Outsourcing War

P. W. Singer

From Foreign Affairs, March/April 2005

Summary:  Recent scandals in Iraq and elsewhere have shone unaccustomed light on an explosive trend: the growth of private military contractors. Such firms allow governments to accomplish public ends through private means and without much oversight. This lack of scrutiny may be expedient, but it is not necessarily good for democracy. Privatization can benefit everyone, but only if done in the right way.

P. W. Singer is a Senior Fellow and Director of the Project on U.S. Policy Towards the Islamic World at the Saban Center for Middle East Policy at the Brookings Institution. He is the author of Corporate Warriors: The Rise of the Privatized Military Industry and Children at War.

The second general challenge with PMFs stems from the unregulated nature of what has become a global industry. There are insufficient controls over who can work for these firms and for whom these firms can work. The recruiting, screening, and hiring of individuals for public military roles is left in private hands. In Iraq, this problem was magnified by the gold-rush effect: many firms entering the market were either entirely new to the business or had rapidly expanded. To be fair, many PMF employees are extremely well qualified. A great number of retired U.S. special forces operatives have served with PMFs in Iraq, as have former members of the United Kingdom's elite sas (Special Air Service). But the rush for profits has led some corporations to cut corners in their screening procedures. For example, U.S. Army investigators of the Abu Ghraib prisoner-abuse scandal found that "approximately 35 percent of the contract interrogators [hired by the firm caci] lacked formal military training as interrogators." In other cases, investigations of contractors serving in Iraq revealed the hiring of a former British Army soldier who had been jailed for working with Irish terrorists and a former South African soldier who had admitted to firebombing the houses of more than 60 political activists during the apartheid era.

Similar problems can occur with PMFs' clientele. Although military contractors have worked for democratic governments, the UN, and even humanitarian and environmental organizations, they have also been employed by dictatorships, rebel groups, drug cartels, and, prior to September 11, 2001, at least two al Qaeda-linked jihadi groups. A recent episode in Equatorial Guinea illustrates the problems that PMFs can run into in the absence of external guidance or rules. In March 2004, Logo Logistics, a British-South African PMF, was accused of plotting to overthrow the government in Malabo; a planeload of employees was arrested in Zimbabwe, and several alleged funders in the British aristocracy (including Sir Mark Thatcher, the son of Margaret Thatcher) were soon implicated in the scandal. The plotters have been accused of trying to topple Equatorial Guinea's government for profit motives. But their would-be victim, President Teodoro Obiang Nguema Mbasogo, is a corrupt dictator who took power by killing his uncle and runs one of the most despicable regimes on the continent--hardly a sympathetic victim.

The third concern raised by PMFs is, ironically, precisely the feature that makes them so popular with governments today: they can accomplish public ends through private means. In other words, they allow governments to carry out actions that would not otherwise be possible, such as those that would not gain legislative or public approval. Sometimes, such freedom is beneficial: it can allow countries to fill unrecognized or unpopular strategic needs. But it also disconnects the public from its foreign policy, removing certain activities from popular oversight.

The increased use of private contractors by the U.S. government in Colombia is one illustration of this trend: by hiring PMFs, the Bush administration has circumvented congressional limits on the size and scope of the U.S. military's involvement in Colombia's civil war. The use of PMFs in Iraq is another example: by privatizing parts of the U.S. mission, the Bush administration has dramatically lowered the political price for its Iraq policies. Were it not for the more than 20,000 contractors currently operating in the country, the U.S. government would have to either deploy more of its own troops there (which would mean either expanding the regular force or calling up more National Guard members and reservists) or persuade other countries to increase their commitments--either of which would require painful political compromises. By outsourcing parts of the job instead, the Bush administration has avoided such unappealing alternatives and has also been able to shield the full costs from scrutiny: contractor casualties and kidnappings are not listed on public rolls and are rarely mentioned by the media. PMF contracts are also not subject to Freedom of Information Act requests. This reduction in transparency raises deep concerns about the long-term health of American democracy. As the legal scholar Arthur S. Miller once wrote, "democratic government is responsible government--which means accountable government--and the essential problem in contracting out is that responsibility and accountability are greatly diminished."

PMFs also create legal dilemmas, the fourth sort of policy challenge they raise. On both the personal and the corporate level, there is a striking absence of regulation, oversight, and enforcement. Although private military firms and their employees are now integral parts of many military operations, they tend to fall through the cracks of current legal codes, which sharply distinguish civilians from soldiers. Contractors are not quite civilians, given that they often carry and use weapons, interrogate prisoners, load bombs, and fulfill other critical military roles. Yet they are not quite soldiers, either. One military law analyst noted, "Legally speaking, [military contractors] fall into the same grey area as the unlawful combatants detained at Guantánamo Bay."

This lack of clarity means that when contractors are captured, their adversaries get to define their status. The results of this uncertainty can be dire--as they have been for three American employees of California Microwave Systems whose plane crashed in rebel-held territory in Colombia in 2003. The three have been held prisoner ever since, afforded none of the protections of the Geneva Conventions. Meanwhile, their corporate bosses and U.S. government clients seem to have washed their hands of the matter.

Such difficulties also play out when contractors commit misdeeds. It is often unclear how, when, where, and which authorities are responsible for investigating, prosecuting, and punishing such crimes. Unlike soldiers, who are accountable under their nation's military code of justice wherever they are located, contractors have a murky legal status, undefined by international law (they do not fit the formal definition of mercenaries). Normally, a civilian's crimes fall under the jurisdiction of the country where they are committed. But PMFs typically operate in failed states; indeed, the absence of local authority usually explains their presence in the first place. Prosecuting their crimes locally can thus be difficult.

Iraq, for example, still has no well-established courts, and during the formal U.S. occupation, regulations explicitly exempted contractors from local jurisdiction. Yet it is often just as difficult to prosecute contractors in their home country, since few legal systems cover crimes committed outside their territory. Some states do assert extraterritorial jurisdiction over their nationals, but they do so only for certain crimes and often lack the means to enforce their laws abroad. As a result of these gaps, not one private military contractor has been prosecuted or punished for a crime in Iraq (unlike the dozens of U.S. soldiers who have), despite the fact that more than 20,000 contractors have now spent almost two years there. Either every one of them happens to be a model citizen, or there are serious shortcomings in the legal system that governs them.

The failure to properly control the behavior of PMFs took on great consequence in the Abu Ghraib prisoner-abuse case. According to reports, all of the translators and up to half of the interrogators involved were private contractors working for two firms, Titan and caci. The U.S. Army found that contractors were involved in 36 percent of the proven incidents and identified 6 employees as individually culpable. More than a year after the incidents, however, not one of these individuals has been indicted, prosecuted, or punished, even though the U.S. Army has found the time to try the enlisted soldiers involved. Nor has there been any attempt to assess corporate responsibility for the misdeeds. Indeed, the only formal inquiry into PMF wrongdoing on the corporate level was conducted by caci itself. Caci investigated caci and, unsurprisingly, found that caci had done no wrong.

In the absence of legislation, some parties have already turned to litigation to address problems with PMFs--hardly the best forum for resolving issues related to human rights and the military. For example, some former Abu Ghraib prisoners have already tried to sue in U.S. courts the private firms involved with the prison. And the families of the four Blackwater employees murdered by insurgents in Fallujah have sued the company in a North Carolina court, claiming that the deceased had been sent into danger with a smaller unit than mandated in their contracts and with weapons, vehicles, and preparation that were not up to the standards promised.