Thoughts on Erik Prince’s Proposal to Privatize Intelligence Gathering

This week we learned, via the Intercept, of Erik Prince’s proposal to provide the Trump Administration with a private intelligence outfit.  According to the Intercept, “The Trump Administration is considering a set of proposals developed by Blackwater founder Erik Prince and a retired CIA officer — with assistance from Oliver North, a key figure in the Iran-Contra scandal — to provide CIA Director Mike Pompeo and the White House with a global, private spy network that would circumvent official U.S. intelligence agencies.”  The Intercept’s sources indicate that “the plans have been pitched to the White House as a means of countering ‘deep state’ enemies in the intelligence community seeking to undermine Donald Trump’s presidency.”

It is far from clear whether Prince’s proposal has any traction.  CNN, for instance, quotes Administration officials as saying “the White House does not and would not support such a proposal.  Still, given Prince’s clout and resourcefulness, reports of other proposals recommending privatized intelligence operations, and the need to maintain healthy skepticism when it comes to representations made by this Administration, we ought not be hasty in looking past the proposal.

At this preliminary stage, a few scattershot thoughts come to mind:

1. Even in this year of never-ending political surprises, can this proposal be taken seriously? Or, is this another, more forceful ploy to unnerve and delegitimize a federal bureaucracy whose members have questioned and challenged quite a few of the President’s policy initiatives?  Recall that just this past week, the President signaled his distrust of the Justice Department, among others in federal employ, seemingly placing them within the ever-expanding fold of so-called Deep State conspirators.  (Though we have traditionally associated “deep states” with rogue and powerful anti-democratic cabals that threaten popular rule—think Turkey, Pakistan, and Egypt—the President and his surrogates’ importation of the term to apply to American civil servants, journalists, and the like has rendered the term all but meaningless.)

2. Setting up what according to the Intercept seems to be a private, parallel intelligence apparatus represents a radical departure from the already highly questionable practice of outsourcing military, intelligence, and counterterrorism responsibilities. The well-documented abuses by private contractors in Iraq, Afghanistan, as well as stateside (teaching, for instance, master classes on waterboarding)—and the very public calls by our allies in Afghanistan and Iraq to give Prince’s Blackwater the boot—should all still be fresh in our memory.  Nevertheless, this summer Prince met with senior officials in the Trump White House, pitching Jared Kushner and Steve Bannon on a private military surge in Afghanistan.

However imprudent private military and intelligence operations have heretofore been, we should be clear on one thing: the private firms were supposed to reinforce or at the very least complement the efforts undertaken by members of the armed forces and intelligence agencies.  (In fairness, this seemed to be what Prince was proposing when he met with White House officials this summer.)

What’s more, when and where military and intelligence contractors weren’t deployed simply as “force multipliers,” they were chosen because they were less legally encumbered than their government counterparts to carry out certain tasks.  As I have argued elsewhere, exploiting the differences in legal status between public and private actors is a deeply problematic reason for using contractors.  Yet, being hired to circumvent federal statutes and regulations—which the George W. Bush and Barack Obama administrations viewed as unnecessarily or unduly hamstringing—is a far cry from being hired because the feds couldn’t be trusted.  (If anything, the converse was true.)

3. By contrast, based on the reporting we’ve seen, Prince wants to contract out intelligence work because he doesn’t seem to trust the U.S. intelligence community. Thus, this privatization push isn’t about hiring contractors to leverage market efficiencies; it isn’t about using contractors to break free of the shackles of constitutional and statutory law; and, lastly, this isn’t even about employing contractors to avoid tedious internal debates with career officials about the prudence or legality of intelligence operations.  It seems, instead, that Prince sees the need for a parallel intelligence service that takes orders from the President and CIA director and answers directly to them.

If that’s a fair reading of what’s being proposed, then we must consider the Prince plan to be profoundly different and far more alarming, particularly if his private intelligence service will be tasked with “countering”—perhaps undermining or discrediting—their (distrusted) government counterparts.  All of this is to say that if the raison d’être of Prince’s intelligence team is indeed to neutralize  federal officials who’ve shown no signs of disloyalty, that’s precisely the type of domestic counterintelligence work we can expect.  And, as Rebecca Ingber puts it, it is the creation of a private, domestic counterintelligence squad, more than anything else, that draws us closer to an “actual ‘deep state.’”

4. Lastly, a word of caution. Not too long ago, Erik Prince was a guy whose fifteen minutes had seemingly run their course.  The notorious Blackwater firm had to change its name—twice.   The beleaguered company was the subject of congressional investigations and was ticketed with massive administrative penalties.   And Prince himself moved his operations overseas—perhaps a step or two ahead of federal criminal charges being levied against him.  Yet this past August, the Prince rehabilitation tour was boosted by the likes of the New York Times and USA Today, both of which published his op-eds touting his plan to deploy private contractors to Afghanistan.   By no means am I suggesting that major newspapers should refrain from amplifying controversial voices or proposals.  But at a moment when we’re pondering the media’s complicity in enabling Donald Trump’s then-implausible presidential campaign, we may want to take a step back and consider whether these platforms were somewhat irresponsible in lending respectability to a plan that, at best, amounted to a self-serving image makeover—Prince compared himself to Elon Musk—and money grab, and that perhaps paved the way for him to pitch this new and far more dangerous private intelligence scheme. 

About the Author(s)

Jon Michaels

Professor of Law at UCLA School of Law. His book, Constitutional Coup: Privatization’s Threat to the American Republic, was published this October by Harvard University Press. You can follow him on Twitter (@JonDMichaels).