Regulating US Private Security Contractors [1st ed.] 978-3-030-11240-0, 978-3-030-11241-7

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Regulating US Private Security Contractors Jovana Jezdimirovic Ranito

Regulating US Private Security Contractors

Jovana Jezdimirovic Ranito

Regulating US Private Security Contractors

Jovana Jezdimirovic Ranito Department of History and International Relations University of Porto Porto, Portugal

ISBN 978-3-030-11240-0 ISBN 978-3-030-11241-7  (eBook) https://doi.org/10.1007/978-3-030-11241-7 Library of Congress Control Number: 2018966692 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: © Alex Linch/shutterstock.com This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To my daughter, Carolina

Acknowledgements

This book would not be possible without the help from my family, friends, colleagues, and organizations. I own deep appreciation to the University of Coimbra, which installed in me, as in many others, to think critically and question everything. The incentive and support I got there for the early version of this manuscript was essential to be where I am today. Another special thanks goes to the American University, Washington, DC, which welcomed my stay as a researcher, which was essential for completing the interviews. There are many scholars I wish to thank; those who steered my research, both directly or through our conversations. I would specially like to thank Deborah Avant, Molly Dunnigan, Sean McFate, Kimberly Brown, T. X. Hammes, and Doug Brooks for their time and thoughts. Special gratitude to David Isenberg and Rebecca DeWinter-Schmitt, who generously commented on the earlier versions of the manuscript, and called out imperfections. Your input and comments have been very appreciated. I own deepest appreciation to all my anonymous interviewees, for their time and availability to share knowledge. Without them, this book would be not possible. Also, I’m very thankful for the comments and suggestions that anonymous reviewers offered, the final manuscript is much clearer because of it. I would particularly like to thank Anca Pusca and Katelyn Zingg at Palgrave Macmillan. Your kindness and professionalism made a seemingly difficult process exceptionally easy for a first-time author. Still, as a help vii

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in turning this book the best it could be, I owe special thanks to Richard Sine, who did a great job editing and improving readability of this book. Finally, I thank my parents for their enduring love, support, and encouragement. To my husband and daughter, without your understanding and love, this would never happen.

Contents

1 Introduction 1 1.1 Literature Review 3 1.2 Research Design 5 1.3 Overview of the Argument 7 1.4 Methodology 10 References 15 2 How and Why We Must Care About Regulation? 23 2.1 Why to Care About Regulation? 23 2.2 Regulatory Range in Historical Context Until Twentieth Century 24 2.3 The Evolution of Normative Framework 27 2.4 The Regulatory Evolution in the USA: Nineteenth and Twentieth Century 29 2.5 International Law and Regulation of Private Use of Violence 31 2.6 The USA’s Internal Regulations for Contracting, Oversight, and Criminal Liability of the Private Use of Violence 39 2.6.1 The Department of Defense 45 2.6.2 State Department 50 2.7 Conclusion 53 References 56 ix

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3 Letting Go of Neoliberal Constraints: Learning from the Regulatory Process 65 3.1 Letting Go of Neoliberal Constraints 65 3.2 Why Looking at Practices: Benefits of Using Bourdieu’s Theory of Practice 69 3.3 Bourdieu’s Practice Theory—Benefits in Comprehension of Regulatory Environment 80 3.4 Conclusion 89 References 90 4 Deconstructing Conventional Wisdom 97 4.1 Regulatory Process: The Very Short Introduction 98 4.2 Shifting from Agent–Structure Division 102 4.3 US Regulation Is a Matter for US Political Institutions 109 4.4 US Regulation Concerns the Government and Its Agencies 113 4.5 Regulation Is Either a Contracting or Legal Issue 120 4.6 Regulation Is Done and Over 131 4.7 Lack of Transparency Is a Private Sector Problem 140 4.8 Conclusion 149 References 152 5 Political, Bureaucratic, and Organizational Obstacles in Regulation of the PSCs 163 5.1 Partisan Ideological Division 164 5.2 Agency Politics 172 5.3 Bureaucracy Rules All 182 5.4 Revolving Doors and Institutional Memory Loss 183 5.5 Urgency Caused by the Headlines 190 5.6 Organizational Obstacles 192 5.7 The Influence of Personality and Personal Connection 196 5.8 Conclusion 202 References 205 6 Conclusions 211 6.1 Contributions and a Way Forward 217 References 221 Index 223

List of Figures

Fig. 2.1 Fig. 2.2 Fig. 4.1

Department of Defense: offices dealing with regulatory issues of private security contractors 47 State Department: offices dealing with regulatory issues of private security contractors 52 US regulatory network of private security contractors 101

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Introduction

2003, Abu Ghraib prison, Iraq: several suspicious deaths of prisoners are uncovered and investigated where US military and CIA contractors (from CACI and TITAN, now L-3) were involved. Fast forward to 2004: 256 Iraqi detainees from Abu Ghraib prison sued CACI International and TITAN Corporation for participating in and directing acts of torture, war crimes, crimes against humanity, sexual assault, as well as cruel, inhuman, and degrading treatment at that facility (Business and Human Rights Resource Centre 2013). September 16, 2007, Nisour Square in Baghdad, Iraq: Blackwater contractors, working under a State Department contract, kill 17 civilians and injure 20 during a firefight. Fast forward to September 11, 2009, Washington, DC: a Court of Appeals dismisses the charges against contractors and claims they were under US government contractor immunity. More recently, in 2014, after a number of appeals regarding the Court of Appeals and Supreme Court’s decision about Abu Ghraib, which ended with a dismissal of charges, detainees filed a suit against contractors again, but still without a favorable outcome. Also, in 2015, in Washington, DC, four of the Blackwater contractors involved in the Nisour Square Massacre received a sentence from a federal judge after years of dismissals and new trials. These lengthy sentences were thrown out on August 4, 2017, by Federal Appeals Court and it ordered a new trial. These examples are just the most reported ones, but they illustrate well the state of the US regulation regarding private security contractors operating in combat zones overseas. While there are a great variety of © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_1

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such corporate security actors, the present research is specifically focused on the contractors who carry arms and may potentially use violence while providing their services, even though they are considered civilian contractors. For instance, there are companies, like KBR, that have solidified their role as a logistics provider that provides food, fuel, or laundry services in complex, hostile environments.1 The most common misconduct issues related to those types of services are overcharging and difficulties in the control of the delivery of these services. Even though they are repetitive and important, those are not the focus of this research. Rather, focus here is on companies like Triple Canopy, former Blackwater/Xe Services/Academi (all parts of the Constellis Group now), former Aegis (acquired by Garda World), and former Armour Group (now part of G4S), which all provided protection services and transport for government representatives while visiting or working in complex, hostile environments. These companies may provide security and transportation services (protection of properties, objects, and people) or intelligence services—in the context of prison interrogation, for example2—and they represent around 10% of all civilian contractors employed by the US government.3 The regulatory challenges most feared by the public are related to possible harm or death of civilians (as stated above) without adequate legal consequences. Compared to other areas of study of private security contractors, such as growth of industry and use of PMSC (Chakrabarti 2009; Buzatu and Buckland 2010; Krahmann 2010a; Bruneau 2011; Kinsey and Patterson 2012; Axelrod 2014; McFate 2015), or standing in international law and surrounding mercenary debate (Kinsey 2005; Percy 2007; De Nevers 2009a; Petersohn 2014; Lopez 2017; Dickinson 2005; Bakker and Sossai 2012), regulation has been somewhat neglected when the actual empirical research is concerned. The topic of regulation does not have a consensus concerning the best way to be accomplished—as a self-regulation of industry or legally imposed by nation states/international organizations (Avant 2016; De Nevers 2009b, 2010; Schaub and Kelty 2016; MacLeod 2015); the effectiveness and quantity of it (Brickell 2010; Clapham and Zellweger 2013; DeWinter-Schmitt 2017; Drutschmann 2007; Hurst 2011; Loader and White 2017; Percy 2013; Ralby 2015; Snell 2011; Tiefer 2009) or capability to hold companies responsible in contracting, host or states where companies are founded (Armendariz 2013; Avant and De Nevers 2011; Carmola 2014; Center for Constitutional Rights 2015; Eichler 2014; Human Rights First 2008;

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Krahmann 2016a; Singer 2003a). This opposition between arguments about quantity of regulation reveals that there is, perhaps, a lack of effective regulation, and regulatory framework is insufficient in the face of activities of private security companies (Chesterman and Lehnardt 2009, 2). Even though there have been a number of important contributions in this field (as will be explored more ahead) and empirical research became more common, there is still a large gap between what is commonly accepted wisdom and research-based evidence. In the US case, some of the most commonly accepted perceptions for lack of more research on regulation are the off-timing of the issue within American politics (related to the decrease of problematic interventions abroad, which resulted in fewer incidents) or so-called “political reasons” that generally need deeper empirical-based analysis than those existing.4 This book departs from considering existing analysis insufficient. It delves into the knowledge of the regulatory practices in order to deconstruct some commonly accepted wisdom, and seeks, within the arguments, to explain the current state of a regulatory framework of a country that, by recent indicators of US President Trump, considers (sooner than some might have expected) their strong comeback.

1.1  Literature Review The previous literature covering the private security industry is vast, and gained momentum with Singer’s (2003b) introduction to the military service industry and its broader implications. This book helped to focus greater academic attention on the fast expansion of the industry, but, at the time, did not have much evidence to present, since it came out in the early days of Iraq and Afghanistan interventions. It did a great job of explaining from where these companies come and their differences from the infamous mercenaries. Research focusing on regulation is more limited, and, in a general mode, might be divided into two generations. The first generation encompasses the period between 2000 and 2010/2011, the period when regulatory issues first had been raised, particularly by the heavy employment of PSCs by the UK and USA in Iraq and Afghanistan. The end of the first generation aligns with the international multi-stakeholders’ attempt to develop professional management standards (ANSI PSC.1). The second generation encompasses the period up to 2016 and is marked by the recognition of the scholars that another perspective of the regulatory process was necessary (Avant 2016).

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The first generation rose up due to an outcry for bringing up issues of regulatory vacuum, lack of proper definition of private security providers in complex environments, and their differentiation from mercenaries to the attention of both the academic community and general public (Herbst 1997; Brayton 2002; Singer 2003b; Carney 2005; Kinsey 2005; Krahmann 2005a, c). The most prominent dimensions of the regulatory process explored in this period have been regulations by the states, either at the national or international level (Whyte 2003; Krahmann 2005b, 2013; Percy 2006a, b, 2013; Gaston 2008; Smith 2008; Chesterman and Lehnardt 2009; De Nevers 2009a; Bruneau 2011; Taylor 2011), and their normative and legislative limitations (Avant 2007; Percy 2007; Kinsey 2008; Lanigan 2008; Scheimer 2008; Tiefer 2009; Dickinson 2011b; McKinnon 2011; Bakker and Sossai 2012). Moreover, continuous issues have been raised within the first phase and explored throughout the second phase. Those include looking at the impunity of PSCs (Scheffer 2009; Leander 2007b, 2010c), their (PSCs) accountability (Dickinson 2005, 2011a; Schooner 2005; Chapman 2010; Kovach 2010; Mehra 2010; Hedahl 2012; Brown 2013; Kelly 2014; Ralby 2015), moral and ethical constraints (Thumala et al. 2011; Andreopoulos and Brandle 2012; Perez 2012; Machairas 2014; Pattison 2014), and political limitations of regulation (Avant 2005; Krahmann 2010b; Avant and De Nevers 2011; Leander 2011a; Kinsey and Patterson 2012; Østensen 2013; Erbel 2016). The beginning of the second generation of regulatory research is recognizable by including non-state actors as a part of the regulatory process, particularly visible by the inclusion of governance, governability, and informal regulation as keywords. This generation surged as a consequence of the regulatory context itself, where, from the late 2000s, more interaction is visible among industry, non-state actors (particularly NGOs working in the protection of human rights), and the states (contracting and receiving PSCs) to accomplish more effective modes to regulate the industry. The focus is on the professionalization of the industry (Joachim and Schneiker 2012; Carmola 2014) and the impacts of multi-stakeholders’ initiatives (PSC.1, ICOC and ICOCA, and ISO 18788) on the regulatory process, instead of isolated events (Leander 2012; Anders 2013; Armendariz 2013; Dupont 2014; Buzatu 2015). While throughout most of the period (2011–2015), there is a rather shy attempt to include non-state actors as an integral and important part of the regulatory process (De Nevers 2010; Spearin 2010; Gomez del Prado 2011; Dickinson 2013; Krahmann 2013; Dupont 2014; Joachim and

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Schneiker 2015), more recently there is a firmer stand on this issue (Buzatu 2015; Avant 2016; DeWinter-Schmitt 2016). The last few years are particularly marked by such shifts, again followed by the (particularly) US approach of regulatory issues through procurement policies in order to look at the pragmatic solutions to regulatory troubles (Dickinson 2013; Abrahamsen and Leander 2016; Krahmann 2016a, b). Such an approach brought more empirical analysis in comparison with previous philosophical and ideological debates about whether the states should use such forms of services in the first place (Gaston 2008; Tiefer 2009). Mostly, this perspective was possible due to a more consistent study of the regulatory practices and their effects on the organizations and states. One of the first to study security processes through practices was Anna Leander (2007a, 2010a, b, 2011b, 2013a, b). Even though she did not focus on PSCs particularly, she suggested that looking at the practices might help in understanding the outcomes of the process. More recently, her research about ethnographic contributions to security studies (2015) reinforces the necessity to focus more on studying practices. This present book seeks to go deeper on the actual practices on how the regulation process works, and generally take a more empirical look at the US case than the previous authors have. It takes on the legacy of previous research, such as that of Dickinson (2011b), Stanger (2011), and Tonkin (2013), in terms of looking closer to the legal and political aspects of the US regulatory efforts. Besides legal dimension, it looks also at broader aspects of regulatory process, like interactions among all stakeholders, analyzing effects of several levels of analysis and wider aspects of control that have been previously addressed by Avant (2005) and Schaub and Kelty (2016), for instance.

1.2  Research Design This book aims to fulfill the gap between presented theoretical assumptions (calling on economic and political obstacles in the regulatory process) and the little actual knowledge about regulatory practices (and, consequently, its outcomes). The analysis presented here is intended as the (re)initiator of conversations about the necessity to reach more comprehensive solutions for a regulatory framework. Recycling data and arguments have not produced comprehensive knowledge so far, and clarification of the political and economic nature of regulatory obstacles are profoundly needed. Therefore, this book proposes to rely on regulatory practices to offer an inside view of the regulatory process and detect the

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essence of political disputes, bureaucratic and organizational constraints, legal barriers, and various other elements involved in the process that surged because of the current practices. The main goal here is not, by any means, to present fast solutions, but rather to present the complexity of the regulatory environment, multiple origins of potential obstacles, and indicate how such approach permits comprehensive study of this and other similar regulatory processes. This, in turn, would produce more efficient solutions eventually. The research employed multi-level and multi-stakeholder analysis on a single case study. The theoretical thinking tool employed is Bourdieu’s Practice Theory, where stakeholders hold numerous forms of capital that affect through the time regulatory process. The forms of capital and their impact on the regulatory process vary, depending on the circumstances and interaction with other stakeholders. Ultimately, each habitus reflects cultural values and history of the stakeholder and mold their present social action, but the social interactions among various habitus affect regulatory outcomes. No single stakeholder is holder of such capital to promulgate and put in practice various types of regulation on its own. Their interactions resulted in the existing regulatory outcomes and such framework allows us to look at how they came up and what were the main challenges and struggles that constrained more effective solutions. Empirical data is first consistently used in Chapter 4 to present regulatory process, not only historically and factually, but also by presenting the stakeholders involved and their complex interactions that turned this regulatory process into what it is. In continuation, it was employed as a tool to reassemble some of the confines of previous research, such as focus on the single-level analysis, divisions of public and private values, reducing analysis on a legal or procurement, or putting a time limit on regulatory process. Through analysis of interactions among stakeholders, the impact of their habitus on their own actions, but also on reactions of others, it is demonstrated that this is a complex, multifaceted process, continuous, and that should not be confined to single-level analysis or even on a single discipline. In Chapter 5, empirical data is further used for analysis of constraints of political and bureaucratic nature and it is demonstrated, using data obtained through interviews, how those affected by regulatory process and how interactions and clashes between different habitus impacted regulatory outcomes. It is demonstrated how and when certain types of capital affected regulatory process and/or outcomes.

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1.3  Overview of the Argument The aim of this book is to explore, both from a theoretical point of view as well as in practice, challenges to the USA in the regulation of PSCs in complex environments. We argue that to discover regulatory obstacles, it is necessary to approach the regulatory process from a more comprehensive standpoint, both by considering the multiplication of agents involved and their input to the regulatory process, as well as by expanding what is considered within the regulatory process. The regulatory process is a complex mix of public, private, and other diverse agents, all contributing to initiatives and opinions and achieving the present results. By understanding their input and their stance regarding legislation, the regulatory procedures of contracting agencies, and the accountability process, it is possible to develop a more informed view of possible challenges. To accomplish this, this book will be divided into two parts. The first part consists of Chapters 2 and 3, which will address how we reached the regulatory phase where we are now, and the theoretical stands regarding studying the regulatory process. Chapter 2 argues that the private sector’s regulation use of violence is not new, even though it has been an anomaly rather than standard practice in the past. By making brief references to examples of using regulation in history, it is demonstrated that when there was a political will of the sovereign to implement more stern oversight and prioritized unnecessary civilian victims, it was possible to keep private forces disciplined. Therefore, the political willingness to invest in strong oversight and rules is the key element of effective regulation. The chapter then explains the transition to the anti-mercenary norm in the eighteenth century and abandonment of the sovereigns’ (public) use of private force until the twentieth century. By presenting brief historical overviews, both of international and US national norms and legislation addressing the use of private violence, it is demonstrated how this phenomenon (use of private violence by states) made a comeback and the evolution of mercenaries to legal security enterprises that are recognized as essential partners of some of the major international players. However, this evolutionary process, we will see, was not followed by respective changes in the regulatory framework, which will be demonstrated by introducing the US national regulatory structure regarding the use of private force.

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Chapter 3 addresses why the state-centric approach of neoliberalism, when studying regulatory obstacles, failed. The shortcomings of focusing on agent or structure are resumed in the hidden dynamics that occur in the regulatory environment. These affect the actions of individuals and ultimately impact both agents and structures. This process begins with a call to break free from socially constructed identities to understand fully from where the players are coming and the origins of their behavior. The neoliberal baggage of formed identities, such as public means state welfare, private benefits only business owners receive, and states welcoming regulation vs. industry who are against it, attributes to agents, structures values that do not correspond to practices, and facilitates easy acceptance of conventional wisdom as truths, rather than stimulating a thorough examination of practices. For that reason, it is necessary to go beyond the black and white divisions and plunge into the gray area of what is actually taking place. This new approach permits the deconstruction of pigeon-holed identities immersed in the public–private dichotomy and offers tools to reveal the contents of the “boxes” named politics, economic gains, and bureaucracy from ground reality. Departing from the sociology of practices, by introducing Bourdieu’s concepts of habitus, doxa, and field, it is possible to deconstruct conventional wisdom by refuting them with regulatory practices. Studying those practices assists in separating from the public–private dichotomy, which permits identification of multiple facets of each stakeholder. Following more recent academic contributions, it is explained how those dynamics influence regulation, emphasizing their dual focus. On one side, they are influenced by the actions of players; on the other side, they are influenced by the context in which the process occurs. Separation from the social construction of identities assists in identifying the impact of both cultural aspects and organization influence on the regulatory process. Application of this framework to the PSC regulatory process allows uncovering of the dynamics hidden by simplification of conventional wisdom, such as strains of single-level analysis or public–private division. Intercrossing of various levels of analysis allows perception of the motivations and interests of stakeholders, as well as better comprehension of why they are motivated to act in a certain way. Also, it provides the liberty to observe the political and bureaucratic process of regulation with a critical eye and focus on how individual behavior can create serious impediments or impulses in the regulatory process. In sum, the regulatory process exists as the interplay between individuals

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and structure, and, by undertaking a deeper behavioral analysis of each, obstacles are becoming clearer. The second part of the book looks at the practical application of this framework and uncovers those dynamics that have been hidden in the previous research. Chapter 4 begins this journey with a deconstruction of both identities and commonly assumed misconceptions in the regulatory process. After the presentation of stakeholders in the US regulatory process and a short introduction of US PSC regulatory framework (supported by a map), it moves onto the deconstruction of misconceptions. First, it considers the level of analysis, explaining why the regulatory process needs to consider different levels of analysis and not be limited to one. By intercrossing individual, domestic, and international inputs and regulatory dynamics, it is possible to better comprehend certain outcomes. Second, it deals with the multiplication of stakeholders and demonstrates why they should be included. Even though this research supports the state as a base of analysis, it equally recognizes the importance of the input of other stakeholders, particularly since revolving doors puts them in different shoes at different times. Third, it explains the benefits of a comprehensive, multidisciplinary approach to regulatory issues, rather than addressing only one discipline at a time. If the analysis is reduced on organizational perspective, other (i.e., political, economic) dynamics and constraints affecting both the process and that perspective often would be shut down and not explored. Fourth, it stresses the importance of studying the regulatory process over time, not simply limiting the study to periods of high public pressure. Since the political dimension of the process is crucial to this analysis, the recognition that political processes are, by norm, long and have their ups and downs stresses the importance to look at the process as a continuum rather than a sum of isolated moments. Finally, it deals with the issue of lack of transparency of the regulatory process and demonstrates the futility of division on public and private values. One example demonstrates how both public and private entities are far from transparent when it comes to sharing anything related to the regulatory process. Chapter 5 takes on these deconstructed dynamics and identities and continues deconstructing the regulatory process itself. This chapter delves deeply into what political obstacles consist of and what aspects of bureaucratic obstacles make this regulatory process less efficient. First, political constraints are divided into two variations: one found in ideological (partisan) differences and other in institutional competition.

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By looking at the data collected through interviews with all stakeholders involved, this chapter demonstrates diversity among the actor considered by a state. It demonstrates, in examples at the Congressional level (both House and Senate committees), why and in which manner ideological battles have stalled some proposals. This is followed by examples of how and why institutional competition between departments have diminished some of the regulatory initiatives and demonstrates the importance of the institutional habitus in affecting structures in the regulatory process. This analysis is followed by the approach of the bureaucratic obstacles, identified as “revolving doors,” institutional memory loss, urgency caused by media pressure, organizational obstacles (consisting of the effect of inertia, the lack of a specialized office that would deal with contingency contracting, inadequate oversight on the ground, a consequence of a lack of career path for the contracting staff, the effects of staff rotation, inadequate education of staff, and budgetary problems), and effects of individual personality and personal connections on the regulatory process. Finally, Conclusions look at the previous arguments and the current situation of this particular regulatory process. It gives a snap picture of how this Bourdieusian approach has benefitted the analysis of US PSCs’ regulatory process and why it is a good tool for analysis of other regulatory processes.

1.4  Methodology The case study examined, which forms the empirical backbone of this thesis, is that of US regulatory process of PSCs in the period 2003– 2015. The option to have a single case study as opposed to making comparative study resulted from the uniqueness of the US case, regarding its own political system, as well as its importance as the biggest state contractor globally. The USA has a unique political system where the Congress and the president share legislative and executive powers, turning effectiveness of policies related to the majority of one of the parties in both White House and Congress. This system is different from the majority of European democracies, where both executive and legislative branch are in the parliament. However, the understanding dynamic of the regulatory process in the USA might shed light on the constraints that could be avoided in other states. This choice is supported by the fact that the USA has been the country awarding the highest number of

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contracts in unstable environments, particularly considering the massive contracting that took place during its missions in Iraq and Afghanistan, and contracting has been executed by several departments, which turns regulatory environment more complex. The choice of the private security industry stems from the small amount of analysis carried out on it, claimed to be caused by the secrecy of the industry. It is important to have an approach that would allow future analysis of other industries that are covered with veils of secrecy (Horton 2015), since, nowadays, national security is rather often used as an excuse for lack of transparency. This research aims to demonstrate that even the secretive industries are available enough to give their standpoint when approached without preconceptions. There are two main methodological tools applied: process tracing and interviews with elites. The process tracing necessary for this research implied, as Guzzini said (2012, 47), “certain kind of process tracing that opens up a black box of the domestic setting.” This method is recommended as an essential form to conduct within-case analysis (Collier 2011, 823) and arguably the best method to study causal mechanisms (George and Bennett 2005, 224). To accomplish this goal, I examined the forums, events, and documents that influenced the process: national and international regulatory initiatives; events where the regulatory theme was addressed by several stakeholders; consulted official documents representing regulatory milestones, such as bill proposals; various US Congress committee hearings; and departmental regulations. Process tracing permitted both observation of different venues and identification of the structure of existing regulatory tools, which was a starting point for seeking obstacles. The official documents, national and international, served as a skeleton in the construction of the regulatory structure of PSCs. They were used as a guide to where the obstacles might be found and, since there was neither any previous study of the bureaucratic processes of PSCs regulation nor any research addressing the human factor on either an organizational or agency level, it was clear that to complete a study it was necessary to conduct a series of interviews that would dig below the surface generalizations that already existed. The benefit of the complementary method, particularly the use of the elite interviews together with process tracing, has been recognized (Tansey 2007), and in the research that has limited documentation regarding particularly industry behavior, the interviews were a necessity in order to form all-inclusive framework. In the spring of 2015, I did

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more than 50 interviews, but due to a lack of knowledge of some interviewees on specific issues (senior Congressional staff), they have been excluded from later analysis. For the purpose of this research, 50 interviews conducted with all stakeholders involved in the regulatory process have been considered. The interviews were set with a duration of approximately one hour, and they were semi-structured. Some of the questions that have been asked to all of interviewees included, for instance, what was the role of different stakeholders in this regulatory process? Was their interaction important and, if yes, how? What kind of connections influenced regulatory process and how? Can you describe how power relations (influences) were exercised in practice? What have been typical obstacles when new regulation has been attempted? What was the impact and significance of revolving doors on process? Did foreign policy goals at some stage influence regulatory process and, if yes, how? The interviewees have been divided into four main clusters. The first consisted of the legislative and executive branch. Among people interviewed were a US Congressman; former and present senior Congressional staff (both working on committees and in the congressional offices); former and present senior Department of Defense (DoD) officers (including those who hold/held the rank of deputy assistant secretary, director of office, Inspector General of DoD and colonel); and former and present senior State Department officers. The second cluster consisted of oversight bodies and included people in positions such as senior officers at the Congressional Research Services (CRS), GAO (Government Accountability Office), Special Inspector General for Iraq (SIGIR), Special Inspector General for Afghanistan (SIGAR), former CWC commissioners, senior staff from NGOs conducting governmental oversight, president of ICOCA, and the International Corporate Accountability Roundtable. The third cluster consisted of industry representatives who executed positions such as president and vice-president of industry associations, a vice-president of a PSC (private security company), a business developer in a PSC, director of governmental relations in a private security company, and a lobbyist for PSC/industry associations. The last cluster was made up of academics from different disciplines working on the regulation of PSCs. Of course, these categories are very wide and there is a large percentage of interviewees that might be included in several clusters. The list of potential interviewees that I took to my fieldwork counted 138 people; however, during the course of scheduling, almost half of them claimed not to be knowledgeable enough to give an informed opinion (even though they had participated

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in the elaboration of certain documents or made public statements related to PSCs regulation). Other parties, mainly political elites, were unavailable to talk to me, with the exception of one retired US Senator. Even the Congressmen/women who had left office were not available to talk, and, on one occasion, when a former US Congressman deeply involved in the regulatory process did accept the invitation to talk to me, he later changed his mind after consultation with his current legal colleagues. The interviews produced the desired snowball effect and I was able to reach people who I otherwise would not have known about, or would not have been able to reach, namely high governmental officials and industry representatives. This snowball effect resulted in 20 interviews and several informal conversations. The interviewees were open to share their opinions and knowledge under anonymity, and in order to get the most information possible, all interviewees were offered that option. There were several obstacles that I encountered while interviewing. The first was the terminology used by people involved in the regulatory process. While I had picked up some acronyms by reading documents, there were a number of acronyms that I initially needed to ask interviewees about; for example, acronyms for certain DoD directives; the use of the word “Member” to refer to a Congressman/woman; or acronyms for the issuer of certain documents, such as the Office of Management and Budget (OMB). Those obstacles, however, added to the concept of habitus used in theoretical proposal. The second type of obstacle was the unavailability of the State Department to share its standpoint. I tried to do an interview with more than 10 people, all of them senior State Department officers involved in the regulatory process in some way. Particularly difficult, and unfortunately unsuccessful, was my attempt to talk to officers from the Diplomatic Security Bureau. The first difficulty was to get names and contact details of the people who are/were involved. When that bridge had been crossed, those who agreed to talk to me did not get clearance to do so. There were 4 people in that situation, and even after pressure from other offices within State Department, and personal favors being asked by other interviewees, there was no clearance granted. They were advised not to do an interview without clearance as it may put their job at risk. When I mentioned this obstacle to others during interviews and in informal conversation, it was suggested that it was not personal, rather it is standard procedure from the State Department—“business as usual” was quoted quite often. Aside from this, I did get an interview with 3

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senior officers who work(ed) for State Department, and I used the official statements of (at the time) the Under Secretary for Management, Patrick Kennedy, to fill that gap. The interviews were the crucial part of gathering information that was otherwise unavailable, and they are the main source used in empirical chapters. They are, whenever possible, complemented with other sources, such as articles, books, or official documents. Document analysis was used for primary and secondary sources. A number of official documents have been analyzed, as well as bill proposals, hearings, testimonies, and reports. Archive research for this purpose was carried out at a departmental level, for the oversight bodies (GAO, SIGIR, SIGAR, CWC) and in the more general archives, such as the Library of Congress, and National Archives and Records Administration, located in Washington, DC. Secondary sources are used for the historical analysis and theoretical framework. Besides IR, other disciplines are used in this research: criminology, history, sociology, economics, and similar interdisciplinary, insight-enriched research. The last methodological tool that has been used was statistics in content analysis. It was used scarcely and solely in interview analysis in the occasions when the point of large majority agreeing on something was sought to be passed. It occurred in Chapter 5, for instance, when it was stated that 65% of interviewees agreed on the establishment of a permanent body dealing with wartime contracting.

Notes 1. Whenever complex/hostile environments are mentioned, it is specifically referred to post conflict settings, of the kind that have been called contingency environments by the DoD, or stability operations by the State Department. These are environments where the security situation is volatile, often with a high probability for insurgency-type violence to occur. 2. The decision to include here companies that provided other services (such as interrogation) was made as an attempt to demonstrate the extent of the use of violence, and not merely to follow existing typologies. This inclusion will be clearer in Chapter 5, when accountability aspects are analyzed, as there is a gap between the criminal liability of defense contractors (employed by the DoD) and civilian contractors (employed by any other US Department), even if they provide the same type of services. However, to simplify matters, they will all be grouped under the PSCs acronym.

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3. The PSCs have been representing only about 10% of all defense and intelligence contractors employed by US government, Abrahamsen and Williams (2010, 20) and Schwartz (2010). 4. For research that touched upon political aspects, but did not delve deep empirically, see Leander (2007c), Avant (2005), Dickinson (2011b), and Stanger (2011).

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16  J. JEZDIMIROVIC RANITO Bakker, Christine, and Mirko Sossai, eds. 2012. Multilevel Regulation of Military and Security Contractors: The Interplay Between International, European and Domestic Norms. Oxford: Hart Publishing. Brayton, Steven. 2002. “Outsourcing War: Mercenaries and the Privatization of Peacekeeping.” Journal of International Affairs-Columbia University 55 (2): 303–32. Brickell, Missye. 2010. “Filling the Criminal Liability Gap for Private Military Contractors Abroad: U.S. v. Slough and the Civilian Extraterritorial Jurisdiction Act of 2010.” Legislation and Policy Brief 2 (2): article 3. Brown, Kimberly N. 2013. “We the People, Constitutional Accountability, and Outsourcing Government.” Indiana Law Journal 88 (4): 1347–403. Bruneau, Thomas. 2011. Patriots for Profit: Contractors and the Military in the US National Security. Stanford, CA: Stanford University Press. Business and Human Rights Resource Centre. 2013. “Case Profile: Abu Ghraib Lawsuits Against CACI, Titan (Now L-3).” http://business-humanrights.org/Categories/Lawlawsuits/Lawsuitsregulator yaction/ LawsuitsSelectedcases/AbuGhraiblawsuitsagainstCACITitannowL-3. Buzatu, Anne-Marie. 2015. “Towards an International Code of Conduct for Private Security Providers: A View from Inside a Multistakeholder Process.” Genève: DCAF. Buzatu, Anne-Marie, and Benjamin S. Buckland. 2010. Private Military & Security Companies: Future Challenges in Security Governance. Geneva: DCAF. Carmola, Kateri. 2014. “Private Military and Security Companies: Armed, Global, Regulated and Professional?” In The Handbook of Security, edited by Martin Gill, 747–66. Basingstoke and New York: Palgrave Macmillan. Carney, Heather. 2005. “Prosecuting the Lawless: Human Rights Abuses and Private Military Firms.” The George Washington Law Review 74: 317. Center for Constitutional Rights. 2015. Accountability for Abu Ghraib Torture by Private Military Contractors. New York: Center for Constitutional Rights. http://ccrjustice.org/sites/default/files/assets/files/PMC%20factsheet%20 january%202015.pdf. Chakrabarti, Shantanu. 2009. Privatisation of Security in the Post-Cold War Period. IDSA Monograph Series 2. New Delhi: Institute for Defence Studies and Analysis. Chapman, Katherin J. 2010. “The Untouchables: Private Military Contractors’ Criminal Accountability Under the UCM J.” Vanderbilt Law Review 63 (4): 1047–80. Chesterman, Simon, and Chia Lehnardt. 2009. From Mercenaries to Market: The Rise and Regulation of Private Military Companies. Oxford: Oxford University Press. Clapham, Andrew, and Valentin Zellweger. 2013. The Regulation of Private Military and Security Contractors. Washington, DC: American Society of International Law.

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Collier, David. 2011. “Understanding Process Tracing.” PS: Political Science and Politics 44 (4): 823–30. De Nevers, Renee. 2009a. “Private Security Companies and the Laws of War.” Security Dialogue 40 (2): 169–90. ———. 2009b. “(Self) Regulating War?: Voluntary Regulation and the Private Security Industry.” Security Studies 18 (3): 479–516. ———. 2010. “The Effectiveness of Self-Regulation by the Private Military and Security Industry.” Journal of Public Policy 30 (2): 219–40. DeWinter-Schmitt, Rebecca. 2016. “Transnational Business Governance Through Standards and Code of Conduct.” In Routledge Handbook of Private Security Studies, edited by Rita Abrahamsen and Anna Leander, 258–67. London and New York: Routledge. ———. 2017. “The Value-Add of the ICoCA: A ‘Strong Sword.’” Human Analytics (Blog), November 13. http://human-analytics.net/the-value-addof-the-icoca-a-strong-sword/. Dickinson, Laura. 2005. “Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law.” University of Connecticut School of Law Articles and Working Papers, October. http://lsr. nellco.org/uconn_wps/53. ———.2011a. “Privatization and Accountability.” Annual Review of Law and Social Science 7: 101–120. ———. 2011b. Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, 1st ed. London and New Haven: Yale University Press. ———. 2013. “Regulating the Privatized Security Industry: The Promise of Public/Private Governance.” Emory Law Journal 63 (2): 417–54. Drutschmann, Sebastian. 2007. “Informal Regulation: An Economic Perspective on the Private Security Industry.” In Private Military and Security Companies, edited by Thomas Jäger and Gerhard Kümmel, 443–55. Wiesbaden: VS Verlag für Sozialwissenschaften. Dupont, Benoit. 2014. “Private Security Regimes: Conceptualizing the Forces That Shape the Private Delivery of Security.” Theoretical Criminology 18 (3): 263–81. Eichler, Maya. 2014. “Citizenship and the Contracting Out of Military Work: From National Conscription to Globalized Recruitment.” Citizenship Studies 18 (6–7): 600–614. Erbel, Mark. 2016. “The Politics of Outsourcing Military Support Services.” In The Routledge Research Companion to Security Outsourcing, edited by Joakim Berndtsson and Christopher Kinsey, 231–40. London: Routledge. Gaston, E. L. 2008. “Mercenarism 2.0—The Rise of the Modern Private Security Industry and Its Implications for International Humanitarian Law Enforcement.” Harvard International Law Journal 49: 221. George, Alexander L., and Andrew Bennett. 2005. Case Studies and Theory Development in the Social Sciences. Cambridge and London: MIT Press.

18  J. JEZDIMIROVIC RANITO Gomez del Prado, José. 2011. “A United Nations Instrument to Regulate and Monitor Private Military and Security Contractors.” Notre Dame Journal of International, Comparative, & Human Rights Law 1: 1–79. Guzzini, Stefano, ed. 2012. The Return of Geopolitics in Europe?: Social Mechanisms and Foreign Policy Identity Crises. Cambridge: Cambridge University Press. Hedahl, Marcus. 2012. “Unaccountable: The Current State of Private Military and Security Companies.” Criminal Justice Ethics 31 (3): 175–92. Herbst, Jefferey. 1997. “The Regulation of Private Security Forces.” In The Privatisation of Security in Africa, edited by Greg Mills and John Stremlau. Pretoria: South African Institute of International Affairs. Horton, Scott. 2015. Lords of Secrecy: The National Security Elite and America’s Stealth Warfare. New York: Nation Books. Human Rights First. 2008. Private Security Contractors at War: Ending the Culture of Impunity. New York: Human Rights First. http://www. humanrightsfirst.org/2008/01/16/Department-of-Justice-Continues-toIgnore-Violent-Crimes-Committed-By-Private-Security-Contractors-in-IraqAfghanistan. Hurst, Stephanie. 2011. “‘Trade in Force’: The Need for Effective Regulation of Private Military and Security Companies.” Southern California Review 84: 447–86. Joachim, Jutta, and Andrea Schneiker. 2012. “Of ‘True Professionals’ and ‘Ethical Hero Warriors’: A Gender-Discourse Analysis of Private Military and Security Companies.” Security Dialogue 43 (6): 495–512. ———. 2015. “NGOs and the Price of Governance: The Trade-Offs Between Regulating and Criticizing Private Military and Security Companies.” Critical Military Studies 1 (3): 185–201. Kelly, Rachel M. 2014. “Ensuring Contractor Accountability Overseas: A Civilian Extraterritorial Jurisdiction Act Would Be Preferable to Expansion of the False Claims Act.” William & Mary Business Law Review 5: 591. Kinsey, Christopher. 2005. “Challenging International Law: A Dilemma of Private Security Companies.” Conflict, Security & Development 5 (3): 269–93. ———. 2008. “International Law and the Control of Mercenaries and Private Military Companies.” Cultures & Conflicts, English Documents. http://conflits.revues.org/index11502.html. Kinsey, Christopher, and Malcolm Patterson. 2012. Contractors and War: The Transformation of United States’ Expeditionary Operations. Stanford: Stanford University Press. Kovach, Christopher M. 2010. “Cowboys in the Middle East: Private Security Companies and the Imperfect Reach of the United States Criminal Justice System.” Connections: The Quarterly Journal 9 (2): 17–35. Krahmann, Elke. 2005a. New Threats and New Actors in International Security. New York: Palgrave Macmillan.

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———. 2005b. “Private Military Services in the UK and Germany: Between Partnership and Regulation1.” European Security 14 (2): 277–95. ———. 2005c. “Security Governance and the Private Military Industry in Europe and North America.” Conflict, Security & Development 5 (2): 247–68. ———. 2010a. Private Security and Military Actors. Edited by Robert A. Denemark. Blackwell Reference Online. Oxford: Blackwell Publishing. ———. 2010b. States, Citizens and the Privatisation of Security. Cambridge: Cambridge University Press. ———. 2013. “The United States, PMSCs and the State Monopoly on Violence: Leading the Way towards Norm Change.” Security Dialogue 44 (1): 53–71. ———. 2016a. “Regulation Through Procurement Policies.” In The Routledge Handbook of Private Security Studies, 248–57. Abingdon, Oxon and New York: Routledge. ———. 2016b. “Pathologies of Private Security in International Peace Operations: The Case of ISAF.” In ISA Annual Conference, Atlanta. Lanigan, Kevin. 2008. “Legal Regulation of PMSCs in the United States: The Gap between Law and Practice.” privatesecurityregulation.net. http://www. privatesecurityregulation.net/files/Microsoft%20Word%20-%20PMSC%20 Article,%20US,%20Kevin%20Lanigan,%20Final.pdf. Leander, Anna. 2007a. “Portraits in Practice: The Private Security Business and the Reconfiguration of International Politics.” In Conference Paper, 6th PanEuropean Conference of the SGIR, 12–15, Torino, Italy. ———. 2007b. “The Impunity of Private Authority.” Working Paper No. 89. Chicago. http://openarchive.cbs.dk/handle/10398/6985. ———. 2007c. “Regulating the Role of Private Military Companies in Shaping Security and Politics.” In From Mercenaries to Market: The Rise and Regulation of Private Military Companies, edited by S. Chesterman and Chia Lehnardt. Oxford, UK and New York, NY: Oxford University Press. ———. 2010a. “Commercial Security Practices.” In The Routledge Handbook of New Security Studies, 208. ———. 2010b. “Practices Providing Order: The Private Military/Security Business and Global (in) Security Governance.” In The Role of Business in Global Governance: Corporations as Norm-Entrepreneurs, edited by Klaus Dieter Wolf, Annegret Flohr, and Lothar Rieth, 57–77. New York and London: Palgrave Macmillan. ———. 2010c. “The Paradoxical Impunity of Private Military Companies: Authority and the Limits to Legal Accountability.” Security Dialogue 41 (5): 467–90. ———. 2011a. “Risk and the Fabrication of Apolitical, Unaccountable Military Markets: The Case of the CIA ‘Killing Program.’” Review of International Studies 37 (5): 2253–68.

20  J. JEZDIMIROVIC RANITO ———. 2011b. “The Promises, Problems, and Potentials of a Bourdieu-Inspired Staging of International Relations.” International Political Sociology 5 (3): 294–313. ———. 2012. “What Do Codes of Conduct Do? Hybrid Constitutionalization and Militarization in Military Markets.” Global Constitutionalism 1 (1): 91–119. ———. 2013a. “Targeted Killings and Extrajudicial Executions: Technological Agency in the Politics of Legal Expertise.” Leiden Journal of International Law 26 (4): 811–31. ———. 2013b. “Technological Agency in the Co-Constitution of Legal Expertise and the US Drone Program.” Leiden Journal of International Law 26 (4): 811–31. ———. 2015. “Ethnographic Contributions to Method Development: ‘Strong Objectivity’ in Security Studies.” International Studies Perspectives (December), ekv021. Loader, Ian, and Adam White. 2017. “How Can We Better Align Private Security with the Public Interest? Towards a Civilizing Model of Regulation.” Regulation & Governance 11 (2): 166–84. Lopez, Carlos. 2017. “Private Military and Security Companies and Human Rights.” In Public International Law and Human Rights Violations by Private Military and Security Companies, edited by Helena Torroja, 83–103. Springer. Machairas, Dimitros. 2014. “The Ethical Implications of the Use of Private Military Force: Regulatable or Irreconcilable?” Journal of Military Ethics 13 (1): 46–69. MacLeod, Sorcha. 2015. “Private Security Companies and Shared Responsibility: The Turn to Multistakeholder Standard-Setting and Monitoring Through SelfRegulation-‘Plus.’” Netherlands International Law Review 62 (1): 119–40. McFate, Sean. 2015. The Modern Mercenary: Private Armies and What They Mean for World Order. Oxford: Oxford University Press. McKinnon, DonnaMarie. 2011. “Federal Civilian Criminal Prosecutions of Private Military Contractors: Inherent Legal Ethics Issues.” Georgetown Journal of Legal Ethics 24: 695. Mehra, Amol. 2010. “Bridging Accountability Gaps—The Proliferation of Private Military and Security Companies and Ensuring Accountability for Human Rights Violations.” Global Business & Development Law Journal 22: 323–32. Østensen, Åse Gilje. 2013. “In the Business of Peace: The Political Influence of Private Military and Security Companies on UN Peacekeeping.” International Peacekeeping 20 (1): 33–47. Pattison, James. 2014. The Morality of Private War: The Challenge of Private Military and Security Companies. Oxford: Oxford University Press.

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Percy, Sarah. 2006a. “International Regulation.” The Adelphi Papers 46 (384): 41–52. ———. 2006b. “Domestic Regulation.” The Adelphi Papers 46 (384): 25–40. ———. 2007. “Mercenaries: Strong Norm, Weak Law.” International Organization 61 (2): 367–97. ———. 2013. Regulating the Private Security Industry. London: International Institute for Strategic Studies. Perez, Celestino. 2012. “The Soldier as Lethal Warrior and Cooperative Political Agent: On the Soldier’s Ethical and Political Obligations Toward the Indigenous Other.” Armed Forces & Society 38 (2): 177–204. Petersohn, Ulrich. 2014. “Reframing the Anti-Mercenary Norm: Private Military and Security Companies and Mercenarism.” International Journal: Canada’s Journal of Global Policy Analysis 69 (4): 475–93. Ralby, Ian. 2015. “Accountability for Armed Contractors.” Fletcher Security Review 2: 15. Schaub, Gary, and Ryan Kelty. 2016. Private Military and Security Contractors: Controlling the Corporate Warrior. Lanham, MD: Rowman & Littlefield. Scheffer, David. 2009. “Closing the Impunity Gap in U.S. Law.” Northwestern Journal of International Human Rights 8 (1): 30. Scheimer, Michael. 2008. “Separating Private Military Companies from Illegal Mercenaries in International Law: Proposing an International Convention for Legitimate Military and Security Support That Reflects Customary International Law.” American University International Law Review 24: 609. Schooner, Steven L. 2005. “Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government.” Stanford Law & Policy Review 16: 549–572. Schwartz, Moche. 2010. The Department of Defense’s Use of Private Security Contractors in Iraq and Afghanistan: Background, Analysis, and Options for Congress. Washington, DC: Congressional Research Services. Singer, Peter W. 2003a. “War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law.” Columbia Journal of Transnational Law 42: 521. ———. 2003b. Corporate Warriors: The Rise of the Privatized Military Industry. New York: Cornell University Press. Smith, Thomas. 2008. “Protecting Civilians…or Soldiers? Humanitarian Law and the Economy of Risk in Iraq.” International Studies Perspectives 9: 144–164. Snell, Angela. 2011. “The Absence of Justice: Private Military Contractors, Sexual Assault, and the US Government’s Policy of Indifference.” University of Illinois Law Review 3: 1125–1164. Spearin, Christopher. 2010. “What Montreux Means: Canada and the New Regulation of the International Private Military and Security Industry.” Canadian Foreign Policy Journal 16 (1): 1–15.

22  J. JEZDIMIROVIC RANITO Stanger, Allison. 2011. One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy. New Haven: Yale University Press. Tansey, Oisín. 2007. “Process Tracing and Elite Interviewing: A Case for NonProbability Sampling.” PS: Political Science & Politics 40 (4): 765–72. Taylor, Trevor. 2011. “Private Security Companies in Iraq and Beyond.” International Affairs (Royal Institute of International Affairs 1944–) 87 (2): 445–56. Thumala, Angélica, Benjamin Goold, and Ian Loader. 2011. “A Tainted Trade? Moral Ambivalence and Legitimation Work in the Private Security Industry.” The British Journal of Sociology 62 (2): 283–303. Tiefer, Charles. 2009. “No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After.” Oregon Law Review 88 (3): 745–75. Tonkin, Hannah. 2013. State Control over Private Military and Security Companies in Armed Conflict. Cambridge and New York: Cambridge University Press. Whyte, Dave. 2003. “Lethal Regulation: State-Corporate Crime and the United Kingdom’s Government’s New Mercaneries.” Journal of Law and Society 30 (4): 575–600.

CHAPTER 2

How and Why We Must Care About Regulation?

