WASHINGTON — Erik Prince’s proposal to bridge the Afghanistan air force’s capability gaps with his own private air force faces a mountain of legal hurdles, government oversight, and raises  new questions about private military companies operating in roles typically in the purview of nation states.

On Wednesday, Military Times reported that the former Blackwater CEO had submitted a proposal to the Afghan government to contract services using a private fleet of attack aircraft, gunships, transport planes, and intelligence assets to help the war-torn country’s fledgling air force transition over the next two years.

The White House is currently reviewing the military strategy for Afghanistan. The options on the table include both increasing the number of U.S. troops deployed to America’s longest war by several thousand or drawing down and filling the ensuing void with military contractors — the latter allegedly favored by President Trump and his chief strategist Steve Bannon.

There has been a lot of push back from U.S. defense officials on the proposal to use contractors in lieu of U.S. forces and, according to Afghan defense officials, that plan would likely be rejected by the Afghan government.

According to NBC News, Trump has fumed over the progress of the war, laying some of the blame at his top commander in Afghanistan, Army Gen. John Nicholson.

As political and military officials in Washington continue to wrangle over the contractor plan, there are still a lot of legal and ethical questions about how such a plan would even come to fruition.

Any contracted fighting force “would have to be under Afghan law,” said Ronald Neumann, the U.S. ambassador to Afghanistan from 2005 to 2007 and now president of the American Academy of Diplomacy.

“They could not be under U.S. law. There’s no U.S. procedure to have them under U.S. law.”

“There’s a bad record of contractors and human rights abuses,” Neumann said. “There’s no legal structure to govern this.”

“Using a contracted force to conduct U.S. war operations is a bad idea that wants to die,” Neumann said.

U.S. forces operating in Afghanistan have immunity protections from prosecution by the Afghan government under the security agreement signed between Afghanistan and the U.S. in 2014. The U.S. pulled its forces out of Iraq in 2011 because of a failure to reach agreement on immunity protections with the Iraqi government.

However, under the current agreement, contractors fall under Afghan jurisdiction.

“Afghanistan maintains the right to exercise jurisdiction over United States contractors and United States contractor employees,” the agreement reads.

Any immunity protections for contractors would need to be negotiated – hard to imagine given resistance from the Afghan government, said Debora Avant, the Chair and Director of the Sié Chéou-Kang Center for International Security and Diplomacy at the University of Denver.

Beyond the immunity clause, Prince’s proposal may be in violation of the U.S. Defense Department’s legal framework on the use of military contractors and other international agreements.

According to Department of Defense Instruction 1100.22 (Enclosure 4, Paragraph 1.), the use of combat power against enemy forces or hostile actors is inherently in the purview of the U.S. government and is the actions of a sovereign power not deemed appropriate for military contractors.

While military contractors can provide technical assistance and support, Prince’s plan for Afghanistan goes far beyond that scope. While his proposal lays out technical assistance and general support, it also promises attack aircraft, gunships, and intelligence collection for targeting enemy combatants. The Defense Department did not have this in mind when it laid out its governing framework for private military contractors.

Prince’s proposal may also violate the spirit of the Montreux Document — an international agreement that outlines best practices for private military companies. The “U.S. Government’s support of the Montreux Document is active and continuous, according to the Department of Defense.

“Under best practices outlined in the Montreux Document, a contracting state should both be responsible for the actions of its contractors and take steps to avoid potential disaster,” Avant told Military Times.

“Those steps would include ensuring that they don’t assign to contractors activities that [International Humanitarian Law or the Law of Armed Conflict] assigns to state actors – I think bombing would fall in that category,” she added.

Then there’s the question of government oversight. Just to submit a proposal to a foreign government likely requires a broker’s license issued from the U.S. State Department’s Directorate of Defense Trade Controls, or DDTC, according to Colby Goodman, the director of the Security Assistance Monitor.

To get an export license, “you have to show Afghanistan wants the equipment…usually have to show a purchase order,” he said.

It’s unclear whether Prince or his companies have such a broker’s licence. A State Department official told Military Times: “U.S. law and regulations prevent us from commenting on specific licensing activity.”

And depending on the sophistication and type of equipment, a large-scale security contract like the one Prince proposed may require some congressional notification.

However, there are caveats. The Obama administration transferred some military equipment under the Commerce Department for oversight instead of the State Department. There could be some aircraft or helicopters without weapons that are not controlled by the DDTC, and therefore would not require a broker’s license.

The State Department official echoed those same regulations, “without speaking to specific cases, under U.S. law, a U.S. person or company (or foreign person/company in the U.S. or foreign person/company outside the U.S. owned/controlled by a U.S. person/company) who acts on behalf of others to facilitate the manufacture or transfer of defense articles or services must (with some exceptions) register as a broker with the U.S. Department of State’s Directorate of Defense Trade Controls, obtain prior approval for brokering of certain articles, and provide an annual report describing their brokering activities.”

The proposal submitted by Erik Prince, on behalf of the Dubai-based company known as “Lancaster6,” includes aircraft, and the description of the capabilities of those aircraft to include weapon systems that could be employed from them. For example, the AN-26G, is described as having twin 30mm cannons and a fire control system.

“Even if he is proposing to transfer foreign-origin arms to Afghanistan that have no connection with U.S. origin, he is still required to obtain a brokering license from the U.S. government if he is a U.S. resident ,” Goodman told Military Times.

Lancaster6 is already operating some of its aircraft in Afghanistan providing air mobility, troop transport, and parachute air drop support for supplies and cargo.

It’s unclear precisely what Prince’s current role is with Lancaster6. The Afghan military official said Prince personally presented the Lancaster6 proposal to Afghan officials.

The current CEO of Lancaster6, according to a personal LinkedIn profile is the former director of operations and director of aviation for Prince’s Frontier Services Group, Christiaan Durrant. Durrant was recruited by Erik Prince to build his private air force, according to a report by The Intercept.

Military Times does not know the company’s affiliation or connection with the U.S.

Neither Prince nor Lancaster6 responded to a Military Times request for comment. 

“One of the significant difficulties of the so-called Prince plan is that it flies in the face of much work that DoD has done to establish a governing structure around contractors,” Avant said.

“The people who have been working on this are quite concerned.”

Pentagon bureau chief Tara Copp contributed to this report.

Shawn Snow is the senior reporter for Marine Corps Times and a Marine Corps veteran.

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