Drones and Contractor Mission Creep

I have written previously about the transparency, oversight, and accountability issues that outsourcing aspects of the U.S. drone program can pose – issues that often get lost in the shuffle amid other aspects of the program. A new report by the British Bureau of Investigative Journalism shines a light on the murky world of drone contractors. The authors of the report conducted extensive interviews with contractors and former military officials and also examined contracts obtained through FOIA requests, usefully revealing hard data about contractors’ role in military drone operations. Of particular note is the prominent role of contractor imagery analysts, who help assess the video feeds the drones produce. The report concludes that 1/8 of these analysts are contractors.

The Bureau is one of the latest outlets, including this one, to raise important questions about whether we are at risk of outsourcing so-called “inherently governmental functions,” and it also shows just how tricky answering that question can be. To be sure, there are certain specific functions that our government has decided it will not turn over to contractors. For example, the U.S. military has said it will not allow contractors to engage in offensive combat, conduct interrogations, (other than in exceptional circumstances), or permit drone contractors to select targets for attack. And we could certainly have a debate about whether we should add more functions to the list. But even putting that question aside, one thing is clear: in practice, it is often difficult to draw the line – between offensive and defensive, or between what is targeting and what is not. 

In order to see how the “inherently governmental” framework can break down, consider an incident in which an angry crowd in Najaf in 2004 massed around a Coalition Provisional Authority building guarded by armed security contractors. When the crowd appeared to turn violent, a twenty-five year old marine corporal who was on the premises in order to install communications equipment, and who may have been the lone uniformed U.S. soldier at the base, seemed to ask the security contractors for advice as to how to act. He was young; they were older. He had little experience; they had a lot. While accounts of the incident differ, it seems clear that the effective chain of command between contractors and armed soldiers was at best ambiguous. In that situation, who actually made the decision to engage? Was the solider supervising the contractors or was it the other way around?

In the case of drone contractors, the evidence presented in the report suggests that, due to the contractors’ often greater experience, the governmental personnel may “lean” on them for advice and guidance in decision-making. So in practice, are contractors actually engaging in those targeting decisions that the official government guidelines say are off-limits to them? Again, it’s very hard to say.

All of this leads back to my earlier point about transparency. The new report gives some important data that we have been sorely lacking up until now. At a minimum, DOD should add the breakdown of drone contractors to Central Command’s quarterly reports on its use of contractors in the Middle East and Afghanistan. It may be that military lawyers are regularly conducting careful analyses to ensure that drone contractors don’t exceed the limits of what the government defines as inherently governmental. But it would be nice to know. In addition, it is evident that the lapse of the mandate for the Special Inspector General for Iraq Reconstruction has left a gaping hole in contractor oversight as combat against the Islamic State continues. We desperately need a permanent inspector general to scrutinize contractor activity there. And the IG shouldn’t be confined to one region, such as Iraq, as these contractors are spread all over the world, including in the United States itself. As we have seen, the pressures to increase the numbers and proportions of contractors are overwhelming. The contractors’ roles are therefore very likely to expand. Given that reality, the public shouldn’t have to depend on newspaper articles for a trickle of information about the core question of how this nation makes decisions in projecting its power abroad.

In a subsequent post, I’ll explore in more detail the difficult problem of defining “inherently governmental functions” and the confusing web of attempts to build such definitions into current law and policy. 

About the Author(s)

Laura Dickinson

Former Special Counsel to the General Counsel of the Department of Defense (2016-17) and Oswald Symister Colclough Research Professor of Law at The George Washington University Law School