Wielding a "very long, people-intensive spear": inherently governmental functions and the role of contractors in U.S. Department of Defense unmanned aircraft systems missions.

AuthorClanahan, Keric D.

    We're simply not going to go to war without contractors. (194) --Ashton B. Carter

    1. Contractors and Contingency Operations

      Commentators have long recognized the important, and pervasive roles, civilian contractors have played in the wars in Iraq and Afghanistan. (195) Much has been written on the contributions contractors in the theaters of war have made toward installation and personnel security, weapons systems maintenance, intelligence collection and analysis, interpretation, interrogation, and various forms of logistical support. (196) In fact, without the assistance of private contracting firms, the U.S. armed forces simply could not have conducted sustained military operations in Afghanistan, Iraq and other hot spots around the world for the last ten years. With massive active duty force reductions occurring between 1989 and 1999, and the development and fielding of incredibly complex technical weapons, the U.S. military did not possess the manning or technical specializations necessary to conduct modem operations unassisted. (197) Reliance on contractors grew so rapidly that by 2010, the number of contractors in Afghanistan and Iraq actually surpassed the number of military forces and federal civilian employees. (198)

      Contractor support growth also appears to have been partly driven by the chilling effect of modern media showing images of fallen soldiers. In a day and age where news of war has been streamed into households via television and internet 24 hours a day, some commentators have noted that many of our military decisions are more concerned with force protection than power projection. (199) When the military is fighting wars that millions oppose, or perhaps view as not vital to national security interests, then the deaths of soldiers becomes less and less acceptable. (200) Following this line of reasoning, some argue that it should not come as any surprise that the U.S. would so heavily rely on contractors for much of the war effort; fewer soldiers placed in harm's way means fewer news stories about dead soldiers. (201)

      Given the DoD's current state of contractor reliance, many commenters have called for stronger oversight of contracts and contractor performance. (202) Not surprisingly, in the UAS community, contractors also have been critical of extending their roles to mission execution. UAS technology is unmatched in its ability to provide power projection capability while supplementing force-protecting efforts. (203) However, it is exactly the highly technical, manpower intensive nature of this extremely long spear that raises questions about the role of contractors. Most importantly, the following questions need examination for compliance under current law and policy regarding the performance of inherently governmental functions: (a) whether UAS systems are being maintained and operated in a compliant manner, and (b) whether the imaging and data is being captured, analyzed and disseminated in a compliant manner.

    2. The Role of Contractors in the Current UAS Mission

      The important roles that contractors would play in UAS missions developed early in the current conflicts. For example, the Air Force was taking the Global Hawk to battle for the first time and was not ready to handle the job alone. (204) In the rush to field ISR assets to support Operations Enduring Freedom (OEF) and Iraqi Freedom (OIF), contractors comprised the majority of teams deployed to maintain and operate unmanned aircraft. (205) In short, the military simply did not have enough trained military personnel to handle the job unaided. (206) The UAS mission was growing, the inventory and capabilities were expanding exponentially, and the DoD reliance on contractors to support the mission was rising. (207) Given the shortfalls that DoD is experiencing with personnel, the military will not be able to free itself from dependence on contractors. (208) Therefore, it is critical that steps be taken to prevent contractors from performing functions that should not be outsourced, such as the offensive combat functions of UAS. (209)

      1. The Kill Chain

        The standard UAS combat air patrol (CAP) mission consists of six principal steps--find, fix, track, target, engage, and assess (F2T2EA), also known simply as the "kill chain." (210) Often referred to as "dynamic targeting," these six steps represent the linear sequence of events that are used by mission controllers and analysts conducting any mission that is prepared to engage targets of opportunity, for example, time sensitive targets such as a meeting of al Qaeda leadership. (211) Whether the mission involves attacks against planned targets, monitoring of areas suspected of enemy presence, or general reconnaissance--the process is basically the same. With one or more aircraft, the remote ground station operators and analysts pour over video feeds, images, and data streamed from the aircraft to "detect objectives of potential significance," that is, find the target (212) Once identified, operators and analysts use the UAS mapping and advanced sensors to get a fix on the target, that is, determine the target's precise location. Once the target's location is established, then operators and analysts will continue to monitor (i.e., track) the target. While tracking the target, they will collect more data regarding the target and the target's movements; the surrounding environment, vehicles, buildings and residences; and patterns of life and movement (including the presence and activity of other people in the immediate area who might be subject to harm). (213)

        At this stage of the mission, the focus shifts from what might be considered passive surveillance to active coordination--with ground troops who will confront the target or with the execution of kinetic air strikes against the target. Based on intelligence collected and analyzed, mission commanders decide upon resources that will be used against the target (now truly a target). (214) Military ground forces and/ or UAS kinetic capabilities are applied against the target in a timely and decisive manner. (215) Meanwhile, still circling above the target, the UAS aircraft is there to assess. (216) Did the ground troops capture or kill the target? Did the missile take out the building? How much damage was done to the surrounding area? Were any innocent civilians harmed? And perhaps, most important for a military mission, does the target need to be attached again? (217)

        As previously mentioned, getting an aircraft and ground control equipment ready to conduct such missions; operating the sensors and aircraft in flight; and collecting, processing and disseminating intelligence necessary for the mission can involve hundreds of people, many of whom are contractors. Many in the UAS community believe contractors play important roles in UAS sustainment and missions, but are not within the kill chain. Accordingly, the question arises, what activities are within the kill chain? For example, is the kill chain limited to the person releasing a Hellfire missile, or does the kill chain include other actors supporting "combat" or the "direction and control of intelligence?" In the following sections, the functions that contractors are (or may be) performing--and the relation of those functions to the kill chain--are examined. This examination analyzes the question of what should not be contracted because the function is inherently governmental or for other policy reasons.

      2. Logistics and Maintenance

        (a) The Blended Maintenance Workforce

        Generally, few regard the maintenance and repair of aircraft, sensors, and communications systems as inherently governmental activities. For the last several decades, civilian contractors have provided such maintenance and repair services, typically working alongside military and federal civilian counterparts as a team, often doing the same type of work, sometimes indistinguishable in appearance to outsiders. It is this reliance on contractors for so many important functions such as maintenance and repair of weapons systems, and the recognition that the U.S. will not completely abandon such a "blended" workforce in the current political environment, that demands this workforce be well managed. (218) An important step in pursuing management of these has been the publication of DoD guidance and regulations to address the complications that arise between the military personnel and the contractors working in the same organizations, as well as the specific work that can be performed by contractors in regard to military aircraft, payloads, and armament. (219)

        (b) Battlefield Contract Maintenance

        DoD dependence on contractors has not been limited to their employment back in the U.S. As part of the recognized blended workforce, contractor maintenance teams have deployed with military forces to theaters of war for the last decade to maintain fielded weapons systems. (220) Key weapons systems maintenance contractors are specifically identified by the DoD as contractors authorized to accompany the armed forces. (221) Some scholars, however, have questioned the legality of contractors performing battlefield weapons systems maintenance. Many argue that contractors providing maintenance and repair of weapons in an area of conflict, in certain situations should be considered direct participation in hostilities. (222) As previously discussed, direct participation in hostilities by civilians is prohibited under international law. Such direct participation costs a civilian all protections under LOAC such as protection from lawful attack, POW status if captured, and combatant immunity from prosecution. (223)

        (c) Battlefield Contract Maintenance and Inherently Governmental Functions

        Both OFPP Policy Letter 11-1 and DoDI 1100.22 reinforce the DoD's position that weapons systems maintenance and repair are not inherently governmental, but rather activities that can be...

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