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Public Contract Law Journal

Public Contract Law Journal Vol. 50, No. 1

Rejecting Erik Prince’s Plan to Privatize the War in Afghanistan

Dana Molinari


  • Discusses Erik Prince's plan to privatize the war in Afghanistan and provides background of the United States' use of private military contractors
  • Discusses the legal framework governing private security contractors
  • Rejects Erik Prince's proposed plan and suggests legislation to prevent its implementation
Rejecting Erik Prince’s Plan to Privatize the War in Afghanistan
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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.

I. Introduction

The war in Afghanistan—“America’s longest war”—is approaching its nineteenth year, and many Americans believe the United States should “decrease American troop levels or remove all troops from the country.” One journalist notes that “[a] child born on this date in 2001 . . . is old enough to be fighting today in the war in Afghanistan.” 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.” 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.” 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.” 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.”

However, keeping costs down may mean poor conditions for certain contractors; “[Prince] will probably have to outsource to the so-called Third World, where military labor is cheap.” It is not uncommon for large private security firms to hire foreign individuals, often known as “third-country nationals” (“TCNs”) to assist in performance. The distinction in pay grades may create tension among private security contractor (“PSCs”) because “noncitizen employees from developing countries earn far less than their counterparts from developed nations, such as the United States, Australia, and Great Britain.” Additionally, while many TCNs have military or police backgrounds like their American counterparts, vetting becomes more complicated if these individuals were trained under regimes with records of human rights abuse or if incomplete background records overlook aspects “that might disqualify him or her from employment.” Prince’s plan for privatizing warfare should not be adopted because it may encourage those with a stake in private military contracting companies to prolong war to maintain profit—there is less incentive to end wars if one’s source of income is warfare itself.

This article discusses legal arguments for rejecting Erik Prince’s proposal to privatize the war in Afghanistan because this plan would entail PSCs performing inherently governmental functions and likely engaging in illegal uses of force on the battlefield. Section II provides the factual background of the war in Afghanistan and outlines Prince’s plan to privatize it. Section III explains the law governing PSCs and discusses how implementing Prince’s plan would violate statutory provisions and executive agency policy that prevent contractors from performing inherently governmental functions. Finally, Section IV addresses the potential dangers of Prince’s proposed viceroy and presents ways in which legislation could prevent the contracting out of such a role.

II. Background: The War in Afghanistan and Prince’s Plan

This Part provides the factual framework behind private security contracting and Prince’s plan for Afghanistan, beginning by summarizing the recent and evolving role PSCs have played in modern American warfare. Next, the war in Afghanistan is discussed with a focus on how the United States has implemented PSCs into this modern war. Finally, Erik Prince’s plan for privatizing the war in Afghanistan is explained utilizing his own words from his interviews, videos, and published articles.

A. A Brief History of the Evolution of American Defense Contracting

Although “private security functions” are interpreted to statutorily require the carrying of weapons, “[t]here is some debate as to what constitutes a private security contractor.” Practically speaking, PSCs perform “armed services” like site or convoy security as well as “unarmed services,” such as security training and “operational coordination” to manage “command, control, and communications operations centers.” Private security contracting today involves federal agencies “[outsourcing] a host of combat-related tasks and responsibilities in [conflict zones].” However, this was not always the case. The use of contractors in military operations for purposes other than the supply of commercial goods and services is a recent phenomenon that began in the early 1990s. Before that time, private contractors were used “[not to] fight wars,” but to “[produce] military equipment and supplies.” During the Cold War, heightened spending on military goods allowed a private defense industry to develop and permanently take root in the United States. When the Cold War ended in 1991, the United States made sizeable cutbacks to its military and NATO armed forces demobilized, “putting large numbers of soldiers and weapons out of work.”

As military manpower numbers were reduced in the United States, the use of contractors became “Defense Department policy for filling the gaps.” The need for soldiers, training, and weapons after NATO demobilization also led to the emergence of “private military companies” that stepped in to “[fill] the supply gap.” These military contracting businesses are often run by retired, high-ranking military officials and recruit their employees from among those who have served in American armed forces. Still, the actual number of PSCs who are U.S. citizens (ex-military or otherwise) in Iraq, Afghanistan, and Syria is far lower than one might think, consistently making up only a small fraction of PSCs used by the U.S. military.

