Privatizace bezpečnosti je v současnosti jedním z nejvýraznějších trendů v oblasti bezpečnosti a vojenství. Přesun monopolu nasílí na privátní sektor ale vyvoláva řadu otázek ohledně možných negativních implikací. Jednou z nejdiskutivanějších otázek je v tomto ohledu dopad „outsourcingu“ vojenských operací na zahraniční politiku států. Většina debat se nicméně zaměřuje převážně na vojenské a ekonomické aspekty tohoto fenoménu, méně už na ty politické. Text Ondřeje Urbánka se proto zaměřuje na důsledky „outsourcingu“ vojenských operací pro rovnováhu politické moci a politický rozhodovací proces v kontextu americké zahraniční politiky. Právě Spojené státy jsou totiž největším zákazníkem soukromých vojenských společností a jakýmsi udavatelem trendů v této oblasti. Text je psán v anglickém jazyce.

Author: Ondřej Urbánek, graduate student of security and strategic studies, Faculty of Social Studies, Masaryk University

Introduction

After more than two hundred years of national armies dominance, private military and security companies (PMSCs) are once again becoming indispensable feature of the violent conflicts all around the globe -with new name and more sophisticated corporate image and structure. Peter W. Singer, one of the most respected scholars in the field of private military industry, and many others are thus concluding that we are witnessing the end of historical anomaly embodied in the dominance of national armies and the “Weberian” state monopoly on force and relatively natural comeback of “private warfare” in the form of private military industry (Singer 2008).

Possibilities and implications of foreign military operations outsourcing immediately became one of the most discussed aspects of this new trend. While its proponents see it as a way for financial savings and to the more rational and unimpeded foreign policy, critiques are emphasizing that foreign policy is such an important attribute of state power that its execution cannot be outsourced to the private subjects which are motivated primarily by financial profit, not the interests of the state. However, both sides agree that deployment of PMSCs in the foreign military operations brings about whole array of dilemmas and can seriously affect (both positively and negatively) the ability of deployed national or international forces to fulfill its tasks, the dynamics of the conflict or post-conflict reconstruction and the dynamism of the domestic political processes of the intervening state. While this discussion has been mainly focusing on the military and economic aspects of the outsourcing, the political implications for the state hiring PMSCs for its foreign operations has been overlooked for the most time, despite the fact that consequent changes in the dynamism of the political processes have potential to erode the basic principle of democratic government – the balance of powers. Hence the paper is focusing precisely on this crucial aspect of military outsourcing.

Another important aspect of this discussion is that for the most of its part it has been concentrated on the United States Armed Forces. The reason has been simple: the extent of the US outsourcing which had begun in nineties and boomed during the second Iraq invasion has been unprecedented. Thus the US has become a trend-setter in the context of military outsourcing and all the implications of the outsourcing policy, be they positive or negative, has become most apparent on the case of the US Armed Forces. This has been also the reason for focusing this paper on the case of US military outsourcing.

Based on this context, this paper strives to address two following questions:

Does the outsourcing of foreign military operations rebalance the powers of executive and legislative branch in favor of the executive? Hypothesis: The outsourcing of foreign military operations switches the balance of power in favor of the executive.

What are the possible implications of these changes in political decision making process?

The first chapter describes the methodological basis of the paper. The second chapter analyses the changes in the political decision making process, concentrating on the changing powers of the executive and legislative branches. The last chapter is built on the previous empirically based comparisons and in rather essayistic form outlines possible implications of these changes.

Methodology

In order to answer the questions formulated above, this paper will compare the political decision making processes when US uniformed personnel is being sent abroad and when private contractors are employed. We will be focusing mainly on the formal procedures which will be illustrated by examples of concrete US missions.Basic principle of comparative method isto safeguard the control of other variables (controlled variables), thus guarantee that the observed changes of the dependent variables (changes in the political decision making) are caused by the independent variable (outsourcing) itself (Lijphart 1971). This will be achieved by comparing political processes in the one state (US), thus all other variableswill be held constant (controlled).

