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

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. © The European Journal of International Law Vol. 19 no. 5 EJIL 2008; all rights reserved.