2.1  Why to Care About Regulation? During most of contemporary history (from the Napoleonic wars to current), the outsourcing use of violence internationally has been omnipresent. Although, until the twentieth century, this has been routine (Herbst 1997, 117), its use has never been unanimously accepted or favorably viewed. However, mercenaries have been seen (and abundantly used) as a convenient tool for obtaining political goals throughout history. From a regulatory perspective—from the standpoint of contemporary analysis focusing on the political willingness and political organization as a crucial factor to success of control over private use of force—it is important to see that there was a link between political engagement in firmer control of mercenaries and better results in maintaining control over their discipline in the past. Through history, there were few (and far between) examples of regulatory initiatives, and their existence was rather an anomaly than a rule. Circumstances in which private use of force existed is significantly diverse from today: from their internal organization, surrounding international political and normative context, to ultimately, different nature of state than their ancestors. Hence, history can provide us with regulatory cues about the relevance of political investment regarding successful control of the use of private violence. This chapter has two aims: first, historically to situate the range of behavior of both entities hiring those services: sovereigns and states and private providers regarding regulatory measures. Second, this chapter © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_2

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provides an overview of the transition of the public use of mercenaries to the anti-mercenary norm and to the more contemporary regulatory framework in order to contextualize regulatory analysis in the following chapters. To achieve these aims, this chapter provides some examples of the regulatory range of the private use of force throughout history by emphasizing two particular aspects of the regulation and use of private violence. The first is commonly known as the contracting process and oversight, and the second is a punitive aspect, today acknowledged as a criminal accountability. The period considered here extends from the times of the ancient Egyptians, with an overview of the supervision by the Greeks, Romans, and Condottieri, as well as an overview of the Middle Ages and the suppression of public use of mercenaries at the end of the eighteenth century. This analysis is not, by any means, comprehensive, and it should be seen only as a sum of historical examples demonstrating a range of tools and the availability of sovereigns to control private use of violence. Emphasis is given to a historical analysis of the twentieth century and the evolution of the relevant regulations, both internationally and in the USA. The purpose is twofold: to highlight an increase and variety of actors involved in regulatory processes, and to learn how predecessors dealt with supervision and oversight issues, and the consequences in cases of misconduct by contracted troops. Therefore, the chapter is divided into two parts. The first part addresses the evolution of informal international regulations worldwide until the eighteenth century, and the second analyzes the USA and international regulations from the nineteenth century onward, placing emphasis on the control of PSCs in the context of the complex interventions as they have been used in Iraq and in Afghanistan.

2.2  Regulatory Range in Historical Context Until Twentieth Century Until the nineteenth century, private use of violence-based on mercenary groups- was employed by sovereigns and their business relationship was mainly regulated through contracts (Lanning 2007; Mallett 2009, 79). The contracts established the conditions under which they are employed (number of contracted mercenaries, their ranks, and salaries), as well as their responsibilities, i.e., their duties and expected behavior (Waley 1976, 337–47). Contracts have usually been overseen within contracted

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units by officers mandated by sovereign nations. Besides regulation throughout the contract, there are authors like Trim (2002), who defend that throughout history, private warriors have been defending their professionalism with a use of a chivalric code to distinguish their professionalism from other rogues. That chivalry code might be considered the first code of conduct used by professionals of this business. To begin this outline, it is important to stress that regulation of mercenaries is rather more of an anomaly than the rule. It might look like cherry-picking process when the examples of regulatory measures are provided below, but, the truth is there is no literature addressing this specific domain of mercenary activity through history. This fact stresses the opinion that regulation of their activity was not considered generally important until the nineteenth century and the formation of the citizen-states. However, some of the exceptions through history (dealing with regulatory concerns) will be briefly stated here rather than making an exhaustive historical overview and/or comprehensive analysis of the undertaken measures and their effectiveness. The first example of regulatory effort was of the Ancient Greeks who, by the middle of the fourth century BC, had common and well-established procedures defining the responsibility of hiring and control of the mercenaries. Greek rulers made decisions to execute oversight by implanting their own commanders on the ground with contracted troops; to supervise their behavior; and, with a rise of mercenary use, these commanders multiplied considerably with the goal of maintaining discipline among the soldiers (Trundle 2008, 137). Their priority was to maintain order and control the behavior of contracted troops, and they invested in it heavily. Later, Greek mercenaries were hired by different rulers to fight in their ranks. Persia hired Greek mercenary generals to join Persian hegemons, people responsible for the oversight of the “loyalty and actions of the Greek” (Trundle 1996, Chapter 5). Such mechanism was not faultless and did not always guarantee the fulfillment of the celebrated contract: one of the major concerns was an abandonment of the battlefield by contracted mercenaries, which reached thousands (Diodorus 1983, 16.78.5–6; Xenophon 1998). Yet, it represented one of the first known mechanisms in history used for the supervision and oversight of private forces in combat. Ancient Egyptians had mixed armies, consisting of hired mercenaries and Egyptians, where Egyptians had a role of “overseer of the foreigners” or “overseer of the Greeks” (Mieroop 2011, 299). The Greek

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presence in Egyptian troops was very strong and long lasting (ibidem). There is no found data about results of these regulatory measures, but its importance lies in the fact that there was willingness and acknowledgment of the importance for such role. The Romans with their troops contributed to the large increase in mercenary activity in Europe and were the first one to integrate mercenaries into an architecture that resembled a modern military. The Romans treated contracted soldiers in the same manner as those belonging to the imperial army, applying the same rules and laws as to their own military (McMahon 2014, 65). The Roman army was, in fact, semi-private; the Empire would establish goals that would often be achieved mostly by contracted troops. These troops would receive salaries from the Empire, but they would also receive whatever they could walk off with after conquering a certain region. Such possessions included money, all movable property found to be valuable, the occupation of valuable buildings, and the profit obtained by selling the prisoners of war (Backman 2003, 10). Those troops were known as Foederati and had participated in the Roman Empire’s forces when needed. They had a direct supervision of the sovereign inside these units, by those known as the optiones. The optiones initially held a solely administrative position in the relationship between mercenaries and the Roman government and were later incorporated into the Roman army (McMahon 2014, 38). Even though there is an evolution in what is considered to be a regulatory structure, that alone did not mean the mercenary behavior was upstanding. The Roman Empire’s military did not prioritize discipline—they were famous for a lack of discipline and misconduct even in their own lines—and when committed towards civilians, was generally not punished (ibidem, 39–40). The punishments were inflicted solely if misconduct hurt their goals directly. Such attitude diminished the potential that structurally existed in executing control over mercenaries and it demonstrates that structure without solid investment in discipline control and consequences for not abiding them does not mean a lot. The first major success in the application of regulatory measures was seen in the fourteenth and fifteenth centuries, when Italian city-states became the greatest contractor of mercenaries in Europe, with the procurement of the Condottieri to fight for various monarchs. The structure of the Condottieri enterprise was similar to the modern-day army, which is one of the reasons they are considered to be one of the most

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organized mercenaries groups of their time, with mechanisms reinforcing team spirit, collective decision-making, and the distribution of rewards (Garin 1997, 25). As their reputation could make a difference in acquiring new contracts, the Condottieri were well-known as being capable of controlling the behavior of their troops and containing the opportunism that war could bring (ibidem, 31–32). Their best-known mechanism for that purpose consisted of the close monitoring of mercenaries on the battlefield by civilian commissioners or provedditori, whose function was to report any misconduct of the contracted soldiers (Garin 1997, 34; Mallet 2009, 88). Besides chivalry code, mentioned earlier, this might be another example of self-regulatory efforts by the mercenaries and how those initiatives might be well accepted by both contractors and sovereigns/states. The examples stated above (that outlined the range of regulatory tools and availability of sovereigns to apply them) allows drawing three conclusions. The first is that discipline and accountability of the private use of force was dependent on the contractor (sovereign) who either made it a priority (by establishing the necessary structure, investing in oversight, and ultimately, holding transgressors accountable) or not. Second, the mercenaries were able to maintain certain order and discipline (for instance, Condottieri) independent of the sovereign conduct, with the first chivalry code, the primordium of what modern codes of conduct are. And, third, they were capable of holding upstanding behavior when such quality was demanded from them. Taking these three conclusions, it is possible, as the chapter advances, to see that these apply to the new phenomena, outsourcing private security services in unstable environments as well.

2.3  The Evolution of Normative Framework For regulation being an anomaly, as we have seen so far, it is important to understand from where the urge for establishing anti-mercenary norm came. More rogue behavior by mercenaries hired from fifteenth century onward demonstrated that ability to control mercenary activity by their contractor was not uniform across Europe, and at the end of the fifteenth century, there were traces of an incapability to regulate and supervise mercenary behavior in some states. The clearest example was the attempt officially to prohibit mercenary activity in Switzerland,

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where the government openly admitted its incapability to apply the law in practice (Mockler 1969, 94). These difficulties, related to discipline and control of mercenary behavior, were overcome by a synchronization between them and the state forces in most of Europe, which put an end to the problematic behavior rooted in robbery, illicit gains, and unnecessary deaths in the sixteenth century (Mockler 1969, 103). However, mercenaries have gained the reputation of being inconvenient and the moment for their replacement with other options was gaining ground. By the late eighteenth century, regulation of the private use of violence was informal and with limited extent, always within the local trend, with each sovereign being responsible for defining the rules that he found most effective in meeting his own goals. The first attempt to regulate the use of private force in history, from a formal point of view, was driven by the American War of Independence, when the United States issued the Law of Neutrality to protect itself from involvement in European conflicts.1 Essentially, the purpose of the Neutrality law (which prohibited US citizens from participating in foreign conflict) was to ensure that private individuals would not in any way compromise foreign policy goals. That provision had another important message behind it: States are responsible for their citizens and must regulate citizens’ behavior through local and national laws, and these will have international consequences. The principles established in this law were subsequently adopted by most European countries and Russia, to a greater or lesser degree, ranging from restrictions related to recruitment and enlistment, to general restrictions on the private use of force (Fenwick 1913; Deàk and Jessup 1939, Table 4.2). The decline and public disappearance of the private use of violence from the nineteenth century on had two main causes: establishment of citizen-armies and an increasingly normative line in international relations arose, where the states were responsible both for their own actions and of their citizens. The regulations of violence became a priority and “the eradication of non-state violence was not a goal but the unintended consequence of interstate politics” (Thompson 1994, 69). As a consequence, the provision of security and the use of violence has become a commodity increasingly provided exclusively by the states. Failure to legitimize the use of private violence and consequent decline in demand led to the establishment of a monopoly on the exercise of force by modern states (Avant 2005, 66).

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2.4  The Regulatory Evolution in the USA: Nineteenth and Twentieth Century The earliest evidence of the widespread political acceptance of the use of private force in the USA dates back to the period of the American Revolution in the late eighteenth century. Following the ideals of a citizen-army, the American position toward mercenaries was stated in the Declaration of Independence, where the hiring of foreign troops is explicitly associated with uncivilized behavior and revolutionary identity in direct opposition from Britain. However, a year later, those ideals were confronted with reality where an all voluntary militia was not viable. Leaders had overestimated the number and quality of volunteers (Buel Jr. 1984, 142) and the time they were available to serve. By March 1776, there were 3000 men available to serve (Middlekauff 1982, 364), which presented an obvious obstacle to maintaining the necessary number of soldiers who would fight in the War of Independence. As a consequence, George Washington suggested the hiring of a private force to combat such deficiency, giving as the main reasons to hire private force their professionalism, preparation, and confidence in fulfilling the contract, in comparison to the militias on which he had previously relied (Washington 1776). As the US Constitution declared mercenary activity disgraceful, and to avoid connection to it, their services were contemplated under the proposal of a standing army (Underwood 2012, 329). Their use lost pejorative connotation, term standing army would be considered as a synonym for mercenary, and, over time, employment of hired forces to use violence was politically accepted by the Congress. The Congress received the power to regulate the armed forces (government and contractors) through legislative means and by appointing/approving the organization of civilian and military units (Michaels 2004, 55; Underwood 2012, 331). After this key moment, the use of private security services in the USA continued in domestic settings, as demonstrated by the establishment of the Pinkerton Agency in 1850, and the widespread use of private security services that continues to the present day (Weiss 1978; Churchill 2004). The privatization of the security services within the USA was extended in the twentieth century to prison facilities, security guards, and the ever-growing private protection of people, places, and objects. The expansionist policies southward, toward Central America,

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were conditioned by the lack of the volunteer troops, the same problem George Washington faced earlier. To fulfill their needs, the USA resorted to a use of private forces. The most notorious were filibusters, who had contributed to US expeditions to Panama. The other examples are mercenaries known as Banana men, who acted throughout Central America. They were involved in many other businesses, like mining, railroads, and shipping, but their biggest profit was coming from fruit export. They had been working with the consent of the US government, which unofficially supported their actions as a part of US strategic interests, but never had official support because that would directly go against neutrality laws (Langley and Schoonover 1995, 30). In the US monopolization over use of violence never completely occurred. In domestic settings, the nineteenth century began the process of monopolization of the legitimate use of force by the establishment of local police departments. These flourished through most of the USA, and, by the end of the century, most of the states had uniformed, official police (Enion 2009, 537). Meanwhile, in the last three decades of nineteenth century, various groups of militias, as irregular armed forces, helped securing order around big cities, particularly when labor movements and union strikes became common (Isaac and Harrison 2006, 163–64). Also, in the South, the continuation of both public and private forces’ protection was due to often and continuous abusive behavior of state officers toward African Americans, it was common to use both forms of security provision (Enion 2009, 538). Moreover, practices of contracting private police services were common and there were two forms at the late nineteenth and early twentieth century. First one is known as “detective agencies,” which were used mostly for detective-police jobs and to infiltrate to break a strike, for instance. The most well-known private police were Pinkertons, but they were others such as Baldwin-Felts, Bergoffs, Burns, or Railway Audit and Inspection Company. There were other types of private police, known as “merchant police”. These would often be on the company’s permanent payroll and their job was to do protection and keep order for their employees, mainly mining, railroad, and automobile companies. The most well-known was Coal and Iron Police—also known as the Pennsylvania Cossacks (Isaac and Harrison 2006, 156). The first two decades of the century became the “golden age” for these organizations (Joh 2006, 368). This trend

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continued through the century and, fact is, in the USA there are far more private than public police (Simmons 2007, 920–21). After WWII, privatized armed forces in domestic corporate forms have largely disappeared and the USA was on the way to building a massive warfare state (Isaac and Harrison 2006, 168). The rise and flourish of the military-industrial complex transformed how the USA employed its forces abroad. Even before the end of the WWII, the USA was counting on the support of contractors. A good example is the fact that 1000 Morrison- Knudsen employees were held in captivity with US Marines after falling into Japanese hands while defending Wake Island in 1941 (Kidwell 2005, 1). From then on, it just kept growing, and the roles in which they were employed were expanding. For instance, during the Korean War (1951–1953), the USA contracted for supply and support of approximately 245,000 civilians (Kidwell 2005, 15). This was extended to the Vietnam War, as well, when the USA contracted KBR and Morrison-Knudsen for significant supportive role to US armed forces (Kidwell 2005, 16).

2.5  International Law and Regulation of Private Use of Violence Internationally, with a normative approach that neutrality law brought not only into the USA but across Europe as well, mercenaries virtually disappeared, and the nineteenth century was clearly marked by their absence in interstate wars (Percy 2007, 167). Their abrupt and spectacular comeback in a militia context marked the 1960s, a topic often associated with the great atrocities carried out by those forces in the Congo War (McFate 2015, 37). The United Nations, and particularly the Security Council, strongly criticized the absence of any international law establishing monitoring mechanisms and/or the prevention of mercenary acts (Percy 2007, 374; Stein 2005, 8). We can see this as the first attempts at the international regulation of private forces. In fact, during the twentieth century, the biggest leap in the evolution of regulating the use of private force occurred precisely in this period, beginning with the expansion of the contracting security services from the ’60s by the USA in the context of war (Zenko 2015) to their employment, from the ’90s, as the capable replacement of the United Armed Forces in contexts

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outside of combat, in settings of unstable environments (Abrahamsen and Williams 2010; Kees 2011). The tendency of states to monopolize the use of force was overturned during the second half of the twentieth century, with an increase in demand for services, implying the non-state use of violence (McFate 2015, 36).2 The Western countries were faced with the problem of needing capabilities for providing security and collective defense while also pursuing their foreign policy interests (which sometimes required involvement in conflicts), and simultaneously defending the principle of freedom of choice in a free society, thereby giving its population the option not to participate in the defense of the state. Consequently, the legitimacy of the private use of violence was resuscitated by the states’ inability to meet their domestic and international security needs, but, compared to previous centuries, the issue of regulation was becoming more complex this time around, since other international treaties were introduced beyond the laws of neutrality to govern the conduct in war and the misconduct of mercenaries, as we shall see next. This evolution of regulation has come through several phases, from informal regulation to self-regulation, and a current attempt to reinforce formal regulation at the international level. These attempts are particularly important to examine, since the security industry is global and affects all states, either as contractors or recipients of services (Avant 2000, 40). Changes in the late twentieth century occurred on two main levels: (1) mercenaries, consisting of private military troops who fought in wars for other states/actors, practically disappeared and were replaced by private companies that provided highly skilled and (somewhat) regulated security services in settings other than war (Thompson 1994, 146–49). And, (2) a change also followed to the way in which we look at these companies: the evolution from “warlords” to a more entrepreneurial and structured image was a process that lasted a considerable period of time (Thompson 1994, 146–49; Avant 2000, 41–42). What happened is an evolution of the industry, and, as McFate (2015, 27) put it, the single thing mercenaries and modern private security companies share is a DNA. The modern companies are professional, corporate entities that share structure and organization as any other industry, who follow regulations and legislation of the country in which they are located (Axelrod 2014, 188). Hence, public perception does not always keep up with the effective evolution of the industry. This was particularly true after Nisour Square and the Abu Ghraib incidents, where the

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lack of accountability for crimes committed while under contract led to a massive (ab)use of term mercenary when calling on the actions of those involved (Fainaru 2008; Gaston 2008; Scahill 2008). The formal regulation of the use of private violence began with the US Neutrality Act of 1794, whereby stating that choice to be neutral in a conflict could not (a) let their citizens be hired to participate in it, or (b) hire other citizens to fight on their behalf, without losing their status of neutrality. The Act had no formal implications in terms of international law but did serve as an impetus for the development of The Hague Convention, the first international treaty to include provisions related to the treatment of mercenaries. In fact, in 1907, this convention banned the recruitment or enlistment of mercenaries by states at the national territory (Oppenheim 1957, 703), or the state would be considered belligerent regarding the law of neutrality. With its formalization, the norm initially established by the Neutrality Act turned into actual international legislation. However, these changes in international law did not address other key issues related to the participation of mercenaries in combat. This was only addressed much later, since the ideological conflict between the USA and the Soviet Union, followed by World War II, essentially redirected the attention of the International Community (IC) away from the matter of private forces. Although the introduction of some rules had been positive, they had failed to anticipate the problems that would emerge in the following decades, such as the hiring of private armies for combat, as it happened during the decolonization period throughout Africa (Kritsiotis 1998; Botha 1999; Hughes 2014) and contracting advisory activities in the context of war, as it happened in Angola or Rwanda (Cilliers and Douglas 1999, 111), outside of national borders. Since then there have been several attempts to address such issues, but it took until the 1980s to provide the first actionable results. The decolonization period in Africa, particularly in the 1960s, was one instance that clearly shows the weaknesses of existing norms. There was a lack of effective international rules that would punish inappropriate behaviors and the use of excessive force by mercenaries. At the time, the IC pleaded its inability to respond due to the limitations imposed by Article 2 (4) of the UN Charter, which stated that “all members shall refrain in their international relations from the treatment or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the

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United Nations” (UN Charter Article 4, paragraph 4). In the late 1960s, members of IC reacted through the UN with the proclamation of mercenary activity as a criminal act in the General Assembly Resolution 2465.3 Leaving aside the good intentions behind this document, it was not implemented either through international legislation or through the domestic laws of UN member states, therefore only representing their aspirations. The by-side positive result was the pressure exerted by some members of the UN, under the resolutions related to the process of decolonization, with the intention to prohibit the exercise of mercenary activities in their territory, through the introduction of specific national laws (Kinsey 2005, 273). The regulation of mercenary activities gained new impetus in the 1970s, particularly after the trial of 13 alleged mercenaries in Angola (Kinsey 2008). This was evident in the preparation of the Draft Convention on the Prevention and Suppression of Mercenaries in 1976, known as the Luanda Draft Convention. Although it was never translated into actual law, the proposal served as a step forward in the introduction of international standards prohibiting mercenaries. The culmination of attempts to adopt these anti-mercenary standards came with the adoption of the Additional Protocol to the Geneva Conventions in 1977, Article 47, which defines a mercenary based on six criteria. However, it made virtually impossible (Dinstein 2010, 51; Singer 2003, 531) the conviction of the alleged mercenaries. The attempt to control the behavior of mercenaries in Africa was reinforced by the Organization of African Unity, which, in 1972, aside from highlighting the criteria established by Article 47, also criminalized any involvement in mercenary activities (Kinsey 2008). Finally, in 1989, the UN drafted the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries (UN 1989). The advancement was an extension of the mercenary activity considered so far (i.e., solely in armed conflicts) to encompass any other situation in which mercenary acts occurred. As it was stressed out, the contexts in which misconduct might occur (by those who provide private violence) are plural and private violence that has been mainly used in the context of peace operations since the end of the Cold War. Besides the expansion of the contexts in which private violence was used, the United Nations still took time to recognize the change that had occurred in the field of private military contracting, especially during the late 1970s and 1980s, with the establishment and operation of these activities as part

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of legal firms (Kinsey 2005, 274). Such a change needed regulations capable of controlling their activity because these companies did not fit within the definitions of mercenary thus far established. Once they transformed into structured companies that sold security and defense services to interested stakeholders globally, regulations were necessary. Another component that obstructed the regulation of their activity from the 1990s onward was the extension of the UN missions, beyond peacekeeping, to missions such as peace-building and state-building (Østensen 2011). With it came extended performance in post-conflict settings where those companies, despite holding and using weapons to perform certain tasks, were considered to be there for civic engagement. The failure to recognize the difference between military and private security companies on the one hand, and mercenary activities on the other, was acknowledged with the establishment of the UN Human Rights Council’s Working Group on the Use of Mercenaries (better known as the Working Group) in 2005, the initial mandate of which had as an explicit goal to analyze the issues related to the activities of private military companies. At the same time, the UN acknowledged that current international law had failed in its goal to prohibit and criminalize both traditional and new forms of mercenaries.4 The Working Group established the definition separating private military and security companies from mercenaries, with which the UN distinguished this group as a new legal entity, recognizing the need for its regulation separately from the mercenaries. Following this recognition, the UN, through the Working Group, received the news of the signing of the Montreux document (more on this later) favorably, because it signified an advancement in the regulation of the industry; the industry was still in self-regulation mode, but had underlined its determination to achieve formal international regulation.5 The regulation of non-state actors providing security services exhibits various weaknesses in terms of the monitoring and punishing of multinational actors, due to difficulties in the execution of such tasks (Keohane and Nye 1977), when compared with the overseeing of mercenary acts, whose regulation has been advanced and improved over decades (Percy 2007). The first international reinforcement of this was the signing of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, better known as the Montreux document (International Committee of the Red Cross //

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Swiss Federal Department of Foreign Affairs 2008). This document represents a set of recommendations for good practices for both the states who contract and who receive (home states) contractors. By 2015, it was signed by 53 states and 3 international organizations (EU, NATO, and OSCE) and served as a stepping stone for several other international and national regulatory initiatives. One of them was an international initiative that joined representatives from the private security industry, governments, and NGOs involved in the security work, known as the International Code of Conduct for Private Security Service Providers (ICOC) (Swiss Government 2010). The main purpose of this initiative was again to promote best practices, and to encourage states and companies to engage more actively in the control of their employees and their activities. As part of an evolution of ICOC, 2013 saw the establishment of the International Code of Conduct Association (ICOCA), an organization tasked with the objective of translating the demands of the ICOC into practice. At its 2016 Annual General Assembly, all three procedures (certification, reporting, and performance assessment) and grievances were passed. The critics stated that these documents had no legal authority, and besides being seen as an encouraging element in promoting awareness of the companies themselves, there are no legally established supranational mechanisms that could call on other legal consequences besides exclusion from the ICOCA (Avant 2016; White 2014).6 In the club theory analysis where voluntary mechanisms are compared, Rebecca DeWinter-Schmitt (2017) considers that ICOCA has a value-add as a “strong sword” in comparison to other voluntary mechanisms (considered “weak swords club”) since it has mechanisms in place that require its members to submit themselves to field-based monitoring, provide self-reporting, and participate in the grievance process. This is a good observation, and with an incorporation of these mechanisms in procurement policies, like it happened in the USA in the last couple of years, they do serve as a dissuader as the companies need to be in good standing at ICOCA (or hold valid PSC.1 certification) to be able to bid for the US government contracts. As mentioned, before ICOCA, there were Voluntary Principles on Security and Human Rights, adopted by companies as an early mechanism that would provide sets of guidelines for best practices to be followed. Voluntary principles were adopted in 2000 by US and UK governments and number of NGOs with interest in the protection of human rights and corporate social responsibility. They have been

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adopted by extracting (mining and oil) industry companies with an aim to protect human rights of the local population from the public and private security contractors. Those were defined as best practices companies should adopt and follow when contracting security services (Börzel and Hoenke 2010; Freeman et al. 2000; Gill and Caramola 2014, 758). Despite the goodwill of companies in signing up to those principles, they lived up to their name: voluntary. There was no intention to institutionalize any mode of accountability for those members who did not follow through with the commitment (interview with academic on February 27, 2015, Washington, DC; interviews with senior oversight officers on March 30 and April 4, 2015, Washington, DC). There were other examples of self-regulation that arose in the last couple of decades; however, they were not specific to the private security sector—an example is the UN Global Compact Initiative. There are also various professional standards on which the industry worked; for instance, the trade association (IPOA/ ISOA) Code of Conduct or an individual company Code of Ethics and Business Conduct. And, finally, there are management certification standards, like PSC.1 (and following 2, 3 and 4), and ISO 187088 since late 2015 (Globe News Wire 2015). Those standards, as well as all other self-regulatory initiatives, have at their root the principle that companies are best punished economically, in the sense that customers will not hire them if they don’t meet certain internationally accepted standards of operation. Former Department of Defense Inspector General (DoDIG) stated that companies are best thought accountable by attacking their bottom line. If the client opts next time not to award a contract to a company that committed misconduct, then it will affect the company’s bottom line, and these companies are trying to make profit (interview with senior DoD officer, March 5, 2015, Washington, DC; Singer 2010). These self-regulatory tools have as their main goal the improvement of the contracting process by setting higher standards and requirements for the companies that wanted to apply for such contracts in the future. As such, they contributed by raising quality demands for future contracts and anticipating a better-quality management of delivered services (Avant 2016, 10). The latest attempt at international legal regulation was the UN Draft of International Convention on the Regulation, Oversight, and Monitoring of Private Security Companies, a project that did little to advance the monitoring mechanisms, or to establish specific bodies (United Nations 2010). This project did not result in effective convention, and has been invoked as a source of more political problems than

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potential solutions: from attempting to define inherently governmental functions; to establishment of national centers for collection, analysis, and exchange of information; and national legislative schemes that would regulate register and licensing of the PSCs by government, specific requirements for their training and experience and in offshore activities of registered PSCs (Gomez del Prado 2011). Thus, having no binding international legal directives or regulations, and having self-regulation as a basic regulatory principle, academic criticism has largely focused on the potential signatory states of these conventions and agreements, stressing the need to enforce national-level compliance with norms (Jones 2009; Leander 2010; Mehra 2009). This line of inquiry has dominated scholarly debates on various related topics: from the debate as to who should have the authority; to control PSCs in the post-conflict context (Bakker 2009; Brickell 2010; Leander 2010), criticisms of the absence of strong, binding international regulations (Hurst 2011; Juma 2011; Tiefer 2009), and of the unaccountability of companies (Hedahl 2009; Krause 2011); to complaints about the disrespect for human rights and international humanitarian law (Smith 2008; Gathii 2009; Snell 2011). As this burgeoning scholarship demonstrates, it is undoubtedly of great importance to strengthening the internal regulations of those countries that practice the hiring of security services. It is important to stress the relation between the norms and how they are implemented, since it represents the core issue when it comes to control of the private use of violence. Resuming it, what is the purpose of the norms if they don’t have means to be implemented? When it comes to normative framework, it falls on states to implement them and keep hold on their compliance. If the state happens also to be a contractor, it is its responsibility to give an example of ensuring control over the private use of violence and warrant in a case of misconduct, appropriate consequences for infractions. State would usually do this by establishing responsible procurement policies and ensuring the close supervision of such contracts, as well as constant and appropriate oversight to avoid possible misconducts. In the case of the misconduct, there should be existing protocols and measures that are put in place to hold responsible those who breached contracts and committed misconduct. Companies, on their side, may choose to implement some of these protocols themselves by adopting higher quality management standards, providing more quality training and vetting process, and keeping close monitoring of their employees.

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How we know that regulation is optimal? I would suggest looking at reverse order, starting from the oversight and holding contractors responsible for the committed misconduct. In the US case, are Departments’ well-equipped to perform those tasks? Do they have normative and financial tools to do it? Are they willing to do it? If not, what are their impediments to perform those functions optimally? Unfortunately, as Avant (2016) recognized, the US Government, even as the biggest contractors of these services, was not ready to undertake a political initiative to implement firmer regulation of the industry. The next section will demonstrate the evolution of the US regulatory process of governmental contracting of private violence abroad, focusing on the period following the WWII up to present day.

2.6  The USA’s Internal Regulations for Contracting, Oversight, and Criminal Liability of the Private Use of Violence The national-level regulatory mechanisms put in place by the US government have indeed come a long way. Certainly, the current system has a lot of loopholes, but we have to recognize the merit of tracing a path from the absence of any regulation after the WWII to a strong attempt during this last decade to monitor and supervise the activities of the PSCs in unstable and complex environments. Historically, the most important document regarding the organization of the US security sector is undoubtedly the National Security Act of 1947, which establishes the operation of the various US defense and security services in an organized and systematic manner. The document did not yet deal with the non-state elements/civilians providing security and defense services, but it did join the State Department and Department of Defense in the National Security Council and traced that they would both be crucial for delineating security policies in the future (Falk 1964). The regulation focusing on the civilian sector was only established with the Goldwater-Nichols Defense Reorganization Act in 1986. The main accomplishment of this document, regarding private security contracting, was to recognize the participation of civil elements in military operations and consequently increase the state’s ability to control contractors, as well as its effectiveness in how the services link up in the chain of command (Bruneau 2011, 83).

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Even with such developments, specific legal framework concerning the hiring of security services in post-conflict operations did not exist in the early twenty-first century, before the interventions in Iraq and Afghanistan. Before that, the hiring of security services had been covered by two key documents: the first was the Federal Acquisition Regulation (FAR),7 which remains a reference point regarding the acquisition of services by the US government and is, therefore, constantly updated. The second was the International Traffic in Arms Regulation (ITAR), which regulates US companies selling security services and arms to foreign entities. This regulation was established (during the Cold War period) in 1976 (and has been amended several times since then) and was initially designed to control the export of weapons and security services to countries of the Eastern Bloc, but, with time, spreading to other countries throughout the world. Control of the companies was exercised through registering with the State Department, Office of Defense Trade Control (Collins 1997, 2693; Holmqvist 2005, 51). All companies interested in exporting services (training, defense, or security) had to ask permission for each specific export contract, provide relevant information, and, in case of agreement, the State Department issued a license for the implementation of the contract (Avant 2005, 149–51; Percy 2013, 26–28). Although the suitability of this structure to fulfill these tasks has often been challenged (Avant 2005; Holmqvist 2005, 51), it represented the early stages of state control over the export of security services and was largely considered sufficient, since the export of US PSCs’ services during the 1990s was residual (interviews with senior DoD officers March 18 and April 1 and 3, 2015, Washington, DC). With the increasing demand for services, especially with the invasions of Iraq and US involvement in Afghanistan, such a framework has become seemingly ineffective and clearly insufficient. This was the main factor leading to the strengthening of the legal framework for the procurement of security services by the US government, starting from the end of the last century and becoming even more evident during the first decade of this century. Presently, the legal framework that applies to American PSCs and American citizens involved with military operations in the context of war (or stability operations) is very extensive; its main focus is to extend the jurisdiction of US federal courts outside its borders, and to give them the authority to prosecute individuals who act against the laws applicable in these contexts. Such a framework spans several legislative “levels”; and it includes federal, various state agencies, and bilateral agreements

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with other states, and the individual contracts themselves. However, the existing legislation remains very limited in relation to the actual mechanisms that establish a stable structure responsible for the monitoring and supervision of contracted services in volatile environments. For instance, DoD senior officers considered that often enough more effective oversight is due to the personal involvement of officers on the ground (both from DoD and from PSCs) than actually due to the application of existing regulation (interviews with senior DoD officers March 18 and April 3, 2015, Washington, DC). The result, as we shall see, is not due to a lack of attempts to establish a more rigorous control of PSC’s in these contexts, but rather the absence of the political will to adopt it (interviews with senior Congressional officer on March 23 and former CWC Commissioners on April 1 and 2, 2015, Washington, DC). These existing regulations have received special attention from the year 2000 onward, with federal laws adopted in order to regulate the activities of the PSCs in contexts other than war. These documents include the 1996 War Crimes Act (USC 1996), the Military Extraterritorial Jurisdiction Act (USC 2000) and the extensions of the Uniform Code of Military Justice (UCMJ) and USA PATRIOT Act of 2001 (USC 1996). Such legal framework has been reinforced with an executive order issued by President Obama in 2012 to strengthen protection against human trafficking in federal contracts, with the aim of criminalizing these behaviors, particularly regarding contractors of the US government (FAR 2015; Pope 2015). Many of these regulatory efforts originated from initiatives directed at the Department of Defense (DoD) since they were the main contractor of these services, especially since the 1960s and the war in Vietnam. The first major expansion of existing regulations directed to all contractors in contingency operations, and with the express purpose of addressing the criminal liability of armed contractors, was an extension of the Military Extraterritorial Jurisdiction Act (MEJA). The MEJA was originally established to cover a legal loophole: America’s inability to prosecute family members of the military working in military bases abroad when they committed a crime because of the lack of tools to hold them accountable on foreign soil. MEJA was further extended in 2001 as a consequence of the inability to hold accountable civilian contractors who had committed misconduct on active duty, first during the mission of the US military to Bosnia during the 1990s (Hackman 2007; Rarick 2015). That was one of the first missions in which the USA used a larger contingent of

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contractors for those services that were not logistics or training. The inability to hold contractors who committed crimes during the performance of their contracts for the US DoD criminally accountable provided the incentive for considering their regulation (interviews with former senior DoD officers on March 5 and 27, 2015, Washington, DC). The extension of MEJA was relevant in those settings where the contractors were living and operating on the same ground, closely with DoD personnel, as in the specific circumstances of the Bosnian mission. However, it was not adequate for the new circumstances of the interventions in Iraq and Afghanistan, where DoD contractors were not necessarily living in the same place as the military, and DoD was not the only agency contracting security personnel. The latest legislative reinforcement of criminal liability of DoD contractors was the National Defense Authorization Act (NDAA) of 2008, which extended the jurisdiction of the UCMJ to include civilian contractors working for the DoD as a reinforcement of the MEJA regulation (Elsea 2010, 18; Schwartz 2010, 4). Until the Nisour Square, Baghdad, shooting, where Blackwater, the State Department’s contractor, caused a massacre, US Congress involvement regarding the outsourcing use of force concerned solely the DoD and the so-called military contractors. Hence, the reality is US missions in Iraq and Afghanistan expanded from contingency operations to the state-building initiatives, and, as a consequence, multiple agencies and departments of the USA have been involved in the operation. Up to 2007, civilian contractors employed by other agencies were not even considered from a regulatory standpoint (Isenberg 2012). The MEJA was originally intended to cover civilian contractors related to DoD missions, but given the absence of appropriate legislation, as it occurred in the case of the Nisour shooting (Brown 2013; Fidell 2008; Jackson 2007), US Courts have been using it to cover civilian contractors of the State Department as well. Hence, there was an obvious need for a piece of legislation equivalent to MEJA, which would address the same issues but regarding civilians, whereby the contractors of other agencies and departments (such as the State Department or USAID) would fit (DeWinter-Schmitt 2016). The first attempt at such a bill was proposed in 2007 by then Congressman, later president, Barack Obama (2007). Since then, it has been reintroduced several times (Leahy 2010, 2015; Price 2007, 2010), but never reached consensus.8 External regulatory mechanisms have also influenced domestic regulations, and since 2009 (after the signing of international documents

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such as the Montreux Document, and the negotiations for ICOC), greater importance and scrutiny was given to the monitoring and oversight of PSCs in the USA (Committee on Armed Services United States Senate 2010; Heddell 2011; GAO 2012). Despite the importance of the judicial process in assisting in the decision of who has jurisdiction over crimes committed on the soil of the host state, it was hereby assumed that the contracting state has a responsibility and obligation to control and prevent misconduct, recognized as such by the state receiving these companies (Jones 2009). Domestically, in the USA, the importance of a better contracting process was recognized by the DoD (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC), and Congress discussed the need for better supervision tools that would allow closer oversight of the PSCs activities on the ground (House of Representatives 2007; Waxman 2007). In fact, where the DoD and PSCs reached agreement was the adoption of a set of standards allowing prioritizing higher quality contracting, and minimizing the possibility of misconduct. This resulted in the establishment of the ANSI/ ASIS PSC.1-2012 (quality management) standard, a business-led initiative the result of which was adopted as an American national standard (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC). PSC.1 standards have been registered at ASIS International (international body responsible for certification of quality management standards) and at American National Standard Institute (ANSI), private, nonprofit organization that oversees development of voluntary standards for products, services, processes, systems, and personnel in the USA. As we can already begin to see, the USA does not have a single approach regarding the contracting and supervision of PSCs on the ground when acting overseas. Rather, it has multiple approaches, and each agency or department has its own set of requirements that are applied to security contractors on the ground. Moreover, various bodies are involved in the management of contracts with PSCs outside US national borders, and, generally speaking, these can be categorized as those who deal directly with the supervision of their activities (like the State Department and the Department of Defense) and the various agencies and Committees that implement the control of supervision by the State Department and Defense, like the Committee on Armed Services (supervises DoD) and Committee on Oversight and Government Reform (both DoD and State Department) (Schwartz 2010, 4).

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Even though the USAID had a large number of contractors under its programs, it is not considered in this analysis. The reason for this stems from its decision to remain separate from overall regulatory processes, as its organizational structure is minimal and its work is done through the contracts it awards on the ground. This means that USAID does not directly contract security companies, rather the PSCs are contracted by the organization that is subcontracted by USAID, and those PSCs are not obligated to follow any of the requirements that, for example, DoD contractors are, or to be responsible for any misconduct they commit. This is considered both by the State Department and DoD officers to be very disturbing, since the humanitarian organizations that are contracted by USAID are exactly those that will seek the lowest price over the quality provision of security services (interviews with an academic on February 27, senior DoS official on March 9, and senior DoD officials on February 18 and April 3, 2015, Washington, DC). USAID has been, on purpose, left aside in this analysis. From early in the research it was clear that USAID, responsible for the outsourcing humanitarian projects, did not consider that it should be involved in conversations related to regulation of the private use of force, since it did not hire them directly. One academic stated, “I always ask myself why was USAID able to get not to be part of this conversation, remarkably so, in procurement and even though is not directly using contractors the organizations funded by them are using them. They never wanted to be part of regulations and have managed to get away with that” (interview with academic on February 27, 2015, Washington, DC). However, all of their contractors (NGOs) did hire their own protection on the ground, for which they contracted by themselves. From interviews, I gained different perspectives on why nobody (namely DoD and State Department) forced them to be a part of these dynamics, and, consequently, why they did not have some of the common rules applied by other departments. Some former senior DoD officers considered that the State Department, for itself, was difficult enough to bring to the table (interviews with senior DoD officers on March 27 and April 3, 2015, Washington, DC). A former president of one of the major industry associations considered it was related to lack of pressure coming from the State Department and Congress itself. Moreover, he stressed that USAID has a “tiny structure” and if not forced, would not voluntarily disperse its resources on regulatory dynamics. He said,

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for a long time USAID would not even talk to DoD when they are in the same region because they view their missions to be different. (…) USAID now has, for the first time, it’s been only up and running for year or two, they [DOD] have connection with a Special Operations Committee Office (SOCO), and USAID and SOCO work together to determine how they are going in the particular area and divide up the responsibilities as the U,S, government (interview with senior industry representative of March 25, 2015, Washington, DC).

He continued on how these issues are closely related to cultural understanding of private security providers as mercenaries: I don’t think they are out of conversations. I think if they are doing it’s because they want. They say we don’t want to be part of that conversation. The interesting thing for me is, I was talking to a USAID high level official, and I was telling her, this was when I first joined ISOA, I said “why is that I’m having a very difficult time talking to people like Doctors without Borders, Human Rights First, or any of these NGOS.” She said “Well, because they believe you are the trade association for mercenaries, and they don’t want to have anything to do with that.” And I said, “But don’t they understand that in many case their field workers in the field hire my guys for protection?” She said, “oh, no, they don’t know that!” I said, “how do you don’t know that?” And she said, “because the field workers will hire them on their own, and they don’t want to say that is so dangerous that they need to hire contract security. They don’t want New York or Chicago or Washington to know. If the high quarters does not know, then they can go out to financial donors and say we are very clean, we are pristine, we don’t use mercenaries, we don’t use security. And then the financial donor says oh, ok then I’ll write you a check. If you go to financial donor and you say, ‘well, in certain cases we do use private security,’ they’ll say ‘I don’t want to do that because too many bad things can turn from there.’ Or they purposely don’t say to their headquarters about it (and it is entirely possible, it is doable today, in the future it might not).

2.6.1   The Department of Defense The department within the US government with the most developed regulatory framework is the Department of Defense. Regulation of the contracting, monitoring, auditing, and supervision of the activities of PSCs contracted by this department consists of several rules adopted

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over the last few decades, among the most important being the adoption of specific standards required in relationships with the PSCs, particularly in the procurement process (Mayer 2015). The approach undertaken by the DoD regarding PSC regulations has had both bottom-up and top-down initiatives, which complemented the regulations provided by Congress. In the words of a senior official in the DoD, the department’s approach to include both perspectives in the regulatory process made it very precise in addressing problems with DoD contractors, the lack of major incidents [in comparison to DoS] in either Iraq or Afghanistan in the last eight years seemingly marks it as a success (interview with senior DoD official on April 3, 2015, Washington, DC). Among high-level senior officials in the Department of Defense, there is unanimous opinion that real efforts to address the regulatory problems of PSCs occurred with the media attention given to the Nisour Square incident, even though it happened under the State Department’s watch (interviews with senior DoD officers on March 5 and 18, and April 1 and 3, 2015, Washington, DC). There was an overall understanding that the DoD did not really succeed in managing contractors in stability operations. In that sense, the first impulse of Congress came with the 2007 NDAA and particularly with Section 854, which called for policy direction and the oversight of contractors in stability operations. A senior DoD officer stated: we had to change a law in 2006, which was in 2007 NDAA, which placed substantial requirements under DoD to manage its contractors in general in contingency operations; which we were not, quite frankly, doing really well. But it was in the law, it was mandated and (…) I got tagged with that global responsibility for contractors in contingency operations to provide policy direction, oversight, all that, we call up a section 854 of the 2007 NDAA. Nisour Square hit in Iraq, which was one of those seminal events that causes governments to relook at and see what is going on (interview with senior DoD officer on April 3, 2015, Washington, DC).

For that purpose, a specific office was established within the DoD to deal with policy orientation, as well as accumulating and learning from the experiences that should be addressed inside the DoD, with a view to making the regulation and management of contractors more efficient. That office is the Deputy Assistant Secretary of Defense (Program Support) (Fig. 2.1). The Nisour Square incident highlighted the fact that the US government was not consistent in regulating PSCs in Iraq, especially since

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Fig. 2.1  Department of Defense: offices dealing with regulatory issues of private security contractors

different agencies and departments were contracting them for different purposes. Aside from the different missions that PSCs were performing, depending on the different agency/departments that they were serving, there was a misunderstanding regarding the meaning of certain concepts, as rules of engagement (State Department) vs. rules of use of force (DoD). Senior DoD officer explained this: There was a huge amount of confusion between us and the State Department. They used Rules of Engagement (RoE) and we used Rules for the Use of Force (RUF). And, to the common people who were operating with soldiers and general population, that was a huge confusion. So, generally, we have consistently used RUF within a particular region. The RUF might not be the same everywhere, because it’s situation dependent, but the terminology and contents of RUF between us and State are supposed to be pretty well consistent (interview with senior DoD officer on April 3, 2015, Washington, DC).

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Therefore, in 2007, Congress ordered clarification and agreement between the State Department and the DoD regarding the terminology used, as well as some common procedures. This resulted in the Memorandum of Understanding between those two departments in December of 2007 (DOD and DoS 2007), as well as the Memorandum of Understanding (DoS et al. 2008) signed in July 2008. These documents served to create uniform terminology in both departments, and some common procedures regarding vetting, training, and using PSC personnel and coordinate convoy movements (Frisk 2009; Solis 2009, 23). This was important because it allowed sharing information on convoy movements and information about “hazardous” areas, which would allow the de-escalation of violence on the ground, as well as clarify the role of private security contractors and their limitations. A senior DoD officer stated, The other thing we needed to ensure was that we had common rules of use of force. We (DoD) do not let, and early on there was a confusion, we don’t let our contractors operate under the rules of engagement. Rules of engagement are for the military personnel only. And they are generally offensive in nature. We had to change paradigm, even the terminology, where we (State Department and DoD) don’t talk about the rules of engagement for contractors, it’s rules of use of force (interview with senior DoD officer on April 3, 2015, Washington, DC).

However, that did not mean that there was convergence on other levels; namely, policies that would guarantee the same rules and requirements for contractors in both departments (CWC 2011). In the following years, between 2009 and 2011, the DoD adopted several directives and instructions (DoDD 3020.49 and DoDI 3020.50 [DOD 2009], DoDI 3020.41 [DOD 2011] and DoD 5128.34 [DOD 2010]). However, the department’s leadership considered that the best way to discipline PSCs was through raising the standards by which they were contracted, and by which they needed to operate. Their intention was thereby to weed out the low-bidding companies that did not invest in their own personnel training or in their management (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC). Those intentions have been supported by part of the industry, which sought a way to separate themselves from the Nisour Square incident (interviews with senior industry representatives on February 25, and March 12 and 25, 2015, Washington, DC). Finally, NDAA of 2011

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required definition of standards for private security functions (NDAA 2011, sec. 833). In this context, support surged in the establishment of national quality standards regarding contracting PSCs by government. The first fruits of the process came in 2012 with the establishment of the first version of the ANSI standards, known as PSC.1, eventually incorporated in 2015 as a prerequisite in the bidding process for DoD contracts. The root of the standards was to set up certification that uses audits and the monitoring of the PSCs to verify whether various established criteria have been enforced by implementing rules and procedures in a particular company. These certifications are renewable and have a validation period of three years. During that period, the company is subject to audits to confirm the ongoing improvement process of management skills to reduce the risk of undesirable and disruptive events that pose risks to the company, clients, and stakeholders. The idea behind such standards is rooted in an economic perspective. The DoD is not a law-making body, as Congress is, and due to the limited availability of Congress to address the criminal liability and consequences of PSCs misconduct, as much in other departments as in the DoD, the idea of creating standards is to set some criteria that would exclude those companies that are more likely to commit misconduct and to make others more aware of the possible loss of profit in the case of misconduct (Avant 2016, interviews with senior DoD officials on March 5 and 18, and April 3, 2015, Washington, DC). The supervision tool that is still the main oversight mechanism of contracts was adopted in 1999. Known as the Army Regulation AR 715-9, it deals specifically with matters relating to contractors accompanying the military in operations other than war (Kidwell 2005, 34). The document (DOD 1999) recognizes the need for closer control and supervision of contracts, with the periodic monitoring of equipment and quality of services. The tools that the document outlines as essential to achieving compliance in the oversight and supervision of contractors are the existence of a Contract Officer (CO) and/or its connection to the ground, as well as a Contract Officer’s Representative (COR); together, these would control the monitoring and satisfaction of the requirements established by the contract.9 Such a tool represents a major step forward in this area, and, currently, exemplifies the only direct mechanism of supervision of PSCs in the field. However, the document also stresses the importance of the exercise of self-control by the companies themselves (Article 3.2 (f)).