Forthcoming lines will make the abovementioned rather vague and abstract term “changes in the political decision making processes” more concrete. To do so, this paper builds on the model of political decision making regarding foreign military interventions created by the he Geneva Centre for the Democratic Control of Armed Forces (DCAF 2006). This model is based on the balance between executive and legislative powers. While the executive branch is taken as a dominant player in this political process taking decision to send the troops abroad (as well as planner and executioner of the foreign policy), the legislature is supposed to balance the power of executive by various instruments of democratic control. They are following:

Functions:	Instruments:
Co-decisional	Authorizes the deployment of troops or use of force, either prior to or after the event
Operational	Reviews, and in some cases decides, operational details such as mandate, number of troops, length of mission, rules of engagement
Budgetary	Approves expenditure on military missions (‘power of the purse’)
Investigative	Collects information and monitors, e.g., through such techniques of oversight as questions, interpellations, emergency debates, hearings, official inquiries and visits to troops abroad to confirm data and determine whether other reservations exist
Representative	Facilitates political consensus on a government’s decision to deploy forces or channels popular disagreement against such a decision

Source: DCAF 2006

            These five legislative functions form the basic analytical categories for the comparison. The paper goes through all of these five functions and compares how outsourcing affects them. Doing so, we will be able to approve or disprove the formulated hypothesis and answer the research questions.

Changes in Political Decision Making Process

Co-decisional function

While the President of the United States is Commander in Chief of the Armed Forces, his authority in respect to the foreign military actions is partially limited by the Congress.In the state-centric security environment of the previous era, Congressional oversight has been anchored in its power to declare war. In the course of time however, it became unclear how the Congressional control mechanisms should be applied in the cases when the state of war has not been declared.In theaftermathof US withdrawal from the Vietnam war in 1973, Congress has therefore passed the War Powers Act in order to specify the powers and to provide a set of rules for the President and Congress to follow in the case of foreignmilitary operations without overt Congressional declaration of war but when the involvement in hostilities is very probable –this type of operations has become dominant in the post-Cold War era and prevails up to the present time, making the War Power Act more relevant than ever before (Library of Congress 2012).

The Act requires that: “collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,“ and that the President’s powers as Commander in Chief are exercised only pursuant to a declaration of war, specific statutory authorization from Congress, or a national emergency created by an attack upon the United States.” (50 USC Sec. 1541)In the case when no declaration of war has been adopted, the President has to submit a report to the Congress within 48 hours. Consequently the forces has to be withdrawn from hostilities within 60 days of the time a report is submitted, unless the Congress authorizes the continuation of the operation (Library of Congress 2012).

The implementation of the Act is however continually subjected to controversies because most of the presidents have insisted that the Act is unconstitutional and impedes executive powers. Consequently it has been repeatedlynot abided to. For examplepresident Reagan sending military instructors to El Salvador in 1981 and marines to Lebanon in 1982-1983, president Clinton during the operations in the Bosnia and Herzegovina and Kosovo and most recently president Obama during campaign in Libya (Greendwald 2011, Library of Congress 2012). Despite these reservations to the Act, most of the time the government headed by the President has been trying to reach consensus regarding the operation, although not specifically according to the provisions of the Act (most of the time the Presidents were refusing to accept the 60 day timeframe for ex post Congressional approval).

The War Powers Act however does not refer to the private military contractors. Therefore, when the government decides to replace uniformed personnel by the private contractors, it does not have to seek the approval of the Congress. Moreover when the contract between the government and PMSC is concluded, the Congress does not have to be even noticed about it unless the price of the contract exceeds total sum of 50 million dollars.US government is thus able to deploy armed force abroad even without knowledge of the Congress (Avant 2004, Grant 1998, Michaels 2005, Minow 2005).

