Ironically, Trump made that proclamation at a time when the term has reentered the vernacular of the U.S. military and foreign policy elite. Long identified with the war in Iraq and the US-NATO counterinsurgency war in Afghanistan, the phrase “nation-building” has renewed currency as the U.S. military and its allies confront a humanitarian catastrophe in the Middle East that has produced the worst refugee crisis since World War II.

Barely two weeks before Trump’s election, in fact, I heard the term used several times by senior defense and State Department officials. “We may not be interested in nation building, but nation building is interested in us,” a senior Pentagon official said on October 26 at a Washington conference on how US government agencies should confront the social chaos engulfing the Middle East.

He called the situation in Syria “an unprecedented emergency” that offers “lots of opportunities at the nexus of development and humanitarian assistance” that closely resemble what U.S. military and civilian agencies tried in Iraq and, later, Afghanistan.

Opposition to the idea of nation-building, another Pentagon official explained at the same conference, “doesn’t mean we won’t be conducting long-term stabilization operations.” Americans, she added, must “get over the hangover of Iraq and Afghanistan” because “stability and security translates into victory.”

The Return of Contractors

The two Pentagon officials were part of a contingent of high-ranking Defense and State Department officials who addressed the annual meeting of the International Stability Operations Association (ISOA), a coalition of private contractors that work for the US government in conflict zones as well as countries recovering from war and natural disasters. The meeting was held under Chatham House rules, which meant that speakers could not be identified by title or quoted by name.

Doug Brooks, the founder and president emeritus of ISOA, told me that the dire language at the conference was directed in part at Congress, which has balked at the idea of massively expanding US aid projects. “Congress has always disliked nation-building,” he said in an interview. He added that the dialogue with private companies is necessary because coordinating humanitarian aid and assistance “is something the US government does very poorly.”

That can clearly be seen in the US experience in Afghanistan, where billions of dollars were wasted on ill-planned projects that, according to a September report by a special inspector general appointed by Congress, “helped to lay a foundation for continued impunity of malign actors, weak rule of law, and the growth of corruption.”

That US officials chose the ISOA venue to air their views underscores how many of the tasks associated with nation building—from developing infrastructure to training law enforcement officials—are being carried out by private sector contractors.

Their role “is very important,” a third Pentagon official told the ISOA. “They’re doing a lot of peace-keeping and stability operations for us. They’re our enablers on the ground to see what’s working.” He added that contractors “who get into this business” must start working on plans to “rely on their own support system,” including providing the security that in Afghanistan was the job of the US military.

Pentagon’s Go-To Guys

Just how deeply the cooperation with contractors goes is outlined in a Department of Defense “Command and Staff Guide to Operational Contract Support” obtained by this reporter. The guide, labeled “draft” and dated September 21, 2016, shows that planning for contractor involvement in US operations begins as soon as US forces are dispatched.

“DOD acknowledges it must reduce the cost of doing business and accepts a reduced force size placing greater reliance on force readiness and the need to reduce military force deployments,” the guide states. “Contracted support provides a means to achieve these strategic goals, but to be effective it must be considered at the earliest stages of planning.”

According to the guide, contract “planners” are embedded among US command and US special operations forces “to assist commanders in identifying gaps where a contracted support capability may be required.” Capabilities available from contractors include “logistics, security, construction, training and intelligence.” They can also be used to “mitigate specific force cap restrictions.” In other words, when Congress imposes hiring caps, those agencies can bring in contractors.

The Pentagon’s Central Command, which manages US military operations in the Middle East, regularly publishes lists of contractors in its area of responsibility. The latest list, from July 2016, reported that 42,700 contractors were engaged in Centcom’s “area of responsibility.” Of these, Centcom said, 46.6 percent were providing logistics and maintenance, 10.6 percent security, and 8.3 percent base support.

One of the problems with contractors is that their widespread use obscures the full impact of war to the American public. Reporter Kelly Vlahos made this point in The American Conservative:

Not unlike the wars in Afghanistan and Iraq – where private military contractors fed, trained, equipped, and protected U.S. military forces ‘on the ground’ in unprecedented numbers – an escalation of hired security forces in a hot spot like Syria would likely boost the presence of U.S. ‘boots’ without causing the political heartburn of putting more actual soldiers and Marines in harm’s way.
But even with these problems, the humanitarian situation on the ground in Syria and the Middle East is dire. According to UN statistics, over 13.5 million people are in need of assistance in Syria and millions more have fled the country as refugees to Turkey (2.7 million), Lebanon (1 million), Jordan (656,400), and Iraq (225,500). The US government has spent over $6 billion in Syria since 2011 to support the UN and other humanitarian organizations with emergency food, medicine, drinking water, and other supplies, USAID claims.

