‘We Can't Spy … If We Can't Buy!’: The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions’

Posted: 17 Jan 2009

See all articles by Simon Chesterman

Simon Chesterman

National University of Singapore (NUS) - Faculty of Law

Date Written: November 2008

Abstract

Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confirmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ‘inherently governmental’. The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ‘inherently governmental’ and thus inappropriate for delegation to private actors.

Suggested Citation

Chesterman, Simon, ‘We Can't Spy … If We Can't Buy!’: The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions’ (November 2008). European Journal of International Law, Vol. 19, Issue 5, pp. 1055-1074, 2008, Available at SSRN: https://ssrn.com/abstract=1327631 or http://dx.doi.org/10.1093/ejil/chn055

Simon Chesterman (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

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