Operational function

Operational issues such as mandate, rules of engagement or number of troops are closely related to the co-decisional function analyzed above.First of all, although  congressmen may condition their approval of the operation by specific mandate or rules of engagement for to the troops, it hasn’t been uncommon practice for the Presidents to dispatch foreign military operation and keep it on the ground without Congressional approval even after the 60 day limitation has passed – in fact illegally according to some interpretations.However, the Congress may restrict the mandate of the troops on the different legal basis than just the War Powers Act. For example the approval of “Plan Colombia”, massive US financed anti-drug strategy adoptedin the late nineties, has been conditioned by strict limitations on what exactly the US military can do to support Colombian counter-narcotics operations.Thus the US troops in Colombia have been enabled only to train Colombian units with clear human rights account and support their operations aimed at eradicating drug-trade, however they have been restricted from taking part in counterinsurgency operations (Singer 2008).

However, when the PMSCs are employed, their “mandate” is based only on the contractual agreement with the government, thus evading the Congressional authorization. Same with the concrete rules of engagement (use of force, etc.), whichuse to be delimited only very vaguely by the contracting authority. Pelton cites the situation in the post-invasion Iraq where the rules of engagement for the contractors regarding to the combat situations instructed them only to use force in self-defense and to break contact with an attacker – not taking into account “that contractors providing static security […] could come under fire for hours or days“and other specific situations (Pelton 2007: 117). Moreover, outsourcing provides the government with the opportunity to bypass the Congressional restrictions aimed at the US troops. One of the most notoriously cited examples refers to the abovementioned “Plan Colombia”, because the strict rules described earlier have been circumvented by outsourcing of the tasks prohibited for the US soldiers to private companies such as MPRI, Northrop Services, Silver Shadows, Armorgroup and DynCorp. The latterhas been even reported to directly take part in the counterinsurgency operations and offensive roles in cooperation with Colombian military (Singer 2008).

One of the most hotly debated operational issues is number of the troops to be dispatched in the operations, because it has significant impact on the economic and political costs of the operation. In this context, military outsourcing serves as a way to partially reduce or rather disguise these cots and soften the debate because private contractors are not included into the official statistics and they are not taken into account regarding to the personnel limits which cover only US army personnel(Singer 2008). For example, hiring the firm Brown & Root Services to support American troops operation on the Balkans in the nineties (in Bosnia and Herzegovina and later in Kosovo) reduced the number of troops needed to deploy by 8900according to some estimates. This way the US government prevented call up of reserve units and National Guard, which rendered the operation much more politically feasible (Singer 2008, Wynn 2000).Another example is the case of Iraq invasion in march 2003, which led to up to now unprecedented expansion of the military outsourcing and privatization of security as a whole. The outsourcing boomed because, the coalition army, which hasn’t been numerous enough to deal with the stabilization tasks after the end of the combat phase of the invasion, has been boosted by massive outsourcing. This prevented additional increases of the number of deployed units, which were already overstretched by the US engagements in Afghanistan and other places of the world, or call up of the National Guard – politically very undesirable step with respect to the coming 2004 presidential elections (Singer 2008). In both cases, outsourcing helped to realize the operation with less regular army soldiers then originally needed and thus partly prevent fierce public and political discussions accompanying deployment of higher number of troops, gain the Congressional support more easily and to reduce overall political costs of the operations.