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These rules were incorporated via their inclusion in Field Manual 3-100.21 (Contractors on the Battlefield) in 2003 (DOD 2003), but the implementation of the rules refers to a specific program, without further elaborating on the processes (Article 4.43). Then, in 2005, the DoD (DOD 2005) issued an instruction that focused on the relevant steps of engaging contractors in deployment with the US military. In Article 6.3.3 of that document, the responsibility of disciplining contractors is discussed, putting the focus on the obligation of the contractors to control their own human resources, and the lack of power of the armed forces to do so, beyond the suspension of the contract or the prohibition of access to armed forces’ facilities (DOD 2005, 15). The conclusion was that any problems should be resolved by the COR and the contractor management team collaboratively. This instruction (DOD 2011) was updated in 2011, but without any changes regarding the supervision of contracts. Institutionally, the body directly supervising contracts related to the provision of security by PSCs is the Defense Contracting Management Agency, part of the DoD, under whose command Contract Agents and their field representatives work (DOD 2016). The measures that have been published are still in the process of being assimilated by the DoD’s structure, and senior officials considered 2015 to be an “educational year” for staff in the Defense Contracting Management Agency, as well as for military staff on the ground.10 2.6.2   State Department The regulatory process in the State Department cannot, however, be followed in such a straightforward manner as in the DoD. The State Department’s principal vehicle of regulation of private security contractors is a contract itself, namely through the Worldwide Protective Services (WPS) Program. In the latest WPS Task Order, the requirement was to have both PSC.1 Certificates and to be in good standing as a member of ICOCA, which is a great improvement since the last bidding process in 2010 when there were no standards required (Government and Contract Bid 2015). The office responsible for oversight and management of these contracts is the Bureau of Diplomatic Security (DS), subordinate to the Under Secretary of Management. Another path used by the State Department to participate in the regulatory process of private security contractors is through international initiatives.

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They participated in the elaboration of the Montreux Document, collaborated in the negotiations of the ICOC agreement and has consequently adopted their contracting process standards (ICOC) that were negotiated there (DoS 2013).11 The office that is responsible for participation in international initiatives is the Bureau of Democracy, Human Rights, and Labor (DRL), working under the Under Secretary for Civilian Security, Democracy, and Human Rights. There does not appear to exist an institutional, clear connection between those two bureaus, and this has been corroborated by senior DoS officer working on regulatory issues within DoS (interview with senior DoS officer on April 27, 2015, Washington, DC). As the internal directives governing these bureaus are not accessible to the general public, it was not possible to identify them.12 It was, however, possible to determine that the structure of the oversight through Contracting Officers and Contracting Officer Representatives on the ground is equivalent to the DoD (interviews with senior DoS officials on March 9 and 27, and April 27, 2015, Washington, DC) (Fig. 2.2). The major changes that occurred as a consequence of the Nisour Square massacre did not have roots in a wider policy strategy that would address the State’s relationship with PSCs contractors in stability operations; rather, they aimed to address the immediate problems. As a result, a standard procedure was established so that every convoy had to have a camera and one State Department officer in it (interviews with former senior DoS officials on March 9 and 27, 2015, Washington, DC and former CWC Commissioners on April 1 and 2, 2015, Washington, DC).13 Senior officials on the ground found a pitfall in this approach since the officer tends to be at the front of the convoy, while problems have a tendency to occur at the back (interviews with former senior DoS officers on March 27 and April 1, 2015, Washington, DC). Information is also not available regarding how effective this measure has been in the prevention of misconduct, and the State Department does not provide information on this. Criminal accountability over PSCs contractors in the State Department is very debatable, and many argue that MEJA does not extend automatically to them (Brown 2013; Leahy 2014; DeWinterSchmitt 2016). The agencies not directly connected with DoD missions on the ground in stability operations are out of the MEJA scope. A good example are the incidents in the Abu Ghraib prison, where personnel from CACI, who had a contract with the Interior Department’s National

Fig. 2.2  State Department: offices dealing with regulatory issues of private security contractors

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Business Center and not with the DoD, was not held accountable for committed crimes because MEJA was not applicable to them (Isenberg 2008, 132). When Blackwater employees were charged under the MEJA for the crimes resulting from the shooting at the Nisour Square, an extension of the MEJA to them was questioned since they had not been directly connected with the DoD mission on the ground (Breuer 2011; Teichert 2014). Hence, there is an imminent need for a piece of legislation directly to address the criminal accountability of civilian contractors in departments and agencies other than the DoD.

2.7  Conclusion This chapter departed from the historical overview of regulatory attempts and looked at how the use of private violence, when outsourced by sovereigns and rulers, has been controlled on the ground. It allowed seeing that while outsourcing of violence has rather been a rule than an exception in history, their regulation was an anomaly and regulatory tools were as effective as the ruler/sovereign wanted them to be. When the sovereign demanded stricter discipline from contracted forces, he would invest more in structures that would allow firmer oversight on the ground and stricter punishments. The mercenaries who have been studied in the first part of the chapter have been virtually gone from international relations with the adoption of the neutrality law by many countries in the nineteenth century, but their operations were all but gone by then. Focusing solely on the US case, it was demonstrated how the USA used them in its colonization period as well, even though it was not publicly embraced. The twentieth century brought the most important advances in the prohibition of the use of mercenaries and mercenary activity in general by the advancement of several international conventions. For the first time in history, respect for human rights was given much-needed importance. The end of the Cold War and downsizing of national armies around the globe contributed to a rise of available forces previously employed in government troops. The US interventions in Iraq and Afghanistan were catalyzers of the growth of a new industry that provided security and logistic services for governments in such settings. Therefore, their rise caused regulatory challenges since they are not mercenaries, they are not government employees, and yet they use force to execute their tasks.

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Particular attention was given to how regulation of the private use of force has been addressed domestically in the USA, and internationally, and which tools are currently available in dealing with private security contractors. Finally, the contribution of this chapter, for the study of US regulation of private security contractors, is in the systematization of the existing knowledge, provision of the organizational charts, and identification of the offices involved in the regulatory process. The next chapter will look at the consequences of changes in how the providers of security services have been seen, particularly since the end of the Cold War, and what are the limitations to a better understanding of the regulatory process that are imposed by existing research. The new approach is proposed that will permit observing, through practices, dynamics hidden by attempts to fit the regulatory process in well-established theoretic approaches and settled conventional wisdom.

Notes





1. The Neutrality Act of the USA, 1794, represents the first embedding of the local laws (national) to international standards, as it led to the institutionalization of the national doctrine of neutrality, which led to its application to be internationalized, and finally considered universal doctrine (Seavey 1939, 2–3). The principle of neutrality considers that states whose citizens are used as mercenaries in conflict lose their neutrality with respect to that dispute. See Hall (1874, 20–21, 47). 2. Outsourcing services that were not directly related to combat was a growing trend, particularly in the US context, but it is applicable in less extent to other Western style democracies. In the Vietnam War, for instance, the US government had outsourced services like maintenance of the military base (laundry, cooking, and cleaning) to private entities (Zenko 2015). The main goal of such policy was decreasing the necessary troops and their allocation to direct combat. 3. Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 2465, 23 UN GAOR Supplement (Nº 18) at 4, UN Document A/7218, 1968. 4. ECOSOC Resolution 7, UN doc. E/CN.4/2005/23, January 18, 2005. Percy (2007) called this situation of differentiation between mercenaries and private security companies “strong norm, weak law”. 5. Oral declaration by Alexander Nikitin (President of the Working Group) to Human Rights Council, 10th session, March 6, 2009. 6. ICOC is a private, nonprofit entity that does not have capacity to impose legal consequences and is dependent on the interests of member states to

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extend those rules and mechanisms on a national level. Avant (2016) has discussed the US input in ICOC/ICOCA initiatives and called for political interest in expanding international results nationally. 7. See Subpart 25.302, which defines staff undertaking the tasks of private security, hired to operate outside the borders of the USA and the conditions under which these can be hired. 8.  In 2007, Barack Obama introduced the Security Contractor Accountability Act, which was later, in 2010, reintroduced with some changes as a Civilian Extraterritorial Jurisdiction Act (known as CEJA) by Representative David Price and Senator Patrick Leahy. The CEJA proposal has been reintroduced again in 2015, still without success. 9. The responsibilities of CO and COR are distinctive. As COR Handbook (DOD 2012, 9) claims, “Contracting Officer is responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. To perform these responsibilities, Contracting Officers are afforded wide latitude to exercise sound business judgment. Contracting Officers must ensure that no contract is entered into unless all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met and that contractors receive impartial, fair, and equitable treatment”. Contracting Officer performs his/her job in Pentagon, while COR represents his/her eyes and ears on the ground. As same handbook stated “CORs monitor contract performance and provide the Contracting Officer with documentation that identifies the contractor’s compliance or noncompliance with the terms and conditions of the contract” (ibidem, 10). 10. In 2015, a manual was going to be published for those working with PSCs that should serve as an educational tool for establishing new routines and updating the procedures and knowledge of military staff regarding what is allowed and what is not (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC). 11. The State Department led the US delegation in the negotiation process, but delegation included representatives from the DoD as well. 12. On the Department’s website there are no directives available, in contrast to DoD, where all information about regulation governing security contractors is publicly available and well identified. There were other scholars who struggled with the same problem (interviews on February 20, 27, and March 2 and 19, 2015, Washington, DC), and the Sié Chéou-Kang Center’s Private Security Monitor, the most comprehensive conglomerate of regulatory information regarding the US Government, also have failed to identify such directives.

56  J. JEZDIMIROVIC RANITO 13. In Iraq, PSCs were ensuring security of diplomatic convoys, and previous to this measure, transportation counted only with the PSC team in a convoy and a client they were transporting, with no direct supervision or oversight by the State Department.

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Brown, Kimberly N. 2013. “We the People, Constitutional Accountability, and Outsourcing Government.” Indiana Law Journal 88 (4): 1347–403. Bruneau, Thomas. 2011. Patriots for Profit: Contractors and the Military in the US National Security. Stanford, CA: Stanford University Press. Buel Jr., Richard. 1984. “Samson Shorn: The Impact of The Revoluntionary War on the Estimates of the Republic’s Strength.” In Arms and Independence: The Military Character of the American Revolution, edited by Ronald Hoffman and Peter J. Albert, 141–65. Charlottesville: University of Virginia Press. Churchill, Ward. 2004. “From the Pinkertons to the PATRIOT Act: The Trajectory of Political Policing in the United States, 1870 to the Present.” The New Centennial Review 4 (1): 1–72. Cilliers, Jakkie, and Ian Douglas. 1999. “The Military as Business–Military Professional Resources, Incorporated.” In Peace, Profit or Plunder?: The Privatisation of Security in War-Torn African Societies, edited by Peggy Masson and Jakkie Cilliers, 111–22. Pretoria: Institute for Security Studies. Collins, John P. 1997. “Speaking in Code: Bernstein v. United States Department of State, 922 F. Supp. 1426 (N. D. Cal. 1996); Bernstein v. United States Department of State, 945 F. Supp. 1279 (N. D. Cal. 1996).” The Yale Law Journal 106 (8): 2691–96. Committee on Armed Services United States Senate. 2010. Inquiry into the Role and Oversight of Private Security Contractors in Afghanistan. Washington, DC: United States Senate. http://publicintelligence.net/ senate-report-on-private-security-contractor-oversight-in-afghanistan/. CWC. 2011. Final Report to Congress: Transforming Wartime Contracting: Controlling Costs Reducing Risks. Washington, DC: Commission on Wartime Contracting in Iraq and Afghanistan. Deàk, Francis, and Philip Jessup. 1939. A Collection of Neutrality Laws, Regulation and Treaties of Various Countries. Washington, DC: Carnegie Endowment for International Peace. DeWinter-Schmitt, Rebecca. 2016. “Congress Needs to Pass CEJA.” Human Analytics (Blog), February 5, 2016. http://human-analytics.net/ congress-needs-to-pass-ceja/. ———. 2017. “The Value-Add of the ICoCA: A ‘Strong Sword.’” Human Analytics (Blog), November 13, 2017. http://human-analytics.net/ the-value-add-of-the-icoca-a-strong-sword/. Dinstein, Yoram. 2010. The Conduct of Hostilities Under the Law of International Armed Conflict. Cambridge: Cambridge University Press. Diodorus. 1983. Diodorus of Sicily. Cambridge, MA: Harvard University Press. DOD. 1999. Army Regulation 715–9: Contractors Accompanying the Force. Washington, DC: Department of Defense. http://www.aschq.army.mil/supportingdocs/AR715_9.pdf.

58  J. JEZDIMIROVIC RANITO ———. 2003. Field Manual 3-100.21 Contractors on the Battlefield. Washington, DC: Department of Defense. ———. 2005. “DODI 3020.41: Contractor Personnel Authorized to Accompany the U.S. Armed Forces.” Department of Defense. http://fas. org/irp/doddir/dod/i3020_41.pdf. ———. 2009. “DoDI 3020.50: Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises.” Department of Defense. http://www.acq. osd.mil/log/PS/.psc.html/6_DODI_3020.50.pdf. ———. 2010. “DODI 5128.34: Defense Materiel Readiness Board (DMRB).” Department of Defense. http://www.dtic.mil/whs/directives/corres/ pdf/512834p.pdf. ———. 2011. “DoDI 3020.41: Operational Contract Support (OCS).” Department of Defense. http://www.dtic.mil/whs/directives/corres/ pdf/302041p.pdf. ———. 2012. COR Handbook. Washington, DC: Department of Defense. ———. 2016. “Defense Contracting Management Agency.” http://www.acq. osd.mil/asda/dcma/. DOD and DoS. 2007. “Memorandum of Agreement (MOA) Between the Department of Defense and the Department of State on USG Private Security Contractors.” http://archive.defense.gov/pubs/pdfs/Signed%20MOA%20 Dec%205%202007.pdf. DoS. 2013. “State Department to Incorporate International Code of Conduct into Worldwide Protective Services Contracts.” Press Release|Media Note. U.S. Department of State. August 16, 2013. http://www.state.gov/r/pa/ prs/ps/2013/08/213212.htm. DoS, DoD, and USAID. 2008. “Memorandum of Understanding Between the US Department of State and the US Department of Defense and the US Agency for International Development Relating to Contracting in Iraq and Afghanistan.” http://www.acq.osd.mil/log/PS/.policies.html/MOU_ Signed_July2008.pdf. Elsea, J.K. 2010. Private Security Contractors in Iraq and Afghanistan: Legal Issues. Darby: DIANE Publishing. Enion, M. Rhead. 2009. “Constitutional Limits on Private Policing and the State’s Allocation of Force.” Duke Law Journal 59 (3): 519–53. Fainaru, Steve. 2008. Big Boy Rules: America’s Mercenaries Fighting in Iraq. Cambridge, MA and Philadelphia: Da Capo Press. Falk, Stanley L. 1964. “The National Security Council Under Truman, Eisenhower, and Kennedy.” Political Science Quarterly 79 (3): 403–34. FAR. 2015. Ending Trafficking in Persons. Washington, DC: Department of Defense.  https://www.federalregister.gov/articles/2015/01/29/201501524/federal-acquisition-regulation-ending-trafficking-in-persons.

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60  J. JEZDIMIROVIC RANITO Hedahl, Marcus. 2009. “Blood and Blackwaters: A Call to Arms for the Profession of Arms.” Journal of Military Ethics 8 (1): 19–33. Heddell, Gordon. 2011. “DoDig Prepared Statement on ‘Mechanisms Currently in Place to Oversee the Billions of Taxpayer Dollars Spent in Afghanistan and Iraq.’” Presented at the House Committee on Oversight and Government Reform Subcommittee on National Security, Homeland Defense, and Foreign Operations, Washington, DC, December 7. http://www.dodig. mil/IGInformation/IGInformationReleases/DoDIG_PreparedStatement_ Dec72011Hearing.pdf. Herbst, Jefferey. 1997. “The Regulation of Private Security Forces.” In The Privatisation of Security in Africa, edited by Mills and John Stremlau. Pretoria: South African Institute of International Affairs. Holmqvist, Caroline. 2005. “Engaging Armed Non-State Actors in Post-Conflict Settings.” In Security Governance in Post-Conflict Peacebuilding, edited by Alan Bryden and Heiner Hänggi, 45–68. Munster: Lit Verlag. House of Representatives. 2007. “National Defense Authorization Act for Fiscal Year 2008.” US Congress. http://www.gsa.gov/portal/mediaId/184487/ fileName/National_Defense_Authorization_Act_2008.action. Hurst, Stephanie. 2011. “‘Trade in Force’: The Need for Effective Regulation of Private Military and Security Companies.” Southern California Review 84: 447–86. Hughes, Geraint. 2014. “Soldiers of Misfortune: The Angolan Civil War, the British Mercenary Intervention, and UK Policy Towards Southern Africa, 1975–6.” The International History Review 36 (3): 493–512. Isaac, Larry W., and Daniel M. Harrison. 2006. “Corporate Warriors: The State and Changing Forms of Private Armed Force in America.” In Globalization Between the Cold War and Neo-Imperialism, 153–88. Bingley: Emerald Group Publishing Limited. Isenberg, David. 2008. Shadow Force: Private Security Contractors in Iraq. New York: Praeger. ———. 2012. “Servicing the State Department.” The Huffington Post, February 8, 2012. http://www.huffingtonpost.com/david-isenberg/servicing-thestate-dept_b_1729577.html. Jackson, Katherine. 2007. “Not Quite a Civilian, Not Quite a Soldier: How Five Words Could Subject Civilian Contractors in Iraq and Afghanistan to Military Jurisdiction.” Journal of the National Association of Administrative Law Judiciary 27: 255. Joh, Elizabeth E. 2006. “The Forgotten Threat: Private Policing and the State.” Global Legal Studies 13 (2): 357–89. Jones, Oliver. 2009. “Implausible Deniability: State Responsibility for the Actions of Private Military Firms.” Connecticut Journal of International Law 34: 239.

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62  J. JEZDIMIROVIC RANITO Mallet, Michael. 2009. Mercenaries and their Masters: Warfare in Renaissance Italy. Barnsley: Pen and Sword. Mayer, Christopher. 2015. “The U.S. Government’s Support and Involvement in the Development of Auditable Standards for Security Operations and Their Incorporation into DoD Operations and Procurement Policies.” Presented at the ISO 18788: The New Standard for Responsible Security Operations Seminar, American University Washington College of Law, Washington, DC, November 20. https:// w w w. w c l . a m e r i c a n . e d u / h u m r i g h t / c e n t e r / p r o j e c t s / p r o j e c t s / ISO18788TheNewStandardforResponsibleSecurityOperationsSeminar.cfm. McFate, Sean. 2015. The Modern Mercenary: Private Armies and What They Mean for World Order. Oxford: Oxford University Press. McMahon, Lucas. 2014. The Foederati, the Phoideratoi, and the Symmachoi of the Late Antique East (ca. A.D. 400–650). Ottawa: University of Ottawa. Mehra, Amol. 2009. “Bridging Accountability Gaps—The Proliferation of Private Military and Security Companies and Ensuring Accountability for Human Rights Violations.” Pacific McGeorge Global Business & Development Law Journal 22 (2): 323–32. Michaels, Jon D. 2004. “Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War.” Washington University Law Review 82 (3): 1001–127. Middlekauff, Robert. 1982. The Glorious Cause: The American Revolution, 1763– 1789. New York and Oxford: Oxford University Press. Mockler, Anthony. 1969. The Mercenaries. London: Macmillan. NDAA. 2011. “National Defense Authorization Act Fiscal Year 2011.” US Congress. Obama, Barak. 2007. Security Contractor Accountability Act of 2007 (2007–S. 2147). https://www.govtrack.us/congress/bills/110/s2147. Oppenheim, Lassa. 1957. International Law. Edited by Hersch Lauterpacht. 7th ed. London: Longmans Green & Co. Østensen, Åse Gilje. 2011. “UN Use of Private Military and Security Companies: Practices and Policies.” The Geneva Centre for the Democratic Control of Armed Forces. http://www.dcaf.ch/content/download/45662/678940/ file/ssr_paper_3_binder.pdf. Percy, Sarah. 2007. “Mercenaries: Strong Norm, Weak Law.” International Organization 61 (2): 367–97. ———. 2013. Regulating The Private Security Industry. London: International Institute for Strategic Studies. Pope, Amy. 2015. Combating Human Trafficking in Supply Chains. Washington, DC: The White House. https://www.whitehouse.gov/blog/2015/01/29/ combating-human-trafficking-supply-chains. Price, David. 2007. MEJA Expansion and Enforcement Act of 2007 (2007–H.R. 2740). https://www.govtrack.us/congress/bills/110/hr2740.

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CHAPTER 3

Letting Go of Neoliberal Constraints: Learning from the Regulatory Process

3.1  Letting Go of Neoliberal Constraints With the downsizing of national armies after the end of the Cold War, Private Security Companies (PSC) gained a new place in the market for force as a consequence of several factors: the demise of ideological conflict and the resulting necessity to be prepared to enter into direct combat with another state with a reduced number of state troops (and consequently seeking support functions fulfilled by contractors), the increase of UN peace missions, and ideological demand for outsourcing a state’s provision of the services (Avant 2005, 30; Kinsey 2006, 151; Krahmann 2010, 4; Stanley 2015). The limited capacity of national armies to respond rapidly to security threats, and an urgency factor highlighted by the 9/11 attacks, led to increasing security outsourcing to unimaginable proportions in order to attain ambitious foreign and domestic policy goals (Avant and De Nevers 2011). In fact, on several occasions, the number of private contractors surpassed the number of regular troops operating in hostile environments (Dunigan 2011, 52). Moreover, the lack of preparation for such a rapid increase often led to misconduct on the part of contractors, a fact that alarmed decision-makers and highlighted the inadequacy of the existing regulation of this crucial sector (GAO 2005, 2006, 2012). This change in the structural relationship between the state—until then considered as the sole provider of security services, and equipped to use violence outside its borders—and private actors was systemic, © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_3

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and the rapid expansion in the provision of violence in the name of the state outside of borders in volatile environments, unsurprisingly caused an outcry calling for more regulation. The classical theories used by the International Relations (IR) have not been very effective in treating the problems resulting from such a power shift, as the complexity of relationships affecting the regulatory process could not be fully understood by them (Avant 2005; Krahmann 2010; Percy 2013). One of the most-used approaches to explain regulatory struggles is neoliberalism, and later on regulatory capitalism, not only considering security outsourcing but more broadly (Aglietta 2000; O’Brien 2005; Collins 2011; Moran 2002; Glaeser and Shleifer 2003; Shearing 2003). The neoliberal thinking was often introduced in liberal democracies through regulatory policies. This became widespread in the Western world, essentially in the last two decades of the twentieth century. There are many explanations of the changes brought by the regulatory state (Moran 2002; Scott 2000; Sunstein 1993), but here I use John Braithwaite’s definition (2000). He assumes that the biggest change to the Keynesian state (which he defines as state-centric, and with a socialist orientation on the use of force, where the state does all the “rowing” and little of the “steering”) to the new regulatory state, was the difference of deregulation, privatization, and for implementation of “governing at a distance,” or shift from rowing for more and better steering (Braithwaite 2000, 225). The dominance of this new paradigm of government that appeared with the regulatory approach, shifted the focus from the delivery of services to their oversight and regulation, a transformation that some criminologists entitled as a change from rowing to steering (Osborne and Gaebler 1992). The metaphor refers to a boat where the function of the state changes from paddling the boat (executing the rowing component) to the state just being at the helm (steering the boat). Such transformation represents the structural change that is referenced here: the structure where the state passes from monopolistic position regarding a provision of security services to a supervisor of provision and opens the market for competition. For instance, internally, such change can be noticed in the outsourcing of the security provision in the commercial zones or protection of people and properties. The shift where the state has been seen as a unique provider of those services is gone and has been altered to be one of the providers, opening the space for outsourcing of those tasks, and occupying the primary role of the market regulator and transforming in one of the providers.

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The change in which there is a multiplication of actors involved in regulatory space, the consequent social place they occupy in the regulatory process and new dynamics created between all of the actors involved in these new regulatory processes are usually not explored by neoliberalism. What neoliberalism proposed was to look at the world through well-established structured, well-defined categories and through the logic of a free market. It was looking at the outcomes that came through such structures and explaining the realities through neoliberal doctrine that had an aim to privatize, deregulate, and diminish the public sphere. Neoliberalism was often employed to justify deregulation of state control over major industries, shrinking and privatization of public services, and enhancement of international capital mobility, among others, to catapult economic growth (Brenner and Theodore 2002, 350). In the security sector, these goals have been faced with caution, because of the sensitivity of the topic, since the use of the violence by private agents acting in the name of state was in question. The neoliberal structural change, which implied inclusion of multiple actors and agents in regulatory process, saw regulatory process as certain liberation of the state “claws” and outsourcing security support services that previously have been executed solely by the state. As a result, the private security contractors have been introduced in post-conflict operations, executing the tasks contracted by the state, under a regime different from the military. Abrahamsen and Williams (2010) named such change as global security assemblages, the new set of relationships, where the blurring between public–private and local–global division lost the importance it had held in the past. The neoliberal analysis applied to the regulatory process of private security providers focuses on structural level when responsibility for oversight and control of the use of force passed from monopoly by state to outsourcing it to private agents. Neoliberal view, through regulatory state approach, has a new take on the network relationships, where the old hierarchical relationships are gone and a new sort of state and nonstate hybrid alliances are formed (Crawford 2006, 450). Some may imply that security regulation in the old system, when outsourcing of sensitive functions that may imply civilian victims was marginal, had far less political weight than the current one has. It certainly was more technocratic, with an established system of checks and balances. In the new system, the checks and balances applied to the military have not been expanded to the private entities providing services. Instead, the industry started operating and growing in a certain legislative and procedural vacuum

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and have been built upon. That is the space that Kimberly Brown (2013) suggested spreading accountability present in the regular military to the private actors as beneficial for the new structure in order to stabilize the power, limiting the effects that new structure caused. On ever present concerns over lack of tools and structures that would successfully oversee and control security contracts, neoliberalism would defend the benefits of putting those services at open market, which would promote competition and consequently improve quality of the services provided. Considering regulations per se, neoliberalism considers that monopoly represented “command and control” type of regulation while neoliberalism offers more “managerial,” softer type of regulation, the one that focuses on cooperation between regulator and regulated, their solutions considering risk-based regulation, fortifying internal control systems of companies and with aim to achieve regulation through self-regulation (Baud and Chiapello 2017, 4). Neoliberal regulatory analysis would therefore focus on structures involved in these regulatory solutions, and consequently ignore/tune-off analysis beyond structures and outcomes, like dynamics between agents involved, and their effects on both process and outcomes. Such analysis would not be bothered with process itself, and why some decisions have been made and not others, it would look to justify decisions made through neoliberal ideological assumptions. The multiplication of the agents involved directly or indirectly in the regulatory process (such as NGOs, oversight institutions (i.e., GAO, SIGIR, SIGAR), academics, industry) led to the decentralization of regulation, where the state is not a unique regulatory input anymore, emphasizing other regulatory influences. The state’s role in the new context is to maintain a regulatory network monitored by the state institutions established with such aim, jointly investing in legal coercion as a method of its enforcement through the established bureaucratic hierarchy (King 2007, 63). The regulation of standards of behavior and integrating the consequences for failure of compliance is an institutionalized process that defines the practices rooted in everyday life (Cetina et al. 2001). It implies the presence of the law, accompanied by control mechanisms, formal and direct, established with the explicit purpose of preventing or reducing injustice, corruption, negligence, or incompetence (Teichert 2014). Regulation can take many forms among which state rules and regulations and self-regulation by the private security industry itself are focused here. Under the concept of the state, regulations are considered forms and direct mechanisms through which the state

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exercises control over the activities contracted to private security providers. Under the self-regulation of the industry are considered standards established by trade (industry) associations that are voluntary and do not have legislative or criminal punishment as a means of enforcement. Civil society and media, through their different forms, have been active in the security industry, particularly via denouncements of misconduct, in performing pressure toward political elite and the industry itself, seeking more efficient regulation of the sector. Studying these new dynamics would imply involving a wide range of theoretical disciplines, like organizational theory (which would emphasis organizational aspects of regulatory process [how decisions are made in certain institution, and their bureaucratic aspects]), political competition theory (looking at competition at ideological or departmental levels), or even rational choice theory (which would look at why some decisions have been made, from the rational point of view, by looking at social and economic relations of the agents involved). All these approaches are commonly used separately, and each one would uncover one small aspect of regulatory process. However, to comprehend fully regulatory process and its outcomes, it would be necessary to leave predefined theoretical conceptions and allow freedom of looking into practices and studying social space where they occurred in the context of where they occurred. That’s where I suggest to resort to Bourdieu.

3.2  Why Looking at Practices: Benefits of Using Bourdieu’s Theory of Practice This book arises within a context where previously proposed analysis of regulatory process of private security providers have been segmented, looking at one aspect (legal or political) at the time, and focusing mainly on structures and regulatory outcomes. This proposal is different in a sense that it approaches an overall regulatory process (looking simultaneously at all actors involved, representatives of various governmental departments, US Congress, several US offices and commissions that look at accountability, industry representatives, trade associations, NGOs, academics), and make comprehensive analysis of different aspects of process and effects that agents involved had on it. Said differently, it looks simultaneously at different levels of analysis, at regulatory context in which stakeholders operate and seek to explain not only why certain decisions were made, but more importantly why others have not. Therefore, first

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difference between previous approaches and one proposed here is in joining both the structural and agential aspects of regulation through a Bourdieusian theoretical framework centered on practices, and how those are operationalized in the specific context of outsourcing security in stability operations. Bourdieu would consider this a main benefit over neoliberal approach, which he found constrained, since it ignores relations and dynamics among groups and particularities of people involved in analyzing certain periods and inserted in certain social contexts. Neoliberal analysis does not allow to construct a full and comprehensive picture of what has happened and to understand why certain decisions and outcomes came up, and not others. By using already established ideology, neoliberalism does not permit seeking other options than the one that would defend its proposal. Use of the Bourdieu in IR in general, and security studies in particular, is far from new. Many have explored this line previously. For instance, Bigo, in his research about anti-terrorism liaisons in Europe (2013), was seeking a tool that would give him possibility to explore the circulation (of people, information, ideas) among these specialized groups and if they have common discourse in the policy-making process or the ideological division between left and right affected this process. The use of Bourdieu permitted him to look at field and habitus that these actors shared and how they affected both actors and outcomes and overcome agent-structure division other approaches imposed. Abrahamsen and Williams (2010) applied this tool to research connections and interactions of state actors and private entities in security provision in Africa, and looked at how to seek in practice solutions that go beyond structures and are inserted in analysis focusing on real situations where there occurred shifts between social classes (namely state provided security and PSCs) and how those complemented the work of state forces and improved not solely context for private enterprises that contracted them but also the locals. Leander has, through several writings, included Bourdieu’s practice theory in her work. From use of Bourdieu’s to overcome existing debates and map new contexts and realities that appeared when discussing private security providers and possibility to study those new contexts (Leander 2010), over going beyond existing structures and agents and contextualizing drone as an agency in the legal field (and transcending existing systematizations) (Leander 2013), to proposing inclusion of the ethnographic method for more pragmatic study of Critical Security Studies (Leander 2015).

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These are just some of the examples that used Bourdieu when studying private security providers is concerned. They all have one thing in common with this research: they sought to go beyond proposed boundaries, labels, and categories of public and private, and aimed to learn from the “real life experiences.” They all used Bourdieu as a method to produce new knowledge and not to restrain their research with ideologies and already tailored suppositions. Here, the aim is the same: to liberate research from theoretical hypothesis while studying practices, and, at the end, produce new knowledge that will mirror the empirical realities. Therefore, neoliberalist analysis just would not cut it: it assumes well-established categories and pre-notions of actors involved, without giving a chance for empirical analysis to prove it wrong. On the contrary, Bourdieu insists that empirical analysis is essential to combat pre-notions embedded in the scientific field. Data gathered through fieldwork are essential for developing an understanding of actors involved, as well as of reasons for their actions. As Bourdieu stated (1985), his proposal tries to describe, analyze, and to take account of genesis of the person, and of the social structures and groups. It is a dialectical relationship between a structure and agency studied through dialectical analysis of practical life. The vantage points of using Bourdieu to overcome such analysis is, in fact, that it allows a look at trajectories and changes that occur in process instead of focusing on outcomes and stability and order in structures involved. Using Bourdieu to understand human practices at work in different fields of action, as Bigo (2013, 131) stated, “oblige us to abandon most of the premises of IR theories and political sciences” and challenges the way politics, state, and society in general are theorized. Bourdieu, by abandoning fixation on agent–structure division, opens a space where it is possible to study practices instead and distance from discourses of the actors involved, of their impressions of their role in process, and resuming analysis on the outcomes without a perception of interactions and circulation of various habitus in this regulatory field and how they affected and shaped outcomes of regulatory practices. It gives space to look at professionals involved in the regulatory process, rather than insisting on analysis of structures, and studying the impact of various habitus on regulatory outcomes. The Bourdieusian approach permits deconstructing those false universalisms associated to the culture of certain actors/groups by asking from a reader to consider diverse anthropological and sociological description of differences between agents/groups

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(Bigo 2011, 233). In the regulatory analysis, it would permit distancing from the previously accepted beliefs related to understanding how certain actors should act and what should be their priorities. For instance, the pre-notions of values that stakeholders nurture, and their simplification on either or, has brought probably the most damage to study of the regulatory process. A large body of literature focused on a public–private values dichotomy, and it has been the most clear in principal–agent analysis (Cockayne 2007; Avant 2005), but other approaches have used it as well (Chesterman and Lehnardt 2009, 7; Chesterman and Fisher 2009; Liivoja 2012; Dickinson 2013). Stakeholders involved in the US regulatory process have been generally divided on the ones looking after public values (generally is seen that state related stakeholders, i.e., Congress, departments) are having as their focus protection of democratic, so-called “public” values, while private actors, like companies or industry associations, are primarily protecting their profits. It is a false claim, as it will be further discussed in following chapters, and many misconceptions related to both stakeholders and regulatory process itself derive from attributing universalization of certain groups based on accepted wisdom instead on studying their practices. Issues with representation of public good are not new, but during the last couple of decades, they have gained a new dimension owing to the changing nature of the state and its relationship with other institutions and agents, both public and private (Abrahamsen and Williams 2014). The new dimension, which is more complex than just an approximation of public and private, represents a space where public and private are mixed, and where agents do change sides and are absorbed from public to private sector and vice versa. As Leander (2010) stressed, the formal division that says business is private and state is public can dangerously distort the understanding of security governance. The limitations of formalism and procedures are limiting the better comprehension of the motivations behind the inefficiency of regulation. The public values are not always easily absorbed by the logic of the enterprises, particularly when the state itself seeks to avoid public scrutiny in order to achieve its own, often ambitious, foreign goals. For instance, in the USA, regulation of the private security contractors has suffered from stronger political push, as the government has sought to avoid public debate and legislative control over highly controversial issues (together with budget constraints and political sensitivities), with the aim of implementing more assertive foreign policy (Singer 2003;

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Avant and De Nevers 2011). Defense of public values and acting in the name of the public good is not reserved to state as an actor, particularly if the analysis is focused on the agent representing the state. Political representatives are not isolated from the context, where they are placed, both professionally and personally, and their actions do not always represent the best interests of the state. The regulation does not necessarily represent the best possible action, rather the decisions are made in a certain context and need to be observed in the light of the agents and their interests. The belief that values, such as a transparency, protection of human rights, or accountability, are only public values may simply be an illusion, as big businesses in the twenty-first century have largely incorporated them into their operations (DeWinter-Schmitt 2015). On the other side of the coin, so-called private entities are perceived as being driven by reducing their costs. However, this also exists in the public administration nowadays.1 Public–private divide, Leander (2014) confirmed, is useless in a study of the hybrid environments, particularly related to the security field. The focus in such research would “do little more than (re)producing an opaque and powerful elusiveness” (Leander 2014, 198). Moreover, the solution that would overcome those issues is what she calls “public as practice,” which would endogenize this divide between public and private and allow studying practices as enmeshed, elusive, and powerful hybrid (Leander 2014, 198). To comprehend why there are certain regulatory outcomes and not others, and why one stakeholder acted in certain manner means to understand any institutional practices for what they are: crucial is to accept that their norms are neither result of rational choices nor shared attitudes and beliefs; their strength is found in “the historical trajectories of an imminent set of actions incorporated into an ethos and habitus” (Bigo 2011, 228). Applied to regulatory settings, this implies stakeholders act and react in a way ingrained by their habitus and the norms assimilated as expected behavior through their history. For instance, some decision or regulatory norm issued by Department of Defense (DoD) represents decades long accumulation of how DoD should act and what is expected from the military background it provides. It might not be seen always as a rational choice by bystanders, and certainly its beliefs and attitudes are not widely accepted as the best. However, they do represent for what that department in particular stands, and what is ingrained in the way it operates, through the previous decades.

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Bourdieu is very useful in that sense, since he goes against the tendency to conglomerate findings of scientific research and makes it universally applicable. Quite on the contrary, he insists on particularisms of each social space that is studied and the necessity to understand its quirks and differences from others (Bourdieu 1998, 2). He stated, “my entire scientific enterprise is indeed based on the belief that the deepest logic of the social world can be grasped only if one plunges into the particularity of an empirical reality, historically located and dated, but with the objective of constructing it as a ‘special case of what is possible’” (ibidem). Agreeing fully with Bourdieu, context in which certain process occurs is essential for understanding its outcomes. Therefore, the outcomes of this research may not be automatically replicable in other states, but they very closely study US reality, and consequently may provide precise outcomes that would reflect empirical findings for this specific case. As with Bourdieu’s own research, many characteristics of one society are found in others as well, but the aim of this research is not to extend conclusions of US reality to others; it is rather to explain why these regulatory outcomes came up and not others, and as a byproduct, it will present fragilities (reflected in agents and structures) that may help improve regulatory process in future. For Bourdieu, empirical data is not simply a proof of what has been theorized previously. His use of such data is not solely as a positivist (to collect and sort it to confirm previously established hypothesis). His focus on data represents a construction of the analysis that reflects data collected through “ethnographic interviews” that can form a picture of relations among actors involved that previously has not been approached, therefore constructing analysis and hypothesis from the data collected. The goal of such analysis is, by looking at preliminary results in fieldwork, to debate and overcome epistemological discussion over “pre-notions” and categories that are attributed to certain participants of practices observed in fieldwork. This data serves to disrupt existing notion of what certain habitus consists in and how it should act/react and propose alternative explanations. In that sense, Bourdieu’s approach is embraced here: gathering data was not used as a justification of a certain claim; rather, data gathered in interviews served for a proposal for a fresh view on relations between and within stakeholders of regulatory process and their roles on regulatory outcomes. The role of fieldwork, instead of supportive, as has been mostly used, has become central,

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and therefore analysis itself is rooted in the real situations rather than assumed. Such approach has been criticized for lack of objectivity (Bigo 2011, 227). However, Bigo stressed futility of distinction between theory as a series of terminologies that explain everything and practice as experience in fieldwork to test hypothesis. Approaching science in these terms assumes neutrality of social sciences and negates the possibility to create new knowledge from practices. It negates political dimension of scientific work and internal wars that scientists may have between personal political alignment or position and the work they produce (Bourdieu 1988a). As Kauppi (2013, 314–26) further developed, subjectivity might be also seen in instruments providing monopoly for evaluation of the scientificity of the work of colleagues as editors of scholarly work. The rock-bottom antinomy upon which all the divisions of the social scientific field are ultimately founded, is, namely, the opposition between objectivism and subjectivism. This basic dichotomy parallels a whole series of other oppositions, such as materialism versus idealism, economism versus culturalism, mechanism versus finalism, causal explanation versus interpretive understanding. Just like a mythological system in which every opposition, high⁄low, male/female, wet/dry, is overdetermined and stands in homologous relations to all the others, so also these “scientific” oppositions contaminate and reinforce each other to shape the practice and products of social science. Their structuring power is the greatest whenever they stand in close affinity with the fundamental oppositions, such as individual versus society (or individualism versus socialism), that organize the ordinary perception of the social and political world. Indeed, such paired concepts are so deeply ingrained in both lay and scientific common sense that only by an extraordinary and constant effort of epistemological vigilance can the sociologist hope to escape these false alternatives (Bourdieu 1988b, 778). The central focus for Bourdieu turned out to be an element that others, particularly in political science, did not include much, a complex human factor that is responsible for the way practices occur. In the analysis of the regulatory process, this is important because to understand fully process itself that lead to certain outcomes, a more complex human anthropology is necessary. To comprehend regulatory results, it is essential to comprehend how certain decisions were made and why and how certain practices have been normalized:

76  J. JEZDIMIROVIC RANITO The reasons shaping human actions are relational, driven by a practical sense and by a degree of arbitrariness. This is why the social genesis of institutions is so central to understand any course of action. It allows us to understand how the initial violence or arbitrariness of specific reasons for setting rules comes to be normalized, and forgotten. Following the historical trajectories of these actions permits us to understand their deployment, the limited repertories that each social universe constitutes, and also to unpack the strategies through which any durable institution is legitimized. Norms neither follow rational interests nor emerge from shared beliefs and attitudes, and are even less the result of their dialectical relations. They are the product of the strength of the historical trajectories of an imminent set of actions incorporated into an ethos and a habitus. (Bigo 2011, 228)

Translated to regulatory analysis, such approach allows us to look at the place occupied by each stakeholder, why someone’s voice was louder than other, or why some proposals have been discarded. For instance, it opens for an analysis a social space where various departments with US government and US Congress were communicating and acting/ reacting on others proposals. It is possible to see how, for instance, habitus of each of these stakeholders was influencing receptiveness for outside visions of problematic (or not) and the importance that personality or engrained institutional norms were in a way of reaching other outcomes. This is important because, often, the most appointed lacunae of regulatory process concerning private security providers (contracted by states to provide services abroad in unstable environments) is of political nature, and it is associated with political institutions and a lack of appropriate mechanisms to ensure accountability of contractors (Brickell 2010; Chesterman 2010; Hurst 2011; Ralby 2015). The focus is often put on the normative and legal side of regulation (Chesterman and Lehnardt 2009; De Nevers 2009; Tiefer 2009; Snell 2011; Percy 2012) while undergoing dynamics were left aside. Generally, when considering regulation of private security providers in complex environments, there is little empirical research done about which dynamics are problematic and why. Overall, regulatory research has limited empirical data regarding dynamics that occur among various stakeholders in the regulatory process (Buzatu 2015), and such information would facilitate a better comprehension of this regulatory environment and outcomes, and, eventually, could hinder how to improve it.2

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One of the main attributes that studying practices brings is learning from dynamics covered up by a system that allowed placing actors in certain categories (Doty 1997, 376). In the case of the regulatory research, there is social construction of identities (public entities and industry) that does not facilitate better comprehension of the process itself or the input of the stakeholders. By attributing certain labels to stakeholders, they have been expected to play specific roles and behave in a certain way. Often this has led to decreased interest in studying what has really happened. A good example of this is the public–private dichotomy, where stakeholders can only belong to one or the other—such generalizations are rather counterproductive. Studying practices means admitting multiple realities and multiple orders (Schatzki 2002, 87). Practices are not just describing “arrows” connecting structure to an agency and back, rather “dynamic material and ideational processes that enable structures to be stable or to evolve, and enable agents to reproduce or transform structures” (Adler and Pouliot 2011, 6). As Adler-Nissen (2012, 2) noted, looking at practices allows us “to map political units as spaces of practical knowledge on which diverse and often ‘unconventional’ agencies position themselves and consequently shape international politics.” In other words, there are layers to each stakeholder. Therefore, it is possible to explore various levels of analysis simultaneously. In that sense, Bourdieu can contribute significantly, as he suggested that by using practices, our aim should be overcoming theoretical constructs of levels (Adler-Nissen 2012, 10), and observing multiple dynamics simultaneously. Dynamics that are unexplored are related to inter-institutional and inter-personal relations among stakeholders that have a direct impact on both the legislative and executive branches when the regulatory framework of one country is considered. This, in turn, would permit a better comprehension of outcomes themselves and the struggles that led to their adoption. Up to this point, regulatory research would usually look at the one level of analysis of time, for instance, focusing on state level, or international level. Bourdieu’s method transcends one level of analysis and calls on integration of various levels of analysis simultaneously (Harker et al. 1990, 8). One level analysis limits research of dynamics that occur among stakeholders involved at local, national, and international levels. Since they operate within different regulatory initiatives simultaneously, much of the practices would be ignored by research,

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since there were no tools to catch those dynamics or to study their impacts of regulatory processes.3 What practice theory would bring to the table (while considering regulatory process(es) of PSCs in complex environments) is a possibility to learn from combinations of different levels of analysis, ranging from international to individual, and observe the influence of one on another. At the international level, in this case, issues such as international regimes and institutions, transnational organizations and networks, economic patterns, global norms, and international law or distribution of power/ capabilities among states would be considered. At the national, state and societal level, governmental issues (policy-making process, or political system structure), and societal questions, such as public opinion, political culture, or ideology, are included. Then, there is a group level covering interest groups, governmental bureaucracies, policy-making groups, and various nongovernmental organizations. Lastly, influences on the regulatory process might be observed at an individual level, considering public and private leaders: their personalities, belief systems, perceptions, and understanding or not of the situation. Therefore, to obtain the comprehensive impression of the overall regulatory process, the interaction of all these levels and their influence on one another should be observed. The other advantage of applying practice theories to regulatory context is, in fact, that regulation is a process rather than series of isolated actions, and evolution of actions and reactions of all involved is possible to comprehend solely when the actual process that led to a decision is observed. In that sense, besides recognizing that agents are plural within the same stakeholder, and even within the same institution, it is important to acknowledge the transformation of the agents in general. In the regulatory field, even in narrative, there was an evolution of language throughout regulatory process. On one side, those once considered to be mercenaries evolved from disorganized and wild rogues into highly structured, multinational enterprises, with a strong business orientation. On the other side, public entities have changed as well, or at least the manner in which they perceive themselves has changed. They are not single-minded, faceless machinery without interests; instead they represent large groups of disparate thinkers, complex multidimensional organisms, with multiple interests. For instance, when individuals representing state institutions are speaking about their counterparts in other departments/institutions, they have tendency to underline their differences in

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opinions, institutional culture, or attitude toward certain problems and possible solutions (Kennedy 2011). The study of practices means an intersection of “history objectified in the form of structures and mechanisms [in a form of fields]… and the history incarnated in bodies [in a form of habitus]” (Bourdieu 2000a, 150–51). Until now, the regulatory process has been extensively studied from the standpoint of structures and mechanisms, but has barely touched the impacts the people have on it. The last point approached here is that observing practices would empower a recognition that individuals do play an important role within the system (Leander 2011, 298). Such individual impact might be observed in the mode certain institutions are led and their official positions, or to appoint to personal relationship that may have advanced or stall regulatory measures. That is why such a comprehensive framework would be very functional in exploring regulatory process, and consequently would be able to explain, within more detail, its present outcomes. As Adler and Pouliot (2011) stated, studying practices spell out many faces of politics, institutions, and organizations, among others, in action. It permits going beyond so-called metatheories and looking at elements that are usually not focused upon by a single theoretical approach. For instance, by looking at practices and contextualizing them, it is impossible to ignore agency (structure), ideas and their rationality, or the limits of the levels of analysis (Adler and Pouliot 2011, 5). But how is what is proposed here different from simply employing ethnographic method? While ethnographic method has a lot of qualities and has been proposed as enrichment to study Critical Security Studies (Leander 2015), it is not by any means enough to understand fully regulatory process. Important data might be collected by other methods and Bourdieu’s “thinking tool” joins use of all of those different methods of data collection and as output analysis produce new knowledge that reflects ground reality. Bourdieu’s proposal transcends objective structure vs. subjective representation opposition and his method should not be reduced to examination of the concrete interactions between people (as ethnographic method does). This thinking is not here to propose hypothesis itself, it opens up a space for learning from “real life experiences” and to organize them in new knowledge. Consequently, by learning from practices, it will be possible to set apart the conventional wisdom (which will be fully explored and

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addressed in following chapter)—such as clear cut between who represents public values and who does not (as addressed above) and, for instance, that lack of transparency is associated to industry (Avant 2007)—which established predefined identities and interests, and instead look closely at what routine practices show. The purpose is, through a study of regulatory practices, to learn more about the obstacles to effective regulations, their nature and origin, which would eventually allow for more effective regulations of the practice of outsourcing security services abroad, as well as other areas that deal with similar transparency difficulties (such as the regulation surrounding drones, for instance) (Cavoukian 2012; Horton 2015; Leander 2013). In the continuation, I explain how Bourdieu’s field, habitus and doxa, would contribute to further study of the regulatory process(es) related to private security providers operating in complex environments.

