'We can't spy... If we can't buy!': The privatization of intelligence and the limits of outsourcing 'inherently governmental functions'

European Journal of International Law

Volumn 19, Issue 5, 2008, Pages 1055-1074

  Chesterman, Simon ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

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[No Author keywords available]

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EID: 58149385542     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn055     Document Type: Article

References (146)

1. Defense Intelligence Acquisition Conference hosted by the Office of the Acquisition Executive, Defense Intelligence Agency, 14-17 May 2007, at Keystone Resort and Conference Center in Keystone, Colorado. See www.dia.mil/publicaffairs/Press/press17.htm.
2. A copy remains available from the Federation of American Scientists at: www.fas.org/irp/dni/everett.ppt.
3. Everett, 'Procuring the Future: 21st Century IC Acquisition (PowerPoint Presentation)' (Defense Intelligence Agency, Keystone, Colorado, 14 May 2007), available at: www.fas.org/irp/dni/everett.ppt
4. Shorrock, 'The Corporate Takeover of U.S. Intelligence' (Salon.com, 1 June 2007), available at: www.salon.com/news/feature/2007/06/01/ intel_contractors
5. Hillhouse, 'Update: DNI Inadvertently Reveals Key to Classified National Intel Budget' (The Spy Who Billed Me, 4 June 2007), available at www.thespywhobilledme.com/the_spy_who_billed_me/2007/06/ update∌i_inad.html.
6. See, e.g., Sanders, 'Letter to the Editor: The Value of Private Spies', Washington Post, 18 July 2007.
7. Everett's erett's figures suggest that since 2000 the amount spent on private contractors has more than doubled: Everett, supra note 3.
8. Senate Report on Intelligence Authorization Act for Fiscal Year 2002 (Senate Select Committee on Intelligence, Report 107-63, Washington, DC, 14 Sept. 2001), available at: www.fas.org/irp/congress/2001_pct/ srep107-63.html.
9. Pincus, 'Lawmakers Want More Data on Contracting Out Intelligence', Washington Post, 7 May 2006
10. Keefe, 'Don't Privatize Our Spies', New York Times, 25 June 2007.
11. The Director of the DIA wrote an unusual letter to the editor advising that the proportion of contractors was in fact only 35% of the workforce: Maples, 'Letter to the Editor: Consolidating Our Intelligence Contracts', Washington Post, 24 Aug. 2007.
12. Cf. Percy, 'Morality and Regulation', in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (2007), at 11 (discussing the appropriateness of private actors carrying out military functions).
13. For a discussion of this point see S. Chesterman, 'Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis', 28 Michigan J Int'l L (2007) 553.
14. See generally Chesterman and Lehnardt, supra note 7.
15. M. Herman, Intelligence Power in Peace and War (1996), at 61-81.
16. See ibid., at 111-112.
17. Keefe, supra note 6.
18. Ibid.
19. Taubman, 'In Death of Spy Satellite Program, Lofty Plans and Unrealistic Bids', New York Times, 11 Nov. 2007.
20. Though on a smaller scale, FBI efforts at information technology modernization are, rightly, the subject of ridicule. Its main information system, the Automated Case Support (ACS) system, cost US$67 million and was launched in 1995 with 1980s technology; it proved so unreliable that many agents simply did not use it, preferring to keep case files in shoeboxes under their desks: A.B. Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (2007), at 44. Even in 2001 the ACS system was incapable of performing a data search using more than one word. One could search for the word 'flight', for example, or 'schools' - but not'flight schools'. FBI Director Louis Freeh had his own computer removed from his office entirely because he never used it. The 11 September 2001 attacks provided new energy to the technology reform process, but in February 2005 Robert Mueller, who had taken over as Director of the FBI just a week before the attacks, abandoned the new electronic case filing system Trilogy as a US$170 million failure: ibid., at 136-139.
