Getting Beyond 'Good Enough' in Contingency Contracting: Using Public Procurement Law as a Force to Fight Corruption

Author:Marlin D. Paschal
Position:Judge Advocate (JA), U.S. Army
Pages:65-139
2012] CONTRACTING & MILITARY OPERATIONS 65
GETTING BEYOND “GOOD ENOUGH” IN CONTINGENCY
CONTRACTING BY USING PUBLIC PROCUREMENT LAW AS
A FORCE TO FIGHT CORRUPTION
MAJOR MARLIN D. PASCHAL
I. Introduction
In 2003, Iraq, under Saddam Hussein, had a corruption perception
index (CPI) rating of 2.2, ranking it as the nineteenth most corrupt
country surveyed that year according to data compiled by Transparency
International (TI).1 In December 2011 that score had decreased to 1.8,
tying it with Haiti as the seventh most corrupt country surveyed; just a
few weeks before the U.S. military mission formally concluded there.
Afghanistan, under President Karzai, has a CPI rating of 1.5, tying it with
Myanmar as the second most corrupt country surveyed, just ahead of
North Korea and Somalia, which share the first place position.2 No CPI
score exists for Afghanistan prior to the U.S. invasion, but some Afghan
locals have complained that the country “was less corrupt under the
Taliban.”3
Judge Advocate (JA), U.S. Army. Presently assigned as the Command Judge Advocate,
413th Contract Support Brigade at Fort Shafter, Hawaii. Previously assigned as Chief of
Contract and Fiscal Law, USD-Iraq and 1st Armored Division (1AD) (January–
December 2010); Trial Attorney, Contract Fiscal Law Division, U.S. Army Legal
Services Agency (June 2007–June 2009). This article is adapted from a thesis completed
in partial fulfillment of the requirements for a LL.M. at The Judge Advocate General’s
Legal Center and School (TJAGLCS), Charlottesville, Virginia. This effort would not
have been possible without the thoughtful mentorship of Lieutenant Colonel (LTC)
Christine M. Schverak, the advice of Major (MAJ) Darrin Pohlman, the persistent
lobbying by MAJ Heidi Weaver & MAJ Keirsten Kennedy and the routine feedback from
all members of the 2010–2011 Contract and Fiscal Law Department. I also thank my
former Staff Judge Advocate, Colonel (COL) Ian Corey, for allowing me to take such an
active role in crafting the Contract and Fiscal mission for 1AD during our deployment to
Iraq.
1 Corruption Perceptions Index 2003, TRANSPARENCY INTL, http://www.transparency
.org/policy_research/surveys_indices/cpi/2003. The Corruption Perception Index (CPI) is
developed from “a poll of polls, reflecting the perceptions of business people, academics
and risk analysts, both resident and non-resident.” Press Release, Transparency Int’l,
Corruption Perceptions Index 2003 (2003), available at http://archive.transparency.
org/policy_research/surveys_indices/cpi/2003.
2 Corruption Perceptions Index 2011, TRANSPARENCY INTL, http://cpi.transparency.
org/cpi2011/results/ (last visited Feb. 8, 203).
3 Kim Sengupta, It Was Less Corrupt Under the Taliban, Say Afghans, INDEPENDENT
(Jan. 20, 2010), http://www.independent.co.uk/news/world/asia/it-was-less-corrupt-
under-the-taliban-say-afghans-1873169.html; see also U.S. AGENCY FOR INTL. DEV.
66 MILITARY LAW REVIEW [Vol. 213
According to a United Nations report published in 2010, “Afghans
paid out $2.5 billion in bribes over the past 12 months—that’s equivalent
to almost one quarter (23%) of Afghanistan’s GDP.”4 That same report
went on to note that “drugs and bribes are the two largest income
generators in Afghanistan: together they [are equivalent] to about half the
country’s GDP.”5 Insurgent groups, criminal patronage networks, and
local power brokers are at the heart of this illicit economy, but unseating
them requires a host nation response that is currently beyond
Afghanistan’s institutional capabilities. The conventional storyline holds
that U.S. forces are in Afghanistan to support the Afghan government in
shoring up that institutional weakness, but an article by Aram Roston in
The Nation titled How the US Funds the Taliban suggests an alternate
narrative.6
In the summer of 2009, the U.S. military expanded its Host Nation
Trucking (HNT) contract in Afghanistan by 600 percent, “citing the
coming ‘surge’ and [the application of] a new doctrine [known as]