The number of PSCs employed by the U.S. military in Afghanistan and Iraq has been monitored and published since 2008 by U.S. Central Command (“CENTCOM”) and has “fluctuated significantly” depending on military needs and the number of troops deployed. For example, CENTCOM’s first quarterly report published in August 2008 indicated 7,121 armed PSCs present in Iraq, but this number dropped to eighty-seven by the October 2015 report. The numbers of PSCs in Afghanistan exhibited even greater fluctuations: jumping from 21,544 in October 2011 to 28,686 in July 2012. By October 2016, that number fell to 813 armed private security contractors. As of January 2019, there are 4,842 PSCs supporting military operations in Afghanistan, 2,847 of whom are armed.

B. Overview of the War in Afghanistan

The United States has been engaged in a military campaign against al-Qaeda and the Taliban within Afghanistan since 2001, suffering more than 2,000 casualties and spending over $132 billion in reconstruction alone. A 2017 Department of Defense (“DoD”) report estimated that U.S. combat operations have cost an additional $752 billion since 2001. U.S. and NATO military operations were initially focused on targeting al-Qaeda operatives and removing the Taliban from power, but tactics shifted to developing Afghan National Defense and Security Forces (“ANDSF”) to counter a spike in Taliban attacks beginning in 2004. At first, the development of the ANDSF was intended to provide the new Afghan government with a sustainable professional force that could perform security functions when the U.S. military withdrew. Timelines for withdrawal changed, however, as violence and insecurity related to the Taliban threat increased, and U.S. officials realized that a “longer-term sustained presence of U.S. combat forces and advisors would be required.” Although the ANDSF formally assumed Afghan security responsibilities in 2015, the U.S. continues to train, build, and equip these forces using special set-aside funding from the Afghan Security Forces Fund (“ASFF”), making the ANDSF a continuing priority for U.S. military strategy in Afghanistan.

There are about 14,000 U.S. troops in Afghanistan, but the exact number has not been available to the public since late 2017 because the Pentagon’s reports on troop numbers, collateral damage, and air strikes have since been classified. President Trump announced a “new strategy” for the war in Afghanistan in August 2017 that focused on “conditions on the ground” instead of “arbitrary timetables” to avoid a hasty withdrawal which would “create a vacuum that terrorists, including ISIS and al-Qaeda, would instantly fill.” This strategy involves continued support for the Afghan government and military in their fight against the Taliban, but President Trump emphasized that “[w]e are not nation-building again. We are killing terrorists.” Major General James B. Hecker affirmed this “unrelenting pressure” strategy in a February 2018 press briefing when he noted the increase in coalition air power in Afghanistan, saying “In 2017, we’ve done more airstrikes than we did in 2015 and [2014] combined,” with the goal being to help the Afghan government reach eighty percent of the population under its control.

Major General Hecker asserts that the Taliban failed to expand their territorial reach in 2017 and as a result, have resorted to headline-grabbing attacks on civilians in attempts to gain legitimacy and appear as though they are gaining more control. However, according to a 2017 UN report, the security situation in Afghanistan has worsened “over the past few years, as the Taliban have been able to influence and, to some extent, control ever larger parts of the country,” particularly in rural areas where the ANDSF have ceded territory. This is supported by a 2018 quarterly report by the Special Inspector General for Afghanistan Reconstruction (“SIGAR”) which found that although territory under insurgent control decreased slightly, the number of “contested” areas increased, while the “Afghan government’s control or influence of Afghanistan’s districts fell to the lowest level (55.5%) since SIGAR began tracking district control in November 2015.”

C. Erik Prince and His Plan for the War in Afghanistan

In May 2017, Erik Prince introduced “[a]n East India Company approach” for bringing about the end of the seventeen year-long war in Afghanistan through privatization, and argued he should be the one to run the operation. Prince is the founder of Blackwater USA, which gained infamy when its PSCs opened fire on a crowd of Iraqi civilians in Nisour Square, killing seventeen individuals in September 2007. The effects of this shooting are still being dealt with in federal courts today. Blackwater, which has changed names multiple times since its 1997 founding and is now known as Academi, initially provided training services to law enforcement and military personnel but later diversified to offer private security contracting after the start of the wars in Afghanistan and Iraq. Blackwater held government contracts worth less than $1 million in 2001 but by 2006, it had earned more than $1 billion from contract awards, with contracts valued over $500 million in 2006 alone. Even after the Nisour Square incident and subsequent Senate Committee on Armed Services investigation, Blackwater continued to receive federal contracts worth hundreds of millions of dollars. The Blackwater/Academi firm was also awarded around $309 million from 2002 through 2013 for “training, equipment, and logistical support to Afghan counternarcotics entities,” making it the second-highest recipient of total awards within the DoD’s Drug Interdiction and Counter-Drug Activities Fund.

