Ukraine notwithstanding, many recent conflicts have been asymmetrical and sub-state, with ramifications for various legal doctrines, including the law of armed conflict, humanitarian law, intelligence collection, and criminal law.  Another zone of consequence to these more-disorganized conflicts is oversight of government contracts.  As we begin, in earnest, the military drawdown in Afghanistan, I offer a few thoughts on oversight during America’s longest war.

Profiteers and waste are always of inherent risk during wartime.  Harry Truman’s political rise was fueled, in part, on his wartime contracting oversight work as part of the Truman Committee.  The Committee was widely credited with saving some $15 billion (at 1940s value) and uncovering faulty military equipment that averted certain injury and death to members of the U.S. armed forces.

Wartime contracts are more complicated than ordinary, and yet often problematic, government contracts.  The Congressional Research Service observes:  “In peacetime, the goal of contracting is generally to obtain the good or service that is required.  The measurements of success are generally getting the right good or service, on schedule, and at a fair price.  In wartime, however—and particularly in a counterinsurgency environment—cost, schedule, and performance are often secondary to larger strategic goals of promoting security and denying popular support for the insurgency.”  While oversight tends to generate partisan controversy, constructive and credible oversight of wartime contracts is important for fiscal responsibility, military safety, and combat effectiveness.  Constructive oversight is also critical to successful U.S. aid and development efforts in Afghanistan.

Over the last thirteen years, the war in Afghanistan has generated a ton of contract issues that have complicated, and at times frustrated, our efforts.  While there are plenty of specific projects that have gone awry, a recent episode of HBO’s VICE (previewed by Huffington Post here) offers a pretty succinct parade of horribles to the tune of tens of billions of dollars.  (A tip of the hat to my former colleague, Catherine McKenna Ribeiro, for bringing it to my attention.)  The war in Iraq shared these issues.  The Wartime Contracting Commission estimated that, as of three years ago, the United States lost between $31 billion and $60 billion to contract waste and fraud in Iraq and Afghanistan.

One issue with which I am familiar is the unintended consequences and secondary effects of U.S. defense logistics contracts in Afghanistan.  The huge value of such contracts in a counterinsurgency environment can create its own political economy in warzones and impoverished areas.  When I worked in Congress, this was our chief finding in a staff report about protection payments to Taliban affiliates by U.S. military trucking contractors in Afghanistan.  A multi-billion dollar contract performed in the midst of war can simply dwarf the local economic activity in the war-torn area, especially after nearly 40 years of active fighting and instability.  In counterinsurgency, the front lines are the supply lines.  I certainly feel the acute resource needs of our military operators in combat, but there can be a quicksand quality for them if the supply contracts make it a more dangerous environment.

In addition, there is the problem of oversight access itself.  A counterinsurgency environment, by definition, tends to lack well-defined lines of battle. One can’t be behind enemy lines if there are no lines.  As I noted in a previous blog post, U.S. efforts have been hampered by restrictions on mobility for diplomats and development professionals.  Those with management and oversight responsibility of government contracts are often even lower mobility priorities for U.S. Embassies in conflict zones.

Last fall, the Special Inspector General for Afghanistan Reconstruction (SIGAR) sent a letter to Secretary John Kerry, Secretary Chuck Hagel, and Administrator Rajiv Shah decrying lack of access to projects in Afghanistan involving significant U.S. expenditures.  The SIGAR, John Sopko, is an able and credible lawyer with a long resume of relevant experience on congressional oversight committees and in private practice.  He notes:

In the course of SIGAR’s work, U.S. officials have told us that it is often difficult for program and contracting staff to visit reconstruction sites in Afghanistan. SIGAR personnel have direct experience with this problem, having already encountered difficulty obtaining military escort to travel into contested areas.  For example, earlier this year SIGAR was unable to visit infrastructure projects in northern Afghanistan valued at $72 million because they are located in areas that could not be reached by U.S. civilian employees.

In a meta move, Sopko concludes the letter by serving notice that SIGAR will initiate oversight “to examine the consequences of restricted oversight in Afghanistan.”

The U.S. military drawdown represents a new phase for oversight efforts.  Our experiences in Vietnam and Iraq suggest that military drawdowns are particularly tricky operations.  On one hand, over time less U.S. resources, military and otherwise, will be at stake as withdrawal occurs.  On the other hand, unresolved issues related to waste, fraud, and abuse will only become more dangerous to oversee during a period of military drawdown.  Military escorts, one of Sopko’s chief concerns, will only become more scarce for contract managers, inspectors general, congressional investigators, and law enforcement personnel.  In addition, a contractor surge may follow military withdrawal in order to mitigate lost functionality.  As we saw in Iraq, there can be tricky issues related to the disposition of assets in the custody of contractors that were purchased by U.S. funds.

Recent Government Accountability Office testimony about U.S. Agency for International Development (USAID) efforts in Afghanistan notes the coming challenges:

USAID’s ability to conduct its mission and the challenges it has faced in providing oversight and monitoring of its development projects in Afghanistan are likely to be exacerbated by the planned withdrawal of U.S. and coalition combat troops from Afghanistan at the end of 2014. The United States is currently transitioning from counterinsurgency and stability operations toward more traditional diplomatic and development activities. As U.S. combat troops withdraw from Afghanistan, provincial reconstruction teams will continue to decline in number, thus challenging USAID’s opportunities to directly monitor and evaluate programs in certain parts of Afghanistan.

USAID is now planning creative oversight strategies for its ongoing efforts, including remote review and, ironically, contractors to conduct oversight of the work by USAID implementing partners.  After the drawdown, U.S. diplomats, development professionals, and residual military forces will still manage and disburse significant government resources that are the subject of oversight.  It will be interesting to see what kind of oversight infrastructure will be in place.

There is a structural ‘cheap seats’ quality to oversight efforts that can be exacerbated by political agendas, self-aggrandizement, and post-hoc bias.  But if the enemy is levying taxes from the local population on your development projects, if the body armor or barricades or helicopters fail due to faulty manufacture, if your security detail shoots up the village you spent months cultivating, if your fuel supplier pays off the Taliban on the way to your base, or if the power plant sits as an idle monument to coalition incompetence, you might want vigorous oversight.