This article was originally pubished by Defense News, on September 12.
The recent report by the U.S. Commission on Wartime Contracting, which examined contracting abuses in Iraq and Afghanistan, understandably focused on the loss of up to $60 billion to waste and fraud out of the $206 billion given for contracts and grants.
The commission offered a series of sensible recommendations for reform, some of which resonate with a 2010 report I co-authored on contracting's role in the future of warfare. Private contractors are likely to be an enduring presence on the battlefield – some 260,000 contractors served in Iraq and Afghanistan last year, more than the entire American troop presence in those countries. While we are unlikely to see another large-scale reconstruction effort akin to Afghanistan and Iraq any time soon, for the foreseeable future America will be unable to engage in conflicts or reconstruction and stabilization operations of any significant size without private contractors.
Today, private firms and individuals work for the Defense Department, State Department and the U.S. Agency for International Development [USAID], carrying out tasks as varied as logistics, transport, translations, security, construction, local security force training and weapon maintenance. The ratio of contractors to government personnel may actually increase in the future, as the Army and Marine Corps cut their numbers.
To better ensure that our military and diplomats are ably marshalling the efforts of private actors in the service of American interests, however, reform even broader than that envisioned by the commission will be required.
Take, for example, the direct military implications of using contractors. Private actors inject a profit motive into the battlefield, and meshing their motives and operations with those of the overall mission is crucial. Yet training courses for U.S. soldiers preparing to deploy to Iraq or Afghanistan have rarely addressed the role of contractors. Operational plans frequently lack a detailed annex that articulates specific contractor requirements for a given mission.
The result is that military personnel deploying to the field can arrive without sufficient knowledge of how many contractors are in a particular battle space, what they are doing, and how their responsibilities mesh with military authority. (Contractors are not in the chain of command and cannot be criminally punished for not following orders).
Given their enormous presence, it is striking that the Pentagon's Quadrennial Defense Review (QDR) failed to discuss the role of contractors on the battlefield and in stabilization operations.
The QDR maintained that an increasingly complex security environment will demand U.S. military involvement in a broad range of contingencies in the future, but neglected to articulate a vision for the relationship between contractors and government personnel, other than there will be fewer of the former and more of the latter.
For an institution that relies on private contractors today to an unprecedented degree, DoD must give their role much more strategic and operational thought.
Consider also the legal framework governing contingency contractors in wartime, which is complicated, features overlapping jurisdictions and is somewhat ambiguous. Contractors working for the U.S. can be held accountable for crimes committed overseas under at least two domestic American laws, the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice. Contractors may also be subject to foreign law, and their legal status may vary depending on status of forces agreements that are in place.
Then there is international law, including the Geneva Conventions. This complex web, if properly marshaled, can be an effective tool for holding contractors accountable and prosecuting crimes. But it will take greater work to sort out which laws apply, where, and how they will be used.
These and other aspects of America's reliance on wartime contracting will come to the fore in Iraq starting next year. Barring some last-minute extension of the American troop presence there, the State Department will take over the entire mission. State Department contractors will fly helicopters, drive mine-resistant, ambush-protected vehicles; medevac wounded personnel; dispose of explosive ordnance; conduct counterrocket, artillery, and mortar notification; and carry out aerial surveillance.
This is unprecedented in the history of the U.S. State Department, and it is far from clear that the department has the numbers of trained contract managers necessary to oversee such an ambitious program. Indeed, an astonishing projection, buried in the commission's report, holds that "significant additional waste – and mission degradation to the point of failure – can be expected as State continues with the daunting task of transition in Iraq."
It is a new era in which contractor waste can threaten mission failure after eight years of war. But the reality is that America's reliance on private contractors is not likely to fade. The Pentagon and others have made major advances in recent years, but the path to reform remains long. It is time to get on with it.
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