Since he introduced his plan in May 2017, Erik Prince has appeared for multiple interviews and released videos in which he argues “conventional military tactics and centralized decision-making” are not working and ensures that he can end America’s longest war “responsibly, legally, and cost effectively,” saving thousands of lives and hundreds of billions of dollars. In his pitch to the current administration, Prince argues that President Trump does not have to stay the course, as recommended by his “so-called” foreign policy experts, because these conventional strategies are “irresponsible” and “reckless” when there are American lives in jeopardy. Prince envisions utilizing a small contractor force of about 6,000 “embedded with the Afghan military” to replace current military forces, allowing conventional U.S. military, NATO, and contracting forces to come home. The roughly 6,000 contracted personnel would be “[sixty] percent former U.S. special operations forces and [forty] percent former NATO special operations forces.” He also suggests that this can be accomplished on a budget of roughly $5.5 billion, saving the government $50 to $52 billion.

Prince proposes that his “third path” alternative to pulling out completely and staying the course would mirror early operations used in Afghanistan where “a few hundred C.I.A. and Special Operations personnel, backed by American air power” had “devastated the Taliban and Al-Qaeda in a matter of weeks.” Prince contends that this success was reversed when the U.S. reverted to traditional stability operations, and blames the U.S. government’s focus on building a central government for seventy percent of Afghanistan falling under the influence of the Taliban, Daesh, and others. Prince’s plan involves three foundational elements: embedded mentors, deployment of reliable air power, and local governance support.

1. The Three Pillars of Prince’s Plan

The first pillar of Prince’s plan involves embedded mentors within the Afghan military at the battalion level, which would be made up of “Western” veterans who would serve for years alongside their Afghan counterparts, as opposed to the average seven-month deployment used by the U.S. military currently. Of the 6,000 contractor force, 3,600 would be assigned as “adjuncts.” Prince claims these contractors will ensure the Afghan forces are trained, paid, well-led, and supplied on time—“and yes, [they would] even [fight] alongside their Afghan counterparts” governed by Afghanistan’s rules of engagement. Prince has also added that such contractors would be subject to both the Uniform Code of Military Justice and Afghan law for any misconduct.

The second pillar of Prince’s plan is to “deploy reliable air power.” Prince proposes to supplement Afghanistan’s air capability with his private air force until Afghanistan’s “air force reaches full operational capacity.” Prince states he can provide “immediate, reliable, and low-cost aircraft” to be flown by mixed crews consisting of a “professional Western safety pilot” and an Afghan solider who would have “sole authority for the release of weapons.” In his proposal to the Afghan government, Prince assured that his air force could “provide ‘high speed response’ close-air support” so that “the entire country can be responded to in under 1 hour.” Prince owns his personal air force through an affiliate, EP Aviation, but the company named on the proposal to the Afghan government was Lancaster6, which already has some aircraft in use “providing air mobility, troop transport, and parachute air drop support for supplies and cargo” in Afghanistan.

The third pillar of Prince’s plan, “governance support,” aims to address the “massive corruption” that “engulfs Afghan forces now,” and would require assigning professionals to work for the long-term in Afghanistan to support local governance. These “accounting logistics professionals” would target mismanagement in areas like Afghan troops’ payroll and perform functions similar to the “work of the Afghan Inspector General for the U.S.” Prince suggests President Trump appoint a “special Presidential envoy and empower them to wage an unconventional war against the Taliban and Daesh forces” by “hold[ing] corrupt officials accountable” and negotiating with “the Afghan Taliban who are willing to negotiate with Kabul.” He believes the current interagency process is not working and urges that the president empowers one individual to achieve the mission.

To implement his plan, Prince proposes the installation of a federal official he calls a “viceroy” in Afghanistan who “reports to the president and is empowered to make decisions about State Department, DoD, and intelligence community functions in-country.” Prince suggests this could entail the appointment of “someone [who] can control policy, rules of engagement, spending, contracting, and troop levels for Afghanistan and Pakistan.” Although Prince has not been clear about the mechanics of this position or which federal agency or department would have the viceroy, he noted that “the person would have full hiring and firing authority over U.S. personnel.” He also asserted in a different interview that the Afghan government would work for this viceroy, funded by the United States. Prince indicated he had gone over the structure of his plan with an unnamed former Defense Department general counsel and asserts that it is legally and ethically sound.