21. Keefe, supra note 6.
22. Miller, 'Spy Agencies Outsourcing to Fill Key Jobs', Los Angeles Times, 17 Sept. 2006.
23. Ibid.
24. Bamford, 'This Spy for Rent', New York Times, 13 June 2004.
25. Fainaru and Klein, 'In Iraq, a Private Realm of Intelligence-gathering', Washington Post, 1 July 2007.
26. Sanders, supra note 4.
27. Senate Report on Intelligence Authorization Act for Fiscal Year 2008 (Senate Select Committee on Intelligence, Report 110-75, Washington, DC, 31 May 2007), available at: http://intelligence.senate.gov/11075.pdf, at 11 ('[a]nother concern of the Committee is the Intelligence Community's increasing reliance upon contractors to meet mission requirements. It has been estimated that the average annual cost of a United States Government civilian employee is $126,500, while the average annual cost of a "fully loaded" (including overhead) core contractor is $250,000. Given this cost disparity, the Committee believes that the Intelligence Community should strive in the long-term to reduce its dependence upon contractors').
28. Infra note 94.
29. 50 USC 1§805(a)(3).
30. Leonnig, 'Secret Court's Judges Were Warned About NSA Spy Data', Washington Post, 9 Feb. 2006 (citing figures from 1979 to 2004).
31. G.W. Bush, 'President's Radio Address' (White House, Washington, DC, 17 Dec. 2005), available at: www.whitehouse.gov/news/releases/2005/12/ 20051217.html.
32. ACLU v. NSA, 438 F Supp 2d 754 (US DC, ED Mich., 17 Aug. 2006) No. 06-CV-10204.
33. ACLU v. NSA, 493 F 3d 644 (6th Cir. CA, 6 July 2007) Nos. 06-2095/ 2140, available at: www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf.
34. See www.supremecourtus.gov/docket/07-468.htm
35. Protect America Act 2007.
36. The number of 'contractor facilities' cleared by the National Security Agency grew from 41 in 2002 to 1,265 in 2006: Keefe, supra note 6.
37. G.W. Bush, 'President Bush Discusses Protect America Act' (Washington, DC, 13 Feb. 2008), available at: www.whitehouse.gov/news/releases/2008/ 02/20080213.html. The companies concerned included AT&T, Sprint, and MCI. See, e.g., Shorrock, 'Watching What You Say', The Nation, 11 May 2006.
38. Ashcroft, 'Uncle Sam on the Line', New York Times, 5 Nov. 2007.
39. Eggen and Nakashima, 'Spy Law Lapse Blamed for Lost Information; Some Telecom Firms not Cooperating for Fear of Liability, U.S. Says', Washington Post, 23 Feb. 2008
40. Meyer, 'White House Backtracks on Lost Intelligence; Officials Acknowledge that Telecom Firms Are Furnishing All Requested Information', Los Angeles Times, 24 Feb. 2008.
41. See also Lichtblau, 'Return to Old Spy Rules Is Seen as Deadline Nears', New York Times, 10 June 2008 (warning of the expiry in Aug. 2008 of secret wiretapping laws authorized under the lapsed legislation).
42. Lichtblau, 'Senate Approves Bill to Broaden Wiretap Powers', New York Times, 10 July 2008.
43. Lichtblau, 'Error Gave FBI Unauthorized Access to E-Mail', New York Times, 17 Feb. 2008.
44. Risen and Lichtblau, 'Bush Lets US Spy on Callers Without Courts', New York Times, 16 Dec. 2005.
45. The story was ultimately published, it appears, because of the forthcoming book by one of the journalists that would have rendered the Times's discretion moot. See now J. Risen, State of War: The Secret History of the CIA and the Bush Administration (2006).
46. Gonzales (Attorney General) and Hayden (Principal Deputy Director for National Intelligence), 'Press Briefing' (19 Dec. 2005), available at: www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
47. He later clarified that he had intended to say that it would have been difficult, if not impossible, to obtain legislation without compromising the programme.
48. S. Grey, Ghost Plane: The True Story of the CIA Torture Program (2006)
49. Mayer, 'Outsourcing: The CIA's Travel Agent', New Yorker, 30 Oct. 2006.
50. Presidential Decision Directive 95: US Policy on Counterterrorism (PDD-95) (White House, Washington, DC, 21 June 1995), available at: www.fas.org/irp/offdocs/pdd39.htm ('[w]hen terrorists wanted for violation of U.S. law are at large overseas, their return for prosecution shall be a matter of the highest priority and shall be a continuing central issue in bilateral relations with any state that harbors or assists them.... If we do not receive adequate cooperation from a state that harbors a terrorist whose extradition we are seeking, we shall take appropriate measures to induce cooperation. Return of suspects by force may be effected without the cooperation of the host government, consistent with the procedures outlined in NSD-77, which shall remain in effect'). PDD-39 was declassified in 1997 but remains heavily redacted. National Security Directive 77 (NSD-77) was issued by President George H.W. Bush in January 1992 and remains classified. Cf. R.A. Clarke, Against All Enemies: Inside America's War on Terror (2004), at 143-144 ('[t]he first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass"').
