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 INT’L, 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 INT’L, 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 INT’L. 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 NAT’L 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.”