III. The Legal Framework: Why Prince’s Plan Would Violate Prohibitions on Contractors Performing Inherently Governmental Functions

Prince’s plan should not be adopted because it would involve PSCs engaging in prohibited uses of force and performing inherently governmental functions in violation of policy and regulations. This Part presents the legal arguments made in opposition to accepting Prince’s plan for the war in Afghanistan by first outlining the concept of inherently governmental functions and the limits to how much force PSCs can use. Then, the elements of Prince’s plan are analyzed to demonstrate the ways in which it would violate legal provisions relating to PSC participation in combat operations. Finally, PSC transparency concerns related to limited oversight and an embedded contractor force in the Afghan military are addressed to emphasize the potential dangers of implementing Prince’s plan.

A. Law Governing Private Military Contracting

Government contracting for private security services is governed by the Federal Acquisition Regulation (“FAR”) and its supplement, the Defense Federal Acquisition Regulation Supplement (“DFARS”). “Private security functions” are “activities engaged in by a contractor” under a covered contract, and include conduct such as guarding “personnel, facilities, designated sites, or property of a Federal agency, the contractor or subcontractor, or a third party.” These functions also include “[a]ny other activity for which personnel are required to carry weapons in the performance of their duties in accordance with the terms of the contract.”

The National Defense Authorization Act of Fiscal Year 2008 instructed the DoD to prescribe their own regulations for “the selection, training, equipping, and conduct of personnel performing private security functions under a covered contract in an area of combat operations.” DFARS requires contractors “[e]nsure” that those performing private security functions comply with 32 C.F.R. § 159, “and any orders, directives, or instructions” relating to personnel record-keeping and incident reporting. Contractors also agree to ensure PSC personnel understand “their obligation to comply with . . . [a]pplicable laws and regulations of the United States and the host country,” as well as “[r]ules on the use of force issued by the applicable Combatant Commander . . . .” These regulations and statutes will be explained below, as will the guidelines and standards applicable to contractor conduct and use of force.

1. Inherently Governmental Functions

PSC combat capabilities are restrained by statutes and regulations, which prohibit the performance of activities considered inherently governmental. There are several definitions of “inherently governmental functions” throughout federal statutes, including in the FAR and federal policy guidelines such as the Office of Federal Procurement Policy (“OFPP”) Policy Letter 11-01. The OFPP Policy Letter “establishes Executive Branch policy addressing the performance of inherently governmental functions” and is “intended to assist agency officers and employees in ensuring that only Federal employees perform work that . . . needs to be reserved to the public sector.” It defines “inherently governmental functions” as those activities that are, by their nature and the level of discretion required, “so intimately related to the public interest as to require performance by Federal Government employees.”

The FAR outlines a non–exhaustive list of activities that are to be treated as inherently governmental and prohibited in “all contracts for services,” namely, “[t]he command of military forces, especially the leadership of military personnel who are members of the combat, combat support, or combat service support role.” FAR subpart 7.5 prescribes policies to ensure that inherently governmental functions are not contracted out to the private sector. FAR subsection 7.503 also makes a distinction between inherently governmental functions and activities that “approach being in [this] category” but are “generally not considered to be inherently governmental functions.”

10 U.S.C. § 2383 expands on this distinction and permits an agency head to contract out “functions closely associated with inherently governmental functions” if appropriate DoD personnel “supervise contractor performance,” but appropriate DoD personnel must still “perform all inherently governmental functions associated with” activities to be contractually performed. Congress also expressed, without using the phrase “inherently governmental functions,” that “security operations for the protection of resources (including people, information, equipment, and supplies)” in “high threat environments should ordinarily be performed by members of the Armed Forces” where deadly force will more likely be initiated rather than occurring in self-defense. The DFARS codifies both FAR subpart 7.5 and 10 U.S.C § 2383, requiring written determination that none of the contracted activities are inherently governmental, using DoD Instruction 1100.22 as a guide.

Finally, DoD Instruction 1100.22, which is used when establishing procedures for PSCs, provides greater detail on what is considered inherently governmental. It states that “combat operations authorized by the U.S. Government” are inherently governmental functions because they “entail the exercise of sovereign Government authority and involve substantial discretion.” This “substantial discretion” related to combat operations is considered inherently governmental because it “can significantly affect the life, liberty, or property of private persons or international relations.”

