Public participation/private contract.

• Author: Dickinson, Laura A.

Introduction

WHEN U.S. MILITARY CONTRACTORS DIE IN A CONFLICT SUCH AS THE IRAQ WAR, the Pentagon does not include their deaths in the casualty figures it announces to the public (see Witt, 2007: 1). Indeed, some commentators argue that the recent increase in military contracting is due in significant part to the desire of governmental actors to avoid the political accountability that comes about through the democratic process. (1) President Clinton used military contractors in the Balkans and President Bush has deployed them in Iraq, these commentators argue, precisely to reduce the political costs of war. Whereas domestic publics usually have little input into either the decision to award a particular foreign affairs contract or the process of designing the content of the contract--whether the contracts provide for services to home-state militaries or delivery of foreign aid--foreign publics typically have even less opportunity to engage.

Once states have awarded the contracts, it is often difficult to obtain information about the number of contractors, the nature of their obligations, and whether they are fulfilling these obligations on the ground. Within international organizations such as the United Nations, the contracting process is similarly opaque. Moreover, when contractors run amok in failed or non-democratic states, even once reports of abuses are available, victims have little political recourse. For example, when CACI employees tortured Iraqi citizens at Abu Ghraib prison or when Dyncorp employees raped Bosnian women, those who suffered had little opportunity to voice concern through the Iraqi political process and less within the United States. If the United Nations or the World Bank had acted in partnership with those contractors, the avenues of political redress would have been similarly opaque.

As these examples illustrate, foreign affairs contracting raises serious concerns about public participation and transparency (which I will refer to collectively as public participation). Significantly, public participation is both a value in and of itself--because people affected by an activity should have some input into how that activity is carried out--and a mechanism for either accountability or constraint. (2) For example, if various populations are able to participate in the formulation and critique of future plans of action, such participation may impact the actions ultimately undertaken. Just as contractual arrangements may be structured to protect and promote public law values, so too public participation may be harnessed to restrain contractors from engaging in abuses and help to protect other public values, such as human dignity and anti-corruption. (3)

This essay will explore the relationship between foreign affairs privatization and public participation. Initially, I survey the administrative law and political science literature and identify the ways that foreign affairs outsourcing may seem, at least at first glance, to thwart various types of public participation. Then I consider potential responses, including possible governmental initiatives to increase transparency, by using the private law instruments of contract and trust to create more opportunities for public participation. Of course, governments may outsource foreign affairs precisely to avoid oversight; therefore, proposals to increase public participation are likely to encounter resistance. Nevertheless, public participation initiatives can at times be at least marginally successful, and I will conclude the article by discussing the ways in which the World Bank's International Finance Corporation inserted public participation requirements into its financing agreements for a pipeline project in Chad. Additionally, pressure from NGOs, international organizations, and concerned members of domestic bureaucracies could make such initiatives more common. If they do, it could, ironically, be the case that outsourcing actually opens up a greater space for fostering participation in the international realm, particularly in instances where non-democratic or weak states are receiving foreign aid.

1. Delegation, "Double Delegation," and Privatization

   Public participation has long been a central preoccupation of administrative law, a context in which government-run administrative agencies exercise important policymaking responsibility without a direct democratic check by legislatures. (4) Indeed, the "delegation problem" in administrative law theory arises specifically from the concern that legislatures may weaken public participation when they confer authority on administrative agencies. (5) Accordingly, much of domestic administrative law is concerned with increasing public awareness, participation, and oversight through statutes and doctrines such as the Freedom of Information Act, (6) the Federal Advisory Committee Act, (7) inspector-general review, (8) whistleblower protection statutes, (9) civil service conflict-of-interest rules, (10) notice and comment rulemaking, (11) judicial review of agency decisionmaking under the Administrative Procedures Act, (12) and even the First Amendment. (13) Significantly, the administrative law view of public participation is not simply about assuring that a voting polity ratifies all governmental decisions. (14) Rather, it is concerned with ensuring that there is some sort of dialogue, even if informal, between the government and the governed to act as a check on power and guard against the possibility of capture by interest groups. (15) In this scheme, transparency is both an end in itself and a necessary precondition for political participation and accountability because transparency helps to maintain a feedback loop between government actors and those affected by government policy, despite the fact that agency officials do not themselves stand for election. (16)

   In the international and transnational sphere, political scientists and others have worried about state delegations to multilateral organizations such as the World Trade Organization, the World Bank, and the United Nations because such delegations of authority are seen as even less amenable to public participation than are domestic delegations, where power is at least somewhat constrained by democratic processes. Scholarly responses take various forms. Robert Dahl (1999), for example, has suggested that public participation values are inevitably undermined by delegations to international organizations and therefore such delegations are only justified if the need for interdependence and cooperation outweighs the loss of participation. Others, such as Richard Falk and Andrew Strauss (2000, 2001), refuse to accept this loss of public participation and argue for forms of global democracy. However, Ruth Grant and Robert Keohane (2005: 33, citing Anderson, 1991) respond that such a proposal is unworkable because there is "no large and representative global public, even in the relatively weak sense of a global 'imagined community.'" They therefore take a different tack and argue that international institutions are not necessarily as non-responsive to democratic checks as Dahl, Falk, and Strauss assume. To make this argument, Grant and Keohane seek to disaggregate accountability into two types--participation and delegation--and they suggest that power-wielders such as international organizations may act pursuant to forms of delegatory accountability even if they are not checked by more direct forms of participation (Ibid.: 32). According to this view, international organizations can function as trustees of the polities that entrust them to act on their behalf. Along similar lines, Kingsbury et al. (2005: 16) argue that increased transnational interdependence has spawned a global administrative space; accordingly, an administrative law framework attuned to the global sphere might offer means of taming and controlling this new form of power. Such global administrative law seeks to reinscribe standards of transparency, public participation, accountability, and constraint (Ibid.: 61).

   All of these concerns about authority being delegated to domestic or international administrative agencies, organizations, or bureaucrats are potentially heightened when we turn to privatization, which is in effect a "double delegation" (see Lindseth, 2006). In the domestic setting, administrative law scholars have long worried that privatization of various governmental functions such as prisons, health care, education, and welfare can further erode public participation. (17) For example, sunshine laws, whistleblower protections, notice and comment rulemaking, judicial review, and First Amendment protections tend not to apply to the acts of private contractors or their decision-making processes (see Dickinson, 2005: 193). Some scholars have also expressed broader concerns that political debate might be skewed if private entities control large swaths of formerly bureaucratic sectors such as prison management because such entities might come to wield a disproportionate amount of political clout, thereby overwhelming any views that might be expressed by representatives of the public at large (see Dolovich, 2005).

   Turning to foreign affairs functions, outsourcing likewise potentially exacerbates concerns about transparency, public participation, accountability, and constraint. Even with regard to those populations within a country that is projecting its power overseas, foreign affairs outsourcing appears to threaten public participation values and processes. This is because citizens are far more likely to hear about, and be aware of, the acts of governmental entities abroad than they are about similar acts performed by private contractors. Indeed, most U.S. citizens are probably unaware of the activities performed by private contractors serving the U.S. military, from building refugee camps to delivering other types of foreign aid. Moreover, those in a...