Private Intelligence Contracting in Syria: Can the Department of Defense Outsource Intelligence Analysis?

Private Intelligence Contracting in Syria:  Can the Department of Defense Outsource Intelligence Analysis?

Janet Franklin*

By allowing contractors to perform intelligence gathering and analysis, is the Department of Defense outsourcing “inherently governmental functions” in violation of the Federal Activities Inventory Reform (FAIR) Act of 1998?  This has long been a subject of debate.  Keric D. Clanahan, 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, 70 A.F. L. Rev. 119, 173 (2013).  Compare Walter Pincus, Increase in Contracting Intelligence Jobs Raises Concerns, Wash. Post (Mar. 20, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/03/19/AR2006031900978.html (criticizing the outsourcing of intelligence and interrogation activities to private contractors), with Daniel Gouré, Washington Post Series Criticizing Intelligence Contractors Is Short on Evidence, Lexington Inst. (July 20, 2010), http://lexingtoninstitute.org/washington-post-series-criticizing-intelligence-contractors-is-short-on-evidence (arguing that outsourcing intelligence activities is both cost-effective and legal).  With the Department of Defense’s July 2016 announcement that it has awarded a contract to Six3 Intelligence Solutions, Inc. for intelligence analysis services in Syria, this debate will likely be rekindled.  See U.S. Dep’t of Def., Release No. CR-143-16 (July 27, 2016), http://www.defense.gov/News/Contracts/Contract-View/Article/873473; David Choi, The US Is Hiring Military Contractors for Operations in Syria, Bus. Insider (Aug. 9, 2016, 9:03 PM), http://www.businessinsider.com/us-military-contractors-operations-syria-2016-8.  May contractors perform intelligence analysis, and if so, what limitations apply?

The federal government has established in both law and policy that “inherently governmental functions” may not be outsourced to private contractors.  Federal Activities Inventory Reform Act of 1998, Pub. L. 105-270, §5(2)(a), 112 Stat. 2382 (1998) (amended by Pub. L. 108-271, §8(b), 118 Stat. 814 (2004)); 48 C.F.R. §7.503(a) (2006).  Policy Letter 11-01, published in 2011 by the Office of Management and Budget pursuant to a memorandum by President Obama, defines an inherently governmental function as one “so intimately related to the public interest as to require performance by Federal Government employees.”  Office of Federal Procurement Policy (OFPP) Policy Letter 11-01, Performance of Inherently Governmental and Critical Functions, 76 Fed. Reg. 56236 (Sept. 12, 2011) [hereinafter OFPP Policy Letter 11-01], https://www.gpo.gov/fdsys/pkg/FR-2011-09-12/pdf/2011-23165.pdf.  The Policy Letter adopts this definition from the Federal Activities Inventory Reform (FAIR) Act, Pub. L. 105–270, §5(2)(a).  OFPP Policy Letter 11-01 at 56236.  Thus, the FAIR Act provides the statutory authority for determining whether a contractor may perform a given function.

An inherently governmental function involves the execution of laws so as “to determine, protect, and advance United States economic, political, territorial, or other interests by military or diplomatic action,” or “to significantly affect the life, liberty, or property of private persons . . . .”  OFPP Policy Letter 11-01 at 56236; Pub. L. 105–270, §§ 5(2)(B)(ii), (iii).  More specifically, inherently governmental functions include “[t]he command of military forces” and “[t]he direction and control of intelligence and counter-intelligence operations.”  OFPP Policy Letter 11-01, Appendix A ¶¶ 3, 12; 48 C.F.R. § 7.503 ¶¶ 3, 8.  48 C.F.R. § 7.503, the Federal Acquisition Regulation, is incorporated by reference by 10 U.S.C. § 2383(b)(3) (2011), which controls Department of Defense contracting.  However, “the term does not normally include [] gathering information for or providing advice, opinions, recommendations, or ideas to Federal Government officials . . . .”  OFPP Policy Letter 11-01 at 56236; Pub. L. 105–270, § 5(2)(C)(i).  Thus, contractors may perform intelligence “gathering” to some extent.

The Policy Letter proposes a two-pronged test to assist agency officers in determining whether a given function is inherently governmental.  OFPP Policy Letter 11-01 at 56236, 56237.  The test examines (1) “the nature of the function” and (2) the degree of discretion required by the function’s execution.  Id. at 56237.  A contractor may properly analyze data and provide advice, but not to such an extent that “the contractor’s involvement is or would be so extensive, or the contractor’s work product so close to a final agency product, as to effectively preempt the Federal officials’ decision-making process, discretion or authority.”  Id. at 56238.  This proposed test reflects the Department of Defense’s policy that “[d]ecisions as to whether or not a function is I[nherently] G[overnmental] should place emphasis on the degree to which the conditions or facts restrict or put at risk the discretionary authority, decision-making responsibility, or accountability of Defense officials.”  Policy and Procedures for Determining Workforce Mix, Dep’t of Def. (Apr. 12, 2010), http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf.  Thus, both law and policy seek to reserve the ultimate discretion and authority for inherently governmental functions to federal officials, while allowing contractors to participate, with properly limited discretion, in such functions.

It has been noted that the Policy Letter’s definition of an inherently governmental function “on its face seems to include national intelligence activities, but the examples provided by statute accommodate a broader definition of functions allowable for contractor performance[,] as the FAIR Act allows “gathering information.”  Lindsay Windsor, Note, James Bond, Inc.:  Private Contractors and Covert Action, 101 Geo. L. J. 1427, 1437 (2013); Pub. L. 105–270, § 5(2)(C)(i).  Some scholars posit that intelligence analysis by a contractor would impermissibly constitute direct participation in hostilities if the contractor’s work product were used for targeting purposes.  J. Ricou Heaton, Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces, 57 A.F. L. Rev. 155, 179–80 (2005) (explaining that gathering intelligence for targeting purposes “may be considered direct participation in hostilities” because “[t]hese activities are indispensable to and closely connected with the infliction of violence[,]” unlike “providing combatants with food and water”); Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 511, 519–21 (2005) (distinguishing “strategic” intelligence, which concerns the war effort on a geopolitical level and has little bearing on specific combat missions, from “tactical” intelligence, which is “designed to locate and identify fleeing targets” and is “an integral component of the application of force against particular targets,” and noting that “[c]ivilians providing strategic analysis would not be directly participating in hostilities, while those involved in the creation, analysis, and dissemination of tactical intelligence to the ‘shooter’ generally would”).

Thus, the question of whether Six3’s intelligence analysis contract in Syria impermissibly involves the performance of inherently governmental functions likely depends on whether the intelligence services to be provided are “strategic” or “tactical.”  Unfortunately, these contract provisions are not available to the public.  See U.S. Dep’t of Def., Release No.: CR-143-16 (July 27, 2016), http://www.defense.gov/News/Contracts/Contract-View/Article/873473.

* Janet Franklin is a second-year law student at the University of Baltimore School of Law where she is a staff editor for Law Review. In addition, she is a Law Scholar for Contracts I and she competes on the school’s National Moot Court Team. This summer she interned with the Maryland Office of the Attorney General’s Legal Counsel Unit for the Maryland State Police. She currently interns with the Honorable Paul W. Grimm, United States District Judge for the District of Maryland.