Budgetary function

The so called “power of purse” is one of the basic powers the Congress poses in relation to the government and its policies. This way Congress has the right to terminate funding for the operations it regards not in accordance with American interests. However, when it comes to outsourcing, Congressional budgetary functions become challenged by its specifically fluidnature. Firstly, the Congress is not even noticed about the contract when its price does not exceeds 50 million dollars. Secondly, funding of PMSCs may lie outside the Department of Defense appropriations budget andmoreover is often dispersed among various governmental agencies, which makesthe identification of financial sources and revealing of total costsand thus the wholebudgetary oversight very difficult. And thirdly, PMSCs are often funded in hybrid ways – for example by host countries or third parties – which makes it inaccessible for Congressional budgetary control. For example the MPRI contract to train Bosnian army was directly between the firm and the Bosnian government but it was administered by the US and financed by the coalition of Islamic countries such as Saudi Arabia, Kuwait, Brunei, United Arab Emirates and Malaysia(Michaels 2005, Singer 2008).Similarly, some private security operations in Iraq has been financed from Iraqi oil revenues, thus outside of the Congressional oversight as well (Michaels 2005). The Congressional budgetary oversight functions are therefore hindered in several ways, making transparent and effective control of outsourced foreign military operations even more problematic.

Investigative function

Congressional investigative functions are based on its rights to request and collect information, analyze and evaluate them. Based on its findings the Congress may publicly point out and criticize possible wrongdoings or adopt some of the abovementioned limiting measures in the case it finds the governmental actions not in accordance with American interests or damaging in some other way.

However, in the case of investigation into the operations in which PMSCs have been involved the Congressional investigative powers are seriously hindered. Private firms, unlike the Department of Defense, do not have the obligation to answer the queries by the press or the Congress. Moreover, governmental agencies often refuse to publish outsourcing related information referring to the need to protect proprietary rights of the firm. Similarly, PMSCs refuse to provide information without governmental approval (Singer 2008). Consequently, the information regarding to the concrete numbers, tasks or cost of private military personnel are too often veiled in mysteries, not to mention information of operational or tactical character. This consequently seriously hampers the Congressional investigations and public debate.

Illustrating in this context is the situation with official statistics of soldiers fallen during the operation – on of the most sensitive issues in the domestic public debate. Significance of this issue has been repeatedly confirmed by the US experiences from Korea,Vietnam or second invasion of Iraq as well as the experience of majority of coalition partners from Afghanistan (Burnet 2011, Daily Mail 2012, Mueller 2005, Mueller 2011). And the same way outsourcing enables to distort the numbers of the troops dispatched it also makes possible manipulation of the official body count, because fallen contractors usually aren’t included into official statistics (Krane 2003). For instance, up to now there is no accurate statistic of contractors killed in Iraq, where their numbers remains exceptionally high (although specific data are not publicly accessible or does not exist). One of the most accurate numbers was provided by the US Department of Labor for Reuters in 2007. It has been based on the insurance claims under the Defense Base Act, obligatory insurance policy for all the private contractors working for US government abroad, and claimed that 917 private contractors were killed and 10 569 were injured in Iraq from march 2003 until march 2007 (Debusmann 2007). In reaction to this, Singer (2008) notes that losses of PMSCs in Iraq are higher than the losses of all non-US coalition forces combined. Problem of this data however rests in the fact that it includes only PMSCs working for US government. Losses of the companies working for the rest of coalition forces, international or non-governmental organizations and private sector are thus not reflected. Moreover, it ignores the cases, when the contractor had been killed, but the insurance claim wasn’t issued. Thus the real numbers will be probably much higher than estimated by Reuters.

And even when some information are gathered and incident revealed, the chances of holding someone accountable or bringing the perpetrators to justice are poor. This is caused by the transfer of responsibility from the state/government to the company. When it comes to the investigation of the incident the government simply blames the firm. The company consequently transfers the responsibility to some of its employees, fires them and continues its operations. Consequently, outsourcing enables the transfer of responsibility for the failures from the state/government to the company and from the company to the individual, whose penalty is dismissal at most, provided that the perpetrator is revealed. Concrete example of such “accountability procedure” was incident of DynCorp employees working for the US as a part of international police force in Bosnia in 1999, who were reportedly involved in the human trafficking and sex slavery. The culprits were only fired and transferred out of the country (Isenberg 2010).  Although the United States has since the time of the scandal significantly progressed in the legal regulation of the private contractors working in the foreign military operations, not even the current provisions are capable of covering all the possible offences (Elsea 2010).

