Balkinization: Senator Obama and Private Military Contracting

Senator Obama and Private Military Contracting

Laura Dickinson

Cross-posted to OpenLeft.com

Recently, some on the left have criticized Senator Obama for focusing on regulating private security contractors rather than banning them outright. Indeed, Matt Stoller, on Open Left, went so far as to write, sarcastically: "Yes, let's regulate mercenaries. Awesome." His comments raise important questions about how progressives should approach the issue of military outsourcing and what the truly "progressive" position is.

To begin, there can be no doubt that regulation is desperately needed. As I describe in my recent Senate testimony on the subject, right now there are more contractors than troops in Iraq, which is an enormous shift in the way we project our power overseas, at least as compared to how we've done it in the last fifty years. It's not clear precisely how many of them are authorized to use force, in tasks such as providing security or conducting interrogations. But estimates of the number of security contractors in Iraq and Afghanistan range from 10,000 to 30,000. And we've seen from recent reports that contractors are committing abuses, but for the most part are escaping punishment or accountability. There have been numerous high-profile cases in which contractors reportedly used excessive force, from the contract interrogators at Abu Ghraib prison who supervised the troops who sexually humiliated and otherwise abused detainees, to the Blackwater security guards, who, working under a contract to protect State Department diplomats, fired into a crowd of civilians in Baghdad's Nisour square. There have also been numerous instances in which contractors have reportedly overcharged the government (and therefore taxpayers). Also, because there is so little transparency (only now are the agencies developing a system to actually count all the contractors in a unified way), we don't have sufficient information about the problems that might be arising on the ground.

The regulatory approach could (and should) take many forms:

1. Legal Regulation

This should include expanding the power of our federal courts to criminally punish contractors who commit abuses overseas. Right now, there is some ambiguity as to whether the law covers contractors like the Blackwater guards from the incident last fall who were working for the State Department. The Military Extraterritorial Jurisdiction Act (MEJA) Expansion Act--which passed in the House , and which Sen. Obama is championing in the Senate, would close this gap. It would also go some distance toward improving enforcement, by creating in-theater teams of FBI agents to investigate cases and mandating some reporting to Congress. I think we should go even further, requiring DOJ to set up a dedicated office devoted to prosecuting contractors with the requirement to report regularly to Congress (right now, the authority is fragmented throughout the U.S. attorney's offices, weakening oversight and political incentives to prosecute).

2. Reforming the contracts and increased governmental oversight

The contracts themselves should say more about specific human rights provisions, training, and so on. We also need to have a sufficient number of trained, qualified governmental monitors to oversee them, and we should government personnel embedded with the contractors. Moreover, the agencies need a more unified approach so Congress can better do its oversight job. At the time of the Blackwater incident from last fall, for example, State and DOD had different rules on the use of force for security contractors. State did not (as DOD has long done) require its contractors to aim in the direction of the threat when they were faced with a threat that allowed them to use force.

3. Transparency and increased 3d party monitoring

Transparency is a huge issue. If the State Department can report annually on the human rights abuses of countries around the world, it should be required to report regularly not only on the number of contractors but on how many incidents have occurred in which contractors have fired a weapon or injured a person, and whether this was an excessive use of force. Congress did recently expand whistleblower protection for contractor employees, which should help, but Congress should require the State Department and DOD to provide such reports. Also, there's room for 3d party NGOs and other groups to do more monitoring and rating of firms, which they could do better if there were more transparency.

4) Evaluation of waste/cost savings

No one knows if contracting saves taxpayer money, and there's lots of evidence to suggest it doesn't. We need to evaluate this. Legislation sponsored by Senator Webb would create a Commission to study precisely this issue (though President Bush issued one of his infamous signing statements when he signed the bill that would create the Commission).

Sen. Obama, as noted above, has been in the forefront of the fight to extend legal regulation over contractors. This strikes me as a strongly progressive and absolutely necessary step. So, should he be faulted because he does not go farther and call for banning security contractors, in particular, outright? I think not, for two reasons:

First, the issue of banning security contractors is more complicated than one might suppose, since, if we want to begin the drawdown of troops in Iraq we're likely going to need them even more, at least in the short and medium-term. Also, I think progressives might conceivably support limited use of security contractors, particularly if those contractors have sufficient training and oversight. Indeed, human rights and humanitarian organizations regularly must use security contractors in conflict zones. In addition, limited use of security contractors might enable more effective relief operations in humanitarian crises, peacekeeping operations, and so on. For interrogators, on the other hand, I think it's questionable whether we would want to use contractors in any circumstances. Thus, we might profit from a more nuanced approach that focuses on specific areas where contracting is particularly problematic rather than rushing to the conclusion that they are always to be rejected.

Second, even if, in the end, you think that at least some forms of outsourcing should be declared off-limits does not mean that taking regulatory steps is not also absolutely necessary and a progressive move. Indeed, I think that only by building a consensus for reining in private security contractors will we even begin to move in the direction of banning their use altogether. In any event military privatization is not going away for the foreseeable future, so I think Obama should be applauded, not faulted, for at least seeking to respond to that reality.

Posted 9:47 PM by Laura Dickinson [link]

Comments:

Okay, here is your regulation-- "No Mercenaries" and "No excuses" from publicists.

# posted by

stevelaudig@gmail.com : 1:46 AM

The military has been using private contractors to replace dedicated military logistics and support services since the post Cold War drawdown specifically to save money. The military outsources for the same reason private companies do - to avoid the capital cost of performing the function itself. Moreover, contractors can be engaged as the need arises and terminated just as quickly while creating and drawing down military support units takes years and is a very expensive proposition.

What is new are contractors like Blackwater fulfilling security functions for civilian government agencies like the State Department and civilian logistics and support contractors. These organizations are hardly mercenaries who operate as soldiers on offensive operations. A more apt comparison would be to static Secret Service protection for the President and other government officials from assassination.

However, these private security firms cannot remain free agents and most definitely require supervision. My suggestion is that the United States should treat them as part of the theater military command subject to UCMJ discipline. This will require statutory authority making them temporary parts of the uniformed services and placing them under military command and the UCMJ. Furthermore, this requirement should be made part of every contract so each contractor knows what he is getting into.

# posted by

Bart DePalma : 9:41 AM

If one takes as a given that mercenaries are required to carry out some functions of a wartime military, then, yes, regulation and oversight of a much greater stringency are necessary (and, it follows that since they are there, and gross abuses have occurred, the current level of regulation and oversight are greatly insufficient).

However, if the use of mercenaries is a calculated strategy to enable wars of opportunity and occupations of the sort we see in Afghanistan and Iraq, that's quite another matter. Mercenaries become enablers of such wars as a means of avoiding politically unpalatable choices, such as the implementation of conscription.

If banning the use of all mercenaries (outsourcing is far too benign and generous word) would prevent wars of choice and extended occupations to further imperial ambitions, then such a ban is actually in the interest of the country and its long-term survival.

# posted by

Montag : 2:28 AM