ISOA’s members include such well-known firms such as DynCorp International, the largest US contractor in Afghanistan. Another member is the Patriot Group, a British-owned company that, according one of its executives, wrote the doctrine for British military training in Iraq and Afghanistan. A Patriot brochure distributed at the conference says the group provides “mission support” and “special operations and intelligence services” in “more than 30 countries.”

Enter Michael Flynn

Although Trump may personally oppose the idea of nation-building, some of his closest advisers have deep, inside knowledge about how it worked in both Iraq and Afghanistan.

Take retired General Michael Flynn, Trump’s designee for national security adviser. He played a key role in the U.S. counterinsurgency war in Afghanistan as director of the Defense Intelligence Agency. In a widely circulated report in 2010, Flynn chastised the Pentagon for ignoring the needs of soldiers and commanders fighting a hearts-and-minds campaign—a euphemism for counterinsurgency—on the ground. “Employing effective counterinsurgency methods is not an option, but a necessity,” he concluded.

Of course, time and events could change the outlook of both Trump and Flynn. After all, George W. Bush ran against Al Gore in 2000 on a pledge not to engage any more in nation-building. Three years later, he invaded Iraq and nation-building once again was the name of the game.

“Never once in their complaint or in their brief do the relators ever allege — let alone allege with plausibility and particularity — that the government actually or likely would have refused to pay Academi had it known of the alleged misrepresentations,” Academi said. “The absence of such alleged facts by itself mandates that the relators’ claims be dismissed under Rule 8 and Rule 9(b) for failing to plead materiality as required by Escobar.”

According to Academi, the former marksmen had contended that even if one of their causes of action under the FCA failed under Escobar, their other claims still had standing. But Academi said Escobar dooms them all, noting that a common requirement for FCA claims is that the alleged falsehood must be “material.”

William Copley, a Weisbrod Matteis & Copley PLLC attorney representing the marksmen, told Law360 on Friday that “Academi’s motion is a late-stage Hail Mary that indefensibly misreads the Supreme Court’s recent decision in Escobar as a significant retraction of the scope of the False Claims Act, and misrepresents the allegations in the complaint.”

Copley added, “No other court has adopted Academi’s misreading of Escobar, and we do not expect the district court in this case to be the first.”

Counsel for Academi did not respond Friday to a request for comment.

The same day Academi moved for a win, Beauchamp and Shepherd slammed the company for adding 46 witnesses to its original list of nine shortly before the close of discovery, calling the untimely disclosure an attempt at “trial by ambush.”

In addition to asking the court to block Academi’s newly disclosed witnesses from testifying at trial, the relators hit back at the company for failing to authenticate thousands of its business records, which include invoices and vouchers from the State Department.

The case has had ongoing discovery disputes, including when the court in September said fellow State Department contractor Triple Canopy Inc. will have to comply with a third-party subpoena after a magistrate judge refused to let the security contractor off the hook.

Since winning expanded discovery on the FCA allegations in the summer, the former marksmen have pushed for more documents from third parties, such as Triple Canopy. Triple Canopy and Academi have both pushed back on requests for firearms training scorecards, and Triple Canopy had filed a motion to quash the document requests, claiming that they run too far afield from the actual issues in the case.

The men filed their initial complaint against what had been known as Xe Services LLC in April 2011, accusing their former employer of lying about the work duties of employees for billing purposes, charging the State Department for work performed by contractors who had been disqualified by failed drug tests and billing for unqualified shooters.

U.S. District Judge T.S. Ellis III dismissed their case in March 2013 because their second amended complaint, filed in November 2012, came after a news report the previous July publicly revealed the accusations. The government declined to intervene in the case, and the allegations were also investigated by the State Department’s Office of Inspector General.

The whistleblowers then appealed to revive the weapons qualification allegations in their suit, which contended that they were unqualified to use the M249 and M240 belt-fed machine guns they were required to know how to use and that their weapons certifications had been falsified. Academi’s U.S. Training Center Inc. had routinely falsified the weapons certifications, the men claimed.

The Fourth Circuit revived their suit in February, finding that the former contractors’ claims preceded any public disclosure of the allegations by more than a year.