2. The Use of Force

Unlike deployed troops, PSCs are strictly limited in their use of force and may only use deadly force when necessary for self-defense, the defense of facilities or individuals identified in their contracts, or to prevent “life-threatening acts” directed against civilians. Limiting PSCs’ use of force is directly related to prohibiting them from performing inherently governmental functions: if PSCs “operate in hostile environments as part of a larger, totally integrated and cohesive armed force,” and “perform operations in direct support of combat . . . the operations are [inherently governmental].” These activities must be performed by the military because they “require command decisions, military training, and operational control” that security contractors are prohibited from performing. PSCs are not, however, prohibited from “defending another contractor or government entity of their own volition” if such action is in accord with federal regulations and host nation laws, among other provisions. Federal regulations, in turn, state that such conduct is “limited to a defensive response to hostile acts or demonstrated hostile intent.”

When requesting permission to be armed, the PSC and the private security contracting company must provide “written acknowledgement . . . that [i]nappropriate use of force . . . may subject such personnel to United States or host nation prosecution and civil liability.” Combatant Commanders issue the “Rules for the Use of Force” when they provide written authorization to PSCs who have a right to be armed. The guidance issued to arms-bearing PSCs must conform to standards in the Joint Chiefs of Staff Instruction 3121.01B, known as “Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces.” Instruction 3121.01B is classified; however, the public does have access to applicable guidelines within the DoD Directive 5210.56 on “Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties,” and in DoD Instruction 1100.22.

DoD Directive 5210.56 defines deadly force as force that an individual uses to cause “death or serious bodily harm” or force that the individual “knows or should know would create a substantial risk of causing” such harm. PSC use of deadly force is “justified only under conditions of extreme necessity” and only when “[l]esser means have been exhausted, are unavailable, or cannot be reasonably employed” and “[t]he risk of death or serious bodily harm to innocent persons is not significantly increased.” Even if a PSC encounters a situation in which these criteria are met, deadly force will still be prohibited unless used for (1) self-defense or the protection of others, (2) prevention of “a serious crime that involves imminent danger of death or serious bodily harm,” (3) or “protect[ion of] public health or safety,” among other enumerated scenarios.

All DoD private security contracts require PSC certification in the American National Standard Institute (“ANSI”) PSC.1-2012 (R2017) “Management System for Quality of Private Security Company Operations,” the International Organization for Standardization’s (“ISO”) 18788-2015 “Management System for Private Security Operations,” or certification under both standards. The ANSI guidelines emphasize that “[l]ethal force is justified only under conditions of extreme necessity, and as a last resort when all lesser means have failed or cannot reasonably be employed,” much like the DoD Directive 5210.56. Additionally, less than lethal force should “be used only as a last resort” and it “should be reasonable in intensity, duration, and magnitude based on totality of circumstances to counter the threat.”

PSCs are prohibited from firing warning shots and “[w]hen a firearm is discharged,” it may be determined that the weapon was fired with the intent of stopping the aggressor. Personnel performing private security functions need to report to the Combatant Commander incidents in which (1) a weapon is fired by or against such personnel, (2) persons are killed or injured as a result of PSC conduct; contractor personnel are attacked, killed or injured or, (3) when “[a]ctive, non–lethal countermeasures” are used by personnel in response to a “perceived immediate threat.”

B. Prince’s Plan Would Violate Statutory and Executive Policy Prohibitions Against Contractors Performing Inherently Governmental Functions

Prince’s proposal to privatize the war in Afghanistan is in direct opposition to FAR provisions and executive agency policy. Prince’s plan would have PSCs necessarily taking on the inherently governmental function of leading “military personnel who are members of the combat, combat support, or combat service support role.” For example, the contracted mentors he envisions embedded within the Afghan militia—a role he acknowledges has been performed by U.S. Special Forces personnel in the past—would involve these PSCs performing the inherently governmental function of leading Afghan military forces “in Afghan uniform,” which is prohibited by the FAR. Contracted embedded mentors “fighting alongside [Afghan troops]” also violates the prohibition on PSCs using offensive force to achieve the contracted objective because such activities entail a level of force and responsibility that is “uniquely military.” Prince has not presented any tenable plan for assuring that these embedded mentors fighting alongside Afghan troops in Afghan uniform will not engage in offensive combat in violation of regulations governing private military contractors. In any event, it is not clear that such security work could be legally contracted out.