51. Priest, 'Jet Is an Open Secret in Terror War', Washington Post, 27 Dec. 2004.
52. Transportation and Illegal Detention of Prisoners: European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (P6_TAPROV(2007)0032-(2006/2200(INI)),2007), available at: www.europarl.europa.eu/comparl/tempcom/tdip/final_ep_resolution_en.pdf, at para. 190.
53. Shane, 'CIA Chief Doubts Tactic to Interrogate Is Still Legal', New York Times, 8 Feb. 2008.
54. Hearing of the Senate Select Committee on Intelligence: Annual Worldwide Threat Assessment (Senate Select Committee on Intelligence, Washington, DC, 5 Feb. 2008), available at: www.dni.gov/testimonies/ 20080205_transcript.pdf, at 26 (referring to 'greenbaggers', presumably a transcription error).
55. See also Hillhouse, 'The CIA's Black Sites Have Gone Green' (The Spy Who Billed Me, 6 Feb. 2008), available at: www.thespywhobilledme.com/ the_spy_who_billed_me/2008/02/the-cias-black.html.
56. Hearing of the House Permanent Select Committee on Intelligence: Annual Worldwide Threat Assessment (House Permanent Select Committee on Intelligence, Washington, DC, 7 Feb. 2008), available at: www.dni.gov/ testimonies/20080207_transcript.pdf, at 26. See also Gorman, 'CIA Likely Let Contractors Perform Waterboarding', Wall Street Journal, 8 Feb. 2008.
57. Scherer and Benjamin, 'Other Government Agencies (The Abu Ghraib Files)' (Salon.com, 14 Mar. 2006), available at: www.salon.com/news/abu_ghraib/ 2006/03/14/introduction, at chap. 5.
58. See generally K.J. Greenberg and J.L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (2005).
59. Multiple-year terms were awarded to Cpl. Charles Graner Jr (10 years' prison and demotion to private), Staff Sgt. Ivan Frederick of Buckingham (81/2 years), and Pfc. Lynndie England (3 years). Other punishments of imprisonment included those imposed on Spc. Jeremy Sivits (1 year), Spc. Roman Krol (10 months), Spc. Armin Cruz (8 months), Spc. Sabrina Harman (6 months), and Sgt. Javal Davis (6 months). Brig. Gen. Janis L. Karpinski was demoted to colonel; Sgt. Santos Cardona was given 3 months' hard labour and reduction in rank to Specialist; Spc. Megan Ambuhl was discharged without prison: See 'Fast Facts: Abu Ghraib Convictions, Associated Press', Associated Press, 27 Sept. 2005
60. 'Chronology of Abu Ghraib', Washington Post, 17 Feb. 2006
61. Schmitt, 'Army Dog Handler is Convicted in Detainee Abuse at Abu Ghraib', New York Times, 22 Mar. 2006.
62. Gourevitch and Morris, 'Exposure: Behind the Camera at Abu Ghraib', New Yorker, 24 Mar. 2008, at 56.
63. Rumsfeld Okayed Abuses Says Former US Army General', Reuters, 25 Nov. 2006.
64. See generally Centre for Constitutional Rights, Current Cases: Saleh v. Titan (2008), available at: http://ccrjustice.org/ourcases/ current-cases/saleh-v.-titan.
65. Saleh v. Titan (US DC for DC, 6 Nov. 2007) Civil Action No. 05-1165, available at: http://ccrjustice.org/.les/ Saleh_summaryjudgmentdec_11_07.pdf, at 21.
66. Ibid., at 22.
67. Dao, 'A Man of Violence, or Just "110 Percent" Gung-Ho?', New York Times, 19 June 2004.
68. See also Gaston, 'Mercenarism 2.0? The Rise of the Modern Private Security Industry and Its Implications for International Humanitarian Law Enforcement', 49 Harvard Int'l LJ (2008) 221, at 229.
69. Burke, 'Accountability for Corporate Complicity in Torture', 10 Gonzaga J Int'l L (2006) 81, at 85
70. Amnesty International USA, 'Corporate Accountability in the "War on Terror"' (2007), available at: www.amnestyusa.org/War_on_Terror/ Private_Military_and_Security_Contractors/ page.do?id=1101665&n1=3&n2=26&n3=157.
