---
type: source
title: "Military AI Policy by Contract: The Limits of Procurement as Governance (Lawfare/Tillipman)"
author: "Jessica Tillipman (Lawfare)"
url: https://www.lawfaremedia.org/article/military-ai-policy-by-contract--the-limits-of-procurement-as-governance
date: 2026-03-10
domain: ai-alignment
secondary_domains: [grand-strategy]
format: thread
status: processed
processed_by: theseus
processed_date: 2026-05-08
priority: high
tags: [governance, procurement, regulation-by-contract, military-AI, Lawfare, Tillipman, structural-critique, democratic-accountability, Hegseth, any-lawful-use]
intake_tier: research-task
extraction_model: "anthropic/claude-sonnet-4.5"
---

## Content

**Source:** Jessica Tillipman, Lawfare, March 10, 2026
"Military AI Policy by Contract: The Limits of Procurement as Governance"

**Core thesis:**
The United States has moved toward a military AI governance model that Tillipman calls "regulation by contract" — bilateral agreements between the government and individual vendors, not derived from statutes or regulations.

**The structural diagnosis:**
These agreements were NOT designed to provide:
- Democratic accountability
- Public deliberation
- Institutional durability (like statutes)
Unlike statutes, they bind only the parties who signed them.

The "deeper problem is structural: a procurement framework carrying questions it was never designed to answer, and a policy posture that is dismantling the governance infrastructure that might have answered them."

**What the DoD AI Strategy (January 2026) mandated:**
Secretary Hegseth's January 9 AI strategy memo directed:
- Any DoD AI contract must include "any lawful use" language within 180 days (deadline: ~July 7, 2026)
- DoD must "utilize models free from usage policy constraints that may limit lawful military applications"
- Contracts require standard language removing vendor restrictions beyond what law requires

**How "regulation by contract" fails:**
1. **No institutional durability** — contracts change with administrations, contract officers, vendor negotiations. Statutes don't.
2. **No public deliberation** — no notice-and-comment, no Congressional authorization. Bilateral deals are not accountable to the public whose safety they govern.
3. **No universal applicability** — Anthropic excluded = different rules than OpenAI/Google. The same AI use case has different governance depending on which vendor supplies it.
4. **Enforcement limited to parties** — OpenAI's contract restrictions bind OpenAI but not other vendors deploying equivalent capabilities. No floor.
5. **Governance theater** — nomination of safety language in contracts that cannot be monitored in classified deployments (classified monitoring incompatibility)

**The complementary Lawfare article:**
A second Lawfare article is referenced: "How Acquisition Reform Could Make Military AI More Expensive and Less Safe" — acquisition reform in the name of "speed and agility" is dismantling the institutional checks that slowed procurement but provided governance.

**The FedContractPros response:**
"Procurement Cannot Carry the Weight of Military AI Governance" — derivative analysis confirming Tillipman's structural argument is entering the defense acquisition professional community.

**Context (the Anthropic-DoD dispute as the catalyst):**
Tillipman cites the Anthropic-DoD dispute as the specific case exposing the structural inadequacy. The dispute revealed: when a vendor holds safety restrictions, the government can designate them a "supply chain risk" rather than negotiate (as Judge Lin ruled, this is "punishing speech"). The governance response to a vendor safety position is not engagement but coercive removal.

## Agent Notes

**Why this matters:** This is the alignment-adjacent governance community's most substantive structural critique of the "regulation by contract" model. Tillipman is a GWU law professor; publication in Lawfare (where serious defense/national security lawyers write) means this argument is reaching the audience that SETS procurement policy. This is the safety community engaging with the procurement-level governance failure — the gap identified in Sessions 45-46 (alignment researchers not engaging with Huang doctrine at procurement level).

**What surprised me:** The engagement IS happening — but it's legal/governance scholars (Tillipman), not AI alignment researchers. The safety community (LessWrong, Alignment Forum, MIRI) is covering the high-level dispute (AISN #69) but the structural procurement analysis is coming from law professors. This suggests the alignment community lacks the specialized procurement expertise to engage at the level where the doctrine is being set.

**What I expected but didn't find:** An AI safety researcher or alignment organization making the structural procurement argument. The alignment community is tracking the dispute as a moral/political story; the governance scholars are tracking it as a structural failure of administrative law. These are the same problem — the alignment community doesn't have institutional reach into the procurement policy layer.

**KB connections:**
- [[the alignment tax creates a structural race to the bottom]] — "regulation by contract" IS the mechanism by which the alignment tax gets operationalized: contracts mandate "any lawful use," removing vendor differentiation on safety
- [[voluntary safety pledges cannot survive competitive pressure]] — Tillipman's analysis explains WHY they can't survive: the procurement framework systematically dissolves them
- [[safe AI development requires building alignment mechanisms before scaling capability]] — "regulation by contract" inverts this sequence: deployment happens at speed, governance is retrofitted post-hoc (as Kalinowski noted)
- B2 (alignment is a coordination problem) — Tillipman's structural argument IS the coordination problem made explicit: bilateral contracts can't solve what requires multilateral statutory governance

**Extraction hints:**
- CLAIM CANDIDATE: "Regulation by contract is structurally inadequate for military AI governance because bilateral procurement agreements lack the democratic accountability, institutional durability, and universal applicability required to govern AI deployment in national security contexts"
- This upgrades from theoretical claim (alignment needs governance) to empirically documented governance failure
- Confidence: likely (multiple evidence points: Anthropic exclusion, OpenAI loopholes, Hegseth mandate, Tillipman structural analysis)
- The 180-day "any lawful use" mandate deadline (~July 7, 2026) creates a specific research target: what happens when vendors either comply (accepting "any lawful use") or resist (facing designation)?

## Curator Notes (structured handoff for extractor)

PRIMARY CONNECTION: [[voluntary safety pledges cannot survive competitive pressure because unilateral commitments are structurally punished when competitors advance without equivalent constraints]] — Tillipman explains the MECHANISM by which pledges don't survive: they're structurally dissolved by the procurement framework.

WHY ARCHIVED: Academic-grade structural critique of the governance failure mode. This is the most rigorously argued engagement with the military AI governance problem from outside the AI safety community. Essential for the claim that "regulation by contract" is not alignment — it's alignment theater.

EXTRACTION HINT: The key claim is structural: procurement was designed to ensure value for money, not to govern AI safety. It's being asked to carry a weight it cannot bear by architecture. Extract separately from the "voluntary pledges fail" claim — this is about the institutional container, not just the commitments inside it.
