Getting Beyond "Good Enough" in Contingency Contracting: Using Public Procurement Law as an Anti-Corruption Tool by Principlizing State-Building in Military Operations in Afghanistan

Paschal, Marlin D., The Judge Advocate General's School, United States Army

The "Money as a Weapon System" (MAAWS) concept that undergirds the U.S. counterinsurgency (COIN) ethos may be causing more harm than good to the long-term prospects of building a just Afghan state. Although corruption is not an inseparable part of Afghan culture, its effects are heightened when billions of dollars flow into a country that lacks the human capital and institutional resources to deter the types of bad actors drawn to weak institutional systems. The U.S. military, rather than being a senior partner in Afghanistan's anti-corruption campaign, has exacerbated the problem with weak fiscal stewardship and a misguided procurement policy. A major part of that failure lies in the U.S. military's unwillingness to place Afghan institutional development on par with speed, efficiency and familiarity within its procurement culture.

With the above background in mind, the central thesis of this paper is built on two key assumptions: (1) systemic public corruption in Afghanistan is a symptom of larger institutional failings at the national and sub-national levels and (2) a key enabler for those failings is rooted in the DoD's inability or unwillingness to align its public procurement practices with a broader state-building strategy. Put more succinctly, properly constituted and empowered Afghan institutions can resist and retard the growth of corruptive influences, but the DoD's contingency contracting methodology (or lack thereof) undermines the development of those institutions.

The key for progress begins with understanding that money is not a weapons system; it is the ammunition that fuels the system. The effectiveness of any weapon system is not judged in terms of how much ammunition it expends or how many targets it hits; instead, it is judged in terms of its ability to neutralize its intended target. The weapon system, in this sense, is still the judgment of the requiring activity and the systems in place to deploy its funds successfully. Successful deployment of those funds means aiming at the proper target. Thus far, the U.S. military procurement focus in Afghanistan has been aimed at short-term COIN objectives rather than targeting Afghanistan's institutional shortcomings. Overcoming this failing means developing a sound public procurement system aimed at reinforcing Afghan Procurement Law and building enduring Afghan institutions.

This can only happen, however, if the DoD is able and willing to make "state-building" the centerpiece of U.S. military efforts in Afghanistan. This starts with first supporting the Afghan government in expanding the reach of its host nation public procurement institutions while making procurement law an essential component of the DoD's rule of law mission. Second, the DoD must actively reform the operational mindset of its contingency contracting regime so that it enables rather than distorts Afghanistan's institutional legitimacy. The discussion, analysis, and recommendations brought forth within this thesis offer a path for moving beyond the errors of the past, while providing a tool for approaching similar operations in the future.

Note: Abstract extracted from PDF file via OCR.

LLM (Master of Laws)
Nation-Building, Peace-Building, State-Building

TJAGSA Thesis 2012 Paschal;


- Introduction;
- State-Building by any Other Name is Still State-Building: Challenging the Assumption of COIN;
- The Role of Counterinsurgency Contracting in Enabling an Anti-Corruption and State-Building Agenda --Reducing Violence at the Expense of Peace: Contracting and the Surge--From Iraq to Afghanistan;
- State-Building as a Tool for Combating Corruption and Providing a Way Forward;
- Conclusion.

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