Law360, Nashville (August 11, 2017, 8:26 PM EDT) — Although President Donald Trump is reportedly seriously considering replacing U.S. troops with a mercenary force as he attempts to break the claimed stalemate in Afghanistan, experts say a number of political, operational and legal barriers stand in the way of that plan.
The war in Afghanistan, the longest ever waged by the U.S., will be 16 years old in October, and Trump has been weighing a decision for months on whether to commit more troops to the fight, as U.S. Department of Defense officials have requested, or to further draw down troop levels or otherwise change the U.S. approach to Afghanistan, amid what the Pentagon has described as a stalemate between Afghan government forces and insurgents.
There are about 8,400 U.S. soldiers in Afghanistan, according to the DOD, mostly acting as military “advisers” to train Afghan troops, well down from the 2011 peak of close to 100,000.
Noting that a decision either way would be “very big,” the president told reporters Thursday that he was getting “very close” to a decision on how to make the Afghanistan “mess … a lot less messy.”
Trump’s statement followed an Aug. 7 comment from Secretary of State Rex Tillerson to reporters regarding the war that “to just say we’re going to keep doing what we’ve been doing, the president is not willing to accept that, and so he is asking some tough questions.”
One of the more unusual models reportedly being given serious consideration by the president is to allow private contractors to effectively take over from U.S. troops in Afghanistan, a model that has been strongly pushed by Erik Prince, founder of the notorious private security contractor Blackwater — now known as Academi, and no longer owned by Prince — and brother of Trump’s Education Secretary Betsy DeVos.
Prince, who now runs the Hong Kong-based security and logistics firm Frontier Services Group, called the war an “expensive disaster” in a May op-ed, saying that after $828 billion has been spent by the Pentagon in Afghanistan and more than 2,000 U.S. troops have been killed in combat, the war effort is failing, with anti-government forces continually gaining control of more territory.
He laid out a five-point plan calling for the establishment of a private “presidency army,” or mercenaries — although Prince has been loath to use that term — to support the Afghan armed forces, alongside a small number of U.S. special operations forces, overseen by a permanent “viceroy” who would effectively control all U.S military, budget, contracting and policy decisions in Afghanistan along the lines of the post-World War II oversight of Japan by Gen. Douglas MacArthur.
“A nimbler special-ops and contracted force like this would cost less than $10 billion per year, as opposed to the $45 billion we expect to spend in Afghanistan in 2017,” Prince said.
Prince told USA Today on Aug. 8 his proposal would involve 5,500 private contractors as “adjuncts” to the Afghan armed forces, supported by a 90-plane private air force.
He told CNN on Aug. 7 that after the initial op-ed was published, Trump’s chief strategist Steve Bannon reached out for a meeting with Prince, and to other people in private industry with similar ideas.
Trump has repeatedly railed against what he views as excessive government spending and bureaucracy, and the proposed cost savings, among other factors, could make Prince’s plan appealing to the president from a financial point of view.
But the savings claimed by Prince may be illusory, said Project on Government Oversight investigator Neil Gordon, who maintains the watchdog group’s federal contractor misconduct database, in a July blog post.
A 2009 Congressional Budget Office report had pegged the cost of using contractors during the Iraq War as roughly even with the cost of military deployment, but Gordon cited a 2011 POGO report, “Bad Business,” to argue that, contrary to that CBO report, the overall cost of using Blackwater security forces was at least 11 percent more expensive — and as much as 78 percent more — than the cost of deploying troops.
Also, there is an inherent conflict of interest in allowing contractors to devise military strategy that those contractors would then carry out, which may lead to fraud, waste, or abuse of the system, several experts — such as Atlantic Council senior fellow Sean McFate, himself a former military contractor — have claimed.
“If America entertains the possibility of outsourcing one of its most intractable foreign policy boondoggles, it may well push the market to spit out huge numbers of these fighters,” McFate said in a July op-ed. “It is supply and demand, generating tens of thousands of soldiers of fortune.”
There are also several potential legal and regulatory barriers in the way of the plan. For example, Gordon argued that the plan is difficult to square with the Federal Acquisition Regulation, which prohibits contractors from performing “inherently governmental” functions.
“Among the tasks considered off-limits to contractors are the command of military forces, the conduct of foreign relations, the determination of agency policy, and the direction and control of intelligence and counter-intelligence operations,” he said.
And a 2010 DOD policy document similarly puts “exclusive responsibility for discretionary decisions concerning the appropriate, measured use of combat power” in the hands of the government alone, serving as another check on the plan.
Also, military equipment used by any private contractor force would have to receive an export license from the government, a move that typically requires a demand for that equipment in the receiving country; this is unlikely given that Ronald Neumann, who served as U.S. ambassador to Afghanistan during the George W. Bush administration, has publicly claimed that Afghan President Ashraf Ghani has told Neumann he won’t accept the plan to use mercenaries.
Ghani’s opposition could also extend to refusing to grant the same legal immunity that applies to U.S. troops under a 2014 security agreement between the U.S. and Afghan governments, according to several think tank analyses, which would likely sink the plan over liability issues.
And the Afghan president is not the only political figure to oppose the plan. For example, although some White House advisers, like Bannon, are open to the use of mercenaries, support is split within the administration, with National Security Adviser H.R. McMaster and Defense Secretary James Mattis both reportedly opposed due to issues such as a lack of accountability for contractor employees, even as they have remained publicly noncommittal on the plan.
And Congress is yet to pass a final version of either the 2018 defense appropriations bill or the 2018 National Defense Authorization Act, and it could either direct the DOD to send additional troops, or specifically block any Pentagon funds going toward mercenary services in Afghanistan, as part of those bills — and there has been little evidence so far of any lawmaker support for an outsourcing plan.
Senate Armed Services Committee Chairman John McCain, R-Ariz., for example, echoed Trump in saying in a Thursday statement that the U.S. is “adrift” in Afghanistan. But that agreement came alongside criticism that the president has dragged his feet on coming up with a plan to alleviate the problem; McCain said that “time is of the essence if we intend to turn the tide” and proposed a plan that would send more troops rather than calling on contractor support.
And Sen. Ben Cardin, D-Md., the ranking Democrat on the Senate Foreign Relations Committee, said in a letter to McMaster made public on Thursday that he had a “host of concerns” about the mercenary proposal, such as undermining a potential political solution to the ongoing fighting.
“The unorthodox approach of outsourcing policy developments to private individuals with possible profit motives is an affront to thousands of American service members, who have undertaken a professional responsibility to protect and advance U.S. national security interests in Afghanistan,” Cardin said.
–Editing by Brian Baresch and Aaron Pelc.