Private contractors

Introduction

Reports on the use of contractors in Iraq have disclosed that private-sector employees have been performing sensitive intelligence work in and around combat zones. What’s more, the report by Major General Antonio Taguba on the alleged abuse of prisoners at the Abu Ghraib Prison noted the involvement of civilian contractors at the Baghdad facility.

These revelations have raised questions about the efficacy and permissibility of using private contractors to perform military intelligence functions, but a three-and-a-half-year-old memorandum shows that the Army has been well aware of the risks of calling on contractors for intelligence work. On December 26, 2000, Patrick T. Henry, assistant secretary of the Army, dispatched a memo to the Army’s assistant deputy chief of staff for intelligence declaring a policy that not only restricted the use of contractors, but also cautioned against the threats to national security posed by reliance on such workers in sensitive intelligence functions.

“At the tactical level,” the memo declared, “the intelligence function under the operational control of the Army performed by military in the operating forces is an inherently Governmental function barred from private sector performance.” In addition, Henry’s memo noted, the “oversight exerted over contractors is very different from the command and control exerted over military and civilian employees. Therefore, reliance on private contractors poses risks to maintaining adequate civilian oversight over intelligence operations.”

Even at the “operational and strategic level,” the memo notes, “the intelligence function … should be exempted from private sector performance on the basis of risk to national security from relying on contractors to perform this function. …

“Private contractors may be acquired by foreign interests, acquire and maintain interests in foreign countries, and provide support to foreign customers. The contract administration oversight exerted over contractors is very different from the command and control exerted over military and civilian employees. Therefore, reliance on private contractors poses risks to maintaining adequate civilian oversight over intelligence operations.”

The memo was issued in compliance with a 1998 law—the Federal Activities Inventory Reform Act—requiring that government agencies inventory the work officials perform and separate what is “inherently governmental” from what is commercial and may be contracted out.

According to Dan Guttman, a government contracting expert who serves as a consultant to the Center for Public Integrity, the memo confirms that, long before the Iraq war, the Army seriously thought about the use of contractors in intelligence roles, particularly in and around war zones. “The memo shows that the Army was well aware of the perils of calling on contractors for intelligence work, and barred or broadly counseled against their use except in certain defined circumstances,” Guttman says. “In any case, the Army made clear that contractors should not be employed in intelligence activities where there is no assurance that they will be well supervised.”

“If the decision was made to use contractors in intelligence functions notwithstanding the restrictions of the 2000 determination, what was done to protect against the risks to security?” Guttman asks.