71. Keefe, supra note 6
72. Bamford, supra note 16.
73. The US Intelligence Community's Five Year Strategic Human Capital Plan (An Annex to the US National Intelligence Strategy) (Office of the Director of National Intelligence (ODNI), Washington, DC, 22 June 2006), available at: www.odni.gov/publications/ DNIHumanCapitalStrategicPlan18October2006.pdf, at 6.
74. Pincus and Barr, 'CIA Plans Cutbacks, Limits on Contractor Staffing', Washington Post, 11 June 2007.
75. Senate Report on Intelligence Authorization Act for Fiscal Year 2008, at 11 ('[i]t has been estimated that the average annual cost of a United States Government civilian employee is $126,500, while the average annual cost of a "fully loaded" (including overhead) core contractor is $250,000. Given this cost disparity, the Committee believes that the Intelligence Community should strive in the long-term to reduce its dependence upon contractors. The Committee believes that the annual personnel assessment tool will assist the Director of National Intelligence and the congressional intelligence committees in arriving at an appropriate balance of contractors and permanent government employees').
76. Keefe, supra note 6
77. Tarallo, 'Hayden Wants Fewer CIA Contractors', Federal Computer Week 25 June 2007.
78. Shorrock, 'The Spy Who Came In from the Boardroom' (Salon.com, 8 January 2007), available at: www.salon.com/news/feature/2007/01/08/mcconnell.
79. Available at: www.boozallen.com/careers/9001843/ cleared_intelligence_opportunities.
80. See, e.g., Hillhouse, 'Corporate Content and the President's Daily Brief' (The Spy Who Billed Me, 23 July 2007), available at: www.thespywhobilledme.com/the_spy_who_billed_me/2007/07/ corporate-conte.html.
81. See, e.g., Schreier, 'The Need for Efficient and Legitimate Intelligence', in H. Born and M. Caparini (eds), Democratic Control of Intelligence Services: Containing Rogue Elephants(2007), at 25.
82. Supra note 2.
83. House of Representatives Report on Intelligence Authorization Act for Fiscal Year 2008 (Permanent Select Committee on Intelligence, Report 110-131, Washington, DC, 7 May 2007), available at: http://intelligence.house.gov/Media/PDFS/IAAFY08.pdf, at 42.
84. Cf. Conference Report on Intelligence Authorization Act for Fiscal Year 2008 (House of Representatives, Report 110-478, Washington, DC, 6 Dec. 2007), available at: http://frwebgate.access.gpo.gov/cgi-bin/ getdoc.cgi?dbname=110_cong_reports&docid=f:hR478.110.pdf, at 68.
85. W. Pincus, 'Defense Agency Proposes Outsourcing More Spying', Washington Post, 19 Aug. 2007.
86. Fainaru and Klein, supra note 17.
87. S. Shane, 'Government Keeps a Secret After Studying Spy Agencies', New York Times, 26 Apr. 2007
88. Hillhouse, 'Who Runs the CIA? Outsiders for Hire', Washington Post 8 July 2007.
89. Conference Report on Intelligence Authorization Act, supra note 63, at 11.
90. See http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.02082.
91. Shorrock, supra note 3; Barlett and Steele, 'Washington's $8 Billion Shadow', Vanity Fair, Mar. 2007, available at: www.pogo.org/p/contracts/c/co-030613-saic.html.
92. Shorrock, supra note 3.
93. R. Tiron, 'Congress Discloses Intel Earmarks for First Time', The Hill, 24 Nov. 2007.
94. See Conference Report on Making Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2008, and for Other Purposes (House of Representatives, Report 110-434, Washington, DC, 6 Nov. 2007), available at: www.conferencereport.gpoaccess.gov, at 378-379.
95. Shorrock, supra note 3. The Foggo trial was moved to Virginia in Feb. 2008 and is scheduled to take place in Nov. 2008.
96. See, e.g., Caparini, 'Controlling and Overseeing Intelligence Services in Democratic States', in Born and Caparini, supra note 61, at 3
97. Chesterman, supra note 8.
98. Semiannual Report to the Congress, April 1, 2006 - September 30, 2006 (Inspector General, United States Department of Defense, Washington, DC, 2006), available at: www.dodig.osd.mil/sar/SAR_Cover_121306.pdf, at 55.
