Public Participation/private Contract

Introduction WHEN U.S. MILITARY CONTRACTORS DIE IN A CONFLICT SUCH AS THE IRAQ WAR, the Pentagon does not include their deaths in the casualty figures it announces to the public (see Witt, 2007: 1). Indeed, some commentators argue that the recent increase in military contracting is due in significant part to the desire of governmental actors to avoid the political accountability that comes about through the democratic process. (1) President Clinton used military contractors in the Balkans and President Bush has deployed them in Iraq, these commentators argue, precisely to reduce the political costs of war. Whereas domestic publics usually have little input into either the decision to award a particular foreign affairs contract or the process of designing the content of the contract--whether the contracts provide for services to home-state militaries or delivery of foreign aid--foreign publics typically have even less opportunity to engage. Once states have awarded the contracts, it is often difficult to obtain information about the number of contractors, the nature of their obligations, and whether they are fulfilling these obligations on the ground. Within international organizations such as the United Nations, the contracting process is similarly opaque. Moreover, when contractors run amok in failed or non-democratic states, even once reports of abuses are available, victims have little political recourse. For example, when CACI employees tortured Iraqi citizens at Abu Ghraib prison or when Dyncorp employees raped Bosnian women, those who suffered had little opportunity to voice concern through the Iraqi political process and less within the United States. If the United Nations or the World Bank had acted in partnership with those contractors, the avenues of political redress would have been similarly opaque. As these examples illustrate, foreign affairs contracting raises serious concerns about public participation and transparency (which I will refer to collectively as public participation). Significantly, public participation is both a value in and of itself--because people affected by an activity should have some input into how that activity is carried out--and a mechanism for either accountability or constraint. (2) For example, if various populations are able to participate in the formulation and critique of future plans of action, such participation may impact the actions ultimately undertaken. Just as contractual arrangements may be structured to protect and promote public law values, so too public participation may be harnessed to restrain contractors from engaging in abuses and help to protect other public values, such as human dignity and anti-corruption. (3) This essay will explore the relationship between foreign affairs privatization and public participation. Initially, I survey the administrative law and political science literature and identify the ways that foreign affairs outsourcing may seem, at least at first glance, to thwart various types of public participation. Then I consider potential responses, including possible governmental initiatives to increase transparency, by using the private law instruments of contract and trust to create more opportunities for public participation. Of course, governments may outsource foreign affairs precisely to avoid oversight; therefore, proposals to increase public participation are likely to encounter resistance. Nevertheless, public participation initiatives can at times be at least marginally successful, and I will conclude the article by discussing the ways in which the World Bank's International Finance Corporation inserted public participation requirements into its financing agreements for a pipeline project in Chad. Additionally, pressure from NGOs, international organizations, and concerned members of domestic bureaucracies could make such initiatives more common. If they do, it could, ironically, be the case that outsourcing actually opens up a greater space for fostering participation in the international realm, particularly in instances where non-democratic or weak states are receiving foreign aid. …