Simon Chesterman, Professor and Dean of the National University of Singapore Faculty of Law, has posted a new article on SSRN entitled, The Turn to Outsourcing in U.S. Intelligence. Here is the posted abstract:
Though it lagged behind the privatization of military services, the privatization of intelligence expanded dramatically with the growth in intelligence activities following the September 11 attacks on the United States. Privatization of intelligence services raises many concerns familiar to the debates over private military and security companies (PMSCs). One of the key problems posed by PMSCs is their use of potentially lethal force in an environment where accountability may be legally uncertain and practically unlikely; in some circumstances, PMSCs may also affect the strategic balance of a conflict. The engagement of private actors in the collection of intelligence exacerbates the first set of problems: it frequently encompasses a far wider range of conduct that would normally be unlawful, with express or implied immunity from legal process, in an environment designed to avoid scrutiny. Engagement of such actors in analysis raises the second set of issues: top-level analysis is precisely intended to shape strategic policy — the more such tasks are delegated to private actors, the further they are removed from traditional accountability structures such as judicial and parliamentary oversight, and the more influence those actors may have on the executive.
I think this is a valuable contribution to the literature on government outsourcing/privatization of government functions, and related to an area where the stakes are quite high. As he observes, outsourcing of such traditional governmental functions creates a scenario that our legal system is not prepared to handle well, so the result is a lack of accountability and tolerance of unlawful activities on behalf of the state that the state actors themselves normally would not undertake. Very worthwhile reading.
- Drury Stevenson