3.3  Bourdieu’s Practice Theory—Benefits in Comprehension of Regulatory Environment Comprehending limitations of any one of theoretical concepts or approaches, the usage of Bourdieu’s concepts here is taken as a “thinking tool” (Leander 2008) rather than theoretical approach per se. The Suggestion is to embrace Bourdieu’s “obsession with empirical work” (Pouliot and Mérand 2012, 25) as a proposal to comprehend complexities of the regulatory processes that are usually forgotten with the approaches that focus on more theoretical proposals than empirical findings. The Bourdieu’s theory of practice provides a framework to look for challenges to the field of regulatory process regarding the security outsourcing. The observation of the modus operandi instead of opus operatum, as he put it (Bourdieu 1977: 72), allows quest under the surface of the structure pressures and influences of the regulatory elite. Bourdieu’s contribution in understanding regulatory process goes beyond knowledge that social structures are not determined and lies in comprehension that regulatory practices are constituted in relationship between social action and social structure, underlining that neither field nor habitus determine the social action (Wacquant 2006, 269). The practice is not a mechanical process; it is the universe of interchangeable possibilities, depending on the subjective action of the agent.

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The practice represents the way in which human beings negotiate in their world. It is an interactive and a context embedded process, wherein the agents conduct their lives as members of society, in opposition to mere automatized action. The regulatory process has been treated rather as an analysis of outcomes than the road that led to those outcomes. By immersing in the road to how those outcomes came up, by studying practices, would permit us to observe with more knowledge why certain decision (either political or economic) were made, but not others. In the same mode, practice cannot be summarized as an organizational routine or standard operating procedures, since it demands a considerable amount of spot-on judgement (Turner 1994; Allison and Zelikow 1999). MacIntyre (1984) used several examples to explain better the scope of practice and highlighted that practices are only partially defined. An issue of context, as Lave (Chaiklin and Lave 1996, 4) put it, mostly has been considered as granted, and the context of socially constituted action has been underestimated in the analysis of practice. The problem of understanding the context is considered by conceptualizing the relations between actors and the social world where they operate. It should be openly recognized that actors are not usually dropped in unaccompanied, or problematic spaces. The people participating in these activities are skillful at aiding each other in participating in changing the world, learning together to relate in new contexts. First, however, it is important to define Bourdieu’s main concepts, which will be explored in this regulatory proposal; namely, field, doxa, or habitus. The interconnectivity of these concepts and impossibility to think or talk of one without another marker defines Bourdieu’s epistemology (Grenfell 2014, x). Beginning with a field, this concept defines the core of Bourdieu’s practice theory. This is a concept that allowed Bourdieu to map objective structural relationships and, in the process of doing so, to explain how they are constructed by individual subjectivities (ibidem, 4). The field represents a social space that goes beyond locating objects of analysis within historical, spatial (local, national, international), and relational context, and includes comprehension of how previous knowledge was generated, by whom, and whose interests were served by those practices (Bourdieu 2000b, c, 2003). The analogy sometimes is given to a certain sports game field: they are shaped according to the game that is played; it has its own rules, its own star players, histories, legends, and lore (Thompson 2014, 67). Agents do share more than one

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field simultaneously, varying in generality and scope, and include both professional and private spheres of life. They take their capital from one field to another and from one sphere of their life to another, and include them in their professional strategies (Dezalay and Garth 2011). Their influence is exercised by the use of the capital, like economic capital (monetary capital), cultural (capital based on knowledge, and educational or technical skills), political (rooted in political connections), social (founded on social networking), symbolic (refers to accumulated prestige, or honor), among many others.4 The capital they use is not constant; it is changing as the context and circumstances change. Therefore, the field is not fixed, but changing and adapting. Bourdieu laid emphasis on the aspects that other approaches have not considered relevant, such as symbolic power struggles. Symbolic power and the dynamics that it causes among actors involved are relevant to the understanding of certain decisions and the power transfers from one actor to another (Barnett and Duvall 2005). Therefore, to understand a history of the field, it is necessary to understand how the change happens within a field, to comprehend interactions and individual subjective understanding of the reality of each agent involved. The field applied to the regulatory analysis of private security providers operating in complex environments consists in the structural part of the regulatory process, constituted by institutions involved in it. For instance, in the case of the USA, this may represent a network of a wide variety of institutional actors like the Department of Defense with specific offices that deal with regulatory issues, Department of State equivalents, Congressional offices and both House and Senate Committees involved in the regulatory debate in various aspects, commissions (as of the Commission on Wartime Contracting [CWC]), industry associations and companies themselves, NGOs (like Amnesty International or POGO), just to exemplify some. They form a social space where the agents do and say things that constitute regulatory practices. In this social space, interactions among agents representing these institutions produce outcomes that we recognize as regulatory procedures, directives, and norms. The conviction of Bourdieu is that structures are indeed important when understanding certain societal problem, but they cannot and should not be isolated from the context and habitus surrounding those structures. The importance of adding relational analysis to structural is what turns it into real life (Bourdieu 1998). These relations are revealed

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through interactions among social classes. These classes are not randomly ordered: some of them have more power than others. Their power is dependent on capital they hold in a certain moment, and how that capital is perceived by others in that time, meaning that historical context in which this occurs plays an important role. For instance, considering the regulatory process of private security providers, social classes are stakeholders involved in this process: various governmental departments, US Congress, various offices involved in oversight (i.e., GAO, CWC), NGOs, PSCs, academics, and so on. All of them hold some capital in every given time, but the relevance of that capital is depending on the historical context in that given moment. At the early phase of PSC involvement in Iraq, social capital of PSCs was more important than some other types of capital in that time, simply because the USA was dependent in their strategy on them to execute its plan (Avant 2005). The government’s dependency on these actors to execute interventions successfully was directly connected to the provision of security services by PSCs. Therefore, their power, in negotiations of contracts and protection provided by extending immunity to their operatives in the early years, was greater and more significant than later. This power is symbolic and resulting from the context of dependency in that particular moment, and that leverage has been changed, particularly with Obama’s decision to finish intervention and pull troops from Iraq. It does not mean that industry lost its capital, only that such capital lost its importance over other type of capital in another historical context. What Bourdieu’s symbolic power also allows is to unwrap political challenges between different political actors (different departments of government or within Congress, for instance) while competing for resources and/or political power. For instance, in the USA, the State Department is more autonomous in relation to the Department of Defense in the sense of necessity to explain their decisions to Congress, calling on their Constitutional prerogative that does not require legislative oversight. Multiplication of governmental agencies and departments dealing with regulatory issues of private security providers in an unstable environment (and those contracting them) caused a battle for the hierarchy between them. Therefore, studying those struggles would permit a better comprehension of the outcomes of the regulatory process, both at the institutional, state, or international level. The field is a social space that functions semi-autonomously as a space that has its own (human constructed) set of beliefs that rationalize

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agents’ behavior in the field. They are very different from field to field, usually are unwritten, and operate as certain understanding among actors that share the same field. Those set of beliefs are called doxa and represent beliefs and opinions derived from the world around us and are integrated into every human being, or social groups (Eagleton and Bourdieu 1992; Deer 2008). Bourdieu defined the aim of doxa as providing an understanding of practical reasoning of groups of people studied based on their own vision of the world and experiences (Bourdieu 1990). They represent a personal ideology, unformulated, nondiscursive, yet internalized set of beliefs that are common to people who belong to same habitus and/or field. As Anna Leander (2010, 63) put it, most of those in the field would find it hard to spell out the rules, but still are working under them. In the regulatory process of private security providers in complex environments, there are field-wide accepted doxas. Some of them include (but certainly are not limited to): (1) Regulation of this regulatory process is a technical issue. They would never spend time discussing regulation in a political sense, even though many of the senior officers from the executive branch openly recognize that the political obstacles (of various natures) are very important for regulatory outcomes. (2) They all agree that the “human rights dimension” is the area that causes most concerns in regulatory terms. (3) They agree that regulation should be a contractual issue, so political obstacles could be easily overcome. (4) They consider that publicly presented initiatives in the US Congress have been made up for political gains of Congressmen and Senators and with little impact on regulatory outcomes. (5) Most of them consider the debate over inherently governmental functions regarding services provided by PSCs in unstable environments a “bogus” issue because, in practice, it is clear they are not executing offensive attacks. (6) They would never use the word mercenary when addressing PSCs, and the people who use it are considered not to understand the issue at all. The structures under which the regulatory process occurs determines habitus, which was defined by Bourdieu as “a system of durable, transposable dispositions which functions as the generative basis of structured, objectively unified practices” (Bourdieu 1979, vii). John Thompson (1991, 12) further explained habitus as “a set of dispositions, which incline agents to act and react in certain ways. The dispositions generate practices, perceptions, and attitudes, which are ‘regular’ without being consciously coordinated or governed by any ‘rule.’” Structures of habitus

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are not universal; they are acquired through the occupation of certain social positions. Individual and collective habitus apply to those who share a similar occupation or social position in a certain field. For instance, these “dispositions,” in a case of PSCs representatives, are related to their conviction that by providing the governments with the security services, they are helping and contributing to the success of the missions overseas.5 Their efforts to impact the regulatory process, in their considerations, is not to protect themselves from additional costs to their operations. They do consider that some regulation is welcome and necessary. However, they generally agree that their impact on it was to keep their operation on the ground doable. Of course, some other institutional actors do not agree with such reading. For instance, at the other end of the scope, regarding PSCs role in regulation, when considering habitus of those working in the US Congress, they disputed it, particularly during hearings held by the CWC and in the hearings of several House and Senate Committees (Judiciary and Armed Services particularly).6 Congressional staff involved in the regulatory process in the last decade nurture the attitude that PSCs have used different methods (like lobbying, campaign donations, and revolving doors) to prevent any regulatory outcome that would increase their operating costs, and their only motive is generating higher profits.7 Through the habitus, individuals incorporate personal and collective history into guiding principles and dispositions that command effective practices (Pouliot and Mérand 2012, 29). Since the habitus is conceived as a “socialized subjectivity” (Bourdieu and Wacquant 1992, 126), it “conveys this mutually constitutive dialectic that unites agents and structures” (Pouliot and Mérand 2012, 29). The example from the US regulatory process would be a projection of the State Department position regarding regulatory impulses provided and offered by other stakeholders. Senior officers from the Department of Defense and Government Accountability Office, and commissioners from CWC, considered State Department organizational and institutional culture (their habitus) an obstruction to achieving better regulatory solutions. State Department representatives often have been called “set in their ways” and closed to the possibility to accept any proposals from the outside regarding the necessity to establish a special office to deal with security contracting, increasing the budget for oversight of security contractors, or common procedures with the Department of Defense regarding security contracting.

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One former Commissioner stated: At least DoD realized there were risks in hiring security contractors and, I think, they learned some lessons. State Department seem not to even ever admit there were risks in working with PSCs. (…) State Department was the most defensive group of people, they never dealt with it. They just don’t see the issue, they don’t see anything they need to deal with, they think they have all policies, everything works fine, no problem. And you bring a problem and they said we fixed that. The GAO argued for years that DOD and State need a Chief management officer (…). At the CWC we pushed very hard to get an admission that they needed that, but they [State Department] just would not budge. (…) State Department also see itself as it does not believe that constitutionally it needs legislative oversight. Congress let them get away with that for years and years (interview held on April 1, 2015, Washington, DC).

Senior officers from GAO also supported the difference between DoD’s responsiveness to address certain regulatory proposals coming both internally and externally vs. State Department’s unavailability to dialogue with proposals coming from outside. They stated “DoD did some of the regulation from bottom-up approach. When they are having contractual issues, they address it, but they realize that policies are not sufficient to handle the issue, and when suggestion from outside comes, they revise the policy of issue. But Dod and DoS see things differently. If the same would happen to DoS [incoming proposal for revising policy by other institution] they would just close the door and said We are fine!” (interviews held on March 3, 2015, Washington, DC). Within the habitus, the issues of dominance have an important role, and they are manifested through social domination, either through social structures or through direct social interaction (Pouliot and Mérand 2012: 37). Such power relations might be produced through various forms of capital, may it be political, economic, symbolic, social, etc. In that sense, Bourdieu (1998, 35) considered a state to be an epitome of symbolic power. That would be visible in how the states nominate, appoint, delegate, or guarantee implementation of measures. In the case of the regulatory process in the USA, for instance, this symbolic power of the state would be visible, for instance, in the political tensions between the Department of Defense and Department of State regarding

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who should regulate, to whom those rules would apply, and who would decide what rules to apply. This struggle, visible both nationally and internationally, began with the DoD’s incapability/unavailability to provide security for the State Department’s needs. As former Commissioner of the CWC stated, the State Department turned contracting security a battle between them and the DoD after contracting the DoD to fulfil their needs “I watched State Department turning it into a political issue, which was really unfortunate because there were really lessons to be learned [from Department of Defense], but that sort of represented what was going on between State and DoD, whose job is to provide security. The military has been providing security to State Department and it, at some point, said we just can’t do it anymore. From then on, the State Department put its head in the sand and, well, now we have to deal with it” (interview held on April 1, 2015, Washington, DC). One senior officer from the Department of Defense considered that when the DoD offered measures and procedures, they were refused by the State Department, as in the example here “[I]n July 2004 we [DoD] understood that we needed to have policies and guidance and we looked what currently existed from regulation covering civilian contractor forces and we determined that they were inadequate. So, we first developed policy guidance for security. This was supposed to be a joint guidance for us and State Department. State Department refused to sign” (interview held on March 18, 2015, Washington, DC). But the struggle for hierarchy is real and present. It is visible both from the behavior adopted by the State Department (presented above) as from this statement of a senior DoD officer “[T]o get State Department on board, it is always difficult for them to work with us [DoD]. I don’t know why. It is completely different culture. I don’t understand it, but we try our best and DoD tries to set an example for the rest of the government” (interview held on March 18, 2015, Washington, DC). In the regulatory process, the habitus of each stakeholder influences its interactions (with companies, political representatives, executive departments, oversight, bodies, and civil society), both actions and reactions to them. Those interactions create pressures and shape regulatory outcomes. So, decisions and outcomes are a reflection of the influences they receive. The introduction of various habitus (executive departments, industry associations, companies, NGOs, oversight bodies,

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Congressional bodies, etc.) in the field (regulatory process), in the case of private security regulation, represents interactions among different stakeholders in formal and informal settings. These interactions cause strong input on the overall understanding of the impact some regulatory measures might have or not. For instance, in an interview with one senior officer of the US Department of Defense, he stressed that the impact of the negotiations of ANSI PSC.1-2012 was not solely on the PSC.1 itself; rather, it allowed different stakeholders to comprehend standpoints of others and the impact of proposed measures previously not even considered, which ultimately impacted the course of the US regulatory process (interview held on March 18, 2015, Washington, DC). What was proposed here is a screenshot of possibilities to observe through studying practices. Such approach will open an unexplored space where these interactions occur. The elements that have not been a consideration of previous research—for instance, people involved in the process, their relationships (institutional and personal) and dynamics, the impact of their interactions on the regulatory process, and why some decisions have or have not been made—may finally get the central point. The findings and knowledge reached in that fashion will represent ground reality and would not be explored to fit a certain theoretical framework. Finally, they will make visible the problems that have been hidden under the concepts of political, ideological, economic, or bureaucratic because we did not have deep knowledge about them. Finally, how to do that? Studying regulatory practices of private security providers in the USA was executed by collecting data about regulatory process with different methods. The most significant was certainly empirical data so far unavailable, collected through over 50 interviews with recognized representatives of various stakeholders involved. Besides that, I consulted numerous documents, official and unofficial, some that are publicly available and others that are not. They include US congressional documents and reports, Congressional Research Services documents, departmental documents, norms and procedures, and documents issued by CWC, GAO, SIGAR, and SIGIR, just to name some. I participated in several industrial, academic, and US government-sponsored events and socialized with some of the key players involved in this regulatory process. All that led to collection of data that has been analyzed and that resulted in production of new knowledge that will be presented in the following chapters.

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3.4  Conclusion The aim of this chapter was to seek an alternative approach to study regulatory process and it departed from the consideration that regulation of outsourcing violence abroad, in the twenty-first century, cannot be restricted to structural analysis. The actors involved are very different one from another, even within the same stakeholder, and often attempts to homogenize them led to the formation of common wisdom that does not benefit the study of the regulatory process. Finally, we demonstrated why studying practices is beneficial. Besides leading to more empirical research and therefore uncovering data that are mostly inaccessible when studying subjects related to national security, this approach allows immersing in the process from different angles, and, as a result, may uncover dynamics hidden under assumed motivations of actors involved, and ultimately lead to analysis of possible obstacles that may be overcome. In the following chapters, l first present a general framework of regulatory process and then proceed in deconstructing conventional wisdom that halted more comprehensive analysis of the regulatory process in the last decade. Then, I summarize obstacles identified in the process of studying practices of regulatory process of outsourcing security services abroad by the US Government.

Notes 1. For instance, governments’ bidding process generally acts on what is, technically, the lowest acceptable price and not on quality-based evaluation. 2. In last few years, there is an effort from scholars across disciplines studying activities of private security companies to invest in empirically induced research, but regulation is still not tackled seriously in that sense. See, for instance, Abrahamsen and Leander (2016) and Higate and Utas (2017). 3. For instance, consider a company representative who is responsible for regulatory initiatives. That person would be simultaneously involved in local business association, in national regulatory initiatives, and international business initiatives. Interactions with others in the habitus affects its positions and actions, and those are gone uncovered since state-centered perspectives would not take into account those dynamics. 4. For more about capital and its interaction and influence in the field see Thompson (2014, 69).

90  J. JEZDIMIROVIC RANITO 5. Information gathered through interviews with senior industry officials and presidents of industry association in February–April 2015, in Washington, DC. 6.  For the easy access to hearings, consult http://psm.du.edu/ national_regulation/united_states/. 7. Information gathered through interviews with current and former senior congressional officers, several Congressmen and former commissioners in period of February to April 2015, Washington, DC.

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———. 2006. Military Operations: High Level DoD Action Needed to Address Long-Standing Problems with Management and Oversight of Contractors Supporting Deployed Forces. GAO-07-145. Washington, DC: Government Accountability Office. ———. 2012. Management and Oversight Improvements Needed in Afghanistan. GAO-12-290. Washington, DC: United States Government Accountability Office. http://www.gao.gov/assets/590/589710.pdf. Glaeser, Edward, and Andrei Shleifer. 2003. “The Rise of the Regulatory State.” Journal of Economic Literature XLI (June): 401–25. Grenfell, Michael James. 2014. Pierre Bourdieu: Key Concepts. Abingdon, Oxon and New York: Routledge. Harker, Richard, Cheleen Mahar, and Chris Wilkes. 1990. “The Basic Theoretical Position.” In An Introduction to the Work of Pierre Bourdieu: The Practice of Theory, edited by Richard Harker, Cheleen Mahar, and Chris Wilkes, 1–25. New York: Palgrave Macmillan. Higate, Paul and Mats Utas. 2017. Private Security in Africa: From the Global Assemblage to the Everyday. London: Zed Books. Horton, Scott. 2015. Lords of Secrecy: The National Security Elite and America’s Stealth Warfare. New York: Nation Books. Hurst, Stephanie. 2011. “‘Trade in Force’: The Need for Effective Regulation of Private Military and Security Companies.” Southern California Review 84: 447–86. Kauppi, Nillo. 2013. “Integration: Elements for a Structural Constructivist Perspective.” In Bourdieu in International Relations, edited by Rebecca Adler-Nissen, 314–26. Abingdon, Oxon and New York: Routledge. Kennedy, Patrick. 2011. “Statement by Patrick F. Kennedy Department of State, Under Secretary for Management.” Commission on Wartime Contracting. http://cybercemetery.unt.edu/archive/cwc/20110912190101/http://www. wartimecontracting.gov/docs/hearing2011-06-06_testimony-Kennedy.pdf. King, Roger. 2007. The Regulatory State in an Age of Governance: Soft Words and Big Sticks. Basingstoke: Palgrave Macmillan. Kinsey, Christopher. 2006. Corporate Soldiers and International Security: The Rise of Private Military Companies. New York: Routledge. Krahmann, Elke. 2010. States, Citizens and the Privatisation of Security. Cambridge: Cambridge University Press. Leander, Anna. 2008. “Thinking Tools: Analyzing Symbolic Power and Violence.” In Qualitative Methods in International Relations: A Pluralist Guide, edited by A. Klotz and D. Prakash. Basingstoke: Palgrave Macmillan. ———. 2010. “Practices Providing Order: The Private Military/Security Business and Global (In) Security Governance.” In The Role of Business in Global Governance: Corporations as Norm-Entrepreneurs, edited by Klaus Dieter Wolf, Annegret Flohr, and Lothar Rieth, 57–77. New York and London: Palgrave Macmillan.

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CHAPTER 4

Deconstructing Conventional Wisdom

Regulation of private security contractors in post-conflict operations by the US government is reasonably new. Even though the process can be observed as far back as the early 2000s, the majority of regulatory initiatives occurred after the major incidents involving contractors (GAO 2004b). The difference here, when compared to contractors from other industries employed by the US government, was their sudden and massive use, as well as the government’s dependence on their services for accomplishing their interventions, namely in Iraq and Afghanistan. This conjuncture—including a domestic divide between the Republican and Democratic parties in Congress regarding the outsourcing of security, high dependence on contractors, their use for the first time in such a fashion (previously, they had mostly been used for logistics), and the sudden, massive outsourcing—caused a new dynamic that previously could not have been observed in the relationship between public and private authorities regarding the provision of security in hostile environments. Therefore, there is no prior example that can be comparatively analyzed to understand better the obstacles that may hinder the development of more efficient regulatory tools. This chapter departs from brief factual overview of the regulatory process and offers a map that can facilitate a view of the social space and actors involved when we discuss the US regulatory process. It then calls on the argument exposed in the previous chapter. In order to learn about outcomes, we need to comprehend the context from which they emerged. This context has been known to be rather ignored so far, © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_4

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particularly related to the exploration of actors involved and contextualizing their actions and reactions. Therefore, this chapter’s mission is to demystify and deconstruct conventionally accepted truths and present an alternative overview of some of the claims/truths often assumed when discussing this regulatory process. This is accomplished by l­ooking at the habitus of different actors, their doxas, and their interactions in the regulatory field. Its goal is to dispose of “pre-notions” and categories, as well as attribute participant’s characteristics that rest on the elements collected from their practices. By undertaking a thorough analysis of the practices surrounding regulatory processes (meetings, discussions, reports, and hearings, among others) employed by different stakeholders, this chapter aims to rectify pre-established notions of the state of affairs by revealing obstacles in context, as well as by highlighting possible alternatives that may lead to an improved regulatory process. To do this, I first introduce the stakeholders and their structure. Then, the chapter deconstructs some of the conventional wisdom about the regulation of private security provision in the USA to reveal how such conventional wisdom might prejudice a better understanding of the regulatory process and its outcomes.

4.1  Regulatory Process: The Very Short Introduction Even though some of the regulatory measures have been discussed earlier (in Chapter 2), here I give a very brief introduction to the facts related to the US regulatory process. The purpose of this introduction is to give a brief, factual outline of what has been done so far, and, therefore, facilitate further reading of the analysis done in this and the following chapter. The beginning of the regulatory process was related to the massive outsourcing of the security services that followed the US–Iraq intervention. In the US case, the regulatory process has two parallel tracks, through the executive and legislative branches. On the executive side, departments and agencies hiring security contractors regulate them through contracts, the management of those contracts, through their own regulations (e.g., DoD’s directives, instructions and provisions in the DFARs) and occasionally through joint memorandums (e.g., between DoD and DoS). On the legislative side, Congress, through House and Senate committees, proposes and passes legislative measures necessary to provide the legislative framework that would encompass

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activities of these actors and consider punitive measures when felonious activity occurs. Besides those two branches, there are a number of actors that have significant input on the development of activities in both branches. Governmental offices like GAO or CRS provided, throughout the whole period, valuable reports to Congress about the state of the process, and identified/stressed some of the lacunae (Schwartz 2010, 2011; Elsea and Schwartz 2008; Schwartz and Church 2013; Schwartz and Ginsberg 2013; Elsea et al. 2008; GAO 2004a, b, 2005, 2006a, 2012, 2013, 2014). Non-governmental organizations, like Human Rights First, POGO, and Business and Human Rights Resource Centre, issued a number of statements, reports, and testimonies to Congress (Human Rights First 2008, 2010; Brian 2009; Amey 2010, 2013; Gordon 2012, 2016; POGO 2014; Business and Human Rights Resource Centre 2013; Brian 2009). As mentioned throughout this book, a number of scholars have fueled active debate that certainly influenced the regulatory process. Companies, as well as both trade associations (ISOA and PSC), have lobbied on the issue and provided their testimonies, both to departments that hired them and in Congress (interviews with senior officers from DoD, Congress, and oversight offices, president, vice-president, and director of governmental relations of companies, presidents and vice-presidents of trade associations, Brooks 2006, 2011). Following all these initiatives, numerous incidents have been reported and explored by the media (BBC News 2008, 2010; The New York Times Editorial 2010; Ghouri 2011; Isenberg 2012; Capps 2002; Singer 2004; Schmitt 2007; Shachtman 2007; Chesterman 2009). At the early stage of the Iraq intervention (2003–2007), regulation mostly was limited to the contract, and the lines security contractors could and should not cross were not very clear, particularly with regard to non-DoD security contractors. As previously elaborated in Chapter 2, DoD’s security contractors have been operating under MEJA, which signifies civilian contractors working for DoD have been subjected to Uniform Code of Military Justice (UCMJ) jurisdiction. After some of the major incidents (in particular, high-profile incidents such as Abu Ghraib and Nisour Square), a first wave of interest surged within Congress, as demonstrated by its interest in the range of use of security contractors in Iraq and Afghanistan, documented through requests from CRS and GAO to elaborate respective statements and reports (Elsea and Serafino 2004; Grasso 2005, 2008; Ribando and Vaughn 2006;

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GAO 2006b; Walker 2007; Elsea and Schwartz 2008). As a result, in 2007, Congressional proposals began that ranged from a categorical ending of contracting security to more moderate requests to regulate them (Obama 2007; Clinton 2008; Schakowsky 2007; Price 2007, 2009). This period was turbulent within executive departments as well, particularly the State Department, which never contracted security services in this fashion (in unstable environments, where they provided a platform for state-building processes while there was a strong insurgency present on the ground). Contracting departments, as demonstrated previously in Chapter 2, have adapted their policies and procedures and, as mandated by Congress, have come up with a harmonization of vocabulary when addressing security contracting and common rules for better coordination on the ground (DoD and DoS 2007). Simultaneously, there was an international initiative, backed by industry, that ultimate regulatory solutions should pass by investing into favoring quality of the services (by raising minimum requirements that include quality certifications) over lowest technically accepted price. Therefore, the initiatives grounded on proposals of best practices, and, later on, ­certifications (of quality standards), were welcomed by the industry who favored high quality over lower price. These initiatives, culminating with the International Code of Conduct Association (ICOCA), were reflected at the executive level, where these certifications have been integrated in the bidding and contracting process. The DoD proactively backed up these regulatory outcomes and was one of the first to raise minimum requirements to include certification in the bidding process (first PSC.1 and, more recently, ISO18788). The DoS has recently included membership in ICOCA as one of the bidding requirements, as well. Besides that, since the Nisour Square incident, it has included other measures, like cameras in all vehicles and their representative in every vehicle. Therefore, from the executive side, there were some concrete, less obvious to the public perhaps, efforts to improve contracting security. Hence, no significant structural change/reform occurred (particularly in the State Department), in the sense of developing new offices within departments that would actively oversee and supervise security contractors. In other words, structural changes that would lead to the establishment and professionalization of the supervision and oversight of these contracts (and allocation to additional resources for its execution) did not occur. Meanwhile, in Congress, a second wave of legislative proposals (Schakowsky 2010; Leahy 2010, 2015) and mandated Commission

Fig. 4.1  US regulatory network of private security contractors

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on Wartime Contracting (CWC) report (2011) occurred. No palpable results came out of it, and the legislative path appears somewhat blocked. The attempts to formulate a civilian equivalent of MEJA never came through, and there are no clear advances in passing such legislation (interviews with senior Congressional officers on March 23 and 27, April 10, 2015, Washington, DC). To visualize this structurally, here is a map that includes major actors involved in the process. The range of players involved in the US government’s regulation of PSCs is wide in post-conflict operations, and includes a variety of stakeholders, including the legislative branch, covering Congress, with its several committees (both on the House of Representatives and the Senate) having an active role, a range of executive agencies dealing more closely with their contractors (here, I focus mainly on the DoD and State Department as the most involved in the regulatory process), as well as a wide variety of oversight and government supervisory bodies (like SIGIR, SIGAR, GAO, CWC). Nongovernmental stakeholders include industry representatives from companies, trade associations, various civil society organizations, and academics (Fig. 4.1).

4.2  Shifting from Agent–Structure Division As proposed in the previous chapter, this analysis goes beyond divisions on levels of analysis and agent–structure. The key element that has been somewhat ignored is that the common denominator to all these divisions is a human factor, people acting in the process. Often, they transcend a single category; therefore, their actions should not be observed in the context of a single habitus or even a single field. The external impulses to the US regulatory process may provoke their actions/reactions and affect internal decisions; hence, those need to be considered when studying the regulatory process itself. However, academic research has failed to delve anywhere near deeply enough into this networked structure, or to study closely the stakeholders’ impact on the regulatory process. Such a knowledge gap is significant, particularly because outsourcing security services in stability operations is a new approach to governance in recent history. As I argue here, in the present context, the private security regulatory process cannot be observed through a simplistic single institutional lens as it was before (either Congress or executive departments) since we have witnessed the emergence of other stakeholders that have weighed in on deciding the

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path of regulation. This is particularly relevant in the case of industry representatives, an increasingly powerful civil society, and the media. Moreover, it is inadequate to observe either the institutional players or their initiatives as homogeneous. Not negating the importance of the institutional stance toward some initiatives, which I will address in due course, the importance of the people involved is much greater. There have been less than 50 high-level people in USA who closely followed this issue since 2007, from various stakeholders, and most of them have circulated through different institutional stakeholders (interviews with several senior GAO officials held on March 3, 2015, from DoD (interview on March 27, 2015), former CWC Commissioner and senior Congressional officials (interviews on March 6, 19, and 23, 2015) and company representatives (interviews on February 25 and April 14, 2015) in Washington, DC). These individuals had both formal and informal interactions among them, and the information exchanged in both contexts shaped the course of the regulatory process. Public opinion triggers alone, such as the highly reported incidents, would not have been enough to push regulation forward. In other words, ingrained organizational behavior (their habitus) and people leading certain institutions (public or private) invested in the subject, whatever the motivation, are responsible for the state of regulation as it stands now. Within the framework we propose to look, it is important to observe the interactions among various stakeholders who participated in the regulatory process. Their actions have caused reactions from other stakeholders and their credibility and respect from others as an invested actor in regulatory process was evaluated through their participation in it. To continue further, it is necessary to outline the regulatory field, as it is crucial to understand the scope of avenues where such interactions (formal and informal) took place. They are by no means exclusive, but they give opportunity to see diverse environments where they occurred. Congress, as the main legislative body in the US government, led some of the key institutional interactions. There were different Congressional bodies involved, and the increased interest in the regulatory practices may be observed, particularly from 2008, when individual members of different Congressional committees became more closely involved. The forums of interaction included various committees’ hearings and reports, such as the House Committee on Oversight and Government Reform.1 At the time, the chairman of the Committee, Henry Waxman, was known as a “showman in the one- man show”

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among the community involved in the regulatory process. According to one industry representative, his hearings and investigations were controversial and considered to be unproductive, motivated only by the need for public attention. He stated: He was all about the wrangling. He wanted to be in the lead position, to be a big issue. In one point, after the Erik Prince hearing, he tells every company that has life security guards in Iraq, he wants basically every single document that has ever been produced, every contract, every report of every casualty, every firing weapon discharge, he wants all this stuff. And that is a lot of material, we were in 2007/8. And so, the companies were literally spending the millions of dollars on compiling this stuff, packing it and shipping it over to his office. In some cases, the company had in their contract, government contract, said that if something like that happened, just charge the government for it. It was all this additional work, but whatever. So, all these boxes were sent up and Waxman was so focused on this issue and another issue pops up [drug abuse by baseball players] and he was gone. That was it. On that Committee, I knew one of his staffers very well, so I asked him what happened to all these boxes of information, and the guy didn’t know, they were probably mopped (interview with senior industry representative on February 25, 2015, Washington, DC).

However, he was not the only Congressional chairman who was considered to use this subject for self-promotion and did not use hearings and testimonies for a better understanding of problems related to regulation. Another example was Senator Levin, who was on the Senate Armed Forces Committee. One former senior DoD official claimed that while providing testimony in this Committee, Senator Levin was presenting his opinions on the subject, and when existing regulations and laws would be cited to him, he would ignore them and continue with his own rhetoric. Furthermore, he stated “I consider a major improvement in the environment when he retired” (interview on March 27, 2015 in Washington, DC). However, these public spaces, where regulation of private security providers was debated, brought benefits with its existence. Neil Gordon, a senior investigator of POGO, who has been closely following US regulatory debate for more than a decade, stated, “To some extent, you can see it as a ‘dog and pony show’ but I think over the long term it does have some effects. It educates the public, it makes them see what the problem is and how it can be fixed, so I think it helps in some way. Not in a short term but I think in the long term it has a cumulative effect”

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(interview on February 25, 2015, Washington, DC). Therefore, even though Congressman Waxman and Senator Levin may not be considered crucial for a constructive resolution of the problem, they gave the impetus to others involved in the process to seek plausible solutions. The debate on the accountability of contractors was held by the House and Senate Judiciary Committee as well, where the issue of accountability of the civilian contractors continues to be present. Even though there were no major interactions among the different stakeholders on those committees, the strong differences of opinion among political representatives involved, contributed to expanding the debate outside of Congress walls, and this will be addressed more ahead. Hearings held by the CWC were possibly the forums that brought together the most personalities from all the different sectors. Beside these Congressionally sponsored hearings, trade associations have been very active, over time, in organizing public events, such as the annual IPOA/ASOA summit, where company representatives have the opportunity to talk to people from the State Department and DoD. There were occasional events that joined different players involved in regulation, such as the one organized to clarify the PSC.1, the standard certification process that united industry and NGO representatives, as well as people involved in the regulatory process of the State Department and DoD. An example of such event is “Managing Human Rights Risks in Complex Environments,” organized by the ISOA with the help of the Fund for Peace and Human Analytics in Washington DC on April 9, 2015. During this event, certification body representatives demonstrated the structural changes that companies usually need to make to become certified to business representatives, but also other organizations. Finally, the last avenue where interactions occurred was at the academic conferences and workshops at universities and think tanks dedicated to the regulatory issue. The informal settings are propitious for more relaxed contact among stakeholders, enabling easier communication of experiences and opinions. The regulatory field is further enriched—beside commonly assumed actors such as Congress or industry—with other entities, such as oversight bodies, who indirectly influenced process and its results. When considering oversight tools and mechanisms, there is no unique approach used by the US government; rather, each department deals with regulatory mechanisms on its own. This absence of a uniform approach to dealing with security contractors in stability operations means there are neither guidelines nor consistency regarding how concerns might be addressed. The institutions that have covered oversight—either through

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research, inspections, study over or directly in contract management— include these six institutions: US Government Accountability Office (GAO), Special Inspector General for Iraq Reconstruction (SIGIR), Special Inspector General for Afghanistan Reconstruction (SIGAR), CWC in Iraq and Afghanistan, State Department, and DoD. To get easier understanding of organizational divisions and how and with whom all these stakeholders interact, you were presented in the Chapter 2 with two organizational charts of the regulatory bodies (DoD and State Department) and previously in this chapter you found a table demonstrating influence of stakeholders on each other (US regulatory network). The broadest independent government agency, non-specific to the issue of supervision of the PSCs in the volatile context, is GAO, which is responsible for performing audits of state agencies to confirm their efficiency and best practices, and to investigate misconduct. Principally, in the last decade, this agency has developed annual reports focusing on these areas in response to the growing interest by Congress into the use and supervision of PSCs in the context of Iraq and Afghanistan (GAO 2004b, 2006a, 2012, 2013, 2014). Its reports are consulted by the different sectors of the government and serve as guidelines for the problems that occur on the ground, occasionally offering concrete proposals to solve them. In 2004, with the amendment of Public Law 108-10614 by Congress, an independent body was constituted to implement the oversight of spending and performance in Iraq –SIGIR. The equivalent in Afghanistan, SIGAR, was established in 2008 by the NDAA (House of Representatives 2007). These bodies were established with the aim of performing audits of all contracts established with companies operating in these interventions. Such audits may or may not be coordinated with other bodies and it was left to these offices to decide, namely with the DoD Inspector General and his counterpart at the State Department. Among the goals set by the 2008 NDAA are those focused on the process of monitoring and oversight of the PSCs. This includes the provision of audits in the following areas: the effectiveness of the DoD to oversee and manage the PSCs; the ability of the DoD to provide specific training for those responsible for performing these tasks; and the lines of communication between the PSCs and the officials responsible for their supervision and management.2 The purpose of these audits is to determine the true extent that responsible federal agencies maintain control in the management of PSCs on the ground, meaning supervision of the contracting agency rather than the contractors.3

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The NDAA of 2008 also established the CWC in Iraq and Afghanistan with the purpose of examining all documents prepared by the Special Inspector General Offices for Iraq and Afghanistan and to elaborate informed opinion, jointly with recommendations, regarding contingency contracting. The CWC had two years to complete the task. Its involvement was supposed to be completing a review of the recruitment and performance of government agencies that dealt with the hiring of the services, focusing on the security services whose provision implied the use of weapons.4 The Commission issued its final report (2011) in 2011 with a series of recommendations, most of which have not been discussed since. As detailed in Chapter 2, State Department has multiple offices dealing with the regulation of private security contractors. The two main offices work under separate pillars of the State Department. One is the Bureau of Diplomatic Security, operating under the Under Secretary for Management, which has its contracting agents and their representatives on the ground and works closely with the contracting process, as well as supervision and oversight of contracts. The second is the Bureau of Democracy, Human Rights, and Labor, working under the Under Secretary for Civilian Security, Democracy, and Human Rights. This office operates at an international level and manages US global efforts in regulating private security contractors. The curious disconnection and lack of communication between these two offices will be tackled later. Their counterparts in the DoD are the Office of Deputy Assistant Secretary of Defense for Program Support, and, more specifically, the Office of Contingency Contractors’ Standards and Compliance, working under the Assistant Secretary of Defense for Logistics and Materiel Readiness. The office was created in 2007 as a consequence of the internal reorganization demanded by 2007 NDAA (House of Representatives 2006), in order to establish a viable structure to deal with private security contractors. This office is responsible for establishing policies and following the regulatory process and its application on the ground and addressing new challenges in a timely manner. It is responsible for the educational aspect as well, and, when out of crises, deals with writing manuals and seeking out possible loopholes that need addressing (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC). It communicates with contracting officers to look for possible problems, as well as informing and educating them about introduced changes and the implications on the ground.

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The last stakeholder in the regulatory field, far from homogeneous, is industry and is considered further on. It is composed of representatives from different companies (presidents, vice presidents, those holding the position of Director of Governmental Relations), lobbyists, and trade associations; namely, the ISOA, previously known as the International Peace Operations Association (IPOA), and the Private Services Council. Some of them have been more open to introducing higher standards than others, and their involvement cannot, by any measure, be observed to be continuous nor unanimous over time. However, the people who have been working in these positions have usually been working with more than one entity and have followed the regulatory process most of the time. The complex network of opinions, interests, and motivations has made the regulation of security contractors what it is today. Since the early 2000s, numerous obstacles have left a mark on it, some of which have been uncovered by previous research, such as economic gains (Kinsey 2010; Loader et al. 2014), or philosophical division over contracting out security or not (Avant and De Nevers 2011; Stanger 2011). Then there were other issues that have not been perceived as obstacles per se, rather choices of scholars, such as looking at regulation of PSCs as either a legal (Elsea et al. 2008; Lanigan 2008; Tiefer 2009) or contractual issue (Dickinson 2011, 2013; Krahmann 2016); assuming regulation should be/is imposed by Government (Krahmann 2005, 2010; Percy 2013); assuming strict division of public and private values (Andreopoulos and Brandle 2012; Avant 2005; Axelrod 2014); or even assuming that the regulatory issue is resolved.5 The aim here is to rupture some misconceptions and deconstruct some common wisdom, rather than accept it as a given fact. In this chapter, four such misconceptions will be addressed. First, the idea the US regulatory approach is relying on political institutions will be presented and deconstructed. Second, it will look at the overreaction to either the importance of industry or to its total exclusion amid claims that regulation is a matter of government. Third, I will address the misconception that regulatory issues are solely, or at least primarily, legal issues. Fourth, it will consider the idea of a clean cut between what are considered to be private and public values, and, last, the half-truths about the transparency and secrecy of both the regulatory process and outsourcing security will be examined.

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4.3  US Regulation Is a Matter for US Political Institutions This is one of the most common pieces of commonly accepted wisdom encountered, and it assumes the job of regulation belongs to the state since the contractors are acting under state contract (Tonkin 2013, Chapter 3). Particularly firm in these statements are legal scholars who claim that to outsource US government needs to have adequate legal framework for it, which is at this point not sufficient (Brickell 2010; Chapman 2010; Tiefer 2009). Those analyses derivate from consideration of the lacking international legal framework, that does not have adequate measures to deal from the legal standpoint with this issues (Percy 2007). Such an understanding has been refuted by the approach focusing on the importance of the territorial state, in the case of Afghanistan, attesting the significance of the country receiving those services and claiming it not to be so much a task of the American government as of the receiving government (Armendariz 2013). However, such a myth needs to be thoroughly deconstructed. To do it, it is necessary to state the level on which the analysis is conducted, ranging from an international to an individual level. On an international level, in this case, would be considered issues such as international regimes and institutions, transnational organizations, and networks, economic patterns, global norms, and international law or distribution of power/capabilities between states. On a national, state, and societal level are included governmental issues (policy-making process or political system structure) and societal questions, such as public opinion, political culture, or ideology. Then there is a group level covering interest groups, governmental bureaucracies, policy-making groups, and various non-governmental organizations. Last, influences on the regulatory process might be observed from an individual level, considering public and private leaders; their personalities, belief systems, perceptions, and understanding or not of the situation. Therefore, to obtain the full impression of the regulatory process, the interaction of all these levels and their influence on one another should be observed. Starting with the international level of analysis, the regulatory process in the US government has both influenced and been influenced by global interactions (Avant 2016b; DeWinter-Schmitt 2016). The involvement of the US government in both the Montreux process and the

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International Code of Conduct for Private Security Services Providers (ICOC) initiative and outcomes were both motivated and motivators of more dynamic domestic regulatory process in USA. The US government has been an active participant in the negotiations between several states for the Montreux document (the ICRC initiative) in 2008, and later of the ICOC multi-stakeholder initiative signed in 2010, by sending a team that was led by State Department representatives and included people from the DoD who could address the more technical side of negotiations. Such involvement was the main channel in addressing concerns held by the USA regarding accountability issues internationally (interviews with senior DoD and DoS officers on March 18 and April 27, 2015, Washington, DC). Those initiatives aimed to advance the discussion by evaluating what, in practice, was the real minimum acceptable standard; determining what direction monitoring of accountability should be taking; and consulting with different stakeholders about their experience of contracting private security, particularly in Iraq and Afghanistan. The consequence of US involvement in the international process for US national contract regulations was the inclusion of the requirement by the State Department that their contractors need to be members of the ICOCA in order to be eligible to tender contracts (Government and Contract Bid 2015). In the DoD, it served as a stimulus, leading to support for the USA setting its own standard that would operationalize the principles of the ICOC into a management system standard. Such stimulus resulted in the PSC.1. An interaction among different levels of analysis was very important in the US domestic regulatory process as Congress had serious difficulties making regulation more efficient from a legislative standpoint. Those difficulties were the result of the political system structure, blocked over debate early on when the issue of private security contractors turned into a broader ideological battle and legislative advancement depended on a significant attitude shift in motivation, personality, and perception of the leaders in Congress to require improved accountability of the contractors, which was essential for the regulatory process (Brown 2009; Dickinson 2005; Tiefer 2013). From the industry side, a small group of companies led the process of developing auditable US national management standards, driven by the conviction that the lack of it was hurting their businesses, and therefore, some investment in the costs (resulting from the certification process) would be compensated by being able to distance themselves from scandals that might close the door on further

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business (interview with a senior industry representative on March 25, 2015, Washington, DC). Industry’s close interaction with the DoD’s sponsored process and the involvement of NGOs was understood to be an extension of the cooperative effort that began with the ICOC and was assimilated on a domestic level involving different stakeholders (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC). On the national level, and considering the policy-making process, the structure of the political system in US government is such that with Congressional elections being held every two years, influencing representatives’ priorities to match those of their constituents is vital in order to achieve re-election. When the sense of emergency is taken away (and in the years following the major PSCs incidents, there was no such sense) those issues were usually less important for constituents than something that was affecting them directly (interviews with CWC Commissioners and April 1 and 2, 2015, Washington, DC). Thus, lack of investment from the majority of representatives can be partially explained by the fact that public opinion defines their agenda (interviews with senior oversight and Congressional officials on March 9, 19, and 23, 2015, Washington, DC). The media had the same effect in the crisis (when major incidents did occur) and pushed Congress to prioritize discussion on accountability issues.6 Numerous hearings by various committees after Abu Ghraib and Nisour Square confirm this, and the establishment of the CWC was the ultimate example, even though its merits were contested. With a lack of media pressure, there was no acting upon the final report recommendations of the CWC by Congress, and even the Commissioners involved consider their existence was to alleviate political pressure on Congress rather than to bring palpable changes (interviews held on March 6, April 1 and 2, 2015, Washington, DC). The group level analysis demonstrates the influence of interest groups, NGOs, and oversight bodies on the regulatory process, of which there are numerous examples. As mentioned above, the negotiation of quality standards has joined both industry representatives and several human rights organizations, with the final results representing the compromise they reached. The trade associations, particularly using the example of the IPOA/ISOA, contributed by establishing their own Code of Conduct, a voluntary initiative that affected the regulatory process, perhaps not so much on a national level as it did internationally. Their input, particularly on the first drafts of the ICOC, was recognized by a process

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facilitator (Buzatu 2015). High representatives of ISOA went as far as to state the original text of the IPOA Code of Conduct (IPOA 2008) is very similar to that of the ICOC (Swiss government 2010), and it could be considered the IPOA’s document served as the basis on which the ICOC was developed (interview on March 25, 2015, Washington, DC). The fact is their influence on the process was undeniable. As demonstrated above, the ICOC had a significant effect on the domestic regulatory process in the US. However, the contribution of trade associations and their cooperation with NGOs should not be idealized, as Neil Gordon, an investigator for Project on Government Oversight, stated: Industry usually tends to be in the opposite direction from groups like POGO, we try to push reforms, they try to stop those reforms, it’s kind of push-pull all the time there. Sometimes people would agree, would have the same view of the reforms, but usually, we have crossed purposes, I think. So, that’s a problem, the industry groups have money, have influence, they have been making campaign contributions, they lobby. We lobby too, but we just do not have the resources that some of these major contractors and corporations have (interview held on February 25, 2015, Washington, DC).

