Restrain 'Risky Business': Treat High-Risk Private Security Contractors as Inherently Governmental

Abstract

Should Congress limit private security contractors ("PSCs") in wartime by declaring that high-risk activities are "inherently governmental"? In government contracting law, private contractors are not permitted to conduct activities deemed inherently governmental. As a result, only governmental actors may perform those functions. The role of PSCs in war zones raises a number of questions as to where the line exists, in determining what is, or is not, within this classification. Traditionally, the government draws the line at combat and combat-related activities-only these functions are inherently governmental. This Article argues that the line should instead be drawn at "high-risk" activities, which would include a number of functions outside of combat. The author bases much of his argument on his personal experiences and observations as a member of the Commission on Wartime Contracting.

Keywords: PSC's, private security contractors, contracting law, governmental activities, combact activities, 'high-risk' activities, non-combat activities, war zones, outside contractors

JEL Classification: H56, K12, K19, K30, K39, L33