Professor Laura Dickinson observed that although “government policy forbids the outsourcing of offensive combat functions,” the distinction “between offensive and defensive combat can be difficult to draw and even harder to police.” It would be difficult to ensure that Prince’s embedded mentors do not engage in the kind of offensive maneuvers classified as inherently governmental, particularly considering that PSC oversight seems to be limited to the viceroy. Concerns related to policing PSC activity are compounded further by the reliance on private security firms to self-report instances of PSCs misusing force, discussed in more detail in Section C of this Part. Even if Prince’s private security firm was sufficiently reporting instances in which its PSC personnel fired weapons or injured individuals, Professor Dickinson presents the question: “what is to prevent the new contractors from proactively putting themselves in harm’s way and then claiming to act in ‘self-defense’?”

Prince’s proposed use of blended air crews, in which only members of the Afghan military can release weapons, also cannot counter the concern that his plan violates prohibitions on contractors’ use of “offensive tactics.” That Prince would have his own air force implementing these combat operations goes against DoD Instruction 1100.22, which mandates “[t]he appropriate, measured use of combat power during hostilities” to be “designated for military performance.” Ronald Neumann, former U.S. ambassador to Afghanistan, also asserted in an interview that “[a]ny contracted fighting force ‘would have to be under Afghan law’” because “[t]here’s no U.S. procedure to have them under U.S. law.” One critic observed that although “military contractors can provide technical assistance and support,” Prince’s plan “goes far beyond [the] scope” of DoD Instruction 1100.22 because “it also promises attack aircraft . . . for targeting enemy combatants.”

C. PSC Transparency Concerns and Prince’s Plan

Privatizing the war in Afghanistan would likely provide less transparency of PSC conduct in an industry with a “largely invisible workforce” that already lacks effective oversight over contractor misconduct. Prince’s Blackwater demonstrated how difficult it can be to control PSCs’ use of firearms: from 2005 to 2007, Blackwater contractors discharged firearms first in 84% of the 195 reported incidents, although they were legally bound to only act in self-defense. These incident reports from Blackwater and other private security contracting companies were only seriously investigated by a congressional committee after the Nisour Square incident, even though “[f]or several years, questions [had] been raised about the conduct of Blackwater and other private military contractors operating in Iraq.” One scholar has observed the statutory weakness of this setup, noting that “although Congress directed the DoD to promulgate its own rules for PSCs, it declined to provide expanded enforcement authority tools and investigatory mechanisms in [the FY 2008 NDAA],” which “[constrained] the law to a narrow set of operational activities.” This lack of mandated investigatory oversight coupled with Prince’s proposition that a single “viceroy” should oversee all wartime activities in Afghanistan present the real possibility that PSC misconduct will go unchecked if his plan was implemented.

Prince’s suggestion that the embedded mentors would fight alongside Afghan counterparts in Afghan uniform also poses problems. The ANSI standards applicable to private security firms contracting with the DoD state that the “organization should adopt and use equipment markings that indicate the status of PSC team members” and that “[u]niforms should include a badge number, name, or other means to distinguish individual organization personnel.” Providing identification in active combat can lessen the likelihood of PSCs “being mistaken as combatants and targeted by hostile armed forces—where these forces are abiding by [international humanitarian law].” The argument can be made that Taliban forces do not abide by international humanitarian law and will target anyone they see as a threat, so requiring specially uniformed PSC will do little to protect them.

However, lack of uniforms and other identifying markings for PSC also poses concerns other than safety, such as contractor accountability. Identification “enables open and transparent reporting” that can hold contracting firms and PSCs accountable for misconduct, encouraging greater adherence to ethical codes of conduct. Sean McFate, a former military contractor, argues the lack of PSC accountability is already “their main selling point” by offering plausible deniability to those who want to avoid waging war. This emphasizes the importance of preserving the means of linking a contractor to his or her conduct, including the use of identifiable uniforms or badges.

Transparency would also be difficult if accountability relied on PSCs self-reporting. Currently, contractors must report to Combatant Commanders incidents in which PSC personnel discharge a weapon or when individuals “are killed or injured or property is destroyed as a result of [PSC] conduct.” It is not clear in Prince’s plan, however, how many of the suggested “2,000 active-duty U.S. special operations forces” will be used to serve in these supervisory roles, or even if such oversight will be left to the “viceroy” ranked above DoD officials. Blackwater’s experience demonstrated how often PSCs could disregard procedures including self-reporting despite conventional oversight. For example, Blackwater incident reports from 2005 to 2007 involving Iraqi casualties may not be accurate, as PSCs often fired from moving vehicles and did not always remain on scene to see if their shooting caused casualties. If DoD oversight is limited to a few Combatant Commanders, or even to Prince’s viceroy alone, the U.S. government would likely know very little about the misconduct or illegal use of force within their contractor army.