99. Miller, supra note 15.
100. Abbot, 'The Outsourcing of U.S. Intelligence Analysis' (Newsinitiative.org, 31 Aug. 2006), available at: http://newsinitiative.org/story/2006/07/28/ the_outsourcing_of_u_s_intelligence (quoting John Gannon).
101. O'Harrow, Jr., 'Costs Skyrocket as DHS Runs Up No-Bid Contracts', Washington Post, 28 June 2007.
102. Chesterman and Lehnardt, 'Conclusion: From Mercenaries to Market', in Chesterman and Lehnardt, supra note 7, at 254-255.
103. Ibid., at 254.
104. This appears to have affected even the Director of National Intelligence: Wright, 'The Spymaster', New Yorker, 21 Jan. 2008, at 42 ('McConnell, upon landing in Farmington, delivered his speech before [a group of] government contractors. "There was a study done in 1955," he told them. "One conclusion it came to was that it was an abomination that the government takes fifteen months to clear someone! I'm happy to tell you we got that down to eighteen months. "The contractors laughed in recognition. "When I agreed to take the DNI post, the first surprise was being told, 'Fill out the form,'" McConnell continued. "I've been cleared for forty years! Then the agent shows up. He wants to know if I am a Communist and do I advocate the violent overthrow of the U.S."').
105. Abbot, supra note 76.
106. See supra notes 53-55.
107. See, e.g., Minow, 'Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy', 46 Boston College L Rev (2005) 989, at 1005-1016.
108. The UK, for example, operated its Security Service (MI5) until 1989 on the basis of a one-page administrative directive issued in 1952: The Maxwell-Fyfe Directive (issued by the UK Home Secretary, Sir David Maxwell-Fyfe, to the Director-General of MI5, 1952), reprinted in L. Lustgarten and I. Leigh, In from the Cold: National Security and Parliamentary Democracy (1994), at 517
109. Lustgarten and Leigh, 'The Security Service Act 1989', 52 MLR (1989) 801.
110. The Secret Intelligence Service (MI6) found a legislative basis only in 1994: Wadham, "The Intelligence Services Act 1994', 57 MLR (1994) 916.
111. See generally Born and Caparini, supra note 61.
112. Cf. provisions of the Geneva Conventions requiring, for example, that prisoner-of-war camps be 'be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power' : Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), done at Geneva, 12 Aug. 1949, available at: www.icrc.org/ihl,at Art. 39. Similarly places of internment for civilians are to be put 'under the authority of a responsible officer, chosen from the regular military forces or the regular civil administration of the Detaining Power':COnvention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), done at Geneva, 12 Aug. 1949, available at: www.icrc.org/ ihl, at Art. 99.
113. 'Concern about which federal agency activities are inherently governmental functions is not new. It goes back as far as the early days of the nation, as evidenced, for example, by the discussion in the Federalist Papers among the framers of the Constitution over what functions are appropriate for the federal government to exercise': US General Accounting Office, 'Government Contractors: Are Service Contractors Performing Inherently Governmental Functions?' (GAO/ GGD-92-11, Washington, DC, 18 Nov. 1991), available at: http://archive.gao.gov/t2pbat7/145453.pdf, at 2.
114. See also Khattab, 'Revised Circular A-76: Embracing Flawed Methodologies', 34 Public Contract LJ (2005) 469.
115. For historical context see Madison, 44 The Federalist (1788), available at: www.law.emory.edu/law-library/research/ready-reference/ usfederal-law-and-documents/historical-documents-the-federalist-papers/ the-federalist-no-44.html.
116. Federal Activities Inventory Reform ('FAIR') Act of 1998, 31 USC §501 (2000)
117. Minow, supra note 83, at 1015.
118. Sect. 5 of Federal Activities Inventory Reform Act of 1998, PL 105-270, codified at 31 USC 501 (1998).
119. US General Accounting Office, 'Commercial Activities Panel: Improving the Sourcing Decisions of the Federal Government' (GAO-02-847T, Washington, DC, 27 Sept. 2002), available at: www.gao.gov/new.items/ d02847t.pdf, at 21.
120. Schooner, 'Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government', 16 Stanford L and Policy Rev (2005) 549, at 554-557.
