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Afghan Litigation Risk

U.S. Marines with Task Force Southwest in Bost Kalay, Afghanistan, March 17, 2018. (Sergeant Sean J. Berry/USMC)

You thought that litigation risk was the sort of thing that causes corporate lawyers and human-resources departments to put you through sensitivity training. Now we are learning that it’s a reason for the U.S. military to stay in Afghanistan. CNN reports:

Despite the signing of the Doha agreement last February that called for a full drawdown of US troops and personnel from Afghanistan by May 1, the Department of Defense issued nearly a billion dollars in contracts to 17 different companies related to work in Afghanistan past the withdrawal date. There are currently some 18,000 contractors in the country, of which 6,350 are American citizens.

With the deadline rapidly approaching and no formal decision from the White House, the future of the contracts, some of which have completion dates in 2023 and beyond, remains unclear, but the Pentagon could potentially have to pay hundreds of millions in settlements or face years of litigation if the US pulls out of the country on schedule or by the end of the year as President Joe Biden suggested is likely.

I’ve often thought that the arguments for staying in Afghanistan longer take the shape of the “sunk cost” fallacy — we’ve invested so much, and have gotten so little in return. So if we invest more, maybe we can recoup more.

America’s troop commitments in Afghanistan are relatively low — something between 2,500 and 3,500, depending on whether the Pentagon is lying to us or not. But there are 18,000 contractors, people we pay to do a variety of roles. In this case, the tail is bigger than the dog it is wagging.

Critics of our mission in Afghanistan, myself included, would point out that these contractors provide the Afghan government almost all of its “state capacity.” They have filled in because Afghan society is structured in such a way that it cannot gather itself to form a functioning nation state. But, if you have a sick sense of humor, the absurdity of allowing the hired praetorians (many of them quite brave, I admit) to keep the U.S. involved just because the pay was so good is quite funny.

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Illegal leaks of classified information should be treated as a serious offense. But they would be easier to prevent if less information were classified.