This insufficient legal accountability could be also utilized in the case when direct involvement of the government is not politically feasible. In this context, outsourcing provides the opportunity to execute the foreign policy via private proxies. If the operation is uncovered or fails, the government may break the contract and connections with the firm and deny its involvement, gaining “plausible deniability”. For instance, US company MPRI has been hired to train the Bosnian army in 1995 despite the fact that US government was the primary implementer of the Dayton Peace Agreement and the main troop contributor to the IFOR. This helped US to achieve these contradicting foreign policy goals – rebuilding of the Bosnian military and continuation of the peace process (Singer 2008).

Representative function

According to the representative function, the Congress is supposed to channel popular disagreement and facilitate political consensus to deploy forces. However, in the case of outsourcing a lot of information needed for the representative function to work properly is inaccessible to the Congress, not to mention to the public, whose potential disagreement is Congress supposed to channel. Thus the popular and political consensus may be reached on the basis of skewed data and incomplete information regarding the real costs and nature of the operations.

The possibilities of the Congress to reach the required information and act on the basis its findings have already been analyzed above. Another important aspect connected to the representative function is public opinion, which forms a basis for the congressional actions. In this context, media perform crucial role – informing the public, thus helping to take a position on public policy issues. Regarding to this, the problem of military outsourcing is not just that there is lack of accurate information regarding its cots or statistical body count data, but according to Avant it is the ability of PMSCs to operate under the radar of media.She adds that the activities of PMSCs are covered five times less than regular army operations(quoted from Pelton 2007). Although Avant’s statement is rather only a qualified estimate, the operations of PMSCs are much harder to monitor, and not just by media. Singer (2008) demonstrates this on the example of DynCorp operations in Colombia, where incidents in which DynCorp employees had been killed were not investigated, not even information regarding their death were published. This stands in sharp contrast to the investigative and medial machinery in the case of US uniformed soldier being killed.

Another important aspect regarding the public opinion and military outsourcing is the opinion of some scholars, that the losses of private contractors are accepted better by the public than deaths of US soldiers, what they attribute to the still embedded  “mercenary stigma” based on the primarily financial motivation of the PMSCs (Howe 1998, Lilly 2000).

Summary

Following table summarizes impacts of military outsourcing on the Congressional oversight powers based on thecomparison of the regular andoutsourced foreign military operations oversight mechanisms.

Functions:	Impacts:
Co-decisional	Further eroding already weakened Congressional influence
Operational	Bypassing Congressional powers and restrictions already set for US army troops
Budgetary	Makes financing of foreign military operations more complex and less transparent,thus making the budgetary oversight more difficult
Investigative	Reduces the amount of information available for the Congressional oversight; poor political or legal accountability in the case of failure or wrongdoing; provides “plausible deniability” for adventurous/not-supported foreign policy
Representative	Enables manipulation of public and political discussion by skewed data and incomplete information; evades public control by media

As we can see, in all of the five analytical categories of the legislative oversight functionsthe introduction of outsourcing into the foreign military operations erodes the Congressional powers to varying degrees and thus provides the government/executive with less supervision, ergoincreased powers. According to these findingsit is possible to approve our hypothesis stating that:“The outsourcing of foreign military operations switches the balance of power in favor of the executive.

Potential Implications

Based on the findings of the previous chapter it is possible to observe that the outsourcing enables distorting of data crucial for the political discussion regarding the foreign military operations, bypassing governmental accountability and generally rebalancing the power of legislative and executive branch. This state of things may (however not necessarily) bring about some specific negative implications.