Oversight bodies contributed to the regulatory process according to their missions. GAO produced several reports leading to more action by Congress (GAO 2004a, 2005, 2006b) already following the first years of massive contracting. SIGIR has been recognized to have had more impact on the regulatory process than SIGAR and to display a more proactive attitude (Warren et al. 2009). This was also confirmed during the interviews with senior oversight officials (February 24 and March 9, 2015, Washington, DC) and senior industry representative (March 31, 2015, Washington, DC). The testimony of Stewart Bowen, former Inspector General of SIGIR, before the CWC demonstrates the effects of such a proactive approach (Bowen 2011). On an individual level, the importance of personality and personal connections impacted negotiations concerning regulatory measures, as well as contributing to interactions among stakeholders. This was confirmed in interviews with senior Congressional staff and oversight officers (February 23, 24 26, March 3, 6, 9, 13, 19, 23, and April 2, 8, and 10, 2015, Washington, DC) and senior DoD officers (March 18 and

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27, 2015, Washington, DC), senior DoS officers (March 9 and April 27, 2015, Washington, DC) and senior industry representatives (February 25, March 2 and April 13, 2015, Washington, DC). The influence of the perceptions and personality of individual leaders on obstacles and contributions will be addressed in detail in the following chapter. Deconstructing the levels of analysis and their interactions with each other demonstrates the complexity of players and networks influencing the US regulatory process. The obstacles can be found at each and every level, and simplifying the analysis, in this particular case, by focusing on just one would not reflect the genuine picture. Therefore, to have a notion of the obstacles at the state level, it is necessary to observe and understand the influences that each level of analysis brings to the table.

4.4  US Regulation Concerns the Government and Its Agencies This conventional wisdom states that regulation is an issue of US governmental institutions. Usually, it is followed by statements of government failing to hold contractors accountable (The New York Times Editorial 2010) and a political division within Congress over which functions should or should not be outsourced (inherently governmental functions), as an argument that this issue is of political institutions (Stanger 2011). It is true that the US is responsible for the contracting and implementation (supervision) of PSCs on the ground, but in the age of governance, there are other stakeholders strongly influencing the outcome of the regulatory process. US regulation of security contractors employed by the US Government is a matter for US public institutions, but not solely, and what has happened in practice has demonstrated that industry’s initiative had a significant role in where the regulatory process stands nowadays. As established previously, in the globalized world in which we live, it is not possible to divide national from international in the posture and actions of stakeholders. The US regulatory field is affected by global influences and therefore does not concern solely national institutions. In the global market, where this industry exists, national and international efforts to regulate industry are tightly connected and impact one another. Moreover, as will be discussed further on, there is no more clear division between holder of public and private

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values. Considering the stakeholders involved, it is not possible to say the regulatory process in the USA, regarding outsourcing security, has been solely private or public; rather, it represents a complex mix of initiatives. As it was demonstrated previously with the figure in this chapter, the regulatory network includes various stakeholders, public and private. Furthermore, what have traditionally been considered values defended by public institutions (such as transparency, accountability, respect of human rights) nowadays have been commonly incorporated into private entities. The same applies to private interests; what once used to be considered private interests (cost reduction, minimizing resources to obtain greater profit, or ignoring accountability) cannot be solely used to describe the behavior of the private actors. This will be discussed and demonstrated in more detail ahead. In the US case, industry associations have been rather proactive and their efforts can be traced internationally as well. Two trade associations, the Professional Services Council and ISOA, played an important role in raising issues related to the poor quality of service provision. The first concern raised by the Professional Service Council, the association that supported major providers of services (mainly logistics) for Iraq and Afghanistan, concerned security provision for those companies executing logistic contracts. Since, from early on, the DoD recognized logistics contractors needed to contract their security, the association demanded from the DoD a list of recommended security providers they might consider. Such a list had never existed, and their intention mainly was to form a clearer picture of what could and could not be done, to enable the contractors to calculate their costs beforehand, and ensure not to put into question their profits as a result of poor security provision (interview with a senior industry representative on March 31, 2015, Washington, DC). The ISOA was more proactive in the area of how security providers were regulated, or, rather, unregulated, particularly in the early days of the Iraq interventions. They claimed the lack of contracts and clear rules of engagement caused a loophole, used by some security providers to commit serious misconduct without any consequences (interviews with senior industry representatives on February 25 and March 25, 2015, Washington, DC). The solution, they asserted, lay with raising the quality of provided services, which alone would mitigate the majority of accountability problems. These examples do not serve to claim industry was a promoter of firmer regulation; rather, they were seeking the introduction of some

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common rules that would promote higher standards in the delivery of security services. In the course of interviews, a number of senior government officials (interviews held on March 6, 18, and 23, and April 1, 2, 3, and 10, 2015), practitioners (interviews on February 27 and March 9, 2015, Washington, DC) and even some industry representatives (interviews on March 2 and 12, 2015, Washington, DC) considered that associations were active in the process of delaying and “watering down” the proposed regulations, by arguing that they defended “what is possible” and they wanted “regulation but not to be micromanaged.” Proactive attitude from industry in defending both the transparency of rules and the responsibility of companies was a pure necessity, as one senior industry representative stated: “People recognized that Blackwater would drag us down if we let it. Making us all look bad. If the industry gets painted with one paintbrush, we all go with evil PSCs. No, not all PSCs are the same and we need to do better. So, we tried, and now we have PSC.1 Standard and it was direct industry effort (…). It was like we got to fix this up ourselves or we are all going to go down” (phone interview on April 4, 2015). Their main motivation was separating the whole industry from incidents such as the one caused by Blackwater, and demonstrating contractors can be controllable; however, this was not industry being the good Samaritan since, as was further claimed, their alternative was to shut down the whole industry completely, or be given some “draconian” regulation by Congress (interviews with senior industry representatives on February 25 and March 12, 2015, Washington, DC). While defending what were considered traditional public values (more transparency and accountability in the contracting process), the development of PSC.1 was ultimately run by economic interests that would both make competition fairer (all bidders would have the same expenses) and keep the industry more acceptable, since it would be less prone to incidents. The drive to turn PSC.1 into a national standard can be understood from the example in the gap between the companies providing lower quality services and the ones certified by an industry representative to comply with PSC.1 (interview with a senior industry representative on March 25, 2015, Washington, DC). He gave an example of the conversation he had within UN context about this issue. After complaints from a UN contracting agent of a lack of representatives from his association in the bidding processes, he answered:

116  J. JEZDIMIROVIC RANITO Well no, they don’t bid because they never win. And then the U.N. person says: well they never win because they are always expensive. And I say, well, they are expensive because they have all the regulations they need to comply (against human trafficking, export trade control agreement). He said, these are all good laws, complying mechanisms, but if I have a U.S. company that is bidding on a contract that’s gonna take place in Mali, and the U.N. also has a Pakistani or Afghan or Indian company that’s bidding for the same service, of course, they are going to be cheaper. Because none of these other countries and companies have to comply with the U.S. regulations for anti-trafficking, or export trade. So, I have to go and say look, if you are always going to go for the lowest offer provider, then American businesses are not going to bid because they will not get it. But at the same time, if you go with any of those companies, and there is an issue on the ground later on, it is your problem, not ours. By going by [PSC.1 and] ICOCA type mechanisms, where we can increase the level of standards for all the participants, whether they be the US, British, Afghan, Pakistani or Indian, then everyone wins quite frankly. Is it gonna be more expensive? Yeah, it will be more expensive, but at least you have now the levelled players.

The procurement process favouring low-cost options over quality was not a problem recognized solely by industry. DoD was not quiet about it either. One senior officer explained why raising the minimum requirements to include quality standards was crucial for better contracting results. He stated There is what I call my spectrum of PSCs. Swiss Guard security vs. Lethal Response Unlimited. So, we want everybody to be toward the Swiss end, but the reality is that whole bunch of companies is down on this end [Lethal Response]. The companies on this end will not to go with any regulation, they will go with whatever is cheaper, and they are going to underbid everybody and just hire mercenaries (…). And we need to deal with these people. How do we do it? Well for one, I don’t listen to those people, I only listen to these people (shows Swiss guard). These people want to do a good job, they want to be able to say “yeah, it cost more money to us but there is a good reason for it. And yes, it is cheaper to hire these guys but there is a good reason for that too”. And you don’t want to go there. So, how do you meet those people up? Well, partially we need to look up at ourselves and be sure that we are not accepting the lowest price technically acceptable, one thing we have done was that we had these standards so we raised the bars (interview held on March 18, 2015, Washington, DC).

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The mix of the public and the private initiative was the most visible in the process of establishing the PSC.1 quality assurance and risk management standard and, ultimately, turning it into an internationally recognized standard. Even though the DoD funded the creation of both PSC.1 and ISO 18788, since quality certification processes are industry-led initiatives and not established by governments, the PSC.1 Standard needed to be introduced by industry endeavor. There was no US national standard requiring minimum quality certification in the contracting process that would have made the bidding process more quality oriented and less lowest-price-oriented. The bidding process in executive agencies is cost-based, favoring the lowest bids rather than quality. Hence, to change bidding outcomes, it was necessary to elevate the minimal requirements in the bidding process. The DoD was mandated by the 2007 NDAA (Section 854) to put in place significant requirements when managing its contractors in contingency operations since they had previously demonstrated poor results (interview with a senior DoD official on April 3, 2015, Washington, DC). With the Nisour Square incident, the US government recognized the current governance of PSCs was not efficient; rather, there were multiple unsynchronized governance approaches, including those of each agency and NGO. The State Department and DoD, being the main security contracting agencies, were asked by Congress in 2007 to standardize the process and vocabulary regarding how PSCs were used and their limitations, resulting in the Memorandum of Agreement between the State Department and DoD (DoD and DoS 2007). After indications by the DoD that imposing quality demands in the bidding process would contribute to a certain level of quality control, Congress asked the DoD to work on it (see Section 833 of NDAA FY2011). The most efficient road to achieving a national standard was first to find the industrial quality standard most applicable to government contracting. Since there was no national or industry standard at that moment, the DoD worked with industry and civil society representatives to develop the best result possible, where all participants were able to intervene and present their suggestions and doubts. Senior DoD officer stated: We (DoD) are the client and we put our parameters out. But we had contractors who were calling the meeting together and I mean there was huge business representation, we as a client have red lines that we could not cross: these were the minimal acceptable things they will include x, y, and

118  J. JEZDIMIROVIC RANITO z. Includes weapons qualification ok? Again, human rights trainings, all that kind of stuff. We were the ones who were requiring it, but it’s really a business led process which is one of the reasons why it works and make sense (interview on April 3, 2015, Washington, DC).

The result was the PSC.1 standard, which represents a quality certification where companies had to exercise rigorous control over and restructure of their risk management mechanisms in order to prevent serious incidents, as much against the civilians as for the contracted workers. This was not the first time industry and the DoD worked together on regulatory issues, but it was the first resulting in the advancement of regulation. In 2008, there was an attempt to work on these issues by the key leadership of the US PSCs, but, as one senior DoD official said, “We were not able to pull it off at that time. It was too much, quite frankly, business friction between big players and so, you know, we thought we had agreement to start with because as with any piece of industry you’re better off if industry developed a sense of standards, a sense of continuity, and they want to be good stewards of their area of responsibility” (interview on April 3, 2015, Washington, DC). What was once understood to be typical private-player behavior—lack of investment in the oversight and management of contractors—quite often began to be found in the public sector as well. Both the DoD and the State Department recognized there was insufficient oversight of contractors, particularly after the major incidents occurred (interviews with DoS senior officials on March 9 and April 24 and 27, 2015) and DoD senior officials (March 18 and April 3, 2015, Washington, DC). In the case of the DoD, there was a lack of training of DoD personnel involved on the ground, which was manifested in a poor understanding of in what circumstances they needed to be vigilant. Additionally, before incorporation of the PSC.1 Standard in the contracting process, the DoD only supervised the activities and contracts of the prime contractor (both by choice and without the legal capability to do otherwise), leaving aside all subcontractors involved. Although not addressing all of the gaps, the DoD did have a proactive attitude in resolving oversight issues, as extensive analysis of the Congressional Research Services demonstrated (Schwartz 2011). The lack of investment in the oversight and supervision of the contracts continues to be a problem. As the Comptroller General of the United States stated: “While this (inadequacy of the acquisition

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workforce, including oversight) is a DoD-wide problem, having too few contract oversight personnel presents unique difficulties at deployed locations, given the more demanding contracting environment as compared to the United States” (Walker 2008, 8). Thomas Bruneau (2011, 138–42) made a detailed analysis, with different sources supporting the opinion that CORs are scarce, unprepared, and overloaded, and, therefore, incapable of carrying out meaningful oversight of contractors. There are recent changes at the DoD that at least deal with the educational part of the problem. As senior DoD officials recognized, 2015 was finally an educational year, in the sense that manuals could be produced and training carried out to update the knowledge of the officers involved in the supervision process, not solely CO and COR, but some of the military representatives as well, in order to clarify common misconceptions about the limitations of PSCs activities (interviews with senior DoD officials on March 18 and April 3, 2015, Washington, DC).7 A cultural change, associated with the massive growth of contracting in stability operations, has taken place in the DoD over the last two decades in order to integrate the contractors. As a senior DoD official explained: We are changing a culture in a way … I worked in the military and I was told if it wasn’t in the contract, then don’t worry about it, at command. Don’t worry it’s not your problem. That’s what we grew up with. That’s not the right answer. Particularly in contingencies, they are 50% of your force in the range. At least historically you can’t ignore it. You have got force protection issues, you have care and feeding them, you got base ops, you got the whole bunch of things that are affiliated with these folks that are part of your force, they just don’t wear your uniform. And they are under different command control and restrictions but they are still part of your force you need to deal with them. That’s a cultural change, that’s a massive cultural change that we had to go through (interview on April 3, 2015, Washington, DC).

Part of such cultural change must also be recognition of the necessity of a career path and progress for the people executing oversight functions. In the interviews held, there was a common opinion held that those officers, both in the DoD and State Department, are not motivated either to go beyond what would be considered the minimum required for the execution of their functions, or to put themselves in any

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risky situation since their compensation, monetary and in terms of their career, is not going to follow (interviews with a senior oversight officer on March 9, Congressman on March 27, senior DoD officer on April 1, senior Congressional official on April 10, and senior DoS official on April 27, 2015, Washington, DC). This leads to the conclusion that the US government structure is not putting a value on those services, and, therefore, only may expect results according to what has been invested. This section alerted on the dynamics within the regulatory field, contributed to demystification of the clear cut between the protectors of the private values (such as protection of human rights, transparency) and a necessity to understand a context in which certain decisions, both from private and public entities, surged and why their participation in the process took a certain path. It also called on necessity to look at the habitus of each stakeholder and how it influenced their future actions; for instance, DoD’s proactive attitude in treating regulation as a technical issue and investing in a change of culture that was ingrained within demonstrated its effects on their input in regulatory process.

4.5  Regulation Is Either a Contracting or Legal Issue The fact is that either limiting regulation on legislative initiatives, or on contracting issues, leaves regulatory analysis poor. To understand fully the regulatory issue, besides the legislative aspect and the complexity of contracting, there are very important political and bureaucratic aspects to consider. From an academic standpoint, the accountability of PSCs has been viewed largely as a legal issue: from looking at the criminal liability gap (Brickell 2010; Chapman 2010), to considerations of whether security functions might/should be outsourced (Brown 2013; Tiefer 2009), to proposals to do it smarter through contracts (Dickinson 2011). In practice, it is curious to observe how the notion of responsibility for “accountability” differs among stakeholders. The legislative branch tends to see it as an executive agency’s duty and responsibility, something that should be integrated into departmental procedures (interviews with senior Congressional staff [February 22, March 27, April 10, 2015], CWC Commissioner [March 6, April 1 and 2, 2015] and Congressman [March 27, 2015], at Washington, DC). Executive agencies have tended to see it as a legislative responsibility and something out of their hands

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(Kennedy 2011). The industry focuses its narrative on its efforts internally to address accountability issues and claims that if contractors are not being held criminally accountable, it’s due to the poor job being done by the State Department, the DoD, and the Justice Department (interviews with senior industry representatives on February 25, March 2, 5, 11, and 25, 2015, Washington, DC). Oversight agents consider both the legislative and executive branch responsible, and their failure to hold contractors accountable means they are running away from their job (interviews on February 24, March 3, 6, 10, 19, and April 3, 2015, Washington, DC). This is a mainstream opinion within each stakeholder, but, during the interviews, it was clear that within each stakeholder there was a range of opinions. As stated in the previous chapter, field represents virtual space where regulatory process occurs. This space, besides of denomination of the physical spaces where stakeholders interact, sheds light on various aspects addressed on those venues as well. Here are explored those aspects in more detail, starting with an analysis of legislative constraints, continuing with executive obstacles, and briefly touching on political aspects, since in-depth analysis of these follows in the next chapter. They each have their merits, and if any of them are not operational and synchronized, there is no efficient regulation. They all represent rules that need to be put in place and working in order for to whole process be effective. For instance, without proper legislation, there is no legal framework to enable criminal misconduct to be accountable before US courts. If there are no procedures and no willingness to apply firm oversight and continuous improvement on an agency level, even the most adequate legislation may be futile. This applies to the contracting process, the education of personnel, and the understanding and acceptance of risks associated with oversight in a post-conflict operation (vs peacetime). As former Inspector General of the DoD stated One principle that I often repeat—and you might hear about it from some of my experts in this organization because we implement this principle on a day-to-day basis—is one of the foundational principles of transparent government, namely that the rules, need to be prescribed in advance. William Blackstone, in describing this principle, wrote that it is important the government not only prescribe, but promulgate the laws in the most perspicuous manner available, “not like [Emperor] Caligula, who wrote his laws in very small character, and hung them up upon high pillars, the more effectually to ensnare the people”. (Schmitz 2005)

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Finally, if there is no political agreement and willingness to support the application of necessary legislative reform or strong financial support that would assist and enable efficient oversight and prosecution, even the best-looking regulations won’t achieve much. The legislative branch attempts to improve regulation of the private security companies in stability operations that are, in fact, very important since they deal with accountability issues, enabling prosecution of criminal misconduct by contractors, and serving as a dissuasive measure. As addressed in the Chapter 2, there are several legislative elements addressing accountability of security contractors, but a very limited number of prosecutions (and even fewer resulting in effective punishments) demonstrating its inefficiency. The Patriot Act, the Military Extraterritorial Jurisdiction Act (MEJA), and the possibility of prosecuting defense contractors under the UCMJ are all valuable when dealing with the accountability of contractors working for DoD. The fact that major incidents happened under the State Department’s watch, and not under the DoD’s, might prove that existing legislation, up to a point, did serve as a discouragement to misconduct. As a senior DoD official confirmed, the possibility of being prosecuted under UCMJ had that effect on defense contractors: From our standpoint, the military side, we have it under control now because we always had MEJA and then 2008 we reapplied UCMJ against our contractors and it is very interesting UCMJ against contractors, it is not the number you charge under UCMJ that matters, that it is there and everyone understands that is there and we have so many ex-patriots working inside the contracting organizations, anyone who is unfamiliar, it becomes. I don’t want to say it is a chilling effect, but it is a conduct effect thing (interview senior DoD official on April 3, 2015, Washington, DC).

There are numerous flaws within the MEJA and its application. They begin with the fact that it does not include all criminal misconduct, rather limiting its scope to “an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States” (Doyle 2012, 2). Senior military officials consider that such behavior might result in the silent understanding that smaller crimes are acceptable (interviews senior DoD officials on March 27 and April 1, 2015, Washington, DC). However, various stakeholders admit that funding for a proper investigation and prosecution (that would include preservation of the chain

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of evidence, detailed investigation, and preparation of the witnesses and their participation in the trial in the USA) is not sufficient even for the incidents of major misconduct, and the final results are often questionable (interviews with senior oversight officials on March 4 and 19, April 8, 2015 and senior DoD official on April 1, 2015, Washington, DC). Also, there is the argument that charging under MEJA is constitutionally challenging, and, in the case of Green, his defense was rooted in the claim that Congress exceeded its enumerated powers with the application of MEJA (Doyle 2012, 2–3).8 However, the fact that major incidents involved contractors of the State Department just strengthen the argument that existing legislation is not sufficient. The extension of the MEJA to be applicable to contractors belonging to other departments (not solely the DoD) was not a good solution, as will be seen further on. Besides MEJA’s applicability to the State Department’s contractors being contested by defense in prosecutions (Wilber 2009; Williams 2010, 48), and recognized by academics to have unclear applicability (Kemp 2010, 510), it is the main tool used for the criminal liability of contractors working for other departments (not the DoD). There were other attempts to make the contractors of other departments and agencies criminally accountable, the most recent one being the Civilian Extraterritorial Jurisdiction Act (CEJA). Unfortunately, there is still no political consensus on that bill, and this will be addressed in detail in the next chapter. However, the necessity for such legislation joins the majority among stakeholders. In the interviews carried out for this research, only three interviewees (from fifty) considered there was no necessity for more legislation (interviews with a senior DoD official on March 3, a CWC Commissioner on March 6, and Congressman on March 27, 2015, Washington, DC). Their arguments rested on two premises: first, there should not be more legislation but smarter legislation, and, second, a more efficient way to prevent misconduct would be an application of monetary fines and negative evaluations when contracts are broken, since the companies’ bottom lines are then in question. The other 47 suggested that CEJA would be a good start, but is not sufficient. As a senior DoD official emphasized: “Our biggest weakness that we still have today in the USA is that we don’t extend CEJA or MEJA, or something similar, to apply to everyone who we have in the contingency area. Pretty much across the board” (interview on April 3, 2015, Washington, DC). Therefore, there is still a certain legislative void regarding security

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contractors’ criminal liability, which would clear any doubts about the consequences of potential misconduct. As former DODIG, Joseph Schmitz (2005), stressed, having the laws promulgated does not mean they are applied in practice. Their application is dependent on the efforts of executive departments. Beside the assertive contracting process, where there is no doubt about responsibilities and the permitted means to achieve them, nurturing a departmental culture that would support and invest in strong oversight and supervision of contracts, and cooperation with contractors, is crucial. Laura Dickinson had warned that challenges rooted in institutional culture and organizational structure might endanger the core rule of law values (2013, 358–59). This was the stage where, partially, the regulatory process stalled. As the organizational theorists already recognized, internal organizational structure, group norms, and compliance agents can advance or stall organizations’ goals, or goals of the individuals within an organization (March 1989; Meyer et al. 1985; Moe 1990; Powell and DiMaggio 2012). Organizational theory suggests agents tend to be most efficient under certain circumstances. Laura Dickinson (2013, 360) summarized those conditions as (1) an integration of the accountability agent with other operational employees; (2) the strong understanding and commitment to rules and values by agents; (3) operating within an independent hierarchy; and (4) the ability to employ benefits or impose penalties based on compliance. Dickinson applied her analysis to uniform military lawyers, and the same rationale is applied here. The organizational structure and institutional doxa and habitus define how regulatory measures are applied and their dependency on the nurturing or not of a certain culture within the department. This will be explored more in detail, regarding DoD and DoS more ahead. One of important factors to consider in studying how stakeholders acted through regulatory process is their doxas. Those are materialized in a set of unwritten rules that would be indicating the way things have been done as a part of institutional culture. When discussing challenges in the regulatory process of PSCs in stability operations caused by institutional culture, interviewees were unanimous to point their finger at the State Department (even its own officials). There were a number of obstacles mentioned—what follows is a discussion of the five most common. The first was the absence of motivation to invest more in the regulatory process concerning its Worldwide Protective Services con­ tracts, even though, ironically, the State Department led the negotiation

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of the international efforts in the name of the US government on the topic. This was revealed through interviews, when the interviewees from DoS that dealt with security contractors were unsure of other measures undertaken besides placing an officer in every convoy (interviews on March 9, April 24 and 27, 2015, Washington, DC). The State Department attitude to internal oversight problems was that they were resolved with the installation of cameras in every vehicle and the presence of a State Department officer in every convoy (interviews with senior DoS officials on March 9 and April 27, 2015, Washington, DC). Reaction to the major incidents was restricted to security contractors in the State Department and there was no thought that the regulatory issue, internally, should be addressed, and policy developed that would prevent problems from arising in the future (interview with senior DoS official on April 27, 2015, Washington, DC). The oversight of contractors in stability operations was approached as an exception to common practice, not as a new mode of operation, as it was formulated by the DoD (interview with senior DoS official on March 9, 2015, Washington, DC). Secondly, the consequence of such a “problem-solved” approach, and the narrow view of the department about its internal business, was identified by senior congressional officer and CWC Commissioner as an obstacle to improving the regulation of private security contractors. They stressed the disinterest of the State Department with both making more profound changes to how it carried out oversight and supervision of contracts, and with cooperating and becoming more involved with other DoD departments in regulatory practices as a consequence of its Congressional exemption from having to present its business/ accounts to anyone, Congress included, and, therefore, there was no way to obligate it to change its modus operandi (interviews with CWC Commissioner on April 2 and senior Congressional officer on April 10, 2015, Washington, DC). Joint work on the Memorandum of Agreement (MOA) between the DoD and the State Department on usage of Private Security Contractors (DoD and DoS 2007), as mandated by Congress, was an imposed cooperation with the DoD on the Iraq operation specifically, but there was no motivation to continue joint work on regulatory issues for other situations (interview with senior DoD officer on April 3, 2015, Washington, DC). The rejectionist attitude toward suggestions that would improve regulatory policy toward contracting in stability operations, in the long run, was publicly visible in the hearing of CWC, where Patrick

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Kennedy (2011), Under Secretary for Management, refused suggestions for improvement given by the CWC. The defensive attitude of State Department officials is not uncommon. Senator McCaskill made public her letter to Patrick Kennedy. She wrote, “I have written to you nearly a dozen times over the past five years raising concerns about contract management. When I have raised these concerns, you have repeatedly responded that the State Department’s contract acquisition and management are adequate and that the Department is making improvements” (Hudson 2014). The suggestions made by the CWC were the result of the State Department’s inexperience with contracting in stability operations, which often defended its lack of initiative as being caused by insufficient staff and budget. This was supported by the opinion of senior oversight officials. When asked about the attitude shown when some improvements are suggested, they stated that State Department would generally answer, “We are fine!,” followed by, “Thanks for asking!” (interviews with senior GAO officials on March 4, 2015, Washington, DC). As one of them further justified, “Lot of these are business as usual. And so, when Congress makes rules government-wide, I think that was some enforcing tactic from the State Department. It actually had to work with other federal agencies, and when new regulations were coming out at a federal level, it wanted to make sure that those regulations don’t adversely impact the State Department.” Third, the zero-casualty policy was highly contested as a serious problem that might even act as an incentive for contractors to use excessive force. In conflict-prone zones, inevitably, the security situation is unstable, and, therefore, some casualties are expected. The State Department policy was/is no casualties allowed, no matter the price (including eventual civilian casualties). One former State Department official explained that such a policy and practice was understandable in the institutional framework, particularly due to the nature of the business the State Department had in Iraq (interview with senior DoS officer on March 9, 2015, Washington, DC). In opposition to such view and coming from a culture where casualties are accepted as a reality, the DoD had a different attitude toward its contractors, where they were expected to follow stricter rules. The common suggestion was that the State Department’s zero-tolerance encouraged a cowboy approach to security by its contractors, as opposed to the more disciplined DoD (DeYoung 2007; Elsea and Schwartz 2008; Kovach 2010). An industry representative, involved

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with companies working for both departments, stated the differences were unmistakable, ranging from what was expected from contractors to how they dressed and behaved. He said: Something that I think just Blackwater did, I think they did not want to embarrass their client [State Department], so they did things. You see pictures of Blackwater guys and they look like cowboys. And some of them act as well. That was something that in a corporate firm, as Armour Group, you would not see. They can hire the same guy, but in Armour Group, he would wear a shirt and suit uniform, follow strict protocols, and so on, developed through the years, where the newer companies needed to pick up on that before starting to do it. And, of course, they need to follow the protocols of the client (interview on February 25, 2015, Washington, DC).

The protection from criminal suits the State Department’s contractors got from their client unmistakably supported the attitude of zero-tolerance policy for casualties (Fisher 2014). Fourth, the cultural identity attributed to the State Department is one of poor management capabilities (McCaskill 2014), and internal struggles have turned public when the State Department’s Inspector General issued a report, warning on the department’s inability successfully to manage and oversee its security contractors (DeYoung 2009). Claire McCaskill and others stated, on various occasions (Hudson 2014; Keyes 2011; McCaskill 2014), that it’s insufficient monitoring of oversight was publicly known. Even though the State Department’s problems in the contracting process did not appear on the front page, it has been recognized by people who were involved. For instance, in 2010/2011, after repeated complaints by other competing companies of the lack of fulfillment of the minimum requirements by the company to which a contract was awarded, three out of four of the most senior contracting officers were removed from their positions. This information never became public and was facilitated by a former senior DoD and State official who was working for the State Department in that period. He stated: the State Department had a bunch of contractors that were to replace DoD in Iraq and Afghanistan, they issue four contracts, all of which were protested by the contractors that did bid in, all 4 of which were returned by GAO, because the contractor to whom it was given award actually did not meet minimal requirements, but they said they did and then the State Department went right on. And so what happen there is (…) 3 of 4, or

128  J. JEZDIMIROVIC RANITO all 4 of the State Department senior contracting people were transferred or let go or whatever. (…) (what happened is that) the State Department awarded them to the lowest cost bidder whether they really met criteria. State Department says that they use the best value contracting but they really don’t. They usually go with the one that meets the minimal requirements, but if they don’t meet the minimal requirements the contract is protested (by other bidders) and award goes to a next (interview on March 27, 2015, Washington, DC).

Still, the policy behind their decisions continued the same: contracts were awarded to the lowest bid and oversight of performance was usually done by their competitors in the bidding process (interviews with senior industry representatives on February 25 and March 25, 2015, Washington, DC). Lastly, even when regulation is promulgated and then applied correctly with conviction by the respective departments, there is the issue of the application of penalties in the event of criminal misconduct. Here is seen the political commitment to apply coercive measures and to deter future misconduct by applying criminal penalties to individuals who commit such misconduct. It is a political issue because government needs to allocate adequate budget/funds and personnel and to monitor closely the tools available to the DoJ to deal with perpetrators and bring them to justice. Starting with the premise that the MEJA application requires tight cooperation between the DoD and DoJ, the procedures that must be followed to make it possible to prosecute cases under MEJA are more complex and bureaucratic than under UCMJ. The necessity to run procedures past a high-level DoD official makes some military officials reluctant to pursue investigations and those are not later valid for the prosecution (Cullen 2009, 533). The practicality of it, even when the DoD contractors are considered, has been questioned by a retired colonel, an expert in counter-insurgency warfare: With all the times we have had people shoot at the villages in Iraq and Afghanistan, there were only a couple who have been tried and convicted, for a good reason. You don’t want to second-guess squad leaders in hostile environment, has to be an outrageous massacre in the village where they killed 16 people, even then it was extraordinarily difficult to conduct the trial. How do you get witnesses from Iraq? Forensics don’t exist. If it was a fighting area, you probably moved out of the area quickly. Even if you go back, the locals aren’t expecting anything so they buried the dead. You are

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really going in the village that is already stirred up and say hey we want to dig up all your dead and take them away and autopsy them? So you get religious beliefs too. All of those things make the practical extraordinary difficult (interview on April 1, 2015, Washington, DC).

But, even when it is possible to conduct all necessary procedures, the ultimate decision regarding whether the DoJ will prosecute belongs to US attorneys: Upon receipt of information from command authorities that a person subject to the Act’s jurisdiction has committed an offense in violation of Section 3261(a) of the Act, the US Attorney for the District in which there would be a venue for a prosecution may, if satisfied that probable cause exists to believe that a crime has been committed and the person identified has committed the crime … file a [criminal] complaint (Code of Federal Regulations, 2015, sec. 3261 (a)).

In deciding if a case will be prosecuted, US attorneys need to consider the resources available to conduct the prosecution, since MEJA prosecutions draw from the US Attorney’s budget and personnel. When viewed in combination with the other considerations they have related to the seriousness of the crime—the difficulty of gathering evidence; the difficulty in securing testimonies of witnesses in the hostile area; and competing caseloads and priorities in the US Attorney’s own district—it is no surprise that MEJA cases are rarely prosecuted (Cullen 2009, 535). A senior government official, who used to work as a prosecutor in Brooklyn, confirms such troubles: It is not easy to win a case [even] in Brooklyn. It is doable, you need witnesses, you need a chain of custody for evidence, you need to secure the crime scene, you need to prove intent. How are you going to do that in Afghanistan? I’m not saying it’s not ever doable, but it is a lot harder. So, if I’m a prosecutor, for nº 1 I cannot talk to these people in their native language (…), I already have limitation. Securing the scene? Well, how likely is that? Proving intent in a war zone? How do I prove that he was absolutely negligent unless I have that on cameras? I mean, it is a really hard case to prove. And a really hard case to get a conviction because a lot of people can say “I don’t know. I can see him being afraid for his life.” It is hard to persecute, it is really hard to prosecute. And then, of course, you have political sensitivities. Particularly in Afghanistan, a lot of PSCs were

130  J. JEZDIMIROVIC RANITO either local or third-country nationals. You have all another level of difficulty of prosecution of international politics involved. That put aside, the jurisdictional issues of if a Peruvian private security contractor working for a British company shoots an Afghan national in Afghanistan, now I have all kind of host problems and that might not be, for purely political reasons on the top of my list as a prosecutor, as a US attorney, then you will have a military charge it, they have a whole different system. It’s hard. How do you do it? (interview on March 19, 2015, Washington, DC).

However, in conversation with one senior representative of a trade association, the impression he shared was that such obstacles were possible to overcome if there was a political will for it: So, we [one industry association] pushed hard for MEJA and the pushback came from FBI and Justice Department “well, we don’t have resources to do the investigations”. So there was a guy here, (…) his name was Patrick Fitzgerald, who was US attorney for the northern district (Illinois) who had fraud teams and stuff, not just for Iraq. We had a meeting with him and talked what they do for fraud detection. And I asked him this question [of application of MEJA] and he said “we do it all the time. We go overseas all the time.” He thought that was a bogus question. The Justice Department could deal with them. What you do is set up a set of standards because if you have a military police and NCIS doing initial investigations, they know how to do crime scene control, they know how to collect evidence and protect evidence and chain of custody and all that, so even if you are not right here that day, you were here when police car shoots up, you can come up behind and follow through. So, it frustrated us because on some level the resistance to expand MEJA was partially by people who didn’t understand why it was important. Partially because of the people who knew exactly why it was important and didn’t want to do it because then it would actually sanction this kind of contracting (interview on March 31, 2015, Washington, DC).

That political willingness needs to be found not only in the attribution of sufficient funds to make it possible effectively to prosecute, but to improve accountability legislation applicable to any security contractor operating under a US government contract. The political will, and investment by Price and Leahy in Congress on the CEJA bill—that would cover some loopholes of MEJA (including federal violence, corruption, and trafficking offenses)—is a long time coming since its first introduction by Price (2007).

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4.6  Regulation Is Done and Over Variations of this argument (i.e., the approach of introduction of quality standards in procurement policies worked and so regulation is now much better) are often heard from scholars both as part of public opinion in media (Avant 2016a), and also on public events, such as international academic conventions.9 It is not uncommon to hear it among practitioners as well, particularly between Congressional and State Department officials (interviews on February 23, March 9, 13, and 27, 2015, Washington, DC). Hence, the regulatory process is ongoing, and numerous seemingly small changes do continue to occur. ISO 18788, an auditable international security operations management standard, was concluded and recently included in the US (DoD) and, later, DoS procurement policy. Focusing on the word “process,” it is important to see regulation as a living thing, and it does have different phases of life. To understand it fully, we should observe the behavioral changes of the players and depart from the premise that there is no straightforward analysis of the behavior of stakeholders in the regulatory process. Along with the shift from government being a provider of security services to being a supervisor of its outsourcing, a multiplication of stakeholders occurred. The resulting distribution of regulatory power, once held solely by the state, caused a change in the dynamics of the relationships among the stakeholders. The consequence is both an advance and a delay of the regulatory process. The stakeholders are not homogeneous, static, or unanimous, and that, in turn, makes the process dynamic and continuous. When considered the expansion of stakeholders (from government to governance) and the consequent shift in power, voice is given to elements previously not impacting the private security regulatory process, namely, human rights organizations, non-governmental watchdog groups, and government oversight and watchdog bodies, such as CWC, GAO, SIGIR, and SIGAR. Those last mentioned actively shape and influence the mode by which government agents and industry respond and behave about regulatory policies. Even though these newly empowered stakeholders cannot directly affect certain regulatory practices, as the other stakeholders can, their input is very important. Never does it cause an immediate reaction to all the concerns that are being raised, but it does serve as an element that can shed new light and give rise to new considerations that otherwise would not be addressed. The work on the standards was a very good example of how different stakeholders, no

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matter their effective power, influenced the outcome of a very important regulatory tool. As a senior DoD official stated One of the most important things about PSCs is that they operate in intersection of war law and human rights law. And if they were only operating in war law issue it would be so much easier. But we are not. Sometimes we are saying: does War law apply? Does Human Rights Law apply? and how that works. In that way we need to listen to all those people and they don’t have answers either. But they might have insight that we don’t have. So, for example, standard for PSCs is the first standard anywhere that has incorporated a perspective from civil society. So, we really set down and made sure that, Rebecca DeWinter Schmitt in that time represented Amnesty international, so we were careful to make sure that we understood her view. We didn’t always agree with it, but we understood it. I mean there were times that she was not able to be on the working, drafting session. And I would actually argue her position for her. If she was here she would say this. I don’t agree with that, but that’s what she would say. I think that we came with some very good solutions (interview on March 18, 2015, Washington, DC).

What is important to learn from past practices are the actions and reactions that have shaped the regulatory process through the time. There was no one stakeholder that could be considered the main regulator; they all stated their opinions and hoped to influence the ­lawmakers and regulators in a fashion that would benefit their interests. As an example, senior DoD official explained its input into legislative proposals: “we send report up, then generally they (Congress) give us (DoD) an advance copy of what is proposed legislation so we get the chance to review and comment on it, and then send back and sometimes they pay attention on what we say, sometimes they don’t” (interview on March 18, 2015, Washington, DC). Government officials I interviewed in Congress noted that the lobbying was exercised by industry, NGOs, and governmental oversight bodies. And even though they employed similar means, their ends were very different. Generally, the industry representatives have been considered often to complain about costs and to claim it would be impossible to execute their contracts if certain new rules were put into practice (interviews on February 26, April 1 and 10, 2015, Washington, DC). This has been seen as both a positive and a negative. As a former US Congressman explained, industry should influence and express its concerns since they are the ones who know “what are the stakes in

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performing their job. Sometimes, PSCs are trying to do their best and others, they influence regulation in order to reduce their costs” (interview on March 27, 2015, Washington, DC). That discourse was recognized by industry representatives as well. Senior industry representative stated “there was a lot of “we are going be providing these people security so you need to understand what we can and what we can’t do.” And I think they [government representatives] listened to a point, but I also feel that some of the requirements are very heavy handed and very difficult to pin in contracts, from the economic point of view (interview on March 2, 2015, Washington, DC). However, there was no guarantee their lobbying efforts would produce any results. Rather, the negotiation among all of those different interests will hopefully produce an outcome that will push all involved in the process to do more than that which they were comfortable. Here are two examples of such experiences. One senior DoD official explained, “my background, for example, was 30 years in the military. I understand how to deal with soldiers, I know how to train soldiers, these PSCs personnel are not soldiers, they are protecting civilians who are not used to be shot at, and so they have to take those considerations too, so we have to listen to them, because whatever we come up with again it can’t be ideal, it must be realistic” (interview on March 18, 2015, Washington, DC). The senior industry association representative stated that requiring implementation of higher standards is desirable because “if you create a standard higher than everyone is going to agree, you are going to leave aside small companies that don’t want and can’t comply. It becomes a barrier and cost to do business, but it is a necessary barrier and cost (to protect from, for example, human trafficking)” (interview on March 25, 2015, Washington, DC). Congressional hearings, the CWC hearings, individual meetings with Congressmen and their staff, the meetings promoted by departments— such as the ones for the discussion of the PSC.1 Standard by the DoD— even different conferences and summits (industrial and academic), represent venues where different stakeholders can interact and hear the troubles and proposals of other stakeholders. They all represent interactions among stakeholders in the field, and they strongly influence regulatory policies and practices, as well as actions and reactions of various stakeholders. If observing the law-making process, as one former industry representative formulated, “government is a really big slow-working machine, difficult to move without a lot of support behind it. In my own

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role, in trying to influence regulation, and craft policy, that may be an ability to generate ideas, but ultimately the government ‘sausage factory’ we call it, takes all these inputs in and kicks the solution off on the other end, but it is beyond the influence of any individual or group of individuals” (interview on March 12, 2015, Washington, DC). The NGO’s input on the Hill has been generally seen as desirable (various interviews with senior Congressional staff and a Congressman); however, the opinions about the weight and importance of their stands vary. While some Congressmen consider they bring important insight of what should be taken into account while legislating PSCs in post-conflict operations—for instance Congressman Price highly valued their input (interview with senior Congressional officer on March 23, 2015, Washington, DC)—others consider their input very limited since “they are not having their life put in the bag every day. They usually don’t know what they are talking about” (interview with Congressman on March 27, 2015, Washington, DC). Senior Congressional officials generally considered them to be very useful since “they were usually very sharp and very helpful” (interviews on February 23 and April 2, 2015, Washington, DC). The input of the watchdog groups, POGO, for example, was considered important in drawing public attention to the problems of contracting in post-conflict operations. A senior trade association representative stated “you get groups like POGO, and others, who were criticizing the fact that we were using PSCs, and the fact that there was no jurisdiction to prosecute misbehaviour and so forth. And, at some elements, they were correct. I disagree with their premises you shouldn’t use it, but I agree that, actually they did expand MEJA somewhere, but didn’t go all the way, that was part of the problem” (interview on March 31, 2015, Washington, DC). Making the public aware of the existing problems was important and the watchdog groups, together with the media, created a certain pressure on the legislative branch (Amey 2010; Brian 2009; Gordon 2012, 2016; POGO 2014), who consequently demanded and sought out more reaction by the executive branch (Chesterman 2009; Isenberg 2012; Risen and Rosenberg 2015; Shachtman 2007; Thompson 2009). Therefore, watchdog groups made an important contribution to the debate about those particular issues. The input by oversight bodies, namely SIGAR, SIGIR, GAO, and including with them the CWC, has been received well by all stakeholders. The general feeling from interviews was that their main contribution was

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in raising issues and pointing to the problems that should be addressed. However, it drew attention that since they do not have direct power to change regulatory policies and practices, they were unfairly tended to be left aside. A former US Congressman pointed out, “I have great respect for SIGAR and SIGIR and GAO, and their reports are very well done and usually do point to very serious problems that should be addressed. The legislative branch should act upon those reports in a better way, and they usually don’t” (interview on March 27, 2015, Washington, DC). The importance and personality of the individual who has led each oversight body (but applied to other stakeholders as well) appear to have had a great impact on the influence that body has had on the regulatory process. As Neil Gordon (from POGO) stated, “ever since it (SIGAR) has been taken by a guy John Sopko, he has been a very aggressive and effective watchdog over what is going on in Afghanistan. I think they have some influence. I think they have some positive effects on reforms” (interview on February 25, 2015, Washington, DC). Together, watchdog groups, oversight bodies, and the CWC contributed mainly by raising public awareness of the existence of the problems and perpetuating its presence in the public debate, enabling a demand for solutions. If the impact of oversight bodies was considered reduced compared to, for example, executive branch impact, the contribution of the Congressional representatives has been considered polemic. While there is recognition for the legislative initiatives they took, there is also the other side of the coin, meaning the political theater Congressional hearings often were. As one of the interviewees noted, not many facts came from hearings (interview with senior legislative aid on February 26, 2015, Washington, DC), and information demanded from other stakeholders could have been provided in written form and without the presence of the media. Particularly were famous hearings held by Henry Waxman. Industry claims he just wanted a media show, that he was not really interested in solving the problem or studying it more closely. This opinion was explained by one trade association representative: He was all about the wrangling. He wanted to be in the lead position, to be a big issue. In one point, after the Erik Prince hearing, he tells every company who has life security guards in Iraq, he wants basically every single document that has ever been produced, every contract, every report of every casualty, every firing weapon discharge, he wants all this stuff. And that is a lot of material, we were in 2007/8. And so, the companies were

136  J. JEZDIMIROVIC RANITO literally spending the millions of dollars on compiling this stuff, packing it and shipping it over to his office. In some cases, the company had in their contract, government contract, said that if something like that happened, just charge government for it. It was all this additional work, but whatever. So, all these boxes and boxes and boxes were sent up and Waxman was so focused on this issue and another issue pops up (drug abuse by baseball players) and he was gone. That was it. On that Committee, I knew one of his staffers very well, so I asked him what happened to all these boxes of information, and the guy didn’t know, they were probably mopped ­(interview on February 25, 2015, Washington, DC).

However, the media coverage did have some positive effect. On one hand, keeping regulatory problems in the media, even through coverage of hearings, permitted educating the public about the issues that were discussed in general (interview with scholar on March 2, 2015, Washington, DC). It brought pressure to political elites to act upon regulatory problems and, on occasion, served as an impulse to advance the process. One senior CRS analyst stated, “events that occurred in Iraq and Afghanistan, where things were perceived to gone wrong, and resulted in significant media coverage, resulted in Congress and the DoD and, to a degree, the State Department moving to see how to regulate it” (interview on March 19, 2015, Washington, DC). Furthermore, a senior DoD official stated, “when there is Congressional interest and media interest, in these [regulatory] things, suddenly I have three sources of authority [DoD, Congress, and media] to comply against vs. now when I just have to try to convince people this [application of the management standards and education of CO and CORs] should be the way we do it” (interview on March 18, 2015, Washington, DC). On the other hand, when media pressure is off, the political pressure decreases as well. As a former CWC Commissioner stated, “when we issued final report it was the starting point to do something. But by the time we issued it, there was not a whole lot of attention because it was a yesterday’s news. This is the post-mortum. To drive further reform, it will need to be again addressed by media, absolutely, then people would need to focus on it. Consequently, Institutions would need to focus on it” (interview on April 2, 2015, Washington, DC). In a previous chapter, attention was drawn on the importance of the context on the dynamics that occur within and among stakeholders that ultimately have effects on the regulatory process. Certain events

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and their timing hold an important role for the achieved outcomes. The stakeholders do not continue to hold the same motivations for the advancement of the regulatory process as time passes. For instance, the Congressional input was the most intense in the period when major incidents occurred in Iraq and Afghanistan (CWC 2011; Leahy 2010; Price 2007, 2010; Sanders 2007, 2010; Schakowsky 2007, 2010; Waxman 2007). As many of the interviewees recognized, being a “hot topic” certainly influenced the regulatory process, particularly between 2007 and 2012. The motivations were found in the need to justify the continued use of security contractors, and, therefore, the political approach was to clarify the contracting process and to improve accountability. The executive agencies only approached regulation of contractors from 2007 onward and more intensely after the Nisour Square incident. A senior DoD official claimed the issue of contractors was raised for the first time by the DoD in 2006, when 2007 NDAA was discussed. The first serious steps regarding regulation were taken only after 2007, when Congress mandated both the DoD and State Department to work on harmonization of the procedures (interview on April 3, 2015, Washington, DC). State Department approach has been very different to that of the DoD, and it certainly has to do with the habitus and doxas of the Department, and their impact on comprehension of importance of the policies on this subject. From early on, the State Department assumed that the use of security contractors in such a fashion (as it was used in Iraq) was a one-time event, not something that would be repeated. Its interest was to find oversight mechanisms that would be sufficient to satisfy public opinion, as well as Congress. Since there were no major incidents later on, and after the drastic drop in the number of contracts in Iraq and Afghanistan, the issue has been put on the back burner. In the hearing in 2013, before Senate Homeland Security and Governmental Affairs Subcommittee on Financial and Contracting Oversight, Patrick Kennedy (2013) announced that the State Department had been working on improving oversight both by increasing the number of CORs and improving their training, and expressed the intention of the State Department to continue to work on those issues in the future, but without firmly establishing any goals or framework. Initially, industry approached the issue from the standpoint that more regulation meant more costs for companies (through additional training, supervision requirements, mandatory reports, etc.) and, therefore,

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the best approach would be a delay of further regulations. Former Congressional aide/industry representative recognized this: “in every initiative, it is delay, delay, delay is definitely the tactic. If some of them where maybe self-preservation? Yes. Some of them may be genuine disagreement with policy. It is toolkit of advocacy if you don’t like regulatory or statutory or legislative reform, not only industry, the Congress does this all the time. The Congress mandates the topic be studied, that is essentially delay. Sometimes the people who are looking for legislative action, sometimes it is the only way the process can be made” (interview on March 12, 2015, Washington, DC). After the Nisour Square incident, however, part of the industry recognized that without some regulatory mechanisms setting higher standard requirements, the industry may be completely cut out, particularly after the strong negative wave of public opinion. This opinion was shared both by former and present senior DoD officials and by industry representatives (interviews on March 18, April 1, 3, and 4, 2015, Washington, DC). As a former vice-president of one of the biggest private security company stated, “the people recognized that Blackwater would drag us down, if we let it. Making us all look bad. If the industry gets painted with one paintbrush and all go with evil PSCs. No, not all PSCs are the same and we need to do better” (interview on April 4, 2015, Washington, DC). Consequently, a number of companies incorporated higher standards for a veto and oversight of their employees, leaving them with higher costs than those that did not (interviews with trade association representatives on February 25 and March 25, 2015, Washington, DC). Investment in quality standards allowed certain clean-up of the industry’s image and highlighted their availability to invest in the prevention of future (serious) incidents, such as Nisour Square. Regulatory efforts on the part of the industry that provides high-end services were stressing the division of industry on the ones that were there for the long haul and others that seek short-term profits (interviews with trade association representatives [February 25 and March 25, 2015] and senior DoD officials [March 18, 2015], Washington, DC). Without leveling up the field regarding cost versus quality, they would be outbid in the contracting process by the companies offering a low-quality, low-budget alternative, not solely domestically, but rather globally. In that sense, introduction of regulation of the quality of service provided, and the rise in quality standards, has been seen as a positive, and

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has been welcomed by bigger companies who plan to stay in the industry for the long haul (interviews with senior DoD officials (on March 18 and April 3, 2015) and industry representatives (February 25, March 12, 25, April 13 and 14, 2015, Washington, DC)). With a perspective of reducing US government contracts, expansion on the global level has been a strong motivator to level up the competition. The global private security market in unstable environments includes much more than the support of governmental activities, such as the DoD and State Department. There are a lot of NGOs, both working in development and humanitarian assistance that employ security services. There are other logistic companies that need security support for their contracts. There are numerous International Organizations (NATO and the UN are just some examples of it) that count on the private security contractors. Usually, these services are provided by low-cost alternatives since there is no awareness of the differences in procurement policies between the services provided by low-cost or high-end, and they would opt for the lower budget in that case (Donald 2006; Østensen 2013; Perks 2012; Spearin 2008, 2011; Stoddard et al. 2008). The global acceptance of higher standards would give the opportunity to high-end companies to take a share of it since, until now, they consider the market as unequal (interview senior industry representative on March 25, 2015, Washington, DC). On the other side, there are a number of NGOs and the ICoCA Secretariat arguing that standards—and the high costs of complying and getting certified to them—may be shutting out a lot of small and medium-sized enterprises from the market (interview with scholar/NGO representative February 27, 2015). Where we are heading with this exposition is to demonstrate that there was no unique dynamic or trend in the behavior of any of the stakeholders. The field was affected by various stakeholders, their habitus and doxas, as well by dynamics outside of regulatory process. It cannot be stated that any stakeholder held the same interests the whole time, nor that some stakeholders were active and others passive. All of them adapted their behavior according to the development of the process, the influence of the others, or incidents that would call back attention to the problems (such as the Benghazi issue or incidents in the Kabul Embassy).10 In the process, every small step had a cumulative effect. The improvement in the quality of security services provided, and the recognition of the new standard internationally, as occurred with the acceptance of the PSC.1 and ISO18788, are two of the steps taken on

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that path. As Christopher Mayer, director of Contingency Contractor Standards and Compliance said: “This international initiative raises the bar for quality and ethical private security company services. We recommend that clients, both governmental and non-governmental, around the world adopt this standard for their contract with private security providers” (Globe News Wire 2015).

