Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law

Article excerpt

INTRODUCTION
I. PRIVATIZATION IN THE INTERNATIONAL SPHERE
    A. Military Functions
    B. Foreign Aid
II. INTERNATIONAL LAW, ADMINISTRATIVE LAW, AND THE
    PROBLEM OF PRIVATIZATION
    A. International Law
    B. Administrative Law
       1. Legal Accountability
       2. Alternative Mechanisms of Accountability:
          Democratic, Contractual, and Institutional
III. Two CASE STUDIES OF FOREIGN AFFAIRS PRIVATIZATION
    A. Military Functions
       1. Legal Accountability
       2. Democratic Accountability
       3. Contractual Accountability
       4. Internal Institutional Accountability
    B. Foreign Aid
       1. Legal Accountability
       2. Democratic Accountability
       3. Contractual Accountability
       4. Internal Institutional Accountability
          a. Nonprofits/Nongovernmental Organizations
          b. For-Profit Firms
CONCLUSION

INTRODUCTION

The privatization of governmental functions has long since become a fixture of the American political landscape. From the management of prisons, to the provision of welfare and other services, to the running of schools, federal and state governments have handed over more and more tasks to either for-profit or nonprofit private enterprises. Indeed, a 2003 Harvard Law Review symposium went so far as to declare ours an "Era of Privatization." (1) And while some scholars have extolled the cost savings that privatization may bring,(2) others have expressed deep misgivings, arguing that privatization threatens to erode legal and democratic accountability. (3) Such scholars worry that, because private actors are usually not subject to the constitutional and administrative law norms that apply to governments, any purported efficiency gains from privatization (4) may come at the cost of losing important public values. (5) Finally, an emerging middle ground position embraces privatization while seeking new mechanisms for extending public values through contract, (6) democratic participation, (7) and other modes of accountability.

Despite this rich debate about privatization in the domestic context, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States now regularly relies on private parties--both for-profit and nonprofit--to provide all forms of foreign aid (including emergency humanitarian relief, development assistance, and post-conflict reconstruction), (8) to perform once sacrosanct diplomatic tasks such as peace negotiations, (9) and even to undertake a wide variety of military endeavors. These military functions include not only support services such as constructing weapons and building barracks, but also core activities such as training the military, gathering intelligence, providing security services, and even conducting combat-related missions. (10) Nor is this development confined to the United States. Other countries, as well as international organizations such as the United Nations, have privatized many aspects of their work. (11) Indeed, some "failed" states have relied almost exclusively on private actors to perform both international and domestic roles of government, using private military companies to fight their wars, foreign nongovernmental organizations (NGOs) to provide their essential social services, and foreign for-profit companies to build their roads, dams, and other infrastructure. (12)

One need only look at recent events to glimpse the significance of this trend. For example, not only are there approximately 20,000 private military contractors in Iraq, (13) but the Abu Ghraib prison scandal revealed that even such sensitive tasks as military interrogations have been privatized. (14) Moreover, according to a military report, over one-third of the private interrogators at Abu Ghraib lacked formal military training as interrogators. …