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Security Outsourcing—Adjusting the New Rules for the Federal Security Outsourcing—Adjusting The New Rules For the Federal Government Overseas Private Security Contractor Procurement System By Todd Jason Hanks B.A., February 1996, State University of New York at Buffalo M.A., October 1998, Columbia University, Teacher’s College J.D., May 1999, Seton Hall University School of School LL.M, May 2010, The U.S. Army Judge Advocate General’s Legal Center and School A thesis submitted to The Faculty of The George Washington University Law School in partial satisfaction of the requirements for the degree of Master of Laws May 18, 2014 Thesis directed by Steven L. Schooner Nash and Cibinic Professor of Government Procurement Law; Co-Director, Government Procurement Law Program Dedication I dedicate this thesis to my loving and supporting wife, Irene, two doting sons, Cenobio and Cadel, and my adoring daughter Martha. My dedication to this article is due to their support, patience and encouragement. You are the flicker in my heart. ii Acknowledgments The author wishes to thank Professors Steven L. Schooner and Karen D. Thornton for their insight, guidance, and encouragement. Many thanks also to Mr. Mark A. Rivest, U.S. Army Legal Services Agency, Colonel Thomas C. Modeszto, U.S. Army Judge Advocate General’s Corps, Lieutenant Colonel Ryan J. Lambrecht, U.S. Air Force Judge Advocate General’s Corps, and William D. Faith, Esq., Legal Advisor for the Afghan Public Protection Force Advisory Group, for their unwavering support and assistance with resources and background information. I thank Christopher T. Mayer, Director of U.S. Department of Defense Armed Contingency Contractor Policy and Programs, Doug Brooks, Consultant on Private Sector Stability Operations, and Michael Love, MKL Associates, for their time, expertise, and many valuable recommendations in this subject area. Finally, I thank Stephen T. Watson, News Staff Reporter for The Buffalo News for his editorial acumen and recommendations. iii Disclaimer Major Todd J. Hanks serves in the U.S Army Judge Advocate General’s Corps. This paper was submitted in partial satisfaction of the requirements for the degree of Master of Laws in Government Procurement at The George Washington University Law School. The views expressed in this paper are solely those of the author and do not reflect the official policy or position of the U.S. Army, Department of Defense, or U.S. Government. iv Abstract Security Outsourcing—Adjusting The New Rules For the Federal Government Overseas Private Security Contractor Procurement System Over the past decade of armed conflict in the Middle East, the United States increased its use of Private Security Companies (PSC) to fill capability security voids. The increase in security demands led to expanding PSC contracts to areas abroad that were not tied to the armed conflicts in Iraq and Afghanistan. The Department of State (DOS) contracted with PSCs to guard its embassies and diplomatic missions, while the Department of Defense (DOD) contracted with PSCs to provide guards for its overseas installations. The DOD’s prime contractors in Iraq and Afghanistan often subcontracted for security services to deal with the increased hazards of the conflicts. While the demand for PSC contracts went up, procedural planning and oversight of these contracts lagged behind. A statutory and regulatory framework now exists that requires the DOD to develop procedures and rules for PSCs performing during combat operations and other significant military operations. The PSC legislative and regulatory regimes should be expanded to overseas strategic sites, like overseas military installations and diplomatic missions. The federal government should consolidate the PSC regulatory mandates under a single, uniform system to increase efficiencies and consistencies over PSC contracts. Finally, enforcement mechanisms should be expanded to provide efficient and timely oversight to the Geographic Combatant Commands (GCC) that contract with PSCs. These mechanisms, together with a uniform PSC system, will ensure a transparent enforcement system that promotes fairness, sound judgment and efficiency. v Table of Contents INTRODUCTION ................................................................................................. 1 I. STATUTORY AND REGULATORY GAPS IN PSC CONTRACTING .......... 6 A. POOR PLANNING LEADS TO STRATEGIC RISK 8 B. THE NEW PSC LAW REGIME—A BROAD SCOPE WITH A NARROW APPLICATION 12 C. PROTECTING STRATEGIC SITES OUTSIDE OF CONTINGENCY AREAS 15 D. PROTECTING OVERSEAS STRATEGIC SITES IN NON-COMBAT ZONES 19 E. PROMULGATING THE FINAL RULES—AN INTERAGENCY QUAGMIRE 23 II. THE PROBLEMS WITH REGIONAL SPECIFIC POLICIES ..................... 26 A. DIFFERING PROCEDURES CAUSE INEFFICIENCIES AND TRAINING PROBLEMS 27 B. INTERAGENCY PROCEDURAL DISPARITIES CAUSE INEFFECTIVENESS AND ENFORCEMENT ROADBLOCKS 31 C. DIFFERING AGENCY INDUSTRY STANDARDS CREATE GOVERNMENT INEFFICIENCIES 36 D. STATUTORY AND REGULATORY DIRECTIVES LACK ADEQUATE PSC OVERSIGHT, ENFORCEMENT AND TRANSPARENCY MECHANISMS 39 III. STRATEGIC SOLUTIONS TO INCREASE PSC OVERSIGHT AND ENFORCEMENT .................................................................................. 44 A. BROADEN SECTION 862 REQUIREMENTS TO NATIONAL STRATEGIC SITES ............................... 45 B. IMPLEMENT THE ANSI/ASIS STANDARDS GOVERNMENT-WIDE 47 C. ESTABLISH OVERSIGHT AND TRANSPARENT ENFORCEMENT MECHANISMS 49 1. APPLY MINIMUM STANDARD INVESTIGATION STANDARDS TO PSC CONTRACTS .............. 49 2. BROADEN SECTION 841 AUTHORITY TO ALL OVERSEAS GCCS .......................................... 51 3. IMPLEMENT TRANSPARENT SECTION 841 DECISIONS ........................................................... 53 4. CO-LOCATE SUSPENSION OFFICIALS WITHIN THE GCC’S AORS ....................................... 55 CONCLUSION .................................................................................................. 59 vi As George Orwell pointed out, people sleep peacefully . only because rough men stand ready to do violence on their behalf.1 Introduction Engaging in war is a dirty business borne on the backs of the military—but not the military services alone.2 The complex nature of international armed conflict3 often invokes domestic policy concerns over national defense, the timing and risk of sending American troops into harm’s way, and the significant costs of such undertakings.4 Over the past twelve years of contingency operations5 in Southwest Asia, many of the costs 1 Richard Genier, Perils of Passive Sex, The Washington Times, April 6, 1993 (Paraphrasing political writer George Orwell’s commentary about poet Rudyard Kipling’s Tommy, a poem depicting the rugged nature of soldiers and the English aristocracy’s general disdain for them). George Orwell pontificated further about the subject, editorializing that “men can only be highly civilized while other men, inevitably less civilized, are there to guard and feed them.” George Orwell, Rudyard Kipling (1942), reprinted in THE ORWELL READER, FICTION, ESSAYS, AND REPORTAGE BY GEORGE ORWELL 274 (Harcourt, Brace and Company New York, ed., 1st ed., 1956) (Referencing Kipling’s poem “Tommy”). An excerpt of Tommy demonstrates the hypocrisy of the English aristocracy Kipling attempted to capture at the time: Yes, makin' mock o' uniforms that guard you while you sleep . But it's "Saviour of 'is country" when the guns begin to shoot . Rudyard Kipling, Tommy, reprinted in RUDYARD KIPLING, KIPLING 100 POEMS OLD AND NEW 62 (Thomas Pinney, ed., 2013) (emphasis added). In 1943, Orwell again emphasized the paradoxical assumption that a nationalistic pacifist must assume—“Those who ‘abjure’ violence can only do so because others are committing violence on their behalf.” George Orwell, Notes on Nationalism, POLEMIC—A MAGAZINE OF PHILOSOPHY, PSYCHOLOGY, AND AESTHETICS, Oct. 1945, reprinted in GEORGE ORWELL—ENGLAND, YOUR ENGLAND AND OTHER ESSAYS 4 (Secker & Warburg, ed., 1953). 2 See JAMES WRIGHT, THOSE WHO HAVE BORNE THE BATTLE: A HISTORY OF AMERICA'S WARS & THOSE WHO FOUGHT THEM (2012) (Chronicling how the U.S. historically wages war through the military and other civilians); see also Andrew J. Bacevich, Thank You for Your Serv., Sort Of, New York Times Sunday Book Review, May 25, 2012 (Reviewing Wright’s book, “Those Who Have Borne the Battle: A History of America’s Wars & Those Who Fought Them”). 3 The term “international armed conflict” connotes any armed conflict between two or more States. INT’L COMM. OF RED CROSS, GENEVA CONVENTION (I) FOR AMELIORATION OF CONDITION OF WOUNDED & SICK IN ARMED FORCES IN FIELD: COMMENTARY 32 (Jean Pictet gen. ed., 1958). 4 CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Parent trans., Princeton 1989) (Defining war as “an act of policy”). Clausewitz’s wondrous trinity theory of war weighted the relationship violence, the interplay of chance, and “the element of subordination, as an instrument of policy, which makes it subject to reason alone.” Id. at 89. 5 DOD defines the term “contingency operation” as “A military operation that is either designated by the Secretary of Defense as a contingency operation or becomes a contingency operation as a matter of law. (Title 10, United States Code, Section 101[a][13]).” CHAIRMAN OF JOINT CHIEFS OF STAFF, JOINT PUB. 1- 02, DICTIONARY OF MILITARY & ASSOCIATED TERMS 57 (8 Nov. 2010, as amended though 15 Oct. 2013) 1 and risks were shouldered, in large part, by contractors.6 Throughout this period, the reliance on contractors to augment American military service members7 spurred continual Congressional
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