4.7  Lack of Transparency Is a Private Sector Problem Summing-up opinions about transparency/secrecy would result in something like lack of transparency is mostly industry related because the industry is secretive and unapproachable. This is the last piece of conventional wisdom to be discussed here. Since it has been repeated so many times (Chesterman and Fisher 2009, 2: 224; Scheimer 2008; Sié ChéouKang Center for International Security and Diplomacy and DCAF 2012; Stanger 2012; Bruneau 2011, 112), it is commonly assumed to be true. Reports (2012, 2–3) resulting from the workshop organized by Sié Chéou Kan Center and DCAF identified as one of main obstacles hindering regulation lack of transparency of company operations. Dunigan (2011, 46) called “inherently secretive nature of the industry and their work” one of main obstacles to more studies of the privatization of security. It is not the intention to claim that the industry does not lack transparency, it certainly does; but it should be understood why the industry acts as it does, and to stress the lack of transparency and accountability in the public sector as well. There are (at least) two sides to the story where transparency of both stakeholders and process are concerned, and they need to be addressed here. The unapproachability of industry, often recalled by media, should not be a reason to step back from the quest for explanations for a lack of transparency. Without insight from industry, informed opinion and analysis could not be made. Lack of transparency, when considering stakeholders and their practices, under no circumstance is solely a private sector problem, and contracting departments have demonstrated more than once that secrecy is very present in the public service as well (Isenberg 2009). The limited access to information available to either Congress or citizens (regarding both private security contractors and those involved in regulatory

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process), and the very high percentage of documents that require Freedom of Information Act (FOIA) application, demonstrate this very clearly (Sié Chéou-Kang Center for International Security and Diplomacy and DCAF 2012). The first question one crosses, when beginning to look at the regulation of private security, and stakeholders themselves, is why is there not more transparency regarding the provision of security services in stability operations in general? To answer it, another question must be asked first: why are the companies not more transparent about their business in general? The starting point here was that there must be more to it than just military culture and industry competition, as stated by some before (Bruneau 2011, 112). That opinion has been sustained in the interviews with industry representatives, particularly by their explanation of how contractual relationships between companies and contracting agencies influence information flow and what the expectations are of the contracting agencies regarding transparency of the companies (interviews on February 25, March 2, 5, 11, and 25, 2015, Washington, DC). The second point is that public institutions, like contracting agencies and Congress, should be also scrutinized for their part in lack of transparency. There is no benefit in mystifying one stakeholder when, as past practices have demonstrated, the public service can be very secretive as well. In the case of the US government agencies, as curious as it might seem, the DoD has been more transparent in its actions than the State Department, as this has been demonstrated in earlier chapters. That applies to DoD’s openness to explain to the public and academics its point of view and its processes, also. In interviews, this transparency was confirmed by academics and practitioners, validating their openness and availability to share its work (interviews on February 20, 27, March 4, 9, and 19, 2015, Washington, DC). Industry association representatives confirmed DoD’s continuous participation in the industry organized summits and its receptiveness to present its intentions and hear others’ opinions (interviews on February 25 and March 25, 2015, Washington, DC). Such openness was part of DoD’s habitus and doxa. Also, historical relations between the DoD and Congress account for much of it as well, since DoD is subordinated to Congress (interview CWC Commissioner, on April 2, 2015, Washington, DC). In contrast, the State Department’s habitus and doxas were different, as is its relationship with Congress, and it affected their willingness to be more transparent as well. As a former

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CWC commissioner stated, “The State Department also sees itself as it does not believe that constitutionally it needs legislative oversight. So, if legislators let them get away with that, then Congress lets them get away for years and years” (interview on April 1, 2015, Washington, DC). Starting with industry’s lack of transparency, as established previously to be part of their habitus, companies are hiding their operations to protect their businesses. Fast survey through major companies reveal they do not openly share information about their projects, the websites of PSCs, by unwritten rule (doxa), contain very scarce information, and certainly there is no institutional structure or email contacts of their senior officers or leaders available. As various industry representatives stated, industry has a tendency not to volunteer much information for various reasons. One of the more obvious reasons is most of the founders and very senior directors are former military officers, so secrecy is part of their habitus, inherited from their previous experience (interview scholar on March 2, 2015, Washington, DC). One industry representative indicated the reason for being so cautious about public exposure, whether by interviews with media or academics, is that more often than not the industry is painted as a “bad guy” and blamed for everything that goes wrong, even when they are only doing as instructed (interview on February 25, 2015, Washington, DC). The industry does take its privacy seriously and there are companies that have gone as far as threatening their employees over media exposure, particularly after the larger incidents. A former industry representative confirmed that his company threatened employees with lawsuits that would leave them bankrupt and without work in the industry if they disclosed any information regarding the company. He personally was told that contact with journalists would ruin any chance of him getting a promotion, and could get him fired (interview on March 2, 2015, Washington, DC). The academics have called numerous times of unavailability of quality data sets (Swed et al. 2019, 239; Cusumano and Kinsey 2015), and in conversations for preparation for the interviews, many scholars called attention to difficulties reaching relevant senior industry representatives. My personal experience was quite opposite, as I reached 9 top senior industry representatives in the course of interviews. However, I agree this is not a standard, and the reason might be found in various circumstances. First, regulatory topic, when I approached interviewees in 2015, was not a hot topic anymore, and I assume the contact and information gathered would be very different some time before then. Second,

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the type of data/information for which I asked was not confidential and most of the time was an account of an impression and personal point of view about process and events, rather than revealing quantitative or sensitive data. Third, after raising quality standards, there was a growing number of public events where both government officials and industry representatives were present, both as speakers and members of the audience. Access to industry representatives became much easier than it was a decade ago. One of those events is a yearly summit organized by one of the trade associations. Fourth, probably before the adoption of PSC.1 and ISO18788, or even ICOC negotiations began, there was certain stigma within academic habitus over the role of the PMSCs both in the regulatory process and their business model (i.e., doxas such as profit-driven in pejorative sense, ignorant to respect of human rights, unlawful, mercenaries). However, times changed and academics are more present at those events as well. This was recognized by an industry representative who stated, “we were on our way to be open as possible on everything, so every time we had a conference, we invited everybody we could. (…) in every conference we did, journalists had a free ride, academics have an academic fee which would be waived if they would bother to ask us, and often they wouldn’t even bother to ask. And so, you know, a lot of academics are very welcome at all our conferences, and there is a belief that we are this very secretive industry, but we are really not” (interview on February 25, 2015, Washington, DC). Another question is, if they could be approached but could not/ would not share more information, the question raised is “Why?” Several interviewees claimed industry could not volunteer its side of the story to the public or media because the client (contracting department) would not allow it (interviews senior industry representatives on February 25, March 2, and 11, 2015, Washington, DC). This has been publicly recognized as well (Isenberg 2010). The State Department was particularly identified with this practice by several company representatives interviewed. One senior industry representative explained how a particular company managed to talk to the press and give its side of the story, ignoring the State Department’s instruction to remain silent: So one of the major security companies, there was some bad news about them in the press and it was inaccurate. When the journalist, I think he was from the New York Times, wanted to do an interview with one of the people involved they went to the State Department and asked “can we talk to

144  J. JEZDIMIROVIC RANITO this person” and they said no. So the company did, and they usually don’t because of the relationship with the client. They went to the chief counsel and asked: “can we find a way to talk to these journalists?” The chief counsel sent a letter over to State Departments saying, you know, we would like to talk to this particular journalist, if you have an objection to it please give us an objection in writing. And State cannot do that. So, they never got fired but they got criticized so they don’t want to do that. So, they were able to talk to the journalist and give their side of the story. But as a company, your concern with the client will not allow you to do that. And coming back to contracting process, it may have been the main impact on the contracting process and they do not want to lose billions of dollars’ worth of contracts (interview February 25, 2015, Washington, DC).

On the question if that happened just with State or as well in DoD, senior industry representative answered: “Both of them had a policy that without permission you can’t talk with the press. I think that State made a bigger deal out of that then the DoD did” (interview on February 25, 2015, Washington, DC). The necessity to keep the client happy, and not cause avoidable tensions, is confirmed by one former senior official from Academi: “the State Department is the biggest customer of the PSCs within US government and pretty much everybody wanted to be on the State Department contract, and if you wanted to be there you had to follow their rules” (interview on March 2, 2015, Washington, DC). Of course, taking this argument for the face value—blaming the client for all secrecy –would be as wrong as blaming it solely on the industry. Besides, the fact that the client would not allow it, senior industry representatives recognized that journalists were not coming to talk to them unless it was related to an incident. Senior industry representative stated: Nobody calls them [now]. I mean you will never see headlines say Triple Canopy did a great job doing security for Government in the New York Times. (…) If you look at the New York Times over the years they just didn’t try to understand industry, there are several journalists, but they never left their offices in New York. They never went out in the field, and they never bothered to understand how contracting works, how bidding works, how rules and regulations work. At one point in the New York Times they wrote article/editorial on industry probably 2004-5, and he was so wrong, ok I didn’t like what he was saying but what he was arguing was totally, in contracting, was impossible to do. (…) It doesn’t make any sense. If they did base their argument of facts and we didn’t like it in

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industry, fine, we could deal with it. But if they are basically saying nonsense, it just doesn’t make any sense (interview on February 25, 2015, Washington, DC).

Therefore, there was a weeding of journalists who were considered interview-worthy, and others that were straightforward refused. A former senior industry representative further claimed that when industry recognized someone as a serious journalist, who would do a fair analysis and deep investigation, it would occasionally be open to discuss parts of the business (interview on March 2, 2015). But industry’s doxas are just supporting the privacy and secrecy as their nature and arguing that the opposite would possibly damage ongoing operations. Still, the events organized by trade associations are open to the public; and, during those events, it is possible to interact, not only with high-level industry representatives, but with NGO representatives, senior governmental officials, and academics. As one of the senior industry representatives noted, this industry is no more secretive than any other (interview on February 25, 2015, Washington, DC). Industry transformed the model in which it operates and stressed its similarity to companies in any other industry by adopting the same business development model, structure, and organization (Censer 2012). Also, it is important to note the level of information that is being shared by PSCs with the multi-stakeholder ICOCA. There are not many industries where companies are asked to share that amount of information and allow monitoring of their activities (Buzatu 2015, interview with scholar/NGO representative on February 27, 2015, Washington, DC). From personal experience, without knowing anybody from the industry beforehand, I can confirm such an attitude. Generally, they were very open and available to answer my questions, after promising them anonymity. And so, after observing the industry’s lack of transparency, the focus is now shifted to the situation detected in the public sector. The departing point here is not stating that lack of transparency within public institutions was not recognized, because it certainly was; rather to stress the lack of scrutiny and intensity of demanding more transparency in comparison to industry. The information publicly available is often very limited, and, in many cases, possibly available only after filing a request under the FOIA. When consulting the websites, particularly of the State Department, one can easily give up after hours of research without

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understanding even which office deals with the regulation of security contractors. The methods by which the agency conducts the contracting process, as well as oversight, are often dubious (particularly with immunity given to contractors after Nisour Square and the firm stand on zero-tolerance policy when it comes to protection of State Department’s employees lives), which turns public opinion even more hostile regarding private security. The lack of transparency may give the impression of a lack of regulation, or that information is being hidden, even when that is not, in fact, the case. Personal experience proved the DoD to be very transparent and open to sharing its advancements and challenges in the regulatory process, the State Department confirmed the opinion of its inaccessibility. The few attempts to talk to people from Diplomatic Security, closely involved with regulations, did not give results. Even though I had been recommended by their colleagues/friends, after months of attempts to get clearance to talk to me, their superiors refused them clearance and advised them not to keep contact. The other area where transparency is expected is in the contracting process. The lack of competition in the early years of the Afghanistan and Iraqi operations was unavoidable, due to a tremendous increase in the number of contracts in a very short time. However, such circumstances would be expected to have improved a decade later, particularly when considering such behavior is in breach of legislation from 1984 (Competition in Contracting Act) that promotes “full and open competition.” The GAO annual fiscal report for year 2003 (GAO 2004a) shows that from 25 contracts that have been examined, 14 of them (56%) have been awarded without competition. Vindication of the DoD in the case of awarding a $1.2 billion contract to KBR in 2003 without competition was that it considered all companies available on the market and chose the one it considered uniquely capable to provide the services within the required time frame given classified pre-war planning requirements. The 2013 GAO report finds that competition in the last 6 years has declined and that there are a number of cases considered problematic (GAO 2013). The lack of transparency in contracting can result in huge and unnecessary costs, with excessive spending on outsourcing of these functions and the adjacent waste and fraud (Arnoldy 2011). The problems with the contracting process are related to the regulatory process since the bidding process sets the minimum required conditions companies need to fulfill to be eligible to bid for the contract. Irregularities in the process

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occasionally happen and an extreme example was the State Department in 2010/11, where all senior contracting officers had been fired or transferred as a consequence of repeatedly favoring the companies that did not fulfill the minimum required conditions and so should not have been considered for the contract in the first place, much less contracted. The case was treated internally and there are no publicly available records of it (interview with former senior DoS officer on March 27, 2015, Washington, DC). That the situation was far from resolved was supported in the GAO report in 2013, calling attention to the corruption and problems in the contracting process (GAO 2013). In the relationship of contracting departments with industry, there are also gaps regarding transparency. A senior industry representative stated that major misconduct occurred because there was no clear contract explaining what was permitted and what was prohibited (interview on February 25, 2015, Washington, DC). At this point, the industry considers the best regulatory tool to be the contract itself, and everything that the government/department wants to be done, and the way to do it, should be specified there.11 However, that lack of transparency in the contractual relationship means that, at times, favoritism can damage regulatory efforts on the ground. As pointed out in the interviews (February 25, 26, and 27, 2015, Washington, DC), cozy relationships, particularly like those the State Department had with certain contractors, did have the effect of complaints about misconduct or problems with audits and future contracting being overlooked, reinforcing their sense of impunity. Lack of transparency of the agencies toward the general public, particularly regarding why departments have dealt with contractors in a certain fashion after incidents raised red flags among public opinion. The investigation process after the Nisour Square incident was followed by the media very closely and the issues usually not so visible became widely known. The State Department providing internal protection for the contractors after the incident, removing them from the country and not allowing interrogation after the incident by the agents responsible for the investigation, put a dark cloud over the whole industry, giving the public the impression that contractors are protected from justice (POGO 2014). Danielle Brian (2010), Director of POGO, stated that when the State Department was scrutinized for the misconduct of its contractors and inadequate supervision, the issue was concealed and the government officials who tried to change the situation urgently dismissed.

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Moreover, the inaccessibility, even by government officials, to documents relevant to understanding better the contracting process is not a secret. The CWC, in its final report, called attention to “significant limitations” in the access to contracts and other documents considered relevant for the control of supervision of contractors in contingency operations (CWC 2011, 11). Senator McCaskill more than once called for access to contracts and other relevant documents, as well as asking for greater transparency of departments and more accurate reports, including assessment of policy, planning, management, and oversight of contract support by the departments.12 The academic community recognized the lack of transparency and public availability of documents as well and stressed that their unavailability represented a regulatory challenge since it would not allow assessment of the impact of the regulation on the ground (Sié Chéou-Kang Center for International Security and Diplomacy and DCAF 2012). Also, the general public sought the outcomes of the processes resulting from misconduct on the ground, and, often, they have not been available. Most of the cases finished without convictions, and the companies usually settled out of court. As of 2012, there were 14 cases where the DoJ filed charges using MEJA (https://www.wcl.american.edu/humright/center/resources/publications/documents/ YESMontreuxFv31.pdf, p. 92). I was not able to find a number of cases that have resulted in convictions. In interviews, nobody knew the exact number, but, in the DoD, it was assumed that the low number or non-existence of cases from DoD contractors has to do with the application of the UCMJ to contractors since 2008. A senior DoD officer claimed that “it is not the number you charge under UCMJ that matters, that it is there and everyone understands that is there and we have so many ex-patriots working inside the contracting organizations, anyone who is unfamiliar, it becomes. I don’t want to say it is a chilling effect, but it is a conduct effect thing” (interview on April 3, 2015, Washington, DC). I asked for help from a senior GAO official in this quest, and after weeks of research through numerous databases, his office came up with a list where only three cases matched all criteria (MEJA + Iraq/Afghanistan). Even though this number should not be taken as accurate, it demonstrates the trend of legislation application, as well as the difficulties in obtaining information. Understanding that transparency is one of the weakest links in the regulatory process when it comes to security contracting in stability

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operations, it is necessary to recognize that the problem is as much public as it is private. Both departments, Congress, and industry lack transparency in their activities, in the general information made available regarding the outcomes of misconduct disputes and the resulting consequences. Having said that, there is a huge advancement in the information available regarding private security contracts, resulting from measures approved by the US Congress. However, there is still a long way to go before it can be claimed that transparency is adequate and that it does not represent an obstacle to the regulatory process, particularly in the results of its application on the ground.

4.8  Conclusion The goal of this chapter was to deconstruct conventional wisdom that often restricted understanding of the regulatory problems, forcing them to fit into a certain theoretical framework. Often enough, the assumption of clearly defined identities of the stakeholders involved and their interests did not help in developing a more comprehensive approach to regulation of private security contractors in post-conflict operations. The divisions of private and public and any categorization where actors are put into either a black or white box does not contribute to better understanding of their involvement. What this chapter has demonstrated is that there are no good or bad actors, and no public or private modes of action. There is, instead, a gray zone, where actors operate in a way to maximize their benefits, and, in that process, interests and modus operandi get changed. More specifically, the chapter has dealt with how governance has changed the dynamics in the regulatory process and how the process is dependent on the participation of multiple stakeholders, rather than being solely served as the product of political institutions. International and national spheres tend to intersect and influence one another, and it is difficult to separate the national regulatory process from international efforts. The regulatory process should not be reduced in any way: it has different stakeholders that are involved and should consider both Congressional legislative dimension and policies and rules established by contracting departments, from the contracting process to oversight on the ground. The regulation process is a fluid process: it is never ending, it has its ups and downs, and impulse stimulus is never provided solely by one stakeholder. The textbook definition of idealized public institution values make them appear as “the good guys”

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when compared to the profit-seeking, the uncaring image of private institutions reducing the industry’s identity as profit driven. Such segregation is not beneficial for the comprehension of the regulatory process, and, thus, observation of past practices is crucial to understanding the reality. Transparency is an ideal for which all stakeholders should strive, and the lack of it should be recognized by all stakeholders involved. Identifying all of those issues gives a complete framework from which to observe the regulatory process, better understand its flaws, and make suggestions of ways how it could be improved. The next chapter continues to intercross several levels of analysis and further demystify the regulatory process. By looking at the habitus of governmental stakeholders, it seeks to comprehend the regulatory outcomes that have come up and what prevented others instead. It zooms up political, bureaucratic, and organizational dimensions of this regulatory process and offers less known/alternative explanations of the state of the regulatory process we have today.

Notes



1. This Committee is the main investigative body in the US Congress, and has addressed, on several occasions, the misconduct of security contractors, particularly through the period when Congressman Henry Waxman was chairman. The testimonies about Blackwater misconduct on Nisour Square were prime-time events and led to more thorough requirements for investigation of the procedures that PSCs, as well as their employers (primarily State Department), had regarding control and management of their personnel. For more see Hearing Serial No. 110–120 (October 25, 2007), Hearing Serial No. 110–89, October 2, 2007, Hearing Serial No. 110–11, February 7, 2007; Hearing Serial No. 111–13, June 10, 2009; Hearing Serial No. 111–142, June 29, 2010. 2. See section 842 g (5) e (6). 3. See more at 842 h. 4. See for more detail section 841 c. 5. At the 2015 ISA Convention in New Orleans, when Christopher Kinsey was asked after his presentation about necessity to study more regulatory issues, he claimed that to be an overcome issue, “so 2008.” 6. In analysis of data collected through interviews, I found that over 70% of interviewees agreed on the media impact on Congress. 7. One senior DoD officer stated “the idea that you have to stay engaged active is a big deal, we constantly need to go back and re-educate about

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the limitations in arming, limitations of what a contractor can do, because people and the very best of the intentions sometimes a quake, a PSCs equivalent to soldiers they are not. They can never be, they never should be. But it happens, particularly at the lower levels because they haven’t educated them in this process. The senior guys get it now, the senior senior people. (…) How they could simply say I’ll admit my soldiers on the game. No! That’s not what is their job. And so they came down away some poor captain or major who thinks he is doing a right thing because he is trying to allocate resources but he hasn’t properly thought of cans and cannot’s. That still happens on occasion” (interview on April 3, 2015, Washington, DC). 8. Green’s defense was that the expansion of the circumstances by the executive branch under which one can be prosecuted under MEJA was a violation of the separation of powers, and that trying him under MEJA while his conspirators were held accountable under UCMJ was going against the principle of equality of law protection. In the Williams case the court declared that before application of MEJA there was the need to ensure respect of international laws. For more about these cases see United States v. Green, 654 F.3d 637 (6th Cir. 2011). 9. As a matter of fact, at the International Studies Association meeting in New Orleans (2015), in discussions on and off panels, I often got the opinion that regulation of private security companies was “so 2008” it was done and over, it was, to sum it up, a non subject. 10.  Even though those incidents were not directly related to regulation, they demonstrated the existing loopholes in the approach to regulation of the security contractors. There were issues of quality control of services, and acceptable ethics and morals of the contractors in question. In the case of the Benghazi issue, there were inadequate numbers of security contractors for the task (US HR The Permanent Select Committee on Intelligence 2014), and in the Kabul case the behavior of the security contractors was inappropriate (Thompson 2009). Both contracts in embassies were under the control of the State Department. 11. “And as I always say, if you want everybody to wear pink pyjamas while they do their business, put it in the contract. If they don’t like it, they won’t bid on it. But if they want a contract, they are going to wear pink pyjamas. It’s the way it works” (interview on February 25, 2015, Washington, DC). 12. In 2012 Senator Claire McCaskill introduced a bill, S. 2139, together with Senator Webb, calling for stronger supervision. The email discussing this proposal and its foundation may be found on claireCMC.tumblr.com/post/21149994909/my-homework.today. Other examples from McCaskill were from hearings of the Subcommittee of Contracting

152  J. JEZDIMIROVIC RANITO Oversight, where she called for access to documents and argued that since Congress was providing funding for the operations, it should have access to documents it requests (interviews with her former senior staff on February 26 and March 13, 2015, Washington, DC).

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154  J. JEZDIMIROVIC RANITO Capps, Robert. 2002. “Outside the Law.” Salon, June 26, 2002. http://www. salon.com/2002/06/26/bosnia_4/. Censer, Marjorie. 2012. “DynCorp Chief Remaking the Services Contractor.” The Washington Post, October 14, 2012. http://www.washingtonpost.com/ business/capitalbusiness/dyncorp-chief-remaking-the-services-contractor/2012/10/14/94903926-0e61-11e2-bb5e-492c0d30bff6_story.html. Chapman, Katherin J. 2010. “The Untouchables: Private Military Contractors’ Criminal Accountability Under the UCM J.” Vanderbilt Law Review 63 (4): 1047–80. Chesterman, Simon. 2009. “Blackwater and the Limits to Outsourcing Security.” The New York Times, November 12, 2009. http://www.nytimes. com/2009/11/13/opinion/13iht-edchesterman.html. Chesterman, Simon, and Angelina Fisher. 2009. Private Security, Public Order: The Outsourcing of Public Services and Its Limits, vol. 2. Oxford: Oxford University Press. Clinton, Hillary. 2008. Oversight of the Performance and Effectiveness of National Contracting Act of 2008 (2008—S. 3139). https://www.govtrack.us/ congress/bills/110/s3139. Cullen, Steven Paul. 2009. “Out of Reach: Improving the System to Deter and Address Criminal Acts Committed by Contractor Employees Accompanying Armed Forces Overseas.” Public Contract Law Journal, 509–545. Cusumano, Eugenio, and Christopher Kinsey. 2015. “Bureaucratic Interests and the Outsourcing of Security.” Armed Forces & Society (0095327X) 41 (4): 591. CWC. 2011. “Final Report to Congress: Transforming Wartime Contracting: Controlling Costs Reducing Risks.” Washington, DC: Commission on Wartime Contracting in Iraq and Afghanistan. DeWinter-Schmitt, Rebecca. 2016. “Transnational Business Governance through Standards and Code of Conduct.” In Routledge Handbook of Private Security Studies, edited by Rita Abrahamsen and Anna Leander, 258–67. London and New York: Routledge. DeYoung, Karen. 2007. “Security Firms in Iraq Face New Rules.” The Washington Post, October 24, 2007, sec. World. http://www.washingtonpost.com/wp-dyn/content/article/2007/10/23/AR2007102302531.html. ———. 2009. “IG Faults Oversight of Security in Iraq—State Dept. Might Have Violated Rules.” The Washington Post, January 10, 2009, sec. World. http://www.washingtonpost.com/wp-dyn/content/article/2009/01/09/ AR2009010903479.html?wprss=rss_nation. Dickinson, Laura. 2005. “Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law.” University of Connecticut School of Law Articles and Working Papers, October. http://lsr. nellco.org/uconn_wps/53.

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———. 2011. Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, 1st ed. London and New Haven, CT: Yale University Press. ———. 2013. “Regulating the Privatized Security Industry: The Promise of Public/Private Governance.” Emory Law Journal 63 (2): 417–54. DoD & DoS. 2007. “Memorandum of Agreement (MOA) Between the Department of Defense and the Department of State on USG Private Security Contractors.” http://archive.defense.gov/pubs/pdfs/Signed%20MOA%20 Dec%205%202007.pdf. Donald, Dominick. 2006. After the Bubble: British Private Security Companies After Iraq. Whitehall Paper 66. London: Royal United Services Institute. Doyle, Charles. 2012. “Civilian Extraterritorial Jurisdiction Act: Federal Contractor Criminal Liability Overseas.” R42358. Washington, DC: Congressional Research Service. https://www.fas.org/sgp/crs/misc/R42358.pdf. Dunigan, Molly. 2011. Victory for Hire: Private Security Companies’ Impact on Military Effectiveness. Stanford: Stanford University Press. Elsea, Jennifer K., and Moche Schwartz. 2008. “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues.” CRS Report for Congress RL32419. Washington, DC: CRS. Elsea, Jennifer K., Moshe Schwartz, and Kennon H. Nakamura. 2008. “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues.” DTIC Document. http://oai.dtic.mil/oai/oai?verb=get Record&metadataPrefix=html&identifier=ADA486541. Elsea, Jennifer K., and Nina Serafino. 2004. “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues.” RL32419. Washington, DC: CRS. Fisher, Max. 2014. “The Real Blackwater Scandal Is That the State Department Kept Hiring Them.” Vox (Blog). June 30, 2014. http:// www.vox.com/2014/6/30/5858556/the-real-blackwater-scandal-isthat-the-state-department-kept-hiring. GAO. 2004a. “Rebuilding Iraq: Fiscal Year 2003 Contract Award Procedures and Management Challenges.” http://www.gao.gov/products/GAO-04-605. ———. 2004b. “Contract Management: Contracting for Iraq Reconstruction and for Global Logistics Support.” http://www.gao.gov/products/GAO-04-869T. ———. 2005. “Rebuilding Iraq: Actions Needed To Improve Use of Private Security Providers.” Washington, DC: Government Accountability Office. http://www.gao.gov/products/GAO-05-737. ———. 2006a. “Military Operations: High Level DoD Action Needed to Address Long-Standing Problems with Management and Oversight of Contractors Supporting Deployed Forces.” GAO-07-145. Washington, DC: Government Accountability Office.

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158  J. JEZDIMIROVIC RANITO Krahmann, Elke. 2005. “Security Governance and the Private Military Industry in Europe and North America.” Conflict, Security & Development 5 (2): 247–68. ———. 2010. States, Citizens and the Privatisation of Security. Cambridge: Cambridge University Press. ———. 2016. “Regulation Through Procurement Policies.” In The Routledge Handbook of Private Security Studies, 248–57. Abingdon, Oxon and New York: Routledge. Lanigan, Kevin. 2008. “Legal Regulation of PMSCs in the United States: The Gap between Law and Practice.” privatesecurityregulation.net. http://www. privatesecurityregulation.net/files/Microsoft%20Word%20-%20PMSC%20 Article,%20US,%20Kevin%20Lanigan,%20Final.pdf. Leahy, Patrick. 2010. Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010 (2010—S. 2979). https://www.govtrack.us/congress/bills/111/s2979. ———. 2015. Leahy Introduces Legislation to Hold American Contractors Overseas Accountable Under US Law | US Senator Patrick Leahy of Vermont. Washington, DC: US Senate. https://www.leahy.senate.gov/press/leahyintroduces-legislation-to-hold-american-contractors-overseas_accountableunder-us-law. Loader, Ian, Benjamin Goold, and Angélica Thumala. 2014. “The Moral Economy of Security.” Theoretical Criminology 18 (4): 469–88. March, James G. 1989. Decisions and Organizations. Oxford: Blackwell. McCaskill, Claire. 2014. “Following McCaskill Request, Watchdog Confirms Lapses in Afghanistan ‘Rule of Law’ Programs | US Senator Claire McCaskill of Missouri.” January 24, 2014. http://www.mccaskill.senate.gov/mediacenter/news-releases/following-mccaskill-request-watchdog-confirms-lapsesin-afghanistan-and-145rule-of-law-and-146-programs. Meyer, John W., W. Richard Scott, Brian Rowan, and Terrence E. Deal. 1985. Organizational Environments: Ritual and Rationality, vol. 542. London: Sage. Moe, Terry M. 1990. “The Politics of Structural Choice: Toward a Theory of Public Bureaucracy.” In Organization Theory: From Chester Barnard to the Present and Beyond, edited by Oliver E. Williamson, 116–153. Oxford and New York: Oxford University Press. Obama, Barak. 2007. Security Contractor Accountability Act of 2007 (2007—S. 2147). https://www.govtrack.us/congress/bills/110/s2147. Østensen, Åse Gilje. 2013. “In the Business of Peace: The Political Influence of Private Military and Security Companies on UN Peacekeeping.” International Peacekeeping 20 (1): 33–47. Percy, Sarah. 2007. “Mercenaries: Strong Norm, Weak Law.” International Organization 61 (2).

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160  J. JEZDIMIROVIC RANITO Defense to Department of State International Visitor Leadership Program, Arlington, VA, August 2, 2005. Schwartz, Moche. 2010. “The Department of Defense’s Use of Private Security Contractors in Iraq and Afghanistan: Background, Analysis, and Options for Congress.” CRS Report for Congress R40835. Washington, DC: Congressional Research Service. http://www.dtic.mil/cgi-bin/GetTRDoc? AD=ADA523568&Location=U2&doc=GetTRDoc.pdf. ———. 2011. “Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis.” R40764. Washington, DC: CRS. https://www. fas.org/sgp/crs/natsec/R40764.pdf. Schwartz, Moshe, and Jennifer Church. 2013. Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress. Congressional Research Service. http://psm.du.edu/media/ documents/us_research_and_oversight/csr_reports/us_crs_r43074.pdf. Schwartz, Moshe, and Wendy Ginsberg. 2013. “Department of Defense Trends in Overseas Contract Obligations.” DTIC Document. http://oai.dtic.mil/ oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA590331. Shachtman, Noah. 2007. “Blackwater and Friends: America’s Achilles’ Heel?” WIRED, October 10, 2007. http://www.wired.com/2007/10/ perhaps-unknowi/. Sié Chéou-Kang Center for International Security and Diplomacy, and DCAF. 2012. “Transparency and Governance of Private Military and Security Services.” Workshop Report. Denver: Sié Chéou-Kang Center for International Security and Diplomacy, University of Denver. http://www. du.edu/korbel/sie/media/documents/faculty_pubs/avant_may2012_workshop_report.pdf. Singer, P. W. 2004. “Warriors for Hire in Iraq.” Salon, April 15, 2004. http:// www.salon.com/2004/04/15/warriors/. Spearin, Christopher. 2008. “Private, Armed and Humanitarian? States, NGOs, International Private Security Companies and Shifting Humanitarianism.” Security Dialogue 39 (4): 363–82. ———. 2011. “UN Peacekeeping and the International Private Military and Security Industry.” International Peacekeeping 18 (2): 196–209. Stanger, Allison. 2011. One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy. New Haven: Yale University Press. ———. 2012. “Transparency as a Core Public Value and Mechanism of Compliance.” Criminal Justice Ethics 31 (3): 287–301. Stoddard, Abby, Adele Harmer, and Victoria DiDomenico. 2008. “Private Security Contracting in Humanitarian Operations.” HPG Policy Brief 27. London: Overseas Development Institute. Swed, Ori, John Sibley Butler, and Brayan Stephens. 2019. “Who Are the Private Military and Security Contractors? A Window to a New Profession.” In The

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CHAPTER 5

Political, Bureaucratic, and Organizational Obstacles in Regulation of the PSCs

The previous chapter shed light on limitations of conventual wisdom and assumed approaches related to the regulatory process and refuted them by practices. Presented were the scope of regulatory field, the impact and importance of stakeholders’ habitus and doxas on the regulatory process, and the importance of regulatory dynamics and interactions within regulatory field. Those considerations will assist in better comprehending two major obstacles in the regulatory process analyzed here: on one side, the political stall of regulations; and, on the other, the obstacles caused by what are commonly understood as bureaucracies. This analysis follows the proposal to look beyond pre-notions and commonly accepted wisdoms and instead learn from the regulatory practices. By looking within the habitus of Congress and departments, and understanding the impact of their doxas on their actions and decisions, as well the other organizational and personal obstacles people in process cross with, those dynamics will be explored and it will be demonstrated how they affected regulatory process as a whole. To accomplish this, assumptions about political obstacles will be deconstructed first, since they have been invoked often, but never explained clearly. They range from arguments that the US government’s foreign policy is dependent on security contractors (Avant and De Nevers 2011; Dickinson 2011; Stanger 2011; Stanley 2015) to political division between Republicans and Democrats regarding outsourcing security and inherently governmental functions (Chesterman and Fisher 2009; Stanger 2012; Tiefer 2013). While we do not deny here any of © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_5

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the obstacles already identified, the purpose is to delve under the surface and seek the “bottom” of the issues within those dynamics between stakeholders. To form a more comprehensive analysis of the political impediments in the regulatory process, I propose to address political impediments on two different levels of analysis, ideological (partisan) and institutional. Ideologically, the emphasis is on unpacking discussions over inherently governmental functions1 and how different postures toward it might stall the progress of regulation, as well as other bipartisan issues that restrained the process, such as the comprehension of the need for further regulation and the roles of ethics and morality. Then, to address the institutional level, the way in which an agency habitus and doxas affects an agency’s institutional posture is presented, and, eventually, how it affects the progress of regulation. In the second part of the chapter, the conglomerate of issues commonly called bureaucracies is deconstructed, and after looking at their nature and effects on the regulatory process, an explanation of how they contribute to the stalling of the regulatory process is proposed. Those include “revolving doors,” institutional memory loss, urgency caused by media pressure, organizational obstacles (consisting of the effect of inertia, the lack of a specialized office that would deal with contingency contracting, inadequate oversight on the ground, a consequence of a lack of career path for the contracting staff, the effects of staff rotation, inadequate education of staff, and budgetary problems), and effects of personality and personal connections in the regulatory process.

5.1   Partisan Ideological Division How does bipartisan division influence the regulatory process? To depart from Bourdieu’s framework, there are two habitus, for two parties. Those habitus imply doxas that are uniquely theirs, which ultimately led their representatives to take certain stands and impact regulatory process, and they were the root of this ideological division. Ideological division impacted regulatory process in various ways. First, it caused a huge delay in addressing the concrete problems that were identified on the ground— addressing real problems turned into an ideological debate, thereby delaying action. The politicization of technical issues masked detected problems in the political bubble, where technical solutions were not even considered. Particularly, that was obvious during the first decade of this century when the debate was dedicated to the question of inherently

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governmental functions. The reason for unproductiveness of such debate lays in a fact of how definition of inherently governmental functions is set. For instance, the Commissioner of the CWC stated, “the guys who wrote the definition of inherently governmental, they can change it on a dime, the next administration can amend what is or not inherently governmental function” (interview on April 2, 2015, Washington, DC). There was a division between the Democratic and Republican political elite over questions of whether outsourcing security services should even occur. The Republican Party considered outsourcing of security services as desirable, and a non-inherently governmental function. In contrast, the Democratic Party was opposed to the use of security contractors, and often invoked inherently governmental functions as a reason to quit using those services. This was unproductive because, in practice, contractors were already present on the ground in large numbers, even outnumbering US troops at times. The democratic debates in Congress would finish with one of their doxas: security services should not be privatized at all; they are an inherently governmental function, and they aren’t even cost-efficient. This occurred even after the GAO and the Office of Management and Budget (OMB) issued a number of reports (CBO 2008; CRS 2005; GAO 2010) dealing with these issues, confirming that the outsourcing of security services, while not in combat and offensive operations, is not considered an inherently governmental function, and, in fact, generally speaking, should be more cost-efficient than hiring troops to do the same job. Examples of this could be found in hearings held by Carl Levin while chairman of the Senate Committee on Armed Services, or in the proposals of bills, such as those sponsored by Senator Sanders and Representative Schakowsky (Sanders 2007, 2010; Schakowsky 2007, 2010). A former senior Department of Defense (DoD) official stated Senator Carl Levin, who was at the time Chairman of Senate Armed Services Committee, had a point of view, and he may still, for all I know, that completely ignored the findings of the GAO and CBO. He argues that the [security provision] functions are inherently governmental and therefore should be performed only by government. The regulations are pretty clear that armed contractors in defense is not an inherently governmental function and the offense it is. And the defense is not. I testified in front of him half a dozen of times when I was in DoD. Occasionally, I would point out that whatever the law and regulation requires the DoD would comply with. However, I would read to him what the regulation stated and he would ignore them and move right on. And I was actually

166  J. JEZDIMIROVIC RANITO stating the official DoD position that it was not inherently a governmental function, and regulation said it wasn’t, GAO and CBO said it was more cost effective to use contractors than it was to use government employees and they signed all the reasons. (…) So, that’s been essentially political debate because you have some members of Congress, and Senator Levin was certainly one of them, who, whether he believed or not, probably advocated that this was an inherently governmental function (interview on March 27, 2015, Washington, DC).

This demonstrates how holding a doxa (outsourcing security services is inherently governmental function) within certain habitus (Democratic party) held back more productive regulatory debates. This is just one of the examples how expression of their doxas and their use as a political statement did not build constructive debate and problem-solving approach. As one industry representative stated: When you saw partisan proposals going so far as demanding the stop of use these folks, it was not politically viable and so partisan, in the early days Republican Congress, Republicans both in House and Senate, White House as well, they provoked rival, they were just political statements, they were not to be taken seriously.(…) I don’t think there was ever a deep understanding of the navigating political aspect of this. They needed to decide if they wanted pure oversight democratic approach? They were destined to failure. Political pieces would never align so to be successful. Even when you had something bad happening, screaming that something needed to be done for accountability here, partisan politics would not let that happen (interview on March 12, 2015, Washington, DC).

The other example was given by a senior trade association official: Congress was over here yelling and talking and doing nothing. Literally, part of the political overlay in this and this was (Blackwater was only a sheep), but part of the political overlay was that private security, the Blackwater issues were just the biggest of them all. There were other issues if you look statistically, there were no more issues with PSCs than with US military in terms of assaults and inappropriate behavior, it’s just that they are recorded differently. But it was a part of the political argument against the war. So, for the members of the Congress, anything to do with Iraq contracting, and PSCs are part of that, when it went bad or was perceived to go bad, was used to go against Bush administration. Much on way down (Republican Darrell), Issa in previous Congress was using everything

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that went wrong to go after Obama. It became a political weapon in ways we never used to see acquisition and contracting before. It wasn’t really about the contract went really bad, it was about you, Mr. President, are bad. That’s really what the message was, so Congress was playing the game like that (interview on March 31, 2015, Washington, DC).

Ideological divisions marked the CWC work as well, and the final report fully represents the bipartisan division among Commissioners (interviews on March 6, April 1 and 2, 2015, Washington, DC). During hearings, questions over whether outsourcing security services were considered an inherently governmental function or not were raised. Even after the unanimous answer from the panel of specialists—representatives from different stakeholders—that outsourcing security services, while not involved in offensive operations, was not an inherently governmental function (hearing held on June 18, 2010), the final CWC report did not support such an opinion fully (CWC 2011). The CWC final report (2011) concluded, “Commission endorses the context sensitive, risk-sensitive and mission sensitive approach taken by the Office of Federal Procurement Policy’s March 2010 draft policy letter on this topic, and recommends vigorously applying this guidance to the unique contingency-contracting environment.” The Final Report expressed the true compromising nature of the bipartisan division of Congress and its presence through Commissioners from both ideological backgrounds. The former Commissioner stated, “We were in the very political environment, we were created as the McCaskill-Webb Commission, you know, two democrats created a Commission, they made it bipartisan (…) in membership, and in execution” (interview on April 2, 2015, Washington, DC). Not all proposals on either side were representing partisan doxas. There was a wide range of proposals, though, from stopping outsourcing, as in Sanders and Schakowsky’s argument (Sanders 2007, 2010; Schakowsky 2007, 2010, 2011), to a more constructive approach seeking reinforcement of oversight and criminal responsibility (Bluemenauer 2010; Bond 2008; Clinton 2008; McCaskill 2010; Obama 2007). There were proposals still nurturing the core values of this specific habitus, that would push for stronger oversight and supervision of contractors, like that of Senator Obama in 2007, or Senator Clinton in 2008, seeking accountability for security contractors, or the proposals of Representative Price and Senator Leahy (Leahy 2010, 2015; Price 2007, 2008, 2010) working on the Civilian Extraterritorial Jurisdiction Act (CEJA).

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The stalling of the CEJA, an equivalent of the MEJA (but designed for civilian contractors employed by other US departments that are not DoD), is a good example of Congressional partisan division. The insight on political issues suggested by some of my interviewees was not available in the hearings or other publicly available documents of the Judiciary Committee. This insight was offered first-hand by a former senior Congressional staff member working for the Congressmen sponsoring the bill (interview on March 23, 2015, Washington, DC). The bipartisan division on this particular bill (CEJA) had several fronts. First, this was the bill introduced by Senator Obama before he won the presidential election in 2008. In 2007, with a support of Senator Reid at Senate Judiciary Committee, Obama (2007) introduced the Security Contractor Accountability Act of 2007 to the floor (S. 2147), which was an initial attempt by the Judiciary Committee to deal with the accountability issues of civilian contractors. On the same day, Representative Price introduced a bill dealing with the expansion of MEJA to include civilian contractors in the House of Representatives (MEJA Expansion and Enforcement Act of 2007, H.R. 2740). Obama’s bill did not pass, and Price’s bill passed the House, but not the Senate. Representative Price understood that the bill as proposed would not pass, so he decided to split his proposal in two. The expansion of MEJA was separated for inclusion in the following years’ NDAA, while the legal accountability of civilian contractors was separated into a new bill, later known as the CEJA proposal. While the MEJA expansion and the issues related to contracting and oversight of the DoD were passed fairly easily in parts in the following years in the NDAA, the civilian accountability issue faced more resistance. Arguably, the problem was a technical issue of the intelligence community, and the positions of both sides, Republican and Democratic, held strong attitudes about it. There were various reasons to oppose. First, Republicans were opposed to the approach that was suggested for dealing with accountability, and, second, they did not want the then President, Barack Obama, who first introduced this issue, to succeed in his long-term goals of imposing actions for contractors’ accountability (interview on March 23, 2015, Washington, DC). In 2007, when Representative Price’s bill was presented, Republicans had the majority in Congress and they led the White House. As a congressional staff working on the bill stated, on a voting day, Republicans were advised at the last minute by the Bush administration to oppose such a bill, citing

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concerns about the intelligence community (their ability to work would be affected by such a bill). From the first introduction of this legislative item, concerns were raised as to how a contract is defined (e.g., when you bribe someone to get information, is that a contract?) and concerning responsibility of intelligence agencies (were contractors to hold their sources accountable as well?). However, since those arguments were not elaborated, the bill passed the House vote. When the bill was considered on the Senate side, Republican senators Chambliss and Grassley again raised concerns regarding the inclusion of the intelligence community in the bill and, at that time, negotiated the language and scope of the bill. The Democratic side supported the inclusion of intelligence contractors, particularly after the Abu Ghraib scandal, while Republicans defended their exclusion or at least a limitation of the offenses for which they should be charged. Democrats thought progress was being made until the Republicans agreed to pass a bill with a restraint on an exclusion of charging contractors for offenses that occurred in prison settings. That was a deal-breaker for Democrats, and the bill was not addressed again. The next opportunity to pursue the bill was after President Obama suspended interrogation and detention procedures by the CIA, but opposition to the bill, particularly by Senators Chambliss and Grassley (and their lawyers), continued to be very strong. As a senior Congressional staff member noted, “in large part (they) misunderstood the issue at stake, and in some part, just were significantly opposed to the approach offered” (interview on March 23, 2015, Washington, DC). The other issue causing bipartisan division was, as mentioned above, the original introduction of the legislation by Obama during his tenure as Senator; therefore, there was strong opposition to giving him credit during his time in the White House. The prospect of downgrading the accountability issue from a political to a technical one would be expected to occur only after he left the presidency. A former senior Congressional official stated: This has been an issue associated to Senator Obama, not totally from beginning, but soon before we got something passed in House. Obama as a Senator decided to introduce legislation, he was interested in it, it is his bill and then he got into the presidency and has requested that from Congress. So, it has been associated to him throughout. Once he is out of office, I can see scenario in which a new president comes in (Democrat or

170  J. JEZDIMIROVIC RANITO Republican) and they (Republicans) start to see it as “maybe you are right, maybe this is necessary, maybe this was not just Obama tells what to do” and it gets downgraded in terms of its political importance, and people start to see it as a technical fix for hole in the wall (interview on March 23, 2015, Washington, DC).