There is also the concern for PSC transparency in the public eye. Even if Prince’s contractor force were made up of mostly non–U.S. citizens, the American people would want to know how their country was being represented in the Afghanistan war. Currently, “privatized actions are often nontransparent” because the Freedom of Information Act (FOIA) “is inapplicable to private contractors”—what Paul Verkuil calls “a deficiency of democratic control.” One scholar notes that “FOIA law neither names nor specifically exempts contractors,” but adds that contractors have an “effective immunity” that “derives from judicial and administrative interpretations of certain provisions of the law.” Information that may be available to the public through FOIA requests includes “documents (broadly defined) generated by the government, or by private-sector actors, so long as they are in the possession (or custody) of the government.”

Implementation of Prince’s plan would negatively impact accountability and transparency concerns that are already criticized under our current statutory framework. Members of the public who wanted to get information disclosable under FOIA regarding contractor misconduct, or injury, or criminal background for example, would need to make a request with the DoD, and could be released if that agency had control of them. It is not clear, however, if Prince’s viceroy, who would be in charge of contracting and be “empowered to make decisions” about the DoD in Afghanistan, would be legally obligated to respond to FOIA requests about a contractor that he or she would oversee. Prince suggests that the viceroy would be a federal official and seems to propose that DoD would only be involved to the extent that it would provide a small number of special operations troops. If this is the case, and contracting of PSCs is left to the viceroy, there may not even be an option for the public to request non–classified information about the contractor army fighting the war in Afghanistan.

IV. Legal Issues Related to Prince’s “Viceroy”

The viceroy Prince suggests poses the greatest danger of his privatization plan. This role would effectively consolidate military control over the war in Afghanistan in the hands of one person, likely from the private sector, sacrificing DoD oversight and risking abuse of power. Prince has called his plan “the Macarthur Model for Afghanistan” and suggests the approach should emulate “Gen. Douglas MacArthur’s leadership of postwar Japan,” where he was “[g]iven clear multiyear authority” that allowed him to “[make] bold moves like repealing restrictive speech laws and granting property rights” which “moved Japan ahead by centuries.” He argues appointment of a viceroy for Afghanistan would have a similarly positive effect on Afghanistan by “reduc[ing] rampant fraud by focusing spending on initiatives that further the central strategy.” Prince also says this viceroy should be authorized “to set rules of engagement in collaboration with the elected Afghan government” because “[t]roops fighting for their lives should not have to ask a lawyer sitting in air conditioning 500 miles away for permission to drop a bomb.”

Although the potential constitutional concerns relating to the viceroy role Prince proposes are outside the scope of this article, it is important to address just how much executive control Prince proposes to vest in the viceroy. The president’s role as “Commander in Chief of the Army and Navy” for the war in Afghanistan would be delegated almost entirely to the viceroy, who Prince suggests should have sole authority over military operations in Afghanistan. One scholar comments that the commander in chief power of the president “ensure[s] that the military remains subject to civilian control.” The viceroy, although appointed by the President, would not be an elected official and thus should not be vested with commander in chief powers without being answerable to the American people.

The OFPP Policy Letter states that the “command of military forces, especially the leadership of military personnel who are performing . . . [combat-related roles]” and the “[c]onduct of foreign relations and determination of foreign policy,” are not to be delegated to the private sector by contract. As a kind of acting commander in chief in Afghanistan with powers to engage with the Afghan government on behalf of the United States, the viceroy would undoubtedly be conducting foreign relations and determining foreign policy in Afghanistan. Proponents of Prince’s plan may argue that presidential appointment to this position removes it from the private sector by establishing the viceroy as a type of federal officer. This argument cannot stand, however, because the viceroy is still a role that would only be created under the proposed privatization contract. It is also likely Prince envisions an individual from the private sector being appointed to the position—one commentator has even suggested that “Prince probably had himself in mind” for the role of viceroy.

