---
type: source
title: "Military AI Policy by Contract: The Limits of Procurement as Governance"
author: "Jessica Tillipman (@JTillipman, GWU Law School) via Lawfare"
url: https://www.lawfaremedia.org/article/military-ai-policy-by-contract--the-limits-of-procurement-as-governance
date: 2026-03-10
domain: grand-strategy
secondary_domains: [ai-alignment]
format: article
status: processed
processed_by: leo
processed_date: 2026-04-29
priority: high
tags: [regulation-by-contract, procurement-governance, military-AI, Tillipman, Lawfare, democratic-accountability, structural-critique, bilateral-agreements, monitoring-gap, surveillance, autonomous-weapons]
intake_tier: research-task
extraction_model: "anthropic/claude-sonnet-4.5"
---

## Content

Jessica Tillipman (Associate Dean for Government Procurement Law Studies, GWU Law) argues in Lawfare (March 10, 2026) that the United States has adopted "regulation by contract" for military AI — bilateral vendor-government agreements determine the governance rules rather than statutes or regulations. This approach was not designed for this purpose and fails structurally.

**Core argument:**
- Military AI governance is increasingly determined by bilateral agreements between DoD and individual AI vendors (Anthropic, Google, OpenAI, xAI)
- These agreements were not designed to provide: democratic accountability, public deliberation, institutional durability
- Unlike statutes, they bind only the parties who signed them — no general legal effect
- Enforcement depends on the vendor's technical controls after deployment, which is structurally insufficient for governing surveillance, autonomous weapons, and intelligence oversight

**Why procurement can't answer governance questions:**
- Procurement was designed to answer questions like: will this product be delivered on time, at cost, at spec?
- It was NOT designed to answer: what are the lawful limits of domestic surveillance? When is autonomous weapons targeting permissible? How should AI accountability be structured?
- These are constitutional and statutory questions — ones that require democratic deliberation, not contract negotiation

**The Hegseth mandate effect:**
- By requiring "any lawful use" language, the Hegseth mandate eliminates even the negotiated safety constraints that existed in previous contracts
- Result: bilateral contract layer removed → falls back to statutory layer → statutes don't specifically address military AI safety → governance vacuum

**Combined with classified monitoring incompatibility:**
- Even contractually binding safety terms (Tier 2) are unenforceable in classified deployments because the vendor cannot monitor compliance
- Advisory terms (what Google signed — Tier 3 with advisory cover) are operationally equivalent to no terms in classified environments
- Tillipman's "regulation by contract is too fragile" argument + classified monitoring incompatibility = structural governance vacuum at the military AI deployment layer

**Quotes:**
- "The United States is increasingly relying on procurement instruments and vendor-specific agreements to govern military AI use, even though procurement was not designed to answer foundational questions about surveillance, targeting, accountability, and the lawful limits of state power."
- Regulation by contract is "too narrow, too contingent, and too fragile" for military AI governance

## Agent Notes

**Why this matters:** Tillipman's structural critique provides the academic/legal grounding for what the empirical evidence (Anthropic case, Google deal, REAIM regression) has been showing operationally: the current US approach to military AI governance is not just politically weak, it is architecturally mismatched. Procurement law was built for a different governance task. The mismatch is structural, not correctable by better contract drafting.

**What surprised me:** The "regulation by contract is too fragile" argument is well-stated, but the Hegseth mandate makes it even more fragile in a direction Tillipman may not have fully anticipated: the mandate doesn't just leave procurement as the governance mechanism — it actively weakens the procurement-as-governance mechanism by requiring the removal of safety constraints from contracts. So it's not just that procurement is structurally insufficient; it's that the procurement mechanism is being actively used to mandate governance absence.

**What I expected but didn't find:** Tillipman's proposed alternative governance mechanisms. The article identifies the problem clearly but the search summary doesn't include her proposed solutions (if any). The "too narrow, too contingent, too fragile" critique needs to be read in full to understand what she proposes as alternative.

**KB connections:**
- [[mandatory-legislative-governance-closes-technology-coordination-gap-while-voluntary-governance-widens-it]] — Tillipman's argument supports this claim's prescription: statutes > contracts for governance, but the current trajectory is the opposite
- [[governance-instrument-inversion-occurs-when-policy-tools-produce-opposite-of-stated-objective-through-structural-interaction-effects]] — regulation by contract is an instrument inversion: the tool (procurement) is designed for acquisition, not governance, so applying it to governance produces opposite of stated objective (governance clarity → governance ambiguity)
- [[epistemic-coordination-outpaces-operational-coordination-in-ai-governance-creating-documented-consensus-on-fragmented-implementation]] — Tillipman adds a structural diagnosis for why the operational gap persists: the governance instrument (contracts) is architecturally mismatched to the governance task
- [[classified-ai-deployment-creates-structural-monitoring-incompatibility-through-air-gapped-network-architecture]] — combined with Tillipman: contractual constraints + monitoring incompatibility = governance void in classified deployments

**Extraction hints:**
- Primary extract: "Regulation by contract is structurally insufficient for military AI governance because procurement instruments were designed for acquisition questions (cost, delivery, specification), not constitutional questions about surveillance, targeting, and accountability — making any vendor-specific bilateral agreement too narrow, too contingent, and too fragile to provide the democratic accountability that military AI governance requires." Confidence: likely (well-argued structural claim with legal expertise; aligns with empirical evidence). Domain: grand-strategy.
- This is a STANDALONE claim (new mechanism — mismatch between procurement instrument and governance task), not an enrichment of existing claims. The existing claims document that governance fails; this claim explains WHY the chosen instrument fails structurally.
- Secondary connection: enrichment of "mandatory legislative governance closes gap while voluntary widens it" — Tillipman provides the mechanism explanation for why voluntary/contractual governance always widens the gap in domains requiring constitutional deliberation.
- Note for extractor: read the full article to understand whether Tillipman proposes legislative alternatives. If so, those proposals could ground a separate claim about what WOULD work.

**Context:** Published March 10, 2026 — after Anthropic's supply chain designation (February) but before Google's deal signing (April). Tillipman was analyzing the structural problem while the Google negotiation was ongoing. The Google deal outcome confirms her analysis: the "regulation by contract" approach produced advisory language with government-adjustable safety settings — exactly the fragile, contingent outcome she predicted.

## Curator Notes

PRIMARY CONNECTION: [[mandatory-legislative-governance-closes-technology-coordination-gap-while-voluntary-governance-widens-it]]

WHY ARCHIVED: Academic structural analysis explaining why the "regulation by contract" approach fails for military AI governance — provides legal/academic grounding for claims the KB makes empirically. Key source for a standalone claim about the procurement-governance mismatch as a structural mechanism distinct from the enabling conditions framework.

EXTRACTION HINT: Extract as standalone claim (new mechanism: procurement-governance mismatch), not enrichment. The claim should capture: (1) what procurement is designed for; (2) what military AI governance requires; (3) why the mismatch is structural. The Hegseth mandate provides the empirical confirmation that the mismatch is being made worse, not better.