A new wave of attention to the issue occurred in 2015 with certain problems that the USA had with Canada, which refused to allow the USA to place law enforcement personnel on Canadian soil (airports, borders, ports) until it had a solid means of holding them accountable. In that context, the passage of CEJA would help to achieve diplomatic goals and be seen as a technical issue, as opposed to a political one. As my interviewee noted, this was seen as a positive bill by executive branch. Agencies … are supportive because the implications of the legal accountability regime would gain them, help them achieve diplomatic objectives. For example, right now like even with our close allies and neighbors, Canada, Canadians won’t let us put our law enforcement personnel on Canadian soil unless we have a means of holding them accountable legally if any misconduct. So, we have means of holding them accountable for misconduct as long as that misconduct is performed in called duty. If it is not part of their official responsibilities though we don’t have current legal regime to hold them accountable (CEJA would fix that). And we are willing to allow them to be subject to the Canadian judicial system. So we are trying to do a lot of ­collaboration on border security with Canadians, that would allow us putting law enforcement personnel in Canadian airports or ports of entry and we cannot do it right now, so this is State Department would see possibility for the diplomatic gains if this sort of pass, whereas they don’t take any additional responsibility if that was passed (interview on March 23, 2015, Washington, DC).

As we could see, the weight of doxas and strong influence of partisan habitus heavily impacted actions and reactions of stakeholders involved. It prevented both sides from fully comprehending the scope of issue and proposed solutions and to advance. It also introduces another element that needs to be considered, besides doxas originated by certain habitus. This example brought to the surface the importance of personality of representatives involved in regulatory process and their (im)possibility to look beyond their convictions.

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Moreover, looking at how doxa and habitus influenced perceptions at a partisan level, we found consequences of ideological division between Democrats and Republicans evident in the way that ethics and morals were discussed in the regulation of security contractors in stability operations. For instance, looking at how contractors’ criminal misconduct should be prosecuted, there was a lot of tension between those who thought that permission to hold them accountable under the UCMJ was right and those who considered MEJA as being enough (Fidler 2007). But what needs to be considered here is the larger ideological debate in which this issue (of outsourcing security in stability operations) was inserted. By looking at partisan doxas, it is evident that there was no real debate considering the case itself, it was rather a part of a larger ideological division. One senior Congressional official stated: That debate is a larger one that has to deal with consequences between public sector unions and private sector contractors generally, so there is always a discussion and difference between what should be done by Government and what should be done by contractors even outside of a conflict zone. Generally conservative folks tend to push more toward more work outside of Government, more to the private sector. Then there is a natural reaction to bring that back to government because government should be doing that job. It is bipartisan issue (interview on February 26, 2015, Washington, DC).

Other senior Congressional staff supported a claim that those doxas generally are used as a mechanism to block or stall passing a Bill in Congress: Some people may look at contractors from a human rights perspective, “Hey, these guys are really bad and they are not regulated, they are kind of breaking headache here” but other people maybe “Oh, they are helping the military, it’s business, they generate jobs and revenue.” Unfortunately, lots of things nowadays are partisan politics. Even the human trafficking, there is a bill this week on human trafficking, it seems like fairly obvious, but then Republicans put inside something about abortion and it stalls. Nothing happens. Like the homeland security bill, they put all that immigration stuff and they undermine the president and it goes nowhere. And then they end up passing a Clean bill which most of them advocated from the beginning. We wasted weeks, weeks, weeks, and so there is a lot of partisan stuff that get influence or, slow down the progress (interview on March 13, 2015, Washington, DC).

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The political context into which the issue was inserted also played an important role. The interplay between ideological differences and the majority/minority in Congress and the administration in the White House is an important factor in understanding the push and stall in the regulatory process. One senior industry representative gave an example how this affected regulatory process: (Republican) Congressman (Thomas) Davis [Thomas Davis was chairman of the House Government Oversight and Reform Committee from 2003 to 2007, replaced by Congressman Henry Waxman], I believe at the time was, kind of, defender of utility and service contracts and big government contracts person, so I would not say defender of the industry but supported the need to perform this type of services. At the time, this was the partisan Congress, Bush administration, Republican White House, later with Democratic Senate, so some of these proposals broke on partisan lines, as far as pushing oversight regulation harder (interview on March 12, 2015, Washington, DC).

Even though the issue was politicized from the beginning, given US participation with the Montreux document and the Nisour Square incident, there was a necessity to put aside some of the ideological debates and downgrade the issue to a technical level, as occurred with setting quality standards, as well as a better selection and training process, in order not to endanger operations on the ground. The industry saw the Montreux Document and ICOC as a way to overcome ideological battles. As a senior industry representative stated, “I think with the Montreux document that was not any more issue, we were more interested in deciding how the people are getting trained and how they are selected, the equipment they use, and we gave them some language that was later used in NDAA bill and helped in dealing with those issues” (interview on March 12, 2015, Washington, DC). Therefore, political stalls have been left to be dealt with in Congress, as CEJA proved, and more pragmatic solutions in dealing with security contractors were undertaken by contracting departments.

5.2   Agency Politics Bureaucratic politics have extensively explored the effects of inter-agency competition on policy, demonstrating that rational choice is not the way agencies decide their operation mode (Freeman and Rossi 2012;

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Niskanen 1979, 523; Ostrom 1998, 5). When inter-agency rivalry is crossed with issues surrounding foreign policy crafting, the dynamics of competition gain new dimensions (Drezner 2000; Lowndes and Skelcher 1998; Marsh 2014; Wilson 1989). When that is added, a new area of operations that intercross departments that usually do not work together, there is an uncertain territory where previsions speculated by previously mentioned approaches are just unviable. Therefore, theory of practice is an adequate tool to use here and to shed a light on how actions and reactions of multiple agencies are reflected on the process itself. Immersing in the agencies’ doxas and their habitus allows better comprehension of their actions and reactions to certain events and, ultimately, the outcomes of the regulatory process. This section addresses the relationship between the State Department and the DoD and their impact on the regulatory process, and we look deeper in the habitus and doxas of those departments and how it affected their relations and regulatory process. The role of executive agencies in the regulatory process is very important since they are contracting security services. The regulatory process in contracting departments is exercised through contracts with a provider and by the establishment of policies that ensure effective oversight and supervision of the contracts, as well as consequences for those in breach of the agreement. Congress is responsible for the legislative part, which ensures the establishment of adequate laws to deal with criminal liability in cases of misconduct. Moreover, agencies should consider further legislative development when it is deemed necessary and alert Congress to eventual gaps they identify. Therefore, the way departments are led, and how their leaders establish priorities, significantly affects how the process is developed. Even though departments were not ideologically divided as Congress was, politicization and institutional habitus did have effects on the regulatory process. The State Department was usually accused of being non-responsive to the regulatory propositions by industry, other departments, and Congress itself. The major problem, identified by several Commissioners of the CWC, was a lack of responsibility of the State Department toward Congress in comparison to the DoD (interviews on March 27, April 1 and 2, 2015, Washington, DC). While the DoD answers to the US Senate Armed Services Committee, which approves its annual budget, oversees its activity, and asks it to justify actions when they are deemed problematic, the State Department does not have the same relationship with the Foreign Relations Committee. Besides, the Foreign Relations Committee’s focus is on diplomatic and foreign policy issues, and not

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defense and security, so aside of the lack of institutional need to be involved, it never really found interest to address regulatory issues concerning security contractors. The State Department does not see itself as being constitutionally obligated to have supervision or being subject to legislative oversight, as it was explained by one CWC Commissioner: “Committees on the Hill are more interested in diplomacy and political issues and that’s where you really see the politics is in the Foreign Affairs Committee not at defense area. (…) The State Department also sees itself as it does not believe that constitutionally it needs legislative oversight. So, if legislators let it get away with that, then Congress let it get away for years and years. (…) Unlike any other agency, State Department calls on constitutional prerogative that does not require legislative oversight” (interview on April 1, 2015, Washington, DC). Patrick Kennedy (2011), in his testimony before the CWC, made a political statement saying that the State Department does not need (or want) any interference from Congress concerning how to conduct its business. The rejection of even the consideration of establishing a special wartime contracting office was a clear example of the State Department’s non-responsiveness to Congress. Frustration with such attitudes was evident from the Commissioners interviewed for this study (interviews on March 6 and 27, April 1 and 2, 2015, Washington, DC). Above example represented another illustration of State Department doxas that influenced the mode in which it acted and impacted regulatory process. Those and other doxas are part of the reason invoked by interviewees as an aggravating factor in dealings with the State Department regarding the regulation of private security contractors (70% of interviewees dealing with the State Department claimed a negative attitude about suggestions coming from outside the department). Thus, agency habitus and doxas did influence the regulatory process. When an agency tends to keep itself away from other stakeholders, it is not transparent regarding its progress, and refuses other suggestions and influences, the regulatory process obviously is lacking, and, thus, weaker than when a dynamic is cultivated that nurtures transparency, the sharing of experiences, and interaction and openness to consider and evaluate other suggestions. Such an impediment is considered to be political because it represents a political game, where one department does not want to be subordinate to another or be told what it should do. It is possible to see how differences of institutional habitus affected relations not only between departments, but the perception and relations of departments and other stakeholders involved. There is a huge

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difference between the way the DoD and State Department offer answers and strategies regarding the advancements that have been made, the method of recognizing the challenges that lie ahead (interviews with senior DoD officers on March 5, 18, and 27, April 3, 2015, Washington, DC), and the manner of dealing with such issues (interviews with scholars on February 27 and March 2, and CWC Commissioner on April 1, 2015, Washington, DC). The CWC Commissioner stated “at least the DoD realized there were risks involved in hiring contractors and, I think, it learned some lessons from Abu Ghraib and some other really outrageous incidents. State Department seemed not to even ever admit there were risks in working with PSCs” (interview on April 1, 2015, Washington, DC). While the State Department refused suggestions to open an interdepartmental office for contingency contracting over the long term (Kennedy 2011), the DoD embraced the idea as a longterm necessity and established an office to deal with the wartime contracting of security and other services (Office for Armed Contingency Contracting Policy and Programs). The major difference in the way the provision of security services was seen in the State Department and in the DoD, as a senior DoD official stressed, was the cultural acceptance by the DoD that in conflict zones, there will be some casualties (interview on March 18, 2015, Washington, DC). By the nature of the DoD missions, their CORs have been working in conflict zones, so their experience has been much more comprehensive. However, DoD senior officials do recognize the necessity of investing more in COR career path and education and confirm insufficient training of CORs is even more prominent in the State Department (interviews on March 18, April 1 and 3, 2015, Washington, DC). COR career path was not an issue claimed solely by DoD, interviewees from other stakeholders called attention to a necessity to establish career paths for CORs in both departments, from former US Congressman involved in this thematic (interview on March 27, 2015, Washington, DC) and senior congressional staff (interviews on March 13 and 27, April 10, 2015, Washington, DC) to CWC Commissioner (interview on March 6, 2015, Washington, DC). The separation of the State Department is not only outward facing by other political institutions, but internal as well. A senior State Department official confirmed the general lack of communication and internal cooperation among different offices dealing with the same issue, namely, the Bureau of Democracy, Human Rights and Labor, which is working on the establishment of international policies, and the Diplomatic Security Bureau, which implements those policies in the contracts (interview on

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April 27, 2015, Washington, DC). The interviewee stated that the exception to that rule was one-time cooperation regarding the incorporation of the ICOC standards in the contracting process for the latest WPS contract. The disconnection between different pillars supports the argument of the isolation of the State Department in addressing regulatory issues. Such isolation contributed to the close relationship of the Diplomatic Security Bureau officers with contractors, which one senior industry representative called it “cozy relationship” (interview on February 25, 2015, Washington, DC). The consequences of such a relationship, he stated, were late responses to the issues that emerged. He stated The guys who are in it, in the Diplomatic Security Section, were the same guys who have been doing security, they are all former special forces, navy seals, military certainly and they just had this really cozy relationship with lot of security companies. And I think it was good in some ways, but harmful in others, in a sense that they didn’t push the changes as hard as they could have. Until too late. Until some issues just popped up ­(interview on February 25, 2015, Washington, DC).

Personal experience confirmed the difficulty in talking to State Department officials in general. The majority of interviewees confirmed that this is a rule, rather than an exception: State Department’s communication with other stakeholders is very limited. One academic researching regulatory issue stated: I don’t have a sense of what State Department did in terms of changing procurement policies, in contrast to DoD, which is transparent, quite frankly, nobody would expect, but it is true. So, I don’t know what it also did to address issues of diplomatic security. (…) I don’t know what it has done in terms of allowing previous performance to influence future contracting decisions (interview on February 27, 2015, Washington, DC).

Even in interdepartmental interaction, there is a retreat by the State Department after the mandatory cooperation with the DoD that Congress demanded. The DoD has supported the development of the industry management standard known as PSC.1 and invited the State Department to join this effort. However, there was no interest in participation by the State Department, and, to many, this was not surprising and was even considered “business as usual” (interviews with senior GAO officials on March 4, 2015, Washington, DC).

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Cultural differences among the departments, and the refusal of the State Department to seek support or advice from the DoD regarding contingency contracting and contract management in contingency operations, have been recognized as originating in the State Department habitus that they do not subordinate to anyone. One Commissioner (CWC) stated, “State Department’s culture is just not one of the management. And the State was mainly defensive, much more trying to explain what happened rather than to say ‘Hey, we understand that something is wrong and we need to do something about it.’ DoD was more forthcoming in terms of trying to fix of what might be broken” (interview on March 6, 2015, Washington, DC). A former senior State Department officer confirmed and admitted the huge gap in capabilities to manage security contractors between the State Department and the DoD. He noted, “You have to keep in mind that State Department, whereas a military is rather robust in contracting and procurement at large, that was not a case in State Department. Nor it was in the USAID. They did not have an institutional framework or the institutional depth to take on these responsibilities” (interview on March 9, 2015, Washington, DC). However, recognition of such deficiency did not result in a motivation to learn how to deal with them from others. The difference in dealing with contractors and their doxas influence responsiveness of the agency. This was recognized by a senior DoD official, “We (DoD) know how to manage all of these contracts. And other agencies, namely State and USAID, may not be so good at it. And, also, DoD is very responsive to Congress. They (contractors) are here, so we are not just going to sit and say ‘we are not going to worry about that!’ We are very responsive” (interview on March 18, 2015, Washington, DC). This opinion was shared by a number of other interviewees from different stakeholders, including one Congressman (interview on March 27) and two CWC Commissioners (interviews on April 1 and 2, 2015, Washington, DC). When asked about the difference between agencies in promoting regulatory initiatives, one CWC Commissioner said, “I think that DoD does, but I don’t think that State Department even dealt with it. I mean they just don’t see an issue, they don’t see anything that they need to deal with, they think they have all policies in place, everything works fine, no problem. And you bring up the problem and they say we fixed that. They just…They live in a separate world, really” (interview on April 1, 2015, Washington, DC). Another political statement that influenced the regulation of PSCs contracted by the State Department was a policy of zero tolerance for State

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employee casualties, meaning that their employees’ lives should be protected by any and all means, essentially granting carte blanche for contractors in their means of achieving such an objective. Again, diverse doxas between the State Department and the DoD were stressed concerning the meaning and understanding of security and risks in stability operations. The State Department doxa of guaranteeing its officers protection, by all means, originated in the evaluation that their loss would jeopardize all missions. The DoD takes a very different approach, expecting and accepting some casualties as an inherent part of the mission. Such differences are due to the fact that the two departments have worked in different settings traditionally: while the DoD “normal” is war, or at least contingency operations, the State’s usual area is peacetime operations, implying a much lower level of risk. Those differences were initially present in the security procedures that both departments used in their daily operations, particularly in Iraq. The discrepancy of reactions while providing services drew the attention of Congress and stimulated a request to harmonize their methods of operation in the MOA (DoD and DoS 2007). State Department officials did not consider the zero casualties policy problem, per se, since their opinion was that (DoS) employees, as civilians, had no ability to protect themselves and so their lives were in the hands of PSCs, and for them to accept the risk to work in such conditions, it was satisfactory to know that PSCs were working under a zero casualties policy, since there were a lot of armed civilians that could hurt them (interview with senior DoS officer on March 9, 2015, Washington, DC). For the sake of others who did, Patrick Kennedy (2011), in the hearing before the CWC, stated that the State Department’s “revised mission firearms policies further strengthen post’s rules on the use of force, and less-than-lethal equipment has been fielded as a means to minimize the need to employ deadly force,” recognizing a need to be adjusted. On the other hand, one former senior DoD official, who also worked in the State Department as an executive for a year, considered this policy to be a crucial problem. He explained: The biggest problem that State Department had, was they had a zero tolerance casualties. They told Blackwater, before the Nisour square incident, that they had a zero tolerance for casualties. And they made a point of saying “Do you understand what a zero tolerance means? It means we take no risk.” And so, Blackwater, regardless of aggression, was operating under mandate “never take any risk” and therefore any kind of perceived threat

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was something for them to use overwhelming force. The regional security officer for State Department I interviewed after Nisour Square, he basically confirmed that was the mandate under which they were operating ­(interview on March 27, 2015, Washington, DC).

The zero casualties policy was reinforced by a regional security officer, particularly in his risk assessment. The former Senior DoD member and State Department executive stated that if regional security officers determined that there was a high risk outside of the embassy compound, they would not perform their duties if they were not certain they could guarantee zero casualties while executing the tasks (interview on March 27, 2015, Washington, DC). Later, the policy was assimilated by some companies as modus operandi and turned into their trademark. A senior former DoD official and various academics noted that companies used examples of State Department contracts to separate themselves from competition in the market, making that behavior not only acceptable, but rather desirable. One US colonel explained how the zero casualties policy was seen by Blackwater, one of the biggest State Department security services providers: Blackwater was making a lot of money globally because they were the guys who protected the Bremer in the toughest place in the world. Not only in the conflict zone, but they are selling a lot of personal security to executives around the world, in case of kidnapping, etc. That all goes away if Bremer gets killed or even hurt badly in a tragic accident. So your entire brand is based on zero casualties. Why are we surprised that they overreact? The penalty for having a casualty is enormous. Probably crashes down the company. Killing a couple of Iraqi’s is pretty much free. (Even if now) State Department says it’s ok, you can lose 10% of people. It doesn’t matter, I’m selling you a corporate HQ and they say to corporate security officer, ok, Blackwater lost two last month in Iraq, DynCorp lost zero, do I want to go back to my CEO and say, hey, I get this great team for you, they are really, really, good. They protected people in Iraq. How many they lost? Well, they lost 5-10%. Well, that is an issue, maybe you should also search for another job, too. So, all of the incentives in private security are geared in conflict zones (interview on April 1, 2015, Washington, DC).

The existence of such a policy would not be a problem itself if the State Department nurtured a culture of accountability and responsibility. However, this is not the case, as several interviewees called attention to the lack of accountability and consequences for misconduct in the

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State Department in general and not solely related to private security contractors. This is a good example to observe how different perceptions, due to specificities of each institutional habitus and doxas, implied diverse modus operandi at the ground. The former senior DoD officer who later worked as an executive at the State Department has the professional opportunity to evaluate the difference in the approach that DoD and State contractors/staff had in the same context and area, using as an example the Nisour Square location: Nisour Square is very highly jammed area. It’s always a traffic jam. Anytime day or night. The commander, the general who was in charge of that area, not just the provision commander, but overall commander, said he often got caught in traffic jam and when he would get, he would go out of his Humvee and he would go to talk to local people through his interpreter. He never perceived that there was a threat. The problem therefore was an attitude of the Blackwater people, which was super aggressive, not that I can condone but strongly encouraged with regional security, so that’s the background of the difference. The Blackwater people, the policy said that they can throw water bottles at cars to keep them getting too close, well, they were throwing frozen water bottles, which would crack windshields of the car. Well, nobody said anything, frozen or not frozen, but that’s what they were doing, which obviously alienated the local population significantly. I have done work with the PSCs, in particular with one PSC. The key of successful work in PSC is not running around with gun intimidating people. The key is to know the area where you are operating and know who the key people are that you need to influence. The particular company I’m talking about, and they operated largely in Iraq at the time, and now they are operating in Afghanistan, were masters of it. For example, in Baghdad you would run in the numerous checkpoints, many which were run by Iraqis. Their point was always to know who the guards were, who the guards reported to, and who the senior military official was, and whether he was army or police or whatever. And they would always stop by and give them cigarettes and provide space fingers for them in the winter, and all of the sort of the stuff so they were always known when they would approach a checkpoint, because each contractor had to have identifying bar on the front of the vehicle. They would always know who these guys were and they were always fairly accepted and if there was a problem, it was not a shooting war, it was something they would take directly to the senior officer. There were several groups that did this and did it well (interview on March 27, 2015, Washington, DC).

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Another political issue is how the budget of the department is spent, and, here, the particularly important example is the Department of Justice (DoJ). The actions of prosecutors make a political statement about priorities of the department, which has consequences on the internal political scene. The prosecutors are career politicians and the impact their cases have on the local community is very important for their future. Therefore, considering PSCs’ criminal misconduct, prosecutors tend to prosecute only high-profile cases and only when they have some certainty that a conviction will occur. As Peter Singer stated “The reality is that no U.S. Attorney likes to waste limited budgets on such messy complex cases 9000 miles outside their district, even if they were fortunate enough to have the evidence at hand” (Melson 2005, 317). Such a decision is the consequence of numerous attempts to prosecute even high-profile cases that end being dropped by the Justice Department since there is not enough proof to convict alleged misconduct (McCoy 2010). The technical problems related to the collection of evidence, the chain of custody, building a case where it is possible to prove an intention to commit misconduct, and the involvement of third-country nationals, are tightly connected with such political decisions. One industry representative said that in his conversation with then US Attorney Patrick Fitzgerald, it was admitted that the Justice Department had tools to conduct investigations and that his office was doing it frequently, with a great deal of travel to Iraq and Afghanistan (interview on March 31, 2015, Washington, DC). However, as Carney (2005, 332) noted, “The U.S. Justice Department has not said publicly whether or how it will employ the law.” That leads back to the political dimension of the issue, and academics recognized the Justice Department “lacks desire and resources necessary to pursue such cases” (Giardino 2007, 733). Industry representatives who were interviewed supported the opinion of a former industry representative, who stated: “It’s up to DoJ to prosecute. I think it comes back to the political question, is there a will politically to use the tools that Congress is putting in place? That is a different question than if the tools exist. It has to be a will from the agency to enforce its own regulations” (interview on March 12, 2015, Washington, DC). There were no official claims that the method used up to this point does not work and that it needs revision to provide a more efficient way to prosecute alleged misconduct. That could be interpreted as a lack of political willingness to get involved in such debate, as well as a lack of

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political pressure to deal with problems. Besides, as a former senior State Department official discussed, there is no political willingness to deal with the issue of contractors at all at the moment because there is no intention to deploy them. He explained: You know you always plan for the worst-case scenarios, well ok, let’s start doing planning process. We got agencies who did this before, I think it is up to the leadership to give the orders to start doing this, it is due to politics. Because, as soon as you give an order you are convening that you might do it. So in order not to do it, the last thing you want to do is prepare for it, because (their discourse is) if you do not prepare to do it, then you don’t do it. And politically, with this administration [Obama] right now, that is preferable. Because if you would have capabilities then there would be more pressure for you to use these capabilities. But as long as you do not have these capabilities, you can always respond to pressure with something “We don’t have the capability, we don’t have military anymore, we have other things at home” so you can see how the interplay of politics in resourcing influence (interview on March 9, 2015, Washington, DC).

5.3  Bureaucracy Rules All Bureaucracy seems to be the problem to everything. When asked about efficiency in public administration, faces fall and heads shake, claiming that it is all the fault of bureaucracy. However, what does that mean? When considering bureaucracy in this context, there are two main dimensions that need to be addressed, structures and people. On one side, there are established structures that make bureaucracy a big, heavy machine. They are set, within certain habitus, and respect institutional doxas. On the other hand, there are people who might work to overcome some inefficiencies of structures or to contribute to inefficiency of the machine. In this section, those little elements that make part of institutional doxas, and might pass unnoticed under the larger term “bureaucracy,” are going to be approached. Moreover, processes that can be traced and identified as ones that can benefit or hurt the regulatory process will be separated into individual components. Given their impact on the regulatory process, those are factors that influence the regulatory process, positively and negatively, and they include revolving doors, institutional memory loss, the importance of media involvement, importance to local voters, organizational obstacles, the influence of personality, and personal connections.

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The habitus of each institutional structure, and its doxas, affect how people act and react when addressing certain issues. However, there is a factor not often explored, and that is a personality of those people involved in regulatory process that certainly may turn some parts of the process easier or more difficult, independently of the doxas and habitus of the institutional structures they represent. The people may have diverse agendas, considering the field they are acting at any given time, and they may use different capital to obtain their goals. This is visible when the discussion turns to revolving doors, particularly. The regulatory process, as the name suggests, is not an event, but rather a process that extends over time and through space. Given that agents involved in that process tend to change, their passage through different stakeholders for somebody in the two-decade period is almost inevitable. When individuals take part in revolving doors, they learn doxas and acclimate to different institutional habitus. By gaining wider perspectives and takes on same issue, those people have a better perception of what is possible at certain times and what not overall, even though their actions benefit the stakeholder they represent at the time. The flow of people affects the knowledge within one institution, as those skills and information are taken elsewhere. The impact of such knowledge flow is twofold. On the one hand, there are certain revolving doors that have an influence on the regulatory process. On the other hand, institutional memory loss, as a consequence of people leaving their positions, is inevitable, particularly in public administration. Therefore, those two obstacles will be tackled first.

5.4  Revolving Doors and Institutional Memory Loss Revolving door occurs in the USA more frequently than in any other country in the world since there are elections at least every other year. As a senior industry representative explained: Revolving doors are very unique in the American system of politics. It’s quite frankly the only form of government, that I’m aware of, where when you have a new administration, 3000 of your upper management structure switches. It switches the people who are knowledgeable about the industry. When you switch it, somebody comes that knows nothing about the industry, it could be good or bad. It’s good if that person studies the industry and tries to understand and brings fresh new perspective to the

184  J. JEZDIMIROVIC RANITO industry. It’s bad if it is someone who says, “I don’t understand any of these, we are just going to do business as usual”. That’s when bad things happen. But that is a very unique to American society and it’s not going to change (interview on March 25, 2015, Washington, DC).

The goal here is to demonstrate that the revolving door in the US system is more massive than anywhere else, not to negate its occurrence elsewhere. It is usual to have people flow among stakeholders. They might be forced to find alternatives, as happens when the Congressional or Presidential mandate is over, or they might want to return to the industry in a professional capacity. At the time of interviews, from the 50 people interviewed, 21 had changed one or more stakeholders in the last 15 years. There were 10 academic interviews and 6 of them have observed or participated in the regulatory process from other stakeholder perspectives. There were movements within the executive branch (DoS and DoD) and then to industry, and there were movements from oversight to the legislative branch, from the legislative branch to industry, from the executive branch to industry and back to executive, and from industry to academia. And it would be naïve to think that such people movement doesn’t influence the regulatory process. As one academic stated “there are very blurring lines, and to choose what is public and what is private, who civilians are in contingency operations is challenging and there are a lot of crossovers” (interview on February 27, 2015, Washington, DC). There is a perception, fueled particularly by a principal–agent approach to industry, that in the regulatory process there are two sides, governmental and industry, where one is essentially using all possible advantages against the other—industry against contractor (US government) (Avant 2005; Gailmard 2012; Krahmann 2016). To sum up such academic perspective, this is a win–lose situation, meaning one industry’s gain necessarily represents a governmental loss. What is problematic with such statements is in ignoring the knowledge transfer that occurs with revolving doors. When people leave the public sector in general (and, in this case, the legislative branch, executive branch, or even governmental oversight body) and go to any industry, there is apprehension whether they are going to use their previous relationships and knowledge to benefit the new position they hold, or, to put it differently, where is their loyalty? Even though there are rules about such transitions, there is a general impression (from the interviews I held) that people transitioning

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to industry influence their former colleagues in some sense to benefit their new employer. As one CWC Commissioner stated: I personally, and this is just my view, wasn’t in the report, I think that we should not allow anybody who retires to work for industry for 3 years. For 3, moratorium. Because one of the reasons is that you hire somebody that have and then you put them back in the government to do the same job or they work in the industry with the same people that they worked with the government and so it is just so easy to make these kinds of arrangements, but if they are not able to do any kind of work, have any kind of discussion at any level and basically need to go to different career for 3 years, two things are going to happen. One is they are going to be in a different career, they may decide not to come back. Second, they will simply not be able, even if they come back after 3 years, they won’t have the same atmosphere, a lot of people would be gone, they won’t have the same kind of influence (interview on March 6, 2015, Washington, DC).

Practice demonstrates the positive and negative consequences of the revolving door. Non-debatable is that the flow is inevitable. The private security industry, in dealing with contingency contracting, is quite small and limited in comparison to other industries; therefore, the percentage of people moving is greater than in other industries. There are not a lot of knowledgeable people, and at some point, they move on. On the positive side, those movements contribute to a better understanding of regulatory challenges and ultimately result in better policies (argued in interviews with various stakeholders on February 25, March 11, 12, 18, 19, April 1, 2, and 8, 2015, Washington, DC). A person who observes regulatory challenges from different angles has the opportunity to offer more informed solutions and better understand what might or might not work in practice. There is an example of a DoD senior executive who worked as a military official involved with security contractors on the ground in Iraq, worked briefly for industry later, and returned to the Pentagon to work on regulatory issues for the executive branch, defining policies and regulations for security contractors. His perspective is recognized by industry representatives, academics, and the executive branch as a highly informed and with integrity. As one CWC Commissioner stated “Not all revolving door practice is evil and bad, but it is the same people in different roles. I think they have a more informed view because they are not coming to something cold, they won’t need to do two years of

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thinking on it and already understand the punch line and the answer” (interview on April 2, 2015, Washington, DC). The other positive effect of revolving doors, particularly from the executive branch to industry, is the extension of certain democratic values nurtured by public institutions, such as transparency and accountability. One former senior DoD official stated “from having been in charge of holding contractors accountable as the DoDIG in the public sector, from me then becoming the chief operating officer in the general council of defense group, it was very easy to understand what I needed to do within the private company, and I was able to take my experience from the public sector and apply it in the private sector in a way that allowed our people to serve better as contractors” (interview on March 5, 2015, Washington, DC). Another possible benefit for the regulatory process is the opportunity to present challenges that were previously poorly understood. As one former senior industry representative argued, when there is openness, as in the DoD, to listen to other points of view, such revolving doors can lead to more efficient decisions regarding regulation (interview on March 2, 2015, Washington, DC). He pointed out that such logic was not applicable in the State Department’s case by addressing their habitus: State Department is very difficult agency to interact with. DoD is much more open. State Department folks will not talk to you unless they personally know you, and know you for 10 years, and it is very difficult to meet with various folks within the State Department. They are just not interested. I think it is a cultural thing, they don’t have the same, I think what you said about revolving door, that is true in the DoD, so because of that you do have more openness, you have willingness to take meetings and look at other points of view. State Department doesn’t. They don’t care, they don’t have to listen to what the contractor says, they can just say “no, this is what we are doing”. And they have a different set of i­deals, they have a different mission than DoD (interview on March 2, 2015, Washington, DC).

On the negative side, personal influence from those who left on those who stayed is present. Sometimes, it can be very subtle and not easily detectable. As a CWC Commissioner stated “if somebody is working in your office and you like that person, you know that they passed on the contractor side, they will do something to help that person. And that person does not even ask you to. He does not have to say a word, he

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does not need to pick up the telephone” (interview on March 6, 2015, Washington, DC). Besides that, revolving doors tend to affect regulation (and its application) on the executive level, but not as much on the legislative level. As one industry representative stated: I can’t say that I saw it on a high level in government, but Blackwater did hire a lot of those folks, so they were pretty well, for some time, with connections. They would shift to the senior leadership roles in companies, and I think, they can influence how the regulation moves forward. But that wasn’t the only influence, obviously, the importance of different stakeholder and interactions are important (interview on March 11, 2015, Washington, DC).

A senior Congressional staff member supported such arguments and considered that from his experience, “not everybody is noble” when trying to reach specific goals, referring to people who left their office for the industry but came to ask for help later (interview on March 13, 2015, Washington, DC). One senior Congressional official suggested that there are two other modes for how revolving doors affect regulation. On the one hand, he recalls the Blackwater hearings before Congress and said there were former senior executive officials “parading through the halls on the Hill” with Blackwater representatives trying to influence their treatment. The fact is, he claims, sometimes it worked for them, while other times it had the opposite effect. On the other hand, he witnessed occasions when previous knowledge was used by people to avoid or influence certain decisions (interview on April 10, 2015, Washington, DC). The other consequence of the movement of people from their previous positions is institutional memory loss. Also, as a consequence of particularity of the US system, there are a lot of personnel changes in the US government, in both the legislative and the executive branches. First, unaware of the possibility of it presenting a serious obstacle to the regulatory process, this research has not contemplated its effects on the regulatory process. Hence, through the process of scheduling and executing interviews, the difficulty in finding knowledgeable people involved in the regulatory process presented a serious challenge. Later, even some interviews with senior Congressional staff working for Congressmen/women active on the issue were not considered for the purpose of the investigation because their knowledge of the regulation of PSCs was very limited,

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even in the best case. As such, in the 50 interviews that counted for this research, interviewees were asked about the importance of institutional memory loss in the regulatory process.2 The first conclusion was there were not many people closely involved in the regulatory process, so a lack of knowledge from staff (of members and committees involved in regulation) was expected. The main contribution to institutional memory loss is frequent changing of personnel in Congress (as well as Congressmen/women) and in executive agencies, leading to a loss of information. This happens because information is not systematically passed from one person to another, meaning that there are no explanations as to why the process took a certain direction or where it should go, so a great deal of experience is lost. That effect was also recognized at the ground level by senior DoD officials (interviews on March 18 and April 3, 2015). A former senior Congressional staff member stated: I think it does [affect institutional memory loss]. Senator Leahy’s staff, in particular, passed through several different staff that worked on this, representative Price, too. Unfortunately, after I left, he had a couple of different people working on this so it’s like 3 different people. On the member level, I think it is pretty fortunate given how much the Congress changed over last 10 years. Obviously, Senator Obama moved on, but Leahy was involved from the beginning because he was involved in a leadership position in Judiciary Committee, so you had Price and Leahy stable in their positions throughout the whole time, and Grassley, too. In member level, there was some stability. In the executive branch it has been a lot of turnover in terms of people who work on these issues, so yeah, I do think that has been challenging. (…) It has been turnovers in Human Rights Committee, too, that is another thing. One of the folks that I have worked very closely with initially is long gone from the position. You have policy positions held down without necessarily the people who inherited these policy positions understand how the organization got to that positions (interview on March 23, 2015, Washington, DC).

Institutional memory in executive agencies is usually held by senior staff. As a senior DoD official confirmed: Traditionally civilians in DoD provided a long-time institutional memory. And what happened in Iraq and Afghanistan, is a reverse is true, the institutional memory is a contractor. Not the government official. You have

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been in Afghanistan as a trainer for 8 years, you had already 8 different bosses from the government; who has the institutional memory? That put you as a weakness as a government. You mitigate that by good training, good policy, good procedures. But you can’t eliminate it completely. When the contractor is smarter than you are, and that is a reality, they know why they are doing it this way and they have all the answers why we cannot do it another way (interview on April 3, 2015, Washington, DC).

Institutional memory loss influences regulation in two ways: first, by when the state agent acts with limited knowledge (from the governmental side) in comparison to a private agent, and follows essentially the logic behind principal–agent theory. This occurs as a consequence of the transition of files from the knowledgeable person (holding a file related to regulation of PSCs) when he/she leaves his/her position, and the person who picks it up does not continue the job previously in course. Often, the new person would pick up a dossier holding facts of previous accomplishments, but those files do not have data on how outcomes came up and what is possible to accomplish in practice. Such knowledge is personal/non-transmissive (interviews with senior Congressional staff on February 26, March 13, 23, 27, April 10, 2015, Washington, DC). Clearly, those influences may work both ways, positively (fresh eyes, new approach) and negatively, and here the focus is given to the negative side. Second, bureaucracies take too long and, in the meantime, people change. With the change of staff, both in Congress and in the executive branch, there is a chance of some issues being forgotten because the new administration does not consider them urgent (interview senior congressional staff on March 13, 2015, Washington, DC). Such opinions were confirmed by others (interviews on March 9 and 27, 2015), stating the staff does not push topics—the administration does. Therefore, if there is no push to consider some changes as necessary, then it (staff) may leave processes in the bottom of a drawer, and the document may stay there, completely forgotten (interviews on March 9 and 27, 2015). Considering all the arguments, institutional memory loss is fairly easy to prevent. On the Congress members’ level, stability is never foreseeable, so the knowledge is left aside and lost if a member ceases activity or employment. That is simply the political reality and cannot be prevented. However, memory loss due to a change of staff, in Congress or executive agencies, is possible to counteract. As a former senior oversight officer stated:

190  J. JEZDIMIROVIC RANITO To fight institutional memory loss you need to balance it. One way to deal with institutional memory loss is to ensure that you have sufficient overlap between the people who are leaving and the ones that are taking functions. They need to have detailed books on what they’ve done and why they have done it and if they didn’t why they didn’t. Particularly in Congress this is difficult, if you have a change of majority or personnel movement they change the continuity of the staff and the knowledge they have. You don’t really legislate that, it is really best practices and it up to the agencies to ensure that there is sufficient overlap between the person who is going to take the place and the one leaving. They need to pass their procedures, the major challenges you faced and how you resolved them, so somebody will be able to look up at it (interview on April 8, 2015, Washington, DC).

5.5  Urgency Caused by the Headlines The influence of the media on the regulatory process is significant since it stimulates public debate. Headlines give issues a sense of urgency, and politicians tend to address those first to gain political advantage with voters. However, when the PSCs are not involved in bigger incidents, there is no particular reason to focus media attention on them. As a consequence, political representatives tend to focus on other subjects that are currently attracting a lot of attention. As senior oversight official stated “let me put it this way: On the Hill, their interest is very limited, they are like a child, they have a very short attention span, something is a hot topic today and then they move to something else. Let’s face it, how often do you see Afghanistan in the papers these days, it’s not very often, right? Because that’s not a priority anymore. We don’t have hundreds of thousands of troops there, so they are the same way, you know. If it’s not a hot to the public, it is not hot to them. So, I would say probably it’s waning” (interview on February 24, 2015, Washington, DC). In over 90% of interviews, the importance and influence of media putting pressure on both the legislative and the executive branches to find effective solutions was mentioned. Since such pressure has dropped in recent years, consequence of the great withdrawal of US presence from both Iraq and Afghanistan, it is to be expected that the pressure and presence of such an issue in the media would be greatly reduced.3 Most of the interviewees agreed this does not mean the problem is solved—far from it, in fact. This simply means there are other more urgent topics that need to be addressed. Several interviewees mentioned the subject will be raised again when the next scandal occurs (and the question is

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rather when, not if), and then political elites will question why these issues were not already resolved (interviews on March 4, 6, 12, 19, 23, April 1 and 2, 2015, Washington, DC). The effect of media pressure was felt in the numerous hearings held by various committees in Congress after major incidents involving security contractors in stability operations. Those hearings were characterized as political theater by most of the interviewees, but it was unanimously accepted opinion that they did contribute to bringing attention and focus to issues and to applying pressure and maintaining an active discussion. This is important since there is a division among people about how the US government deals with security contractors in stability operations. There are people who think the US approach is fixing the issues raised, but integrated into the larger topic of the contractors in stability operations in general (interviews on March 12, April 8, 2015, Washington, DC), and there are others defending that the US government has a fire extinguisher approach, or a patchwork approach, fixing the most urgent issues and then moving on to other hot issues (interviews on February 27, March 4, 9, 11, 25, April 2, 2015). Whichever is chosen, the fact is that any pressure coming from the media and the public, in general, encourages a reconsideration of this topic. In fact, senior Congressional staff members suggested the American public is not aware of the scope of contracting over the last decade simply because it is something that is not frequently discussed (interview on February 23, 2015, Washington, DC). Of course, political attention is dependent on the results that the involvement of political representatives is going to have since they live in a continuous cycle of elections. The specificities of such habitus dictate such behavior, as senior DoD official explained, “we have 435 Congressmen who are up for election every two years and we have another 100 senators, and these 435 Congressman have very limited staff and they are spending at least half of their time running for a re-election. And their staff is … they are doing good job and not everybody can have good experience and be competent. We have been in that way for 225 years, so, it’s how it works. Our government was designed to be inefficient, was truly designed to be inefficient, and lives up to that” (interview on March 18, 2015, Washington, DC). Their future election results depend on the voters and their interests, and when the voters are not even aware that there is an issue with the regulation of PSCs, then the attention given to such a topic often is reduced from little to none (interviews on February 25, 27, March 4, 6, and 9,

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2015, Washington, DC). The general impression of the interviewees is the major impulse in dealing with security contractors in more intensive ways won’t take long, since future interventions certainly will be heavily dependent on contractors, and some issues will emerge again inevitably. As a senior industry representative stated, “until there is more media attention, it probably will not be addressed. With the standards (PSC.1 and ISO18788) the regulation is much better and everybody hopes that will be sufficient in the prevention of further incidents” (interview on March 11, 2015, Washington, DC). The influence of the voters is also very important and, with the lack of awareness, there is usually not much pressure by them to address this topic. As a senior GAO official stated, It depends on how many voters, and in what districts, are putting the pressure on the members of Congress. The members have a role in Armed Services Committee or Government Affairs and for how long? It does become an academic argument, newspapers and everything else, but when it comes right down to it, it’s pressure on a local level, so if it is not your constituency you can’t do much about it. And if you are not on oversight committees, it is really a much smaller group of members who would come in contact with issues, if you are on the Science and Space Committee and oversee NASA and that is your focus area, the other issues are tangential unless they have a reason to be personally involved, because they have interest or family member or what not, or they have some constituency interests into. Otherwise, they may not get involved (interview on April 3, 2015, Washington, DC).

Therefore, media attention is closely linked to the progress of the regulatory process. Media attention might not affect regulation directly but is useful for increasing awareness of the American public related to security contractors and, in some cases, even influencing their political representative. These indirect influences bring issues back to the table and encourage the pursuit of better solutions.

5.6  Organizational Obstacles By immersing in the practices of various governmental institutions, this research identified different types of bureaucratic obstacles linked to organizational structure. The most important ones are the initial and continuous effect of inertia (particularly by the State Department), the

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lack of a specialized office to deal with contingency contracting, inadequate oversight on the ground as a consequence of the lack of career path for the contracting staff, the effects of staff rotation, inadequate staff education, and budgetary problems (not attributing funds for the DoJ to go after criminal cases, no funds attributed to the DoD for continuous work on regulatory improvements, or additional budgets to deal with increased responsibilities in wartime contracting). The word “inertia” arose quite often in the interviews, referencing behavior of both the legislative and the executive branches. Lack of inertia was used to explain that those involved in the regulatory process were sufficiently content with how things were working and did not want to get involved in more profound alterations of existing procedures or legislation. Their behavior might be summed up with “if it was working good enough it should not be tackled again until it appears to be inadequate.” Such behavior was particularly associated with the State Department, and it has been suggested that such attitudes caused delayed action by Congress at best, and in the worst case, caused a complete lack of action. In the US political system, since Congress depends on the executive branch to identify needs and call on Congress to resolve them, departmental habitus and doxas they nurture are very important to that process. Since the State Department did not have a strong security management culture before, senior officials did not believe anything should change as a consequence of the mission in Iraq. Their attitude of “I don’t think this is a good idea, it is not needed” was particularly present at the early stage of the Iraq mission (2003–2006) (interview on April 3, 2015). That attitude was later supported by Under Secretary for Management Kennedy’s statement before the CWC, declaring that there was no need for a special office to deal with wartime contracting, and it refuted the necessity for any assistance in managing its contractors (Kennedy 2011). As a CWC Commissioner concluded, “The enemy was people and agencies being happy in the set-up routines” (interview on April 2, 2015, Washington, DC). Senior DoD officials (interviews on March 18 and April 3, 2015) stated that a good example of the opposite being true was the DoD initiative to support and, jointly with other stakeholders, develop a national standard. Their impulse and statement before Congress, supporting need and demonstrating how the contracting process would benefit from the development of a national standard (for contracting private security companies), eventually resulted in the DoD mandate to develop them.

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Considering the challenges of enhancing better contracting and staff education, 65% of interviewees said they would be resolved by the establishment of a permanent body dealing with wartime contracting. One CWC Commissioner went as far as stating there should be established a special inspector general who would deal with contracting, similar to SIGIR and SIGAR, since they don’t deal with the oversight issues of contractors (interview on March 6, 2015, Washington, DC). This suggestion is not new—it was contemplated in the final CWC report (2011). The benefit of such office would be, aside from continuous work on the improvement of the regulatory procedure, the accumulation of knowledge that would otherwise be lost, consequence of the dispersion of the experienced people. Even though there was closer cooperation in the period of the MOA (DoD and DoS 2007) between the State Department and the DoD, a senior DoD official dealing with regulatory issues concerning security contracting by the DoD considered himself uninformed about measures that the State Department had undertaken regarding private security management over the last couple of years (interview on March 18, 2015). A former senior State Department official confirmed the abandonment of specialized inter-agency mechanisms and processes used during the Iraq mission, stressing their importance in future missions and regretting the time it would take to put them back into commission (interview on March 9, 2015). The necessity of having an office dealing with wartime contracting appears to be straightforward solution since future operations and interventions are expected to depend heavily on contractors. One senior DoD official stated that guidelines for the DoD are when confirming future missions, they should employ over 50% of their needs from contractors (interview on April 1, 2015, Washington, DC). Peacetime contracting is very different from wartime, so using peacetime processes in wartime is inadequate, a former senior State Department official recognized (interview on March 9, 2015, Washington, DC). Therefore, contingency contracting specialization appears to be a natural consequence. Even though the DoD took a step further than the State Department and established an office to deal with policies and their application in the contracting process, there are many issues still common to both departments. One of these is the lack of a career path for the contracting officers and their representatives (CO and COR), as well as their education.

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The need to focus on oversight management is not new and has been previously approached, both by oversight bodies and by academics (GAO 2006; Terry 2010). The CO and COR are those who handle the oversight, and if they are not compensated well, in terms of their career, they might seek other options that provide for their needs. That leaves the contracting process in a precarious position since in Iraq and Afghanistan those officers were essential personnel to fill in the gaps, as one US Senator explained (interview on March 27, 2015, Washington, DC). His opinion is their rotation affected oversight performance since there was a lot of loss in the transmission of knowledge and information. Their training was also put into question since there are constant updates concerning regulation and a continuous educational process should be established that regularly updates those officers on what they should look (interviews with senior DoD officials on March 18 and April 3, 2015). A former senior Congressional staff found that even when the learning curve was high, at the end of the rotation period for these officers, when they knew for what to look, “they had limited resources to see what was going on behind, past their wires” (phone interview on March 27, 2015). As a former senior DoD official claimed, “there needs to be more investment in quality control and education of the officers on the ground, as well as more of a focus on procedures to exercise continuous oversight, so officers know for what to look. The written regulation would not change if there were no substantial changes to how the oversight was executed on the ground” (interview on April 1, 2015, Washington, DC). These issues are far from new and have been previously touched on by some academics (Bruneau 2013, 654; Cohn 2011; Isenberg 2009, 32), as well as by the military, namely, in Gansler’s report (Center for Constitutional Rights 2015; DoD 2007; Human Rights First 2008). However, they were never connected with other problems and called on limiting the effectiveness of the regulatory process. There is no governmental investment in the development of this part of regulatory efforts at present, and as one senior DoD official confirmed, it is the agency’s task to continue to work on it, as well as on the educational component, while there is a low demand for it. Their contribution is dependent on the department’s ability to support it, with human resources and funds that would improve the application of the existing regulation on the ground level, and in the DoD, senior officials consider themselves grateful to be able continuously to work on the development of regulatory tools and teach their application to staff involved on the ground (interviews on March 18 and April 3, 2015, Washington, DC).

