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     Mar 26, 2011

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The 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


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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