supervising. We have cut way back on the number of contract oversight personnel, and that impedes our ability even to obtain basic facts about what the contractors are doing, let alone assess their effectiveness or ensure that they respect human rights principles.

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In the future, what steps should the United States take to remedy issues regarding accountability and regulation of contractors?

We need to have broader public debate. Part of the problem is that so much of this has happened under the radar screen. We are starting to have a little bit more of a public conversation about foreign policy contractors, but people do not fully realize the significance of the changes that have taken place. I think part of the debate is whether or not we should be doing this at all. Yet now that we are so far down this path, we also need to focus on regulating contractors, holding them accountable, and ensuring sufficient oversight. If we get hung up on trying to figure out which type we should ban, the train will not only be moving down the track, it will be off on another planet. We cannot waste any time. I think it is a concern that some good bills have stalled in Congress. I know the administration is coping with a log of issues, from the financial crisis to health care reform. Still, we should make the regulation of military and security contractors a higher priority issue.

From the interview with Peter Singer, who, a few years ago was widely viewed as the It Boy on PMSC issues for his book Corporate Warriors: The Rise of the Private Military Industry.

Send Proper Market Signals

The marketplace is a reactive entity. Guided by clients that know their own goals and deliver proper incentives to meet them, it will deliver optimal returns. When clients are unclear with their vendors, lack coordination and oversight in the meeting of their goals, and fail to provide both positive and negative incentives, the market will offer sub-optimal results. Firms prefer the clarity of the former situation, as it offers them the most sustainable business model. That is, the industry will not resist improved Pentagon oversight and management as much as some might think and in many cases will greatly welcome it.
On the positive side of signals, each governmental department working with private contractors should establish a regularized chain of communication with military service companies. This channel would be separate from individual contract talks or reviews but instead take on a more industry-wide perspective. The goals of this channel would be to create a process at which the parties can raise priorities, discuss lessons learned, and share ideas on the best means to incentivize positive results in current and future contracting, from both the public and private perspective.
Among the areas that should be initially raised at the agenda of such meetings include questions on 1) what measures can be written into contract to create a more desirable reward structure, as well as 2) how the industry itself can self-police any systemic abuses, 3) develop high practices and training standards, and 4) commit to increased transparency. The military services industry currently is trending towards establishing a "code of conduct," which is a positive sign of its eagerness to problem-solve. Moreover, industry leaders want to establish a long-term structure that rewards firms that meet the shared goals of professionalism and efficiency.
But that effort is nascent and the interface with DoD is marginal. Most importantly, the code involves no accountability measures yet. In actuality it is a voluntary guideline rather than a code. It doesn't reward firms that follow it nor punish those that do not. DoD can work with the industry to make this effort more effective by identifying areas of enhancement, as well as ways that the DoD (as the most powerful client in the field) can support these reform efforts. For example, these standards might be enhanced to include such requirements that all contractors deploying into an operational zone be trained in the laws of war as well as human rights law, and not simply in the rules of engagement for a particular theater of operations. While many firms already voluntarily take this step, the DoD could mandate the minimal training criteria into all its contracts to give the standard actual market weight. Similarly, it should also explore vetting procedures regarding third-country and local-country nationals to ensure that those with criminal pasts (and particularly those guilty of human rights abuses) are prevented from serving as U. S. government-funded contractors.
It is important, however, to recognize that a structure of only positive incentives ignores the basic lessons of economics. While rewarding exemplary firms, the DoD must also do a far better job at creating accountability for those rare firms that are the opposite. It must not only think of this in raw financial terms (i.e., streamlining the monetary fine and contract termination process for firms that underperform or are found to have engaged in any contract overbilling or fraud), but also do its utmost to eschew "cowboys" and others who damage the nation's -and industry's-- reputation.
To demonstrate its earnestness in creating a new culture of accountability, each service point of contact should also be asked to create a reporting mechanism to identify any firm that has embarrassed the U.S. (e.g. activities either authorized or not that have caused a severe setback in the campaign to win 'hearts and minds' and/or damaged US image abroad). They should also enact measures to write this new standard into existing and future contracts as a cause for termination. The standard should be kept flexible but high in its definition. Importantly, it is the very act of this designation that will incentivize better employee oversight within the industry (that is, firms will then restructure their own employee contracts and enhance their internal screening measures) as well as send a positive signal to partner states and allies that the U.S. is taking responsibility for bringing its own outsourcing problem area into order. In the end, all of these steps rely on one critical assumption: that we have the political will to face this problem area directly. Unfortunately, after over 10 years of researching the private military industry and working with almost every government agency and branch on various aspects of their relationship with it, I remain unconvinced that we actually do.

From the interview with Eugene Fidell :

What does that mean for the lone Blackwater employee that has already pleaded guilty and is presumably cooperating with the Department of Justice?

I think he will try to withdraw his plea. There is a certain unjust aspect to it. He presumably pleaded because he was cooperating with the authorities. It would be truly ironic if the one cooperating with the authorities was the only one to go to the slammer. I do not know the precise rules about when you can withdraw your plea, but the request would first go to Judge Urbina, and I would think that he would be sympathetic. What he might do is hold such a motion in advance of the D.C. Circuit decision.

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If the case fails in the courts, what will the outcome be?

The outcome would be terrible, at least politically. In the international sense, it is a terribly devastating blow. It is a case in which Iraqis had every reason to expect would at least end up in trial. These gentlemen will not go to trial. I have so say, however, that I am not particularly surprised by the outcome due to Department Security's role in this in the first place. The fact that there had been questioning and promises made by Department Security was a red flag early, early on. This case is an added irritant in an already irritated relationship between the United States and Iraq. How are the Iraqis supposed to feel? Our fine legal system has prevented us from prosecuting because we botched it. That is cold comfort to Iraqis. Very nice, we have a wonderful legal system. Did their loved ones get justice? No. Because our policemen blundered it. That's not satisfactory. This is another grievance that Iraqis--especially in this case--can quite reasonably harbor.

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So then what should the United States do about reforming our legal code to better regulate the actions of private military contractors?

Other countries don't use military contractors on the scale that we do. We are on the front on this one and I think it is a total mistake. It is almost like a narcotic. We have gotten into a habit forming practice of relying excessively on civilians to conduct tasks that military personnel should do. For some time, we had more contractors than uniformed personnel on the ground in Iraq. We have to kick the habit. We have to really ween ourselves from using civilians to perform essential military functions. If conditions on the ground in Iraq did not lend themselves to normal military operations, then something else has to change. I think we have gone way overboard. Civilians are operating outside the framework of military law and the Geneva Conventions. And we are the worse for it. Questions of discipline and blurring the line between military and civilian raise, and it is extremely unfortunate. Thus, shrink the civilian component of the military workforce. The other component is to have a much more alert and vigorous discipline program for civilians that do work along our GIs. A system to ensure accountability.