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When considering the lack of prosecution of a contractor’s criminal misconduct, the DoJ was often defended by different stakeholders for not having a special budget for such prosecutions. As explained in previous points, there is no special budget established for cases concerning wartime contracting; instead, those cases are add-ons to existing local cases. Such a limitation represents a blow to justice. Until there is a clear support structure (budgetary and organizational) for criminal investigation in the State, Defense, and Justice Departments, justice and accountability will be discredited when the misconduct of contractors is discussed (Center for Constitutional Rights 2015; Human Rights First 2008). One academic stated, “this raises all types of issues how to fund, (…) who’s paying for it, (there is) a limited budget, traveling budget, bringing in a witness here to testify, so there are so many (…) real barriers as cost, ideally they would need to fund something special in the Department of Justice” (interview on February 27, 2015, Washington, DC). There is support for the claim there should be a Special Inspector General, not only based on the opinion of different stakeholders (interviews on February 24, March 4, 6, April 2, 2015), but also because the prosecution of fraud related to contractors in stability operations is a common practice. Two very senior oversight officials (interviews on February 24, March 4, 2015) argued there is no political reluctance to follow up with these cases, particularly because Special IG (as in SIGIR and SIGAR) does all the investigation and collection of evidence, and actively seeks out and follows DoJ prosecutions. Such a statement supports the necessity for a clear structure for the conduct of criminal investigations that would make the prosecution of contractor misconduct a technical issue, just like the cases of fraud.4

5.7  The Influence of Personality and Personal Connection There are various other factors influencing the regulatory process that cannot be quantified. Relationships, personal, professional, or institutional, are some of those factors. Those networks are proposed to be observed here through Bourdieu’s lens, particularly looking at habitus. Habitus, as we saw in Chapter 3, defines social space essential for an understanding of personal relationships and the importance they had in the regulatory process. As Bourdieu (1977) explained, it is the common space where stakeholders interact, and, consequently, their relations do

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affect their actions and motivations to act in a certain way. Therefore, studying regulatory process without giving due attention to relationships that determined the course of action and reaction by diverse stakeholders involved is crucial for the comprehensive understanding of the regulatory process. The focus is on the personalities of agents, their connections, and how they shaped the regulatory process. Those influences might be observed in any stakeholder, including political representatives (both in Congress and in executive agencies), executive staff, oversight agents, or industry representatives, and can be a major determinant in establishing a regulatory path. In Congress, some representatives were able to draw bipartisan support for certain issues, and others even alienated their own party representative with the way they presented their case. In this case, it is possible to observe the prevalence of the personality over the doxa of specific habitus. For instance, Senator Claire McCaskill was seeking to address regulatory issues through CWC bipartisan support, while Schakowsky (2010) fought an ideological battle. The open/closed mind toward understanding the standpoint of others, and agreeing to disagree, often differed from person to person. In the oversight bodies, particularly in the case of SIGIR and SIGAR, personality was very important, which was visible in the legacy of each of the Special IGs. Some were more proactive than others, and, therefore, their mark on the regulatory process was different. The very loud approach, attributed to the currently acting SIGAR, John Sopko, is not unanimously seen as the best way positively to influence the regulatory process, as it requires being very aggressive and oriented toward drawing media attention (interview on February 24, 2015, Washington, DC). In opposition, the former SIGIR, Stuart Bowen, was praised as the person who most constructively contributed to contracting legislation advancement (Skype interview on March 10, 2015). The impact of personality of people is more important than for the stakeholder to which they belong. One senior industry representative (interview on February 25, 2015, Washington, DC) gave an example of Christopher Mayer, currently positioned as the Director of Acquisition and Contract Management in the DoD, who moved from the DoD (working with contractors on the ground in Iraq) to industry for a short period, worked on the same issues (contract management), and was then invited back to the DoD to work as a civilian, where he continues to work today. It was his integrity and attitude toward the advancement of the regulatory process that was most important, rather than the role in

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which he performed those functions. His personality has been considered crucial for the advancement of the regulatory process by different stakeholders, including academics, industry representatives, and oversight officials, and his integrity has been recognized in both positions (public and private) (interviews on February 19, 25, 27, March 27, April 3 and 13, 2015, Washington, DC). The common difficulty in the regulatory process, when mediation and negotiation of any kind are involved, is the openness of the person who represents a certain stakeholder to understand other points of view. A senior oversight official stated: Personalities on the government side play a huge role. Sometimes behind that personality is actually a perspective with which you can begin to identify, a certain culture. (…) there are people who have a way of organizing thought in their head and communicate that is very different from other people. Those differences can lead to real problems and understanding of what somebody is really saying or looking at from different perspective, problems with communicating. And the perception that you are completely opposed to the idea, when, in fact, you may actually accept a lot of parts of that idea but you don’t like the way the idea is organized, or you don’t like certain aspects about the way you pursue the idea. Some of those perception issues were at play, and that is a personality thing, I don’t think that is a departmental institutional issue. Somebody with a really flexible mindset that has the ability to diagnose and understand a lot of different perspectives, wouldn’t necessarily bug down on it (Skype interview on April 3, 2015).

Another senior oversight official stressed personality might be the most important factor that has influenced the regulatory process in the case of security contractors. She argued, “personalities are key, persons that are flexible, that listen to another point of view, that compromises are willing to try something different, this kind of personality is essential. For all stakeholders” (Phone interview on April 7, 2015). Confirmation by seeing the opposite was evident in the discussions related to the CEJA legislation in the Judiciary Committee, where the personality of one Senator and his appointed lawyer caused serious impediments to the regulatory process. One senior Congressional officer stated “Senator Chambliss’s lawyer is a just big pain (…), that is a personal thing. But I don’t think that there were some level and intentions. (…) If Senators Chambliss and Grassley understood the legal context around this concept better, they would probably compromise by now” (interview on March 23, 2015, Washington, DC).

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As it was demonstrated, at higher levels, particularly in executive agencies, personality does matter. The initiative depends on people who are going to push certain issues and who will consider it important enough to invest their time and resources to pursue the advancement of the regulatory process. As stressed in this section, human factor is placed as a crucial element in understanding regulatory dynamics and contextualizing interactions, actions, and reactions of people involved in the regulatory process, and the marks left on institutions they represented are of crucial importance. Personal beliefs are deeply ingrained and responsible for action of agents. Personal beliefs are socially constructed with social participation of each person in various spheres of life: family, work, sports, political causes, friends. Those beliefs may support some political position or balance institutional doxas certain participant in the regulatory process has, but it certainly has either positive or negative effect on process. As stated in the example given above, even though Congress did not allocate funds for the continuous improvement of regulatory tools or for the education of the agency’s staff, there was an initiative in the DoD to close the educational gap and seek out possible difficulties that may appear in future contingency contracting. Such an initiative is dependent on the political willingness of the Secretary of Defense, and his deputies, to pursue and prioritize those issues, even when there is no imposition from Congress (interviews with senior DoD officers on March 18 and April 3, 2015, Washington, DC). The same applies to political elites in Congress, where certain politicians need to decide if the regulation of private security contractors is high enough on their list to make it a yearly priority, to deliver time and effort to push such an issue forward, and to gather support among other political representatives. As a former senior Congressional staff member stated, to make changes “initiative needs to get bipartisan support and you would have to take up a lot of floor time to do it, which you can do, but Senator Leahy, or whoever offering it, would have to really need to make it a priority for the year. And Leahy is a Chairman of the Judiciary Committee, so he always has a number of priorities and this was not his no. 1, so it didn’t happen” (interview on March 23, 2015, Washington, DC). Personality is crucial in politics, and in the relationships among legislators, who are proposing the idea and how the subject is approached are very important (interview senior Congressional officer on April 10, 2015, Washington, DC).

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Another example of the importance of personality was demonstrated by Senator McCaskill, who led the Senate Committee on Homeland Security and Governmental Affairs. She brought challenges regarding the oversight and accountability of contractors in wartime overseas contracting during a legislative debate in 2010 and continued to be closely involved in Congressional efforts in the following years. She was behind the establishment and following up on the CWC. The Commissioners recognize her input and involvement as being crucial in maintaining accountability issues in legislative debate for several years (interviews on March 6, 27, April 1 and 2, 2015, Washington, DC). At lower levels, personality can influence if and how existing procedures and regulations are applied. A senior DoD official suggested that commanders on the ground may have strong opinions on how security contractors should operate, namely, what they should/should not do, which affects the application of the regulatory procedures (interview on April 3, 2015, Washington, DC). He stated the DoD is working on the education of all commanders so that such decisions will no longer be left to their judgment, but, instead, they will recognize and apply established procedures. Closely related to personality are the personal relationships between people involved in the regulatory process. All of them operate in a society where, aside from their professional involvement, they also nurture other aspects of their lives. The friendships made through their political party, religious beliefs, family ties, or other social occasions are very important. Professional connections are very important and might influence the regulatory process more than other types of relationships, particularly since continuous debate forms strong ties between people. This is a capital that has a high value in the regulatory process. As a senior DoD official claims, “you do not underestimate the importance of personal relationships. We have a huge government, we have a large population. It is critical. It should be that way. You have to bring personal perspective and individual judgments. This is a good idea, I know this person, I know where he comes from, and he is not wrong, he is just seeing it differently than me. And so, we need to find a way to work together. And, without those personal relationships, it would not work” (interview on March 18, 2015, Washington, DC). Supporting his claim, from the scope of the conducted interviews, more than 50% knew each other fairly well or at least knew where they came from and what they did. It was interesting to observe the snowball effect, eventually revealing

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all the same people, even though they were representing other stakeholders than the person who was actually recommending them. The snowball effect of interviews revealed the fact that interactions among stakeholders resulted in strong personal relationships. The snowball effect led from Congressional officials to industry representatives that otherwise were not available to talk, from NGO representatives and academics to people from industry and executive agencies, and from industry to Congressional officials; it was a complex network that allowed me to observe their connections, which had important impact on the regulatory process. Beginning with professional relationships, their influence on the regulatory process was particularly apparent in the executive branch. In the State Department, close relationships between some contractors and State Department officers led to a less-than-strict approach to their accountability. A senior industry representative argued, “I absolutely do think that people who have known the right people at the State Department for a number of years have been able to influence things,” continuing, “State Department is a very difficult agency to interact with. DoD is much more open. State Department folks will not talk to you unless they personally know you, and know you for 10 years, and it is very difficult to meet with various folks within the State Department. They are just not interested” (phone interview on March 2, 2015). In the DoD, a senior DoD official claimed those personal relationships just facilitate interactions among stakeholders. He gave an example of a former subordinate staff member who went to work for a particular company: One guy who used to work on my staff, he is now working for one PSC, but this is really good because my contact is him now. That’s fine. And some people in industry stay, usually on the top level. The State Department, the people there move their office, even the Department, but in the DoD, it is usually the military staff that moves in the private sector, not civilians. And that is not a bad thing because that forces you to renew your own education and to stay on top of the things (interview on March 18, 2015, Washington, DC).

One former employee of a well-known PSC claimed the influence of personal relationships is particularly visible on the ground level, in terms of ambassadors and generals on the ground dealing with contractor

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issues. That is because those officers are opening a door for their future after leaving office, and due to their close connection with some of their former colleagues, are already working for PSCs (phone interview on March 2, 2015, Washington, DC). A former CWC Commissioner supported that claim: It is just natural. If somebody is working in your office and you like that person, you know that they passed on the contractor side, they will do something to help that person. And that person does not even ask you to. He does not have to say a word, he does not need to pick up the telephone (interview on March 6, 2015, Washington, DC).

When political relationships are considered, there is an understanding that words are not necessary. Those relationships and actions mostly overlap with lobbying and, as the CWC Commissioner argued, there is usually no money involved, and the actions are not something that you could consider criminal (interview on March 6, 2015, Washington, DC). Political relationships have been more obvious in the Committees, where most of the representatives do not have comprehensive knowledge about many issues, and their vote would go toward a person with whom they share the same beliefs (doxas) in general (on partisan level) or due to friendship if that is the case. A former senior Congressional staff member stated he witnessed a number of occasions on which this occurred on the Judiciary Committee, particularly between 2009 and 2012 (interview on March 23, 2015, Washington, DC). Certainly, there are other personal relationships that have been invoked to influence the regulatory process. Scahill (2008, 17) gave an example of how religious influences affect the industry, but there are still other personal connections that might affect the regulatory process. Other examples of support from politicians include Texas Congressman Pete Sessions, who embraced the cause of DynCorp (idem), and Colin Powell, former Secretary of State, who claimed that the president of MPRI was one of his dearest friends (Schreier and Caparini 2005, 69).

5.8  Conclusion There are several impediments that fall under the political and bureaucratic umbrella, but which are rarely approached by the academic community when discussing the regulation of security contractors. This chapter

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aimed to fill that gap by demonstrating with practices, from secondary sources and particularly using the experiences of stakeholders involved in the regulatory process, to understand and demystify what is hidden beneath it. The aim was to deconstruct the famous claim that “it is a political issue” in answer to the question of why regulation is not more efficient. By delving deep within habitus of stakeholders, and by studying their practices, it was demonstrated that political impediments can be observed on two levels. First, the bipartisan division is rooted in the deeper philosophical debate of understanding inherently governmental functions and the opposition to outsourcing security services. The division of opinion between Democrats and Republicans on the necessity further to regulate the industry and understand if the intelligence community should or should not be protected from accountability due to the nature of its business was the main constraint that Congress faced in the course of the regulatory process. On the institutional level, agency habitus are very different, as are their attitudes toward the regulation of armed security contractors in stability operations. The DoD has had a more proactive role (seeking standards, being responsive to Congress, having a management culture rooted in departmental structure, and having a policy where some casualties are expected in conflict zones), while the State Department was seen to be stalling the process of regulation often (slowing down regulatory efforts and nurturing “cozy” relationships with its contractors, including failing to investigate misbehavior, due to the State Department policy to use any measures that result in zero casualties). The DoJ was also contributing to political impediments, in a sense, by not making the troubles of prosecution public knowledge and asking for more help (budgetary or otherwise) to apply existing regulations/laws or to raise concern for the necessity of other, more efficient tools that would allow for more successful prosecution of contractor misconduct. The uncovering of content related to bureaucracy issues led to the observation of several issues affecting the regulatory process from an organizational standpoint. Therefore, under bureaucracy, some challenges were revolving doors, institutional memory loss, the importance of being a “hot” topic, organizational challenges, the importance of personality, and personal relationships. Revolving doors have been shown to have both positive and negative effects on regulation. On the one hand, the revolving doors helped to make people aware of different aspects and

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possibilities of regulation for people who saw it from both sides; on the other hand, their exit to industry is making them more market-oriented (their efforts lie where the money is). Turnover in Congress frequently means a change of people involved in certain issues, and since there are often no procedures for recycling a process previously in place, there are many staff members involved by the same Congressman or Senator who do not follow or are not informed about previous efforts. This happens on the agency level as well, where the DoD noticed the best institutional memory in contingency operations is possessed by contractors. This is a disturbing fact since that heavily influences the available information that shapes regulation. The importance of the media focus on regulation of PSCs in post-conflict operations, e.g., turning it into a “hot” topic, is crucial, but since neither Iraq nor Afghanistan now fits the description of a “hot issue,” the press is not particularly involved or interested. Often, political representatives follow issues that are important to their voters since they are almost continuously in a campaign process. As some of my interviewees stated, when the issue becomes “hot” again, they will say, “Why have we still not solved this?”. Organizational challenges include the effect of inertia (particularly by the State Department), the lacks of a specialized office that would deal with contingency contracting, inadequate oversight on the ground, the consequence of a lack of career path for the contracting staff, the effects of staff rotation, inadequate staff education, and budgetary problems. In examples and statements from stakeholders, it was demonstrated how those issues influenced the regulatory process. Last, but not least, the focus was given to the importance of personality and personal connections for the regulatory process. Both positive and negative effects demonstrated that relationships are very important in the regulatory process, as they shape both the direction and the content of regulatory initiatives.

Notes 1.  Inherently governmental function was for a decade a crucial stepping stone in ideological debate. Circular A-76, as revised in 2003, states that using contractors to provide certain types of protective services—guard services, convoy protection services, plant protection services, pass and identification services, and the operation of prison or detention facilities, all whether performed by unarmed or armed personnel—is not prohibited.

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Nevertheless, Circular A-76 also stipulates that executive agencies should take into account whether circumstances exist where the provider’s authority to take action “… will significantly and directly affect the life, liberty, or property of individual members of the public, including the likelihood of the provider’s need to resort to force in support of a police or judicial activity; whether the provider is more likely to use force, especially deadly force, and the degree to which force may have to be exercised in public or relatively uncontrolled areas. DoD implementation of the FAR, known as the Defense Federal Acquisition Regulation Supplement (DFARS), does not prohibit the use of contract personnel for security, but it limits the extent to which contract personnel may be hired to guard military installations and provides mandatory contractual provisions for contractors who are accompanying U.S. Armed Forces deployed overseas (48 C.F.R. Part 252.225-7040.)” (Luckey et al. 2009). 2. In one interview, closer to the end of the fieldwork, when asked about the number of people that I covered from different stakeholders, a senior industry representative concluded, “sounds about right” (interview on March 25, 2015). 3. A senior industry representative said “They are focusing on a bright and shiny object, and we were bright and shiny objects for a while” (interview on March 11, 2015, Washington, DC). 4. We clearly recognize that fraud cases imply much lower costs, since the evidence collection does not have a sense of urgency to it. There is no necessity to isolate the perimeter of the crime scene, or to protect the chain of evidence custody. Fraud relates to people, rather than numbers, but the way it is conceptualized might be the right answer to the problem.

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Giardino, Anthony E. 2007. “Using Extraterritorial Jurisdiction to Prosecute Violations of the Law of War: Looking Beyond the War Crimes Act.” Boston College Law Review 48: 699. Government Accountability Office (GAO). 2006. Hearing Before the Subcommittee on National Security, Emerging Threats and International Relations, Committee on Government Reform, House of Representatives. Washington, DC: US Congress. ———. 2010. “Warfighter Support: A Cost Comparison of Using State Department Employees Versus Contractors for Security Purposes in Iraq.” GAO-10-266R. Washington, DC: Government Accountability Office. Human Rights First. 2008. Private Security Contractors at War: Ending the Culture of Impunity. New York: Human Rights First. http://www. humanrightsfirst.org/2008/01/16/Department-of-Justice-Continues-toIgnore-Violent-Crimes-Committed-By-Private-Security-Contractors-in-IraqAfghanistan. Isenberg, David. 2009. Private Military Contractors and US Grand Strategy. Oslo: International Peace Research Institute (PRIO). Kennedy, Patrick. 2011. Statement by Patrick F. Kennedy Department of State, Under Secretary for Management. Commission on Wartime Contracting. http://cybercemetery.unt.edu/archive/cwc/20110912190101/; http://www. wartimecontracting.gov/docs/hearing2011-06-06_testimony-Kennedy.pdf. Krahmann, Elke. 2016. “NATO Contracting in Afghanistan: The Problem of Principal–Agent Networks.” International Affairs 92 (6): 1401–26. Leahy, Patrick. 2010. “Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010 (2010–S. 2979).” https://www.govtrack.us/congress/bills/111/s2979. ———. 2015. “Leahy Introduces Legislation to Hold American Contractors Overseas Accountable Under U.S. Law | U.S. Senator Patrick Leahy of Vermont.” Washington, DC: US Senate. https://www.leahy.senate.gov/ press/leahy-introduces-legislation-to-hold-american-contractors-overseas_ accountable-under-us-law. Lowndes, Vivien, and Chris Skelcher. 1998. “The Dynamics of MultiOrganizational Partnerships: An Analysis of Changing Modes of Governance.” Public Administration 76 (2): 313–33. Luckey, John, Valerie Grasso, and Kate Manuel. 2009. Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress. Washington, DC: Congressional Research Services. Marsh, Kevin. 2014. “Obama’s Surge: A Bureaucratic Politics Analysis of the Decision to Order a Troop Surge in the Afghanistan War.” Foreign Policy Analysis 10 (3): 265–88. McCaskill, Claire. 2010. “Enhancing Oversight and Security at United States Missions Act of 2010 (2010–S. 3037).” https://www.govtrack.us/congress/ bills/111/s3037.

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CHAPTER 6

Conclusions

To improve regulation of private security contractors it is necessary to comprehend dramatic change in the way they were previously conceptualized, which, by itself, is a difficult task. Even though outsourcing security tasks is not new phenomena, the use of mercenaries through history is very different from the use of contemporary private security companies. The mode of how security contractors are used in unstable environments has significantly changed in the beginning of the twenty-first century, and their roles include carrying weapons, not solely providing cleaning and cooking services. Also, under the law, their stance is very different from that of mercenaries; modern private security contractors are seen as civilian workers and not associated with their ancestors. Compared to most regulatory processes, this particular one may have had added difficulties, such as low transparency of stakeholders and the regulatory process itself, as well as very little empirical research related directly to it (Carafano 2008). As a consequence, often repeated opinions from media have turned into rather commonly accepted wisdom, which further distracted researchers from examining real regulatory obstacles. The tendency to accept labeling of stakeholders and attribution of identities, which might not mirror reality on the ground, brought difficulties to the study of the regulatory process. Such reduction of the stakeholders to certain labels and boxes, so they fit in established theories, did not help in advancing comprehension of the regulatory process. Any analysis that has reduced either scope of what regulatory process encompass (stakeholders, venues, dynamics between national and © The Author(s) 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7_6

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international dimensions) or approach to such analysis (e.g., solely looking at economic gains and making suppositions that industry would act, no matter what, to reduce costs) as this research demonstrated, was misleading. By searching to uncover real identities of stakeholders in their full diversity and plurality, the study of the regulatory process would have a lot to gain since motivations and behavior of stakeholders might be better understood in the context in which it occurred. To demonstrate how that was apparent in the regulatory process of private security contractors in the USA, we presented the puzzle of this investigation, the fact that the regulatory framework of private security contractors working for the US government in an unstable environment is inefficient and that, up to this moment, there is no approach that permits fully exploring the reasons for its inefficiency. It was recognized that often commonly accepted wisdom has discouraged further academic research, and the approaches used to address inefficiencies have been very restricting by solely focusing on one element at the time (such as legal inefficiencies, economic motivation, or political aspects). To address those shortcomings, a new conceptual approach was proposed. By focusing on the structural shift that occurred in the late twentieth century, from the government to governance, and consequences of the establishment of new security assemblages (Abrahamsen and Williams 2010), it is possible to see how the scope of stakeholders has been expanded and permits looking closely at their effects on the regulatory process. Further on, relying heavily on Bourdieu’s theory of practice (1977) and enriching it with several contemporary contributions, it was proposed to look at practices that made the regulatory process and learn more about constraints and challenges from the ground level. Studying practices showed impact of economic, political, and human factors, as well as bureaucratic and organizational drivers on regulatory process, and highlighted identified obstacles. Economic gain has been considered as both a stimulus and hindrance to the regulatory process. While Private Security Companies (PSCs) did look to minimize their costs, and for that reason stalled regulation that might bring them further costs, part of the industry was insistent on raising quality standards in order to maintain the industry after serious misconduct, particularly Nisour Square. Two elements related to PSC drive that have not been considered until now (gains PSCs may obtain from expanding a more image-conscious market and efforts to guarantee disassociation with a bad public image resulting from incidents where services are provided by

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low-cost alternatives) have been identified and discussed. Those insights indicate that industry certainly was not the cause of the state of the regulatory process as it stands in 2018. After closer observation of the public sector, serious hindrances have been encountered in different branches. It would be wrong to observe the US governmental approach to regulation as anything homogeneous in nature. While observing the Department of Defense (DoD) and State Department more closely, and briefly the Department of Justice, it was possible to observe how interdepartmental and budgetary politics affected the regulatory process of private security contractors. Often, actions and reactions of those responsible for representing departments were more concerned with power relations between agencies rather than with successful regulatory solutions. The clearest example was the distancing of the State Department from any joint initiatives that involved the DoD as a way to stress its autonomy and independence. This points to flaws in the US political system that have contributed not only to the current state of this process, but also to other regulatory processes. Ideological division in Congress has contributed substantially simply to maintain the status quo of regulation since the final Commission on Wartime Contracting (CWC) report was issued in 2011. Bipartisan division over outsourcing security has turned regulatory issues political, not technical (Tiefer 2013; Avant and De Nevers 2011). This implied any compromise by either side might be seen as a weakness and has prevented any firm attitude from being adopted in regard to regulation of PSCs. The clear example presented here was the process of introduction of the Civilian Extraterritorial Jurisdiction Act (CEJA) proposal and consequent issues of its association to Senator, later President Obama, who originally proposed it. The ideological division between Democrats and Republicans over the necessity to regulate the industry and to formulate clearly its limitations left a deep trace in this particular regulatory process. Such division has significantly affected contracting departments, namely the State and Defense Department, but has also affected the Justice Department. While there is no clear political stand prioritizing the follow-up of criminal misconduct, a few improvements are possible. Allocating funds to support the administering of existing laws and criminal conviction of contractors guilty of misconduct would serve in the future as dissuasion to others. While the example of the Nisour Square trial demonstrated a lack of a better-organized process of collection of

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evidence and difficulties in legal resources to prosecute such misconducts, there is no attempt whatsoever, or willingness, to change it. Dissuasion tactics appeared to be successful in the DoD, as senior DoD officials stated, with the introduction of the possibility for contractors to be court-martialed under UCMJ. That was furthermore confirmed, they suggested, with the absence of the serious incidents under the DoD’s watch. We are not necessarily suggesting extending this to non-DoD contractors; instead, the proposal would be finding a similar operational model applicable to others that would greatly improve the perception of the effectiveness of regulation. There is a necessity to cover accountability of civilian contractors that work for all other departments and agencies that are not DoD (Brown 2013). Through the study of the regulatory process, other obstacles were uncovered in the bureaucratic structure and modus operandi. The obstacles were caused both by agents and structures and those are possible to explain by various departmental cultures, personalities, and the impact of personal connections. There are still notable effects caused on the regulatory process from phenomenons like the “revolving door”, institutional memory loss, and high media attention, which can incite or stall it. While some of the problems appear to have a fairly straightforward fix, others are going much deeper into the organizational culture and the mode the US government has established. The clear example is the election cycle in US Congress that every two years Congressmen/women are elected and pursuing long-term policies and goals is compromised. Besides a whole lot of new data that has been revealed through interviews (and has been cited throughout this book, when appropriate), the fact is that Bourdieu’s approach generated new knowledge. This new knowledge can be summarized in 5 main points addressed in continuation. There is more to a power relationship analysis than we use to look at such relationships. When regulatory process/outcomes previously have been approached, often (when it came to power relationship) the relationship in focus was between what is considered “government” and the private sector. This research demonstrated that there are many other power relations that are equally important in practice. For instance, as claimed by the CWC Commissioners (Chapter 5), testimonies made in the course of work of this Commission proved that point repeatedly: internal (governmental) power struggles, being ideological (Republicans vs. Democrats), personal (within a Senate Judiciary Committee or Senate

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Armed Forces Committee), or institutional (between DoD and the State Department) (Chapters 4 and 5). Those power struggles were important for the regulatory process because they have kept the issue on the Congressional side alive and active, even though their actual contribution to outcomes has not been significant. On the departmental level, these struggles are not simply related to this process in particular; they have a long history related to their responsibilities (or the lack of them) before Congress (Chapter 4). The importance of capital used in any given context demonstrated that for the regulatory process, there was no single one that had crucial importance and was standing out. Political, social, economic, cultural, and symbolic capital were most recurrent in this regulatory process (as demonstrated in Chapters 4 and 5), and they all marked the process at some point in the last decade and a half. Habitus and doxas affected reactions on how departments acted regarding contracting security. No previous research went on a quest as to why regulatory outcomes and actions/reactions emerged. Immersing in departmental doxas and habitus (Chapters 4 and 5, particularly), a vision of why department’s acted in a certain way was presented, and we sought to demystify the modus operatum that lead to those decisions. The institutional habitus is affected by certain doxas and modes of acting that are typical for that institution. When looking at narratives provided by interviewees, those were typically present in the use of adjectives to describe typical practices of a department (e.g., DoD called dynamic and responsive, DoS unresponsive and inertial). Examples explaining rationale of certain reactions include: (a) DoD’s contracting security providers is not politicized and more routine than in the case of the State Department because they have been doing it regularly for decades; (b) State Department privileged its zero policy casualties over concern for the potential civilian victims on the ground because it had concern over its staff that is not used to working in unstable environments; (c) relationship with Congress was very different between DoD and State Department, in part because of the different Constitutional obligations each of them had before Congress; (d) with long-time contracting experience, the DoD understood a need to improve policy toward CO and COR, while the State Department saw contracting in unstable environments as punctual, and, therefore, not so important an issue (same applicable to organization regarding regulation and oversight of security contractors).

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Personal beliefs may prevail over habitus and affect the regulatory process in unexpected ways, both positive and negative. By analyzing practices, it became visible that, in some contexts, personal beliefs and personality of the person in question were more pronounced than institutional doxas. For instance, in the case of Senate Committees (Armed Forces and Judiciary) and the CWC (Chapters 4 and 5), it was apparent that personality of political representatives was standing in the way of opening minds and accumulating information and knowledge of people invited to make testimony (even when those were technical). Many times, it was called by interviewees to be an important obstacle, even more so than institutional doxas per se. However, the personality winning over institutional doxa was seen with positive outcomes as well. Christopher Mayer, director of Armed Contingency Contractor Policies and Programs, has been mentioned by various stakeholders as an example of the person whose integrity and personality went beyond institutional doxa at which he operated (especially by being both in DoD and on the private provider shoes at some point), and who has offered an open-minded approach to the regulatory process (and outcomes supported this analysis, as we could see). The social and cultural capital is very important in the r­ egulatory process (it gives a weight to a certain position or not). What was obvious in the study of this regulatory process is that knowing people, in whichever role they are, is crucial. The US regulatory process of private security providers counted (continuously) through the whole period (two decades), with a relatively small number of knowledgeable people involved from all stakeholders (as multiple stakeholders appointed, between 50 and 70 at most). Therefore, the knowledge of what was done, why it was accomplished, and why the other outcomes were not possible is held in a small circle of people who, in large majority, have changed their positions related to how they first got involved in this regulatory process at least once. There is, of course, as explored in Chapter 5, the issue of revolving doors, personalities of people, and trust that is deposited at one has the predisposition to be kept and used to whichever position that persons move. This is applicable as much in the private ­sector as in governmental institutions and interactions between the two of them. In other words, this regulatory process was heavily affected by the personal relationships (explored in Chapters 4 and 5 in examples of the “cozy” relationship of the State Department with its contractors, of the DoD and contractors who were committed to reaching consensus

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over PSC.1 and ISO 18788, and so on) and their impact has not been previously considered as a factor (either as a positive or negative). Studying practices uncovered and deepened a knowledge of some bureaucratic and organizational challenges that otherwise were not considered. Many theoretical approaches focus on one segment of the regulatory process. Observing practices permitted encompassing several areas of analysis and looking beyond economic, political, and other elements that have contributed to the current state of the regulatory process. As demonstrated above, the human element should not be dismissed when seeking better comprehension of the regulatory process, but we brought on organizational and bureaucratic elements to float to the surface as well. For instance, these elements that previously were not taken into consideration included institutional memory loss, revolving doors, effects of inertia, and the impact of presence in the media (Chapter 5). Other organizational challenges that were somewhat explored previously (such as the lack of a specialized office that would deal with contingency contracting, inadequate oversight on the ground, a consequence of a lack of career path for the contracting staff, the effects of staff rotation, inadequate education of staff, and budgetary problems) have been deepened by observing their real effects on the regulatory process (by cross-examination of the narratives provided by various stakeholders through interviews).

6.1  Contributions and a Way Forward Contributions of this research are twofold. First, by using Bourdieu (1990, 1977), this research demonstrated that when regulation of a relatively new phenomenon as private security contractors operating abroad is studied, it is more beneficial to study from practices since there is a lot of unknowns that need to be uncovered to comprehend fully regulatory process. It is often claimed that lack of data is related to the secrecy of this regulatory process, but secrecy in the political processes is not a new moment. Hannah Arendt (1972), particularly in “Lying in politics,” called “crisis of the republic,” by defending that secrecy and political lies were an impediment to public discussion of vital national security issues. This can very well be transported not solely to analysis of regulatory process here undertaken, but on many other issues. The difference is, over forty years later, the advantage of dynamics between agencies and Congress, in such debates, turned to national security elites

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(Horton 2015, 12). It is a fact that many of the documents continue to be unavailable to the general population, even to political elites, as they claimed, but here we sought to turn the stakeholders involved in the regulatory process as transparent as possible. The first contribution from the standpoint of transparency of data was the introduction of figures and maps that describe stakeholders involved and their influence in the regulatory network. As previously mentioned, there were no such maps or analysis of stakeholders; the innovation provided here lies in mapping the offices dealing with regulatory issues and their interactions. As Anna Leander (2015) stated, to overcome gaps caused by lack of data, we should invest seriously in an ethnographic method and that is what this research, up to the point, did. Hence, this research went one step further, and besides observing practices, it presented analysis of the data gathered by observation in a consistent and comprehensive manner. With consistent process-tracing employed in the elaboration of this book, new data obtained through interviews with elites has been presented to combat the lack of official documents and information occulted with a premise of protection of national security. As a result, it was possible to identify and analyze hindrances to more effective regulatory outcomes and to give a voice to stakeholders involved while doing it. The interviews with industry representatives enriched knowledge with their input and motivations and helped the deconstruction some of their socially attributed identity. The hope is that this is only the first step, and that, in the future, there will be more ground-level information and analysis that will turn both industry and the regulatory process itself closer to the general public. Many details related to this regulatory process remain uncovered, and it is important to stress the nature of secrecy that this issue, as well many others, possess. As Scott Horton (2015, 17) stated, the nation’s national security elite (figures who occupy key decision and policy-making positions in executive agencies) are lords of secrecy. The fact that many other departments and agencies (e.g., CIA) hire private security contractors regularly and there are no data about it available is just one example. That demonstrates there are many other regulatory processes that have the same characteristics, due to a protection of national security, where the approach undertaken in this book may apply and shed some light on dynamics of the regulatory process that occurs behind the veil of secrecy that envelops them. Those issues include, but are not limited to, regulation of drones, robotics, and other contracted human and non-human

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involvement in complex environments. As mentioned throughout this book, some of the issues of regulation of civilian contractors used by other agencies, not the DoD, even if not in the specific context of unstable and complex environment, do have the same characteristics as the ones explored here, and so this type of analysis and the problems identified (at least structural), might be applicable there as well. It is also a place to stress the growing number of areas where secrecy is invoked over national security protection, which, with a rise of concern with terrorism, has been spreading like wildfire, particularly since the September 11 attacks in the USA. The lack of transparency in the public eye has become a rule instead of an exception. Considering the benefits of this research on other regulatory processes, there is no prescription of findings applicable elsewhere. The US political system is unique (e.g., lobbying is not welcomed worldwide as desirable a practice as in the USA), and therefore the lessons regarding obstacles to this regulatory process are not necessarily replicable; each process would have its own dynamics and idiosyncrasies, as Bourdieu suggested. However, there are other elements (e.g., a necessity for closer cooperation within various departments; setting aside political ideology and transformation of regulation into technical issues, and so on) that could be generally useful as a pointer for the other states and organizations working toward regulation of security outsourcing in unstable environments. The approach undertaken here would be particularly useful for the study of process of outsourcing and its regulation within global organizations, which consists in various stakeholders, such as the UN, for instance, or even the cases of regulatory process that occurred within the International Code of Conduct Association, as it was partially addressed by Buzatu (2015). And where to go from here? This research raised more questions than it answered. It established that the US regulatory process of private security providers in complex environments needs profound changes, particularly in a mode as it has been seen (as something that is a passing phenomenon). Admitting that Iraq and Afghanistan were not a one-time event, and the use of contractors in the future will be the rule rather than the exception, would permit the political shift necessary to address many of the gaps that the current approach has. The choice of the USA for this study, as it was explained in the introduction, was due to an extent of its outsourcing, and the place of the biggest governmental contractors of private security services in the world. US history of use of private

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security, massive growth, and presence in the last two decades had a strong impact on the regulatory framework and might be considered the most advanced at this time. The effect on international organizations in which the USA takes part is also an important factor since those venues are the first places where the experiences and knowledge are going to be shared. Recent research of Elke Krahmann (2016) confirmed that NATO deals with numerous challenges identified here, but since there is no pressure to deal with them, NATO does not pursue their solution. Even though the principal–agent approach permitted her to look at some obstacles, further research on international organizations and other governments would gain by expanding their framework to look at the bureaucratic and organizational obstacles that might be further observed from practices. In the future, there will be a necessity to deal with an establishment of the new type of special force, both within governments that are contracting out security (or plan to do it) and in international organizations, more global and general as the United Nations, or more regional and security related as NATO. Such special forces would consist of experts in contracting, management, and holding contractors accountable. The sooner there is an acknowledgment of the benefits of such specialists, the sooner providing security will lose pejorative adjectives associated with it and become just one of the industries, as any other is. With that said, it might sound easy, but it is anything but. Political implications of acknowledgment of the need for such specialization might be too costly for many to take. And it will take a generation to train people and turn provision of security into a technical, rather than a political, issue. Opinion supported here is that academia might play a crucial role in solving regulatory obstacles. Up to this point, academic research contributed to a stall in the study of the regulatory process of private security providers by divorcing academic research from ground reality. While the regulatory process has advanced, if not so much in outcomes than certainly in initiatives, academic writings did not reflect on it. There is a discrepancy between ground reality and the mode regulatory obstacles as addressed academically. If academia would focus more on technical aspects and obstacles of the regulatory process, there would be closer cooperation between scholars and policy-makers and such cooperation might bring better solutions for the regulatory process. This is an urgent matter since the issues related to regulation of the non-typical phenomenon are an unstable environment that is getting more complex with time

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(Doward 2018), and the shift to deal with regulatory issues as technical rather than political would open a path to more effective regulation of such phenomenon in the future. For such a shift to happen, it is necessary to invest more on research from the ground reality, like Carafano (2008) called on a decade ago. Such studies are the only way to learn more about practices and how they might get improved. An ethnographic study of the industry that has the fame of secrecy would contribute a lot to understanding pitfalls of existing mechanisms and construction of more effective ones. As Leander (2015) stated, there is a need to disrupt misconception that such study is not scientific, and embrace advantages it will bring to the study of topics with less data available. Finally, the places to apply such methods (learning from practices) are not lacking. The United Nations is a very interesting example, for instance. While on one side, it still studies the issue of outsourcing security services under the UN Working Group on the Use of Mercenaries, their practices of outsourcing security are ever growing, and the standards under which they contract them are focused on low-cost providers. NATO, as Krahmann (2016) demonstrated, is heavily dependent on security providers, but not at all interested in their regulation. These two examples would be a good starting point for putting a pressure on both governments and organizations by exposing their practices and the lack of accountability. The safer outsourcing of security is a consequence of the joint venture of responsible scholars, governments, international organizations (IO), industry, and civil society. If governments and international organizations are responsible contractors of services, then their provision will cause no more reluctance than any other defense contracting.

References Abrahamsen, Rita, and Michael C. Williams. 2010. Security Beyond the State: Private Security in International Politics. Cambridge: Cambridge University Press. Arendt, Hannah. 1972. Crises of the Republic: Lying in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution. New York: Harvest Books. Avant, Deborah, and Renee De Nevers. 2011. “Military Contractors & the American Way of War.” Daedalus 140 (3): 88–99.

222  J. JEZDIMIROVIC RANITO Bourdieu, Pierre. 1977. Outline of a Theory of Practice. New York: Cambridge University Press. ———. 1990. The Logic of Practice. Cambridge: Polity Press. Brown, Kimberly N. 2013. “We the People, Constitutional Accountability, and Outsourcing Government.” Indiana Law Journal 88 (4): 1347–403. Buzatu, Anne-Marie. 2015. Towards an International Code of Conduct for Private Security Providers: A View from Inside a Multistakeholder Process. Genève: DCAF. Carafano, James Jay. 2008. Private Sector, Public Wars: Contractors in Combat— Afghanistan, Iraq, and Future Conflicts. Westport, CT: Praeger. Doward, Jamie. 2018. “Britain Funds Research into Drones That Decide Who They Kill, Says Report.” The Observer, November 10 sec. World news. https://www.theguardian.com/world/2018/nov/10/autonomous-dronesthat-decide-who-they-kill-britain-funds-research. Horton, Scott. 2015. Lords of Secrecy: The National Security Elite and America’s Stealth Warfare. New York: Nation Books. Krahmann, Elke. 2016. “NATO Contracting in Afghanistan: The Problem of Principal–Agent Networks.” International Affairs 92 (6): 1401–26. Leander, Anna. 2015. “Ethnographic Contributions to Method Development: ‘Strong Objectivity’ in Security Studies.” International Studies Perspectives (December), ekv021. Tiefer, Charles. 2013. “Restrain ‘Risky Business’: Treat High-Risk Private Security Contractors as Inherently Governmental.” Harvard Journal on Legislation 50 (1): 209–37.

Index

A Accountability, 4, 7, 12, 24, 27, 33, 37, 51, 53, 68, 69, 73, 76, 85, 105, 110, 111, 114, 115, 120–122, 124, 130, 137, 140, 166–170, 179, 186, 196, 200, 201, 203, 214, 221 B Bourdieu, Pierre, 6, 8, 69–71, 74, 75, 77, 79–86, 164, 196, 212, 214, 217, 219 Bureaucratic, 6, 8–11, 68, 69, 88, 120, 128, 150, 164, 172, 182, 192, 202, 212, 214, 217, 220 C Capital, 82, 86, 183, 215 Civilian Extraterritorial Jurisdiction Act (CEJA), 123, 130, 167, 168, 170, 172, 198, 213 Commission on Wartime Contracting (CWC), 12, 14, 82, 83, 85–88,

100, 102, 103, 105–107, 111, 112, 125, 126, 131, 133–137, 141, 148, 165, 167, 173–175, 177, 178, 185, 186, 193, 194, 197, 200, 202, 213, 214, 216 Congress/US Congress, 125, 131, 134, 135, 137, 150 Conventional wisdom, 8, 54, 79, 89, 98, 109, 113, 140, 149, 211 Culture, 71, 78, 79, 85, 87, 109, 119, 120, 124, 126, 141, 177, 179, 186, 193, 198, 203, 214 D Department of Defense (DoD), 12, 13, 37, 39, 41–51, 53, 73, 82, 83, 85–88, 98–100, 102–107, 110–112, 114, 116–128, 131–133, 136–139, 141, 144, 146, 148, 165, 168, 173, 175–180, 184–186, 188, 191, 193–195, 197, 199–201, 203, 204, 213–216, 219

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG, part of Springer Nature 2019 J. Jezdimirovic Ranito, Regulating US Private Security Contractors, https://doi.org/10.1007/978-3-030-11241-7

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224  Index Department of Justice (DoJ), 128– 130, 148, 181, 193, 196, 203, 213 Department of State (DoS), 82 Doxa/doxas, 8, 80, 81, 84, 98, 124, 137, 139, 141–143, 145, 163–167, 170, 171, 173, 174, 177, 178, 180, 182, 183, 193, 197, 199, 202, 215, 216 E Empirical, 2, 3, 5, 6, 10, 14, 71, 74, 76, 80, 88, 89, 211 F Field, 70, 71, 81–85, 88, 105, 108, 113, 120, 121, 133, 139, 163, 183 H Habitus, 6, 8, 10, 13, 70, 71, 73, 74, 76, 80–82, 84–87, 98, 102, 103, 120, 124, 137, 139, 141–143, 150, 163, 164, 166, 167, 170, 171, 173, 174, 177, 180, 182, 183, 186, 191, 193, 196, 197, 203, 215, 216 I Ideological, 5, 9, 10, 65, 68–70, 88, 110, 164, 167, 171, 172, 197, 213, 214 Inherently governmental functions, 38, 84, 113, 163–167, 203 International Code of Conduct Association (ICOCA), 4, 12, 36, 50, 100, 110, 116, 139, 145, 219

International Peace Operations Association (IPOA/ISOA), 37, 45, 99, 105, 108, 111, 112, 114 L Legal framework, 40, 41, 109, 120, 121, 168, 212 Legislative, 69, 72, 77, 120–123, 134, 135, 138, 149, 174, 184, 187, 190, 193, 200 M Media, 10, 46, 69, 99, 103, 111, 131, 134–136, 140, 142, 143, 147, 164, 182, 190–192, 197, 204, 211, 214, 217 Mercenary, 2, 24–29, 31–35, 45, 53, 54, 78, 84, 211 Military Extraterritorial Jurisdiction Act (MEJA), 41, 42, 51, 53, 99, 102, 122, 123, 128–130, 134, 148, 151, 168, 171 O Oversight, 7, 10, 12, 14, 24, 25, 27, 37–39, 41, 43, 46, 49–51, 53, 66–68, 83, 85–87, 99, 100, 102, 103, 105–107, 111, 112, 118, 119, 121, 122, 124–128, 131, 132, 134, 135, 137, 138, 142, 146, 148, 149, 164, 166–168, 172–174, 184, 189, 190, 192– 198, 200, 204, 215, 217 P Personal connections, 112, 164, 182, 186, 197, 200, 202, 204, 214

Index

Personality, 10, 76, 78, 109, 110, 112, 113, 135, 164, 170, 182, 183, 197–200, 203, 204, 214, 216 Political, 75, 87, 120, 121, 123, 128, 130, 135–137, 150, 164, 166, 167, 169, 170, 172, 174, 175, 177, 181, 182, 189–191, 196, 197, 202, 212, 213 Political issue, 174, 181, 203 Political obstacles, 5, 9, 84, 163 Political power, 83 Political will, 7, 41 Political willingness, 122, 128, 130, 181, 199 Private Security Companies (PSC), 3–5, 7–11, 24, 35, 38–41, 43–46, 48–51, 55, 56, 65, 70, 78, 83–86, 99, 102, 106, 108, 111, 113–120, 122, 124, 125, 129, 132–134, 138–145, 147, 150, 151, 166, 174, 175, 177–181, 187, 189–191, 193, 199, 201, 202, 204, 211–213, 217 PSC.1, 3, 4, 36, 37, 43, 49, 50, 88, 100, 105, 110, 115–118, 133, 139, 143, 176, 192, 217 Public-private, 8, 67, 72, 73, 77, 97, 114, 149 R Regulatory practices, 3, 5, 8, 71, 80, 82, 88, 103, 125, 131, 133, 135, 163, 212 Revolving doors, 85, 164, 182–187, 214, 216

  225

S Self-regulation, 2, 32, 35, 37, 38, 68, 69 State control, 40, 67 State Department (DoS), 1, 12–14, 39, 40, 42–44, 46–48, 50, 51, 83, 85–87, 98, 100, 102, 105– 107, 110, 113, 117–127, 131, 136, 137, 139, 141, 143–147, 170, 173–179, 182, 184, 186, 193, 194, 201, 203, 213, 215, 216 Supervision, 24–26, 38, 41, 43, 45, 49, 50, 100, 106, 107, 113, 118, 119, 124, 125, 137, 147, 148, 167, 173, 174 Symbolic power, 82, 83, 86 T Technical issue, 84, 120, 164, 168– 170, 172, 196, 213, 219 Trade associations, 37, 45, 69, 99, 102, 105, 108, 111, 112, 114, 130, 134, 135, 138, 143, 145, 166 U USAID, 42, 44, 45, 177 US Congress/Congress, 10, 11, 14, 29, 42–44, 46, 48, 49, 69, 72, 76, 83–86, 97–100, 102, 103, 105, 106, 110–113, 115, 117, 123, 125, 126, 130, 132, 136–138, 140–142, 149, 163, 165–169, 171–174, 176–178, 181, 187–193, 197, 199, 203, 204, 213–215, 217