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privatization of US foreign policy Reviewed by David Isenberg
prison in
Iraq, but not a single contractor from Titan or
CACI, is just one example
In chapter four
Dickinson explores the use of contract, as opposed
to criminal or tort, law to improve accountability
of contractors and serve as vehicles to promote
public law values. She makes the underappreciated
point that contractual law is particularly
important in the foreign affairs context, "because
many of these contracts are negotiated in secret,
without competition, based on exceptions to the
normal contracting
requirements".
Specifically, she details four practices
that could be used:
Explicitly incorporating public law
standards in contractual terms in contractual
terms;
Enhancing contractual monitoring
and oversight, including contractual terms
providing for performance benchmarks and
self-evaluation, as well as increased staffing
and training of contract management personnel
Requiring contractors receive
accreditation from independent organizations;
and
Expanding contractual enforcement
options.
As the cliche goes, that's so
crazy it might just work. Certainly something
needs to be done, given the current, pathetic,
state of contract monitoring. It is a sad
indictment of the contracting status quo that the
average military contract does not lay out clear
benchmarks against which to measure contract
compliance, as is the case with most domestic
contracts, in areas as disparate as private
prisons and privatized welfare programs. Dickinson
notes that of the publicly available Iraq
contracts for military services it is striking
that none contains clear benchmarks or output
requirements.
For example, a contract between the
US government and Military Professional
Resources, Inc (MPRI) to supply translators for
government personnel simply states that
interpreters will be provided. The agreement
says nothing about whether the interpreters must
be effective or how effectiveness might be
measured.
Chapter five explores how
foreign affairs contracting impacts public
participation and transparency, which are
obviously critical values for a healthy democracy.
Other academics, notably Deborah Avant, have
explored this issue but Dickinson does a good job
in detailing how it negatively impacts oversight.
In particular, the part in which she discusses how
oversight problems are even worse for the
populations in the host nations who are directly
affected by contractors wielding the power granted
to them by foreign states or international
organizations is spot on. Her recommendations
include writing provisions into contracts, as the
World Bank does, allowing for individual complaint
mechanisms. Once contracts are written to provide
such rights to third parties they become very much
like trust agreements. In fact, she advocates
using three-way settler-trustee-beneficiary
trusts. She writes:
Structuring foreign
affairs privatization agreements as trusts, rather
than as contracts, holds certain advantages
stemming from the inherent three-way nature of the
relationship built into the trust as a form. If
the government funding a contract were conceived
as the settler, and the private organization
fulfilling that contract were conceived as the
trustee, with those affected deemed beneficiaries,
the obligations of the trustee, with those
affected deemed beneficiaries, the obligations of
the trustee to the beneficiary would be encoded in
the relationship itself.
The final chapter,
examining how Judge Advocate General (JAG Corps)
officers, ie, military lawyers, operate on the
battlefield, is unquestionably the most useful
chapter of the book. To understand why this is so
consider one of the standard arguments made by
private military contractor advocates, namely,
that most private military, and especially
security, contractors, by dint of their own past
military service, bring to their jobs a discipline
and professionalism that is rarely found among
other civilians or even by many first or second
term military personnel.
Only people who
have never actually served in the military, as are
often the case with many of the PMC trade
associations, would seriously say, let alone,
believe this. People who have been in the military
knows that professionalism, especially under fire,
is a result of constant ongoing training,
excellent leadership, and people who can provide
advice to ensure the use of force by combatants
complies with the limits that the laws of war
place on soldiers.
The profit motivation
of PMC serves to ensure constant training is the
exception, not the rule. Excellent leadership
among PMC is also problematic. In the military,
producing good leaders is a career long process.
The PMC industry has yet to produce anything
remotely equivalent. And insofar as having people
advise on the use of the force, which is the
function of the JAG lawyers on the battlefield,
there simply aren't any. To be sure private
military companies have lawyers back at
headquarters who may draft company codes of
conduct and hire outside lawyers to defend against
various lawsuits but they have nothing like JAGS.
Furthermore, military JAGs have amassed an
enviable record of defending the stated US
commitment to international human-rights law and
humanitarian law, even when it was unpopular to do
so. Does anyone seriously imagine that if a PMC
lawyer had chided their bosses on employees
violating human rights of Abu Ghraib prisoners
that they would still have a job? As Dickinson
notes, JAGS spend a great deal of time training
troops on the use of force both before and during
deployments. At best a PMC devotes a few hours or
a few days during training before their personnel
are deployed.
JAGs are also considered an
integral part of the battlefield team and have the
ears of their commanders. To earn that trust JAGs
go out on battlefield missions with their troops.
You are not going to find an in-house counsel
doing the same thing with a protective security
detail from DynCorp or Triple Canopy.
JAGs
are also willing to report such incidents to
higher authorities. They understand that on the
battlefield there is no such thing as
attorney-client privilege. Their primary ethical
obligation is to the army, not to the individual
unit. PMC have no equivalent. As an illustration
consider that of all the cases of actual or
possible unjustified force used by private
security contractors in Iraq and Afghanistan since
2001 not a single cases was originally reported by
a company lawyer.
All of the above serves
to illustrate that given the lack of a JAG
equivalent PMC largely fall outside the
accountability paradigm, and consequently, their
professionalism suffers. As Dickinson notes:
While they may receive some training
in the rules regarding the rules regarding the
use of force, that training does not typically
include updated advice on the battlefield about
how the rules apply in specific scenarios likely
to arise on that battlefield. Contractors also
do not receive ongoing situational advice from
military lawyers or even from private lawyers
employed by the firm itself. Indeed, although
the contract firms do employ lawyers, these
lawyers do not generally spend time on the
battlefield and do not have the same opportunity
to invoke the advice and backing of more senior
uniformed lawyers in the command hierarchy.
Dickinson makes numerous
recommendations to improve the situation, not the
least of which would be to give JAGs more
authority over contractors. As the use of PMC will
likely increase in the future they will have an
even more strategic impact on US national
security. Ensuring that they enhance, and not
diminish, the respect for human rights that
American troops have painstaking learned over the
decades since the Vietnam War is, to use military
parlance, a mission critical capability. One can
only hope that policymakers will read Dickinson's
book as they grapple with how to accomplish that.
Outsourcing War and Peace: Preserving
Public Values in a World of Privatized Foreign
Affairs by Laura A Dickinson. Yale University
Press (January 25, 2011). ISBN-10: 0300144865.
Price US$40.00, 288 pages.
David
Isenberg is an adjunct scholar with the Cato
Institute, a research fellow at the Independent
Institute, a US Navy veteran, and the author of
the book,Shadow
Force: Private Security Contractors in Iraq.
The views expressed are his own. His e-mail
is sento@earthlink.net.
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