> our title:

Drones: Unmanned, But Still Inherently Governmental?

> original title:

Drones: Unmanned, But Inherently Governmental?

(Source: Project On Government Oversight; issued May 16, 2012)

U.S. Air Force Captain Keric D. Clanahan has written a paper on the legal and policy controversies surrounding the Air Force's use of unmanned aircraft systems (UAS), more commonly known as drones. Specifically, Clanahan examines the kinds of tasks contractors are performing in the Air Force's drone program and discusses whether these tasks should be entrusted to contractors.

Drones have profoundly changed the nature of warfare in the last few years. The drone program greatly depends on private contractors, from drone manufacturer General Atomics to the hundreds of employees of companies like SAIC and BAE Systems who help the Air Force conduct drone missions. According to Clanahan, the U.S. military’s fleet of drones has grown from 167 in 2002 to over 7,000 in 2011, and the Air Force plans to acquire hundreds more over the next few years at a total cost that will exceed $20 billion.

Clanahan argues that government personnel should perform many of the roles necessary to sustain the drone program because they are inherently governmental functions, or functions which must be performed by federal civilian or military employees. Clanahan is somewhat vague about whether contractors in the program are performing or have performed inherently governmental functions, stating only that “there have been situations” where contractors might have crossed the line and either commanded military forces or participated in combat operations, activities which would be in violation of the Federal Acquisition Regulation (FAR) and the White House’s 2011 policy letter on inherently governmental functions.

What is certain, however, is that contractors in the drone program are performing tasks that are closely associated with inherently governmental functions, such as drone intelligence processing, exploitation and dissemination (PED), and “critical” tasks, such as drone maintenance and repair. (Critical functions, a category introduced in the White House policy letter, are functions that are core to an agency’s mission, over which it must maintain sufficient internal capability.)

Clanahan describes the Air Force’s reliance on contractors in the drone program as “excessive,” especially with regard to maintenance and repair, and warns that the Air Force must always remain cautious of contractors exerting undue influence over inherently governmental areas. In his words, “it is imperative that the Air Force prevent contractors from getting too close to the tip of the spear.”

Clanahan believes Congress can play a key role in preventing drone program contractors from crossing the line. He recommends that Congress statutorily define what drone activities may and may not be contracted. However, in the heat of battle, an arbitrarily drawn line between inherently governmental and non-inherently governmental functions can easily erode. The FAR acknowledges this problem:

[C]ertain services and actions that are not considered to be inherently governmental functions may approach being in that category because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the government administers contractor performance.

A more effective solution proposed by Clanahan is for Congress to provide the Air Force with the funds needed to develop a workforce of government employees (mostly military) sufficient in size and training to be able to take over the majority of roles in the drone program. Currently, the Air Force relies too heavily on contractors to completely jettison them from the program. (This reliance could grow as a result of recent efforts to eliminate thousands of civilian Air Force jobs.) The best we can hope for is the Air Force quickly finding the proper contractor/government personnel balance to ensure program missions are met while contractors are kept well away from “the tip of the spear.”