121. OMB Circular No. A-76: Performance of Commercial Activities (superseded) (White House Office of Management and Budget, Washington, DC, 1983), at para. (b), quoted in Luneburg, 'Contracting by the Federal Government for Legal Services: A Legal and Empirical Analysis', 63 Notre Dame L Rev (1988) 399, at 419, n. 91.
122. Ibid., para. (e) (emphasis added).
123. Policy Letter 92-1: Inherently Governmental Functions (Office of Federal Procurement Policy, Washington, DC, 23 Sept. 1992), available at: www.whitehouse.gov/omb/procurement/policy_letters/92-1_092392.html, at para. 5(c).
124. Ibid., Appendix A, para. 8 (emphasis added).
125. OMB Circular No. A-76: Performance of Commercial Activities (Revised 1999) (superseded) (White House Office of Management and Budget, Washington, DC, 1999), available at: www.whitehouse.gov/omb/circulars/ a076/a076.html.
126. OMB Circular No. A-76 (Revised): Performance of Commercial Activities (White House Office of Management and Budget, Washington, DC, 29 May 2003), available at: www.whitehouse.gov/omb/circulars/a076/ a76_incl_tech_correction.pdf.
127. Ibid., Attachment A: Inventory Process, at para. B(1)(a) ([a]n inherently governmental activity is an activity that is so intimately related to the public interest as to mandate performance by government personnel. These activities require the exercise of substantial discretion in applying government authority and/or in making decisions for the government. Inherently governmental activities normally fall into two categories: The exercise of sovereign government authority or the establishment of procedures and processes related to the oversight of monetary transactions or entitlements').
128. Ibid., Attachment A: Inventory Process, at para. B(1)(c).
129. Ibid., at para. 5(h).
130. Strategic Human Capital Plan, supra note 54, at 14.
131. Supra note 66.
132. Barr, 'This CIA Mission - Better Contract-Workforce Management - Isn't Classified', Washington Post, 11 June 2007.
133. Supra note 99.
134. See also Abbot, supra note 76.
135. Supra note 95.
136. Rendition was found by the Venice Commission to be in violation of Arts 2, 3, and 5 of the European Convention on Human Rights. See Hakimi, 'The Council of Europe Addresses CIA Rendition and Detention Program', 101 AJIL (2007) 442.
137. The European Parliament also noted that the CIA flights might be in violation of the Chicago Convention on Civil Aviation. Extraordinary Rendition: European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, Adopted Midway Through the Work of the Temporary Committee (P6_TA(2006)0316-(2006/2027(INI)), 2007), available at: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// TEXT+TA+P6-TA-2006-0316+0+DOC+XML+V0//EN&language=EN.
138. See also European Parliament Resolution on Transportation and Illegal Detention of Prisoners, supra note 39.
139. Feinstein, Letter to the Honorable Michael B. Mukasey, Attorney General of the United States (6 Feb. 2008), available at: http://tpmmuckraker.talkingpointsmemo.com/2008/02/ wsj_contractors_likely_involve.php
140. Gorman, supra note 41. The Senate Intelligence Committee has proposed banning the CIA from using private contractors to interrogate detainees.
141. The restriction would be introduced as a part of a new bill authorizing intelligence expenditure in 2009 and would restrict the CIA to interrogation techniques that have been approved by the military and allow the International Red Cross access to all their prisoners. Similar restrictions imposed by the 2008 Intelligence Authorization Bill were vetoed by President Bush: See 'Notes from the War on Terror', New York Times, 2 May 2008.
142. Supra note 99.
143. Cf. Minow, supra note 83, at 1016.
144. Contra Khattab, supra note 87, at 516 (arguing that a revision of OMB Circular No. A-76 should be entrusted to 'private sector outsourcing experts').
145. See also 'Defense Federal Acquisition Regulation Supplement (DFARS)', 71(116) Federal Register (2006) 34826, at 34826-34827 ('[i]t is the responsibility of the combatant commander to ensure that the private security contract mission statements do not authorize the performance of any inherently Governmental military functions, such as preemptive attacks, or any other types of attacks. Otherwise, civilians who accompany the U.S. Armed Forces lose their law of war protections from direct attack if and for such time as they take a direct part in hostilities' : Quoted in Matter of Brian X. Scott (US Government Accountability Office, 18 Aug. 2006) B-298370 and B-298490, available at: www.gao.gov/decisions/bidpro/298370.htm.
146. 'Blackwater's Impunity', New York Times, 16 May 2008.