This article addresses Erik Prince’s plan to privatize the war in Afghanistan and argues that it should be rejected because it would involve contractors performing inherently governmental functions in violation of statute and executive policy. Part I introduces the argument against Prince’s proposed privatization. Part II provides a background of the United States’ contemporary use of private military contractors, the current war in Afghanistan, and Prince’s plan to privatize that war. Part III describes the legal framework governing private security contractors (“PSCs”) and discusses legal issues with Prince’s plan, specifically that contractors would perform inherently governmental functions. Part IV takes issue with Prince’s proposed viceroy and suggests potential legislation to prevent the contractual creation of such a role.
The war in Afghanistan—“America’s longest war”1—is approaching its nineteenth year, and many Americans believe the United States should “decrease American troop levels or remove all troops from the country.”2 One journalist notes that “[a] child born on this date in 2001 . . . is old enough to be fighting today in the war in Afghanistan.”3 A poll from late 2018 states that “[fifty-seven] percent of Americans, including [sixty-nine] percent of military veterans, said they would support” a presidential decision “to remove all troops from Afghanistan.”4 Erik Prince, a former Navy SEAL and founder of the private security company, Blackwater USA, is cognizant of the American public’s weariness for the war in Afghanistan and of the “$828 billion” that the “Pentagon has already consumed . . . on the war,” including the “trillions more in veterans’ health-care costs for decades to come.”5 Prince believes “the time is right to try a new approach in Afghanistan” and proposes a plan to privatize the war that would leave “a small footprint of private military contractors and an even smaller footprint of U.S. special operators.”6 A cornerstone of Prince’s proposal, aside from the almost complete removal of American troops from Afghanistan, is the cost savings his plan would allegedly allow: “his plan would cost $5 billion a year, a fraction of what it currently costs the U.S. to operate in Afghanistan.”7