Analysis: Dogs of War: Inherently governmental?

Amid all the polemics over the use of private
military and security contractors by the U.S. government there are two
words one rarely sees, but they lie at the very heart of the debate:
"inherently governmental."

The main reason there is debate in
the first place is that over time people have come to expect that
certain functions are the exclusive domain of the government. As German
sociologist Max Weber famously put it in a lecture in 1919, "The state
is that entity which claims a monopoly on the legitimate use of
physical force." Weber also said that the state may nonetheless elect
to delegate the use of force as it sees fit, but that part is not
nearly as well remembered.

But two recent events serve to remind us of its central role in the debate.

First,
the Senate Armed Services Committee, in its version of the 2009 defense
authorization bill last week, sought to limit the role of private
security contractors in Iraq. It included two provisions related to
contractors. One, effective when the bill is signed, would prohibit
contract employees from performing "inherently governmental" security
operations, including situations involving combat or extremely
hazardous duties. The second would prohibit contract employees from
conducting interrogations of detainees during or after hostilities.

Sen.
Carl Levin, D-Mich., chairman of the committee, noted that the Pentagon
already has a policy preventing private security contractors from being
given combat-related work, but the State Department does not.

But
if the State Department is not allowed to hire private guards, it is
unclear who would become responsible for providing security for U.S.
diplomats in combat areas. If the restrictions become law, the result
could be an increased demand on Army and Marine personnel.

Second,
on April 29 CorpWatch, an Oakland, Calif.-based group that investigates
various corporate crimes, issued a report on L-3, a U.S. defense
contractor that plays a key role in staffing and maintaining what was
once considered an inherently governmental function: the acquisition
and analysis of human intelligence during war. The company is now
probably the second-largest U.S. contractor in Iraq, after Kellogg,
Brown & Root.

The report found that "there are significant
problems with L-3's Iraq contracts, notably with the hiring and vetting
practices of both interrogators and translators, many of who are
unqualified or poorly qualified for the work. This failure has the
potential to seriously compromise national security."

While
outsourcing of various military functions is now generally accepted as
a given, some tasks, such as interrogation, are still considered to be
a job for government, not private sector, employees.

After
all, in the aftermath of Abu Ghraib it was reported that the use of
private contractors as interrogators there and in other prisons in Iraq
violated an Army policy that requires such jobs to be filled by
government employees because of the "risk to national security." An
Army policy directive published in 2000 and still in effect today
classifies any job that involves "the gathering and analysis" of
tactical intelligence as "an inherently governmental function barred
from private sector performance."

A memo signed by
Undersecretary of the Army Patrick Henry at the beginning of the Bush
administration cautioned against shifting responsibility for
intelligence work to private military organizations.

How then,
did such jobs get outsourced? The full background is beyond the scope
of this column, but consider just a few markers along the way.

Raymond
DuBois, then defense deputy undersecretary for installations and
environment, said in an Oct. 25, 2004, memo to defense agencies that in
spring 2005 the annual inventory that marks jobs as inherently
government or commercial would be used to identify military jobs that
can be converted to civilian positions in addition to filling various
reporting requirements.

In 2003 the Pentagon for the first time
used the inventories to identify which military jobs would be given to
civilians. The inventories are required each year of all federal
agencies by the 1998 Federal Activities Inventory Reform Act.

The
Senate Armed Services Committee in July 2004 witnessed Catch-22
linguistic acrobatics by Les Brownlee, acting secretary of the Army,
when he was asked how the hiring of PMC personnel for interrogation
could be justified under such a memorandum. "If these functions are
performed by contract interrogators under an entity, which in this case
was Central Command, or CGATF-7 specifically, then they would not be
considered inherently governmental," he said.

Tim Shorrock,
author of the just released book, "Spies for Hire: The Secret World of
Intelligence Outsourcing," concludes there is "almost universal
agreement ... that the task of military and CIA interrogations should
only be carried out by government employees answering to a defined
chain of command."

Shorrock says that in his research for the
book, "I discussed this topic with dozens of people in and out of
government. By an overwhelming margin, they agreed with the sentiments
expressed by Eugene Fidell, the military lawyer ... that outsourcing
interrogations is 'playing with fire.'"

Even Mike McConnell, the
director of national intelligence, seems to have reached this
conclusion, reports Shorrock. "I can't imagine using contractors for
anything like that," he told Sen. Ron Wyden in 2007, when he was asked
during his confirmation hearing if he would approve the hiring of
private sector interrogators.

An interrogation, after all, is
where the conqueror meets the conquered, where the invader meets the
insurgent, where the American meets the face of his or her enemy. It's
bad enough that the CIA has reverted to torture in its questioning of
terrorist suspects and covered up the evidence by destroying the tapes;
but it's even worse to hand these tasks over to private companies
operating under classified contracts that are themselves illegal to
disclose and who are answerable only to their stockholders. So let's
paint a thick black line there: no private interrogators.

--

(U.S.
Navy veteran David Isenberg is a military affairs analyst. He is an
adjunct scholar with the Cato Institute, a correspondent for Asia Times
and the author of a forthcoming book "Shadow Force: Private Security
Contractors in Iraq." His "Dogs of War" column, analyzing developments
in the private security and military sector, appears every Friday.)

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