Academic journal article Journal of National Security Law & Policy

Outsourcing Covert Activities

Academic journal article Journal of National Security Law & Policy

Outsourcing Covert Activities

Article excerpt

Over the past decade, the United States has radically shifted the way it projects its power overseas. Instead of using full-time employees of foreign affairs agencies to implement its policies, the government now deploys a wide range of contractors and grantees, hired by both for-profit and nonprofit entities. Thus, while traditionally we relied on diplomats, spies, and soldiers to protect and promote our interests abroad, increasingly we have turned to hired guns. Contrast the first Gulf War to later conflicts in Iraq and Afghanistan. During the Gulf War the ratio of contractors to troops was 1 to 100; now, with approximately 260,000 contractors working for the State Department, Department of Defense (DoD), and the U.S. Agency for International Development (USAID) in Iraq and Afghanistan, that ratio has often exceeded 1 to 1.1 To be sure, U.S. history is rich with examples of contractors; the privateers of the Revolutionary period are a case in point. But our current turn to privatized labor does reflect a new trend, spurred by the post-Cold War decline of the standing military and the elimination of the draft, supported by the public's faith (not always backed up by data) that the private sector can perform work more efficiently than government employees, and fueled by the exigencies of the war on terror in the aftermath of the attacks of September 11, 2001.2 Many of these modern contractors perform logistics functions, such as delivering meals to troops or cleaning latrines on the battlefield. Others guard diplomats, convoys, and military bases. But contractors have also gathered intelligence, interrogated detainees, and engaged in tactical maneuvers, sometimes under circumstances involving hostile fire.

All of this outsourcing tests our commitment not to contract out core governmental functions. Indeed, while the United States officially does not allow security contractors to engage in military action,3 many contractors have tangled with foreign populations in ways that look very much like combat. For example, in a notorious 2007 incident in Baghdad's Nisour Square, security guards employed by the firm then known as Blackwater, under contract with the U.S. government, fired into a crowd and killed civilians. Elsewhere, contract interrogators hired by the Department of the Interior actually supervised uniformed military police officers who harshly questioned and abused detainees at Iraq's Abu Ghraib prison.4 And while the Central Intelligence Agency (CIA) and DoD have now formally banned the use of contract interrogators,5 and DoD has outlawed intelligence gathering by contractors, the lines appear to be blurred on the ground.6 Indeed, even after the DoD ban, former intelligence operative Duane Clarridge reportedly established a private network of spies and provided information gathered by these agents to the U.S. government.7

The ever-expanding use of contractors threatens core public values because the mechanisms of accountability and oversight that the United States has generally used to curb abuses by government employees do not translate well to contractors. Not all contractors are bad apples, of course, and over 1,350 have died protecting U.S. interests in Iraq and Afghanistan.8 Yet outsourcing as it is currently practiced threatens core commitments not to use torture and to respect the human dignity of individuals overseas, or the commitment to use force in a limited fashion that does not target civilians, or the commitment to have some degree of transparency and public participation in decisions to pursue aggressive activities abroad. For example, although the soldiers who abused Abu Ghraib prisoners faced courts-martial and were punished for their roles in the abuse, no contractors have been held accountable in that instance. Jurisdictional loopholes in our criminal law, combined with weak enforcement mechanisms and limited evidence gathering capabilities, have enabled them to escape scrutiny. Criminal proceedings against the Blackwater guards involved in the Nisour Square incident have also met with difficulties. …

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