Military outsourcing potentially allows to approve anddispatch operations which would hardly gain public support and Congressional backing orexplicit approval, were the real costs of the operation made public.On the one hand, this enables the government to execute more unimpeded foreign policy, which could be otherwise hindered by protracted political debates, authorization procedures or by disagreement of the public, but on the other hand it is good to remind the words of Peter W. Singer who wrote: “[…] if an operation cannot gain the backing of the public to send in uniformed forces, then maybe it is not as much in the state’s geopolitical interests as the leadership originally perceived.” (Singer 2008: 215)Similar dynamics is identifiable during the operation itself, when the lower number of publicly admitted losses and the transfer of responsibility for potential failures rapidly decreases heretofore very high political costs. Consequently, in the case of failure government doesn’t have to face such a powerful pressures of public opinion and opposition.This way outsourcing enables execution of less democratically accountable foreign policy.

It is also possible to look at the issue of legal regulation of exterritorial PMSC operations in this perspective, which is still insufficient as we could see in the previous chapter.With respect to the fact that foreign policy is nowadays strongly influenced by volatile demands of public opinion and by domestic political situation, which may  in the long term negatively affect governmental ability to follow consistent foreign political course, outsourcing of foreign military operations opens the window of opportunity for more rational and effective foreign policy. Possibility to take advantage of the unregulated services of PMSCs thus presents politically very convenient instrument to accomplish often contradictory demands to promote national security or carry out humanitarian intervention and simultaneouslyavert any personal losses or economical costs.However, in the case of enforcing truly effective regulatory framework, which would safeguard more transparent outsourcing process and introduce clear lines of political and personal responsibility, all of the abovementioned political advantages would be seriously hampered. Therefore it is possible to suppose that current insufficient regulatory framework is not just a natural consequence of the legal and political complexity of military outsourcing, but a result of instrumental political interests, which stem from government’s refusal to relinquish its enhanced powers through the regulation of outsourcing.

Conclusion

Aim of this paper has been to answer following questions:

Does the outsourcing of foreign military operations rebalance the powers of executive and legislative branch in favor of the executive?
What are the possible implications of these changes in political decision making process?

According to the findings of the paper it is possible to conclude, that in the context of foreign military operations decision making military outsourcing does rebalance the powers of executive and legislative in favor of the executive. This redistribution of power is done in several ways, which were analyzed in previous chapter and summarized in the table on the page 12. To briefly summarize them once again, they are:

– Further erosion of already weakened Congressional co-decisional function by governmental contracts with private companies.

– Elusion of Congressional powers and restrictions already set for US army troops as regards to the mandate, rules of engagement and number of dispatched forces.

– Impeding Congressional budgetary oversight by making the financing of foreign military operations more complex and less transparent through the scattering sources of financing among various governmental agencies and third parties.

– Reduction of the amount of information available for the Congressional oversight with reference to the proprietary rights and limited obligationsof PMSCs to provide information.

– Poor political or legal accountability in the case of failure or wrongdoing as a consequence of responsibility transfer from the state/government to the PMSCs.

– “Plausible deniability” for adventurous/not-supported foreign policy.

– Enabling manipulation of public and political discussion by skewed data and incomplete information.

– Evasion of public control by media.

However, these factors may bring about some specific implications such as:

– Less democratically accountable but more unimpeded foreign policy.

– Reluctance to enforce effective regulatory framework for military outsourcing.

In the context of the broader discussion regarding the pros and cons of military outsourcing, it is possible to state that from the perspective of political decision making outsourcing brings aboutserious risks to the democratic functioning of political institutions. However, from the more effect based perspective outsourcing may be as well perceived as an effective and rational instrument for the foreign policy execution with minimal political costs. Therefore it is problematic to label outsourcing as a priori good or bad policy in this context. First of all, it is political instrument, which may be utilized to achieve various goals – good or bad – whose normative evaluation depends on the personal political affiliations and often on the concrete circumstances in which outsourcing has been utilized. The way outsourcing will be assessed thus depends primarily on the political decision makers and the way the will use it.

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Author: Ondřej Urbánek, graduate student of security and strategic studies, Faculty of Social Studies, Masaryk University