Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

When privatization is taken to the extreme

Posted by David Kassel on September 4, 2007

Private security contractors in Iraq may provide the ultimate example of the questionable privatization of a core governmental function.

According to the Los Angeles Times, more than 180,000 civilians — including Americans, foreigners and Iraqis — are working in Iraq under U.S. contracts.  The Associated Press has reported that about half of these are private security guards, who are equipped with automatic weapons, body armor, helicopters and bullet-proof trucks.  They operate with little or no supervision, the AP reported, and are “accountable only to the firms employing them.”  They have been accused of indiscriminately firing on both American and Iraqi troops, and of shooting to death an unknown number of Iraqi citizens who allegedly got to close to their convoys.  Not one has faced charges or prosecution.

 In a 1998 paper in Public Administration Review, titled “Reinventing Government Accountability: Public Functions, Privatization, and the Meaning of ‘State Action,'” Robert Gilmour and Laura Jensen expressed a number of concerns about the loss of accountability that naturally occurs when governmental services are privatized.  They were talking only about services shifted to private parties by our federal and state governments right here in the U.S., such as housing, garbage removal, transportation, and Medicare services.  They weren’t even considering what happens when our government privatizes functions overseas, in a war zone.

How is this accountability lost in any case?  Gilmour and Jensen note that government offcials are held legally accountable for their behavior in order to protect the constitutional and statutory rights of citizens.  They must abide by such things as the Bill of Rights and the Fourteenth Amendment to the Constitution, and by management laws such as the federal Administrative Procedure Act of 1946, which allows citizens to sue federal agencies that violate their rights and mandates access to agency records.  The Freedom of Information Act is part of that scheme of rights and protections as well.

When governmental functions and services are privatized, courts have been inconsistent as to whether these same services can still be considered to be “state actions.”  As a result, citizens’ rights are often no longer protected by the usual rules.  If these privatized services are now considered to be private acts, legal accountability for them can only be maintained by such things as criminal prosection, contract enforcement, or lawsuits.  The Fourteenth Amendment and the Freedom of Information Act don’t apply anymore.

So how can accountability be maintained in Iraq, where there is apparently no legal consensus as to whether security contractors are engaging in state actions or not, and no will or way to prosecute them criminally? 

Gilmour and Jensen note that “if private actors are not subject to the rules set for government action, delegating authority to private parties may allow the government to do through them what it cannot do itself.”  No doubt, that’s why we’re allowing these private security guards to operate in the first place.  They apparently do things our military isn’t authorized to do itself.

It would seem that Congress should appoint a commission or task force to determine whether security contractors in Iraq are engaging in state actions or not, and exactly which constitutional provisions and laws may or may not apply to them.  Allowing these contractors to continue to operate without any accountability seems like a bad precedent, even for privatized services back here in the U.S.

 Gilmour and Jensen point out that laws and other bureaucratic constraints on government administrators are what often promote the argument in favor of privatization as a way of sweeping away “red tape.”  But the security contractors in Iraq show what happens when privatization is taken to the other extreme, in which no rules or regulations appear to operate or apply.

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One Response to “When privatization is taken to the extreme”

  1. Sara said

    Good article David! It’s included in last week’s Carnival of Open Records.
    Thanks, Sara

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