DoD Instruction 1100.22 emphasizes that because combat operations are inherently governmental, “appropriate, measured use of combat power . . . is of critical national interest” and in order to “[safeguard] U.S. sovereign authority . . . responsibility for combat operations,” should be delegated only “to military commanders through the military chain of command.” The viceroy Prince envisions to lead the war in Afghanistan would singlehandedly take on the sovereign authority the DoD urges should only be delegated through a chain of command. Not only could the viceroy decide DoD functions in Afghanistan, but also the only oversight to viceroy actions would be thousands of miles away in the Oval Office. This lack of supervision poses serious concerns, as it vests presidential-like commander in chief powers over all military operations in one individual who is not answerable to DoD authority on the ground in Afghanistan.

A. Historical Implications of Prince’s “East India Company” Approach

Proponents of Prince’s plan may argue that the executive branch could appoint a viceroy-like figure to oversee private military contractors outside of any contract to avoid the discussed regulatory issues. That said, lessons from history caution against vesting a nation’s military power in an independent entity. Prince touts his privatization model as an “East India Company approach,” yet one need only skim history books to discover the potential for serious long-term risks that accompany contracting out inherently governmental functions to firms and individuals appointed by a nation’s government. The English East India Company was initially formed as a corporation with “exclusive trading rights” in the Indian Ocean area, but evolved into a naval warpower that employed a mercenary army far larger than that of its home state by the late 1700s. The corporation began to act in its own economic interests to the detriment of England by siding with the Mogul emperor to attack one of England’s allies, Portugal. The English East India Company ignored direct orders to avoid attacks on Portuguese ships because King James I needed Portugal’s alliance, but the corporation “chose the path of profit instead.”

The Dutch East India Company, whose charter provided for the use of military force, “engaged in activities that were contrary to their home government’s national interests” much like the English East Indies Company. The Dutch West Indies Company, modeled after its East India Company counterpart, entangled the Dutch government in a “prolonged land war with Portugal in Brazil,” and even lobbied against a peace treaty, arguing that it “had profited handsomely by the war, and thus it should be continued.”

Prince’s “East India Company approach” overseen by a single individual who does not have to answer to DoD officials opens the door for history to repeat itself. As the historian William Dalrymple observed, “[i]t was not the British government that seized India at the end of the 18th century, but a dangerously unregulated private company headquartered . . . in London, and managed in India by an unstable sociopath—[Robert] Clive.” This, of course, is not meant to suggest that anyone under consideration for Prince’s viceroy role is a sociopath. Rather, it is simply meant to underscore the importance of learning from our collective past. Regulations implementing limits on the performance of inherently governmental functions are more than bureaucratic red tape; they may prevent history from repeating itself.

B. Methods to Prevent Implementation of Prince’s Plan

While the current administration’s rejection of Prince’s plan can prevent the current war in Afghanistan from becoming privatized, there are other methods to prevent adopting a proposal like this in the future. Congress could simply use its appropriations power to refuse to fund any DoD contract proposing to vest such vast military oversight in one contractor. This would prevent Prince’s plan from being implemented even if the executive branch were amenable to adopting it through a government contract. Alternatively, Congress could also enact legislation to prohibit contractors from having a viceroy-like position. The language of the proposed legislation could be similar to that in section 1038 of the 2010 National Defense Authorization Act (“NDAA”), which prohibits contractors from interrogating individuals in DoD custody.

Using this framework, Congress could pass similar legislation in a future NDAA to prohibit delegation of DoD and military oversight to one individual through a contract, with the intent being to keep military oversight and management within the capable hands of the DoD and the President acting as commander in chief. Simply put, contractors could be prohibited from taking on the oversight power to control or influence DoD military operations, answerable only to the President. Even if Prince could convince the executive branch that a viceroy would be a beneficial office to establish outside a contractual appointment, Congress can refuse to draft legislation that would even create such an executive department, much less a method of appointing such an officer. Congress has many methods it can utilize to prevent the executive branch from handing over wars to contractors to run as a commercial enterprise.

V. Conclusion

Prince’s plan to privatize the war in Afghanistan is a dangerous proposition that goes far beyond the modern trend of supplementing military operations with private contractor support. Implementation of his plan would entail PSCs performing prohibited inherently governmental functions and likely engaging in illegal use of force on the battlefield in Afghanistan. The proposed creation of a viceroy to oversee all operations in Afghanistan would only help to remove the U.S. armed forces and the DoD from defending American military interests overseas. It would also consolidate warfare capabilities in the hands of the private sector. The current administration should not adopt Prince’s plan—particularly where it delegates warfare management to a viceroy-like contractor—in order to keep military capabilities within the public sector subject to established restraint and oversight.