‘Money as a Weapons System.’”7 The HNT contract is essential for U.S.
military operations in Afghanistan, because it accounts for over “70
percent of the total goods and materiel distributed to U.S. troops in the
field.”8 The routes these truckers must travel are long, dangerous, and
often controlled by Taliban warlords. And since the contractors are
usually outmanned and outgunned, they often resort to paying bribes and
extortion money to potential Taliban insurgents and criminals to
guarantee safe passage from the pickup point to the final destination.9
However, the most troubling fact is not this blatant criminality but the
moral quagmire it creates for U.S. officials. Of particular note, the
congressional committee investigating the matter found:
(USAID), ASSESSMENT OF CORRUPTION IN AFGHANISTAN 4 (2009) [hereinafter USAID
CORRUPTION ASSESSMENT]. According to this assessment, Afghanistan has become
progressively more corrupt since 2005. For instance, “Afghanistan fell from a ranking of
117th out of 159 countries covered in 2005, to 172d of 180 countries in 2007, and finally
to 176th out of 180 countries in 2008—the fifth most corrupt country in the world.” Id.
4 U.N. OFFICE ON DRUGS AND CRIME (UNODC), CORRUPTION IN AFGHANISTAN: BRIBERY
AS REPORTED BY THE VICTIMS 4 (2010).
5 Id.
6 Aram Roston, How the US Funds the Taliban, NATION (Nov. 30 2009),
http://www.thenation.com/article/how-us-funds-taliban.
7 Id.
8 See MAJORITY STAFF OF H. COMM. ON NATL SECURITY & FOREIGN AFFAIRS, 112TH
CONG., WARLORD, INC.—EXTORTION AND CORRUPTION ALONG THE U.S. SUPPLY CHAIN IN
AFGHANISTAN 1 (Comm. Print 2010) [hereinafter WARLORD, INC.].
9 Id.
2012] CONTRACTING & MILITARY OPERATIONS 67
In meetings, interviews, e-mails, white papers, and
PowerPoint presentations, many HNT prime contractors
self-reported to military officials and criminal
investigators that they were being forced to make
“protection payments” for “safe passage” on the road.
While military officials acknowledged receiving the
warnings, these concerns were never appropriately
addressed.10
The Roston article went on to state that Afghan military sources
believed insurgents were pocketing ten to twenty percent of funds from
every contract in Afghanistan.11 In 2010, the congressional committee
investigation reinforced that belief by concluding that the HNT contract
“fueled warlordism, extortion, and corruption, and it may be a significant
source of funding for insurgents.”12 The HNT contracting effort, and
others like it, highlights a critical flaw in the Department of Defense
(DoD) counterinsurgency (COIN) strategy for Afghanistan, a strategy
that has likely resulted in the American military leaving Iraq more
corrupt than it found it and repeating a similar storyline in Afghanistan.
With this background in mind, I argue that the Money as a Weapon
System (MAAWS) mindset that has underwritten the U.S. COIN
procurement ethos in Iraq and Afghanistan is fundamentally flawed,
because it is built on an operational framework that is ill-suited for
cultivating a just and stable state. A major aspect of this flaw lies in a
DoD procurement culture that values speed and military necessity over
developing sound processes and strengthening host nation institutions.
Money is not a weapons system; it is the ammunition that serves that
system. The effectiveness of any weapon system is not judged in terms
of how much ammunition it expends or how many targets it hits; instead,
it is judged in terms of its ability to neutralize its intended target.
Successful deployment of those funds means aiming at the proper target.
The central thesis of this article is built on two key assumptions: (1)
systemic public corruption in Iraq and Afghanistan is a symptom of
10 Id. at 55.
11 Roston, supra note 6.
12 WARLORD INC., supra note 8, at 2. The investigation began in December 2009 and a
final report was issued on June 2010. It found that the host nation trucking (HNT)
contract had, in fact, “fueled warlordism, extortion, and corruption, and it may [have
been] a significant source of funding for insurgents,” largely due to the manner in which
HNT contractors were implicitly encouraged to assemble their “security details.”

To continue reading

FREE SIGN UP