James Bond, Inc.: Private Contractors and Covert Action

Georgetown Law Journal

June, 2013

101 Geo. L.J. 1427

NOTE: James Bond, Inc.: Private Contractors and Covert Action

NAME: LINDSAY WINDSOR * BIO:

* Georgetown University Law Center, J.D. 2013; Georgetown University, M.A. Security Studies 2013; Cornell University, B.A. 2007. (c) 2013, Lindsay Windsor. I am grateful to Professor Brian Morrison for his insight and guidance on previous drafts of this Note. All views expressed herein are my sole responsibility.

SUMMARY:

… What activities would be properly contracted to him as a private citizen under the law of inherently governmental functions? … Excluded from this definition are activities with the primary purpose of intelligence gathering or counterintelligence, “traditional diplomatic or military activities or routine support to such activities,” “traditional law enforcement activities,” and support to overt activities of U.S. government agencies abroad. … The United States Court of Federal Claims likewise dismissed a case based on standing where plaintiff federal employees objected to a government determination to privatize their jobs based on a cost comparison. … For the procurement of services valued at more than $ 150,000, the contracting officer must include documentation in the contract file supporting an analysis that contracting out the function is in accordance with applicable law and policy for inherently governmental functions. … The state secrets privilege, the combatant activities preemption, and the limitations on extraterritorial jurisdiction have raised the highest barriers for finding contractors liable for harms they cause when performing such contracts. 1. … The inherently governmental functions policy should be amended to prohibit contractor direction, control, and performance of covert actions, in accordance with the broad prohibitions on contractor determinations of foreign policy and contractor actions having significant effects on individual life and liberty. … Amending the inherently-governmental-functions policy to prohibit this privatization, creating grounds for contractors to challenge the procurement or award of covert-action contracts, and using the Antideficiency Act to hold accountable the officer who decides to outsource such a function would help prevent a